|
Murder convictions against two men in one of the costliest trials in Canadian history were tossed out yesterday because of "legal errors" surrounding the use of underworld informants and audio evidence. The Court of Appeal for Ontario ordered a retrial for Richard Mallory and Robert Stewart, who were found guilty seven years ago for the 1990 execution-style shootings of a Cumberland drug dealer and his pregnant wife. In a 70-page ruling, the appeals court criticized the original trial judge's failure to provide adequate caution to the jury regarding "disreputable witnesses" and certain "hearsay evidence." The ruling comes less than a month after a Superior Court of Ontario judge freed two other men convicted and tried separately in the case -- Richard Trudel and James Sauve -- on grounds lengthy trial delays and unreliable testimony of Crown witnesses rendered the proceeding unconstitutional. Yesterday's decision will no doubt add to the estimated $30-million already spent on the case, which puts it among the country's most expensive of all time. The high-profile killings of 24-year-old Michel Giroux and his pregnant, common-law wife, Manon Bourdeau, came to be known as the "Cumberland Murders." Mr. Mallory and Mr. Stewart's original trial lasted 16 months. The appeals court pointed out yesterday it was "hard fought," filled with lengthy re-examinations of witnesses and marked by "an unfortunate level of acrimony between counsel." The ruling recalled witness testimony by Denis Gaudreault. Mr. Gaudreault said at trial he supplied weapons to the four men charged, drove them to the victims' house and waited in the car with Mr. Stewart while the others committed the crime. His credibility was strongly attacked by the defence, which argued he lied to police, fabricated evidence and lied at the preliminary inquiry. His account of the events on the night of the murders also evolved significantly after he first spoke to police and he didn't name Mr. Sauve as a participant until the lead investigator on the case, Det. Heather Lamarche, mentioned police considered Mr. Sauve a possible shooter. In defending the officer's actions, the Crown brought up a previous manslaughter conviction against Mr. Sauve as one reason Det. Lamarche suspected his involvement. "Even if, contrary to our analysis, that evidence was admissible for the limited purpose of assessing Lamarche's state of mind when conducting the investigation, the trial judge failed to give the jury an adequate instruction to that effect," yesterday's ruling said. It also pointed to a recorded jailhouse conversation between Mr. Stewart and an informant named John Smallwood. The Crown argued one section of the transcript showed Mr. Stewart admitting to knowing the victims, something the defence dismissed as sarcastic comment. While the judge allowed this section of the transcript as evidence, he ruled inadmissable several other parts where Mr. Stewart denies involvement and suggests he could have been released long ago had he admitted guilt and taken a plea bargain. "It is well accepted that if the Crown tenders the statement of
an accused, it cannot pick and choose those parts of the statement that
it would like the jury to hear; it must take 'the good with the bad,'
and both the 'good' and 'bad' are admitted for their truth, for and against
the accused," yesterday's ruling said, adding the judge erred in
taking the statements separately.
|