Court orders new trial for man convicted of murder in triple slaying at Bolsa Restaurant
A third man to be convicted of three counts of murder and sentenced to life in prison with no chance of parole for 25 years in the New Year's Day 2009 gang shooting at Bolsa Restaurant will also get a new trial.
Crown prosecutor Josh Hawkes advised the Alberta Court of Appeal on Thursday morning that he had consented to the defence bid to overturn the two convictions for first-degree murder and one conviction of second-degree murder against R.H. 29, and try the case again at Court of Queen's Bench
Justices Connie Hunt, Cliff O'Brien and Bruce McDonald then ordered the new trial for R.H. without requiring defence lawyers David Chow or Andrea Urquhart to make any submissions.
Last year, the Crown also consented to appeals for new trials by Nathan Zuccherato and Michael Roberto, who were each earlier convicted of three counts of first-degree murder in the daytime shooting deaths of FK gang member Sanjeev Mann, FK associate Aaron Bendle and bystander Keni S'ua.
Zuccherato, 26, an FOB gang member, will be back in court on Jan. 24, possibly to set a re-trial date.
Former FOB member Roberto, 29, alternatively, cut a deal with the Crown to testify against others in exchange for full immunity from prosecution involving a total of six homicides.
R.H., a member of the 403 Soldiers who allegedly sided with the FOKs in the Bolsa massacre and was sentenced Oct. 30, 2012, for the premeditated shooting deaths of Mann and Bendle and second-degree murder of S'ua, was scheduled to have his appeal heard by the province's top court today.
In a handwritten document, R.H. listed one ground of appeal, which focused on a statement made by key witness M.M. to RCMP in Saskatchewan just months before the first trial involving the two other co-accused, in which M.M. claimed to be the shooter.
"Counsel did not disclose a confession (sic) given to the RCMP in July 2011 by (M.M.), the key witness, where he indicated that he was the shooter and I was not," wrote R.H.
"This confession was in the possession of the Crown via Saskatchewan RCMP prior to the commencement of my trial and is fundamental in my ability to make full answer and defence."
Following a failed mistrial application, Court of Queen's Bench Justice Glen Poelman handed R.H. the mandatory life sentence for first-degree murder in the shooting deaths of Bendle, 21, and Mann, 23, and life with no parole for 15 years for second-degree murder in the shooting of S'ua,
Defence lawyers for Zuccherato and Roberto won their new trials based on the non-disclosure of the statements given by M.M. to Mounties in Saskatchewan during a traffic stop on July 12, 2011.
Crown prosecutor Goran Tomljanovic conceded at the time that fresh evidence rendered the verdicts unfair in the first trial.
Justice Marina Paperny, speaking for the three-judge panel including Carole Conrad and Cliff O'Brien, agreed.
Zuccherato's lawyer, Alain Hepner, said it was important that the accused get a fair trial.
"M.M.'s evidence was crucial to the Crown's case and now there is even more doubt about it," said Hepner. "This changes things a lot."
Both lawyers expect M.M. to be called again by the Crown and both anticipate lengthy cross-examination to test the witness's reliability and accuracy. M.M., who was given immunity by police if he was not one of the shooters, testified at trial that he was involved in kidnapping Bendle as a way to get to Mann to kill him. However, he said he was only a getaway driver in the restaurant shootings.
He claimed in a drunken rant when stopped by police for impaired driving near Unity, Sask., that he was the only shooter. He also described many details about the types of handguns used, who was inside the restaurant and how each victim was killed.
The Crown, however, did not get disclosure of M.M.'s statements until after two trials had occurred, including a separate one for R.H.
Tomljanovic agreed with the defence in his written argument to the court that the convictions could not stand because of the new evidence. He wrote that comments from M.M. were not disclosed to the Crown or defence until last spring.
M.M. was recorded telling Mounties he lied about being a witness to the triple murder, and that he wanted to be arrested because he was the sole shooter who committed the murders. Because that evidence was not disclosed before the start of the trial, it constitutes a breach of the men's Charter rights, the Crown wrote.
The shooting culminated a plot by rival FOB gang members and associates in which Bendle was kidnapped the previous night and used to set up Mann, whom they believed murdered FOB member Roger Chin the previous summer.
Daryl Slade, Calgary Herald/Canwest News Service
January 16, 2014