Judge spells out reasons for acquittals in 2016 trial
Unsavoury witnesses key factor for judge in Hana case,
“Shifty” and “labyrinthine” testimony from key Crown witnesses turned out to be the main sticking point for the judge in a first-degree murder trial for three men accused of having roles in the contract killing of Isho Hana in Saskatoon.
In June 2016, Justice Richard Danyliuk acquitted Jonathan Kenneth Dombowsky, Kennith Jacob Tingle and Long Nam Luu because the judge found himself swimming in a sea of reasonable doubt after the lengthy trial.
Elements of Danyliuk’s decision were subject to a publication ban because the fourth man accused in the case, Neil Lee Yakimchuk, was awaiting trial. Yakimchuk was found guilty of first-degree murder by a Saskatoon jury in 2014, but his conviction was overturned on the basis of a legal error. On Jan. 26, a Saskatoon jury convicted Yakimchuk of first-degree murder for a second time.
After Yakimchuk’s second conviction, the ban that prohibited publishing any findings as they pertained to him and two other witnesses, Noel Harder and Daniel Greyeyes, was lifted.
With the publication ban no longer in place, the Saskatoon StarPhoenix can report on Danyliuk’s lengthy, often colourful, conclusions.
“This murder case … is complex, even Byzantine, with a myriad of factual and legal issues.” “One event. Three Crown witnesses. More than three conflicting stories.”
After Isho Hana was chased down and shot on Preston Avenue on April 15, 2004, his murder case went cold, until police caught a break in 2011 during an investigation into the 2008 murder of Juan Carlos Dequina in Calgary.
Police had targeted Yakimchuk in a “Mr. Big sting,” where undercover officers pose as members of a criminal organization and lure a suspect in, trying to gain his trust. Yakimchuk ultimately told police about his involvement in the murder of two men: Dequina and — to investigators’ surprise — Hana.
Yakimchuk told Mr. Big he was paid to kill Hana during a drug turf war in Saskatoon. Based on Yakimchuk’s story to Mr. Big, the Crown’s theory was that Yakimchuk’s childhood buddy, Dombowsky, asked Yakimchuk to kill Hana after Dombowsky was badly beaten and hospitalized, and sent Yakimchuk to his drug-trade partner, an Asian man who went by the name “Jesse,” for payment.
Yakimchuk also told Mr. Big another buddy, Tingle, went with him to kill Hana but both their guns initially jammed and Yakimchuk chased Hana down the street before shooting him.
At the trial for Tingle, Dombowsky and Luu, the Crown’s case relied on Yakimchuk’s statements to Mr. Big and the limited evidence police found to corroborate his story. Only two other witnesses testified about events in 2004: Greyeyes and Harder, both of them admitted criminals, like Yakimchuk.
Danyliuk acknowledged that given the nature of this case, it shouldn’t be surprising the Crown was stuck dealing with “unsavoury” witnesses to prove its case.
The first, Yakimchuk, didn’t even testify. He was convicted of contempt of court and the Crown had to apply to have his statements to police admitted as evidence. However, Yakimchuk did testify at the preliminary hearing for Dombowsky, Luu and Tingle in provincial court; the transcript of that testimony was also entered as evidence.
At the prelim, Yakimchuk said he lied during the Mr. Big sting. He testified under oath that he had talked to Dombowsky in 2004 about problems Dombowsky was having with “a guy ” and decided on his own to ask Tingle to hospitalize Hana in retaliation, but that was the extent of his involvement.
Danyliuk called parts of Yakimchuk’s prelim testimony “ludicrous” and refused to accept it.
The fact Yakimchuk was willing to lie under oath makes him a “thoroughly unreliable witness,” Danyliuk said.
“His accounts are so contradictory, at times so labyrinthine, that considering them all leaves me with significant doubt as to what (if anything) he has said is true.”
Danyliuk spent considerable ink listing 24 separate concerns he had with Yakimchuk’s evidence. His issues with Yakimchuk’s testimony didn’t stop him from concluding Yakimchuk was contracted to kill Hana, but Danyliuk had considerable difficulty believing all the fine details of Yakimchuk’s Mr. Big statements — which of course included the details that allegedly incriminated Dombowsky, Luu and Tingle.
“While his Mr. Big statements may prove to be self-incriminating, it does not necessarily follow that they must therefore also incriminate these three accused, or any of them,” Danyliuk wrote.
“As has been said, in such matters seldom is the vicar invited to the tea party.” “Small pieces of the truth are not to be dealt out by the witness as if he was playing canasta.” “There may well be a few small nuggets of truth in their evidence, but those few nuggets are so overwhelmed by the mass of dross of lies that there is no ability to place reliance on this testimony.”
The second witness with a shady past was Daniel Greyeyes, an “admitted goon,” according to Danyliuk. “(Greyeyes) described his street reputation as that of ‘a tough motherf---er,’” the judge wrote.
Greyeyes testified he attacked Dombowsky at Hana’s direction in 2004, beating him with a baseball bat and a hammer in the plasticsheeted basement of Hana’s home. Greyeyes said he was supposed to kill Dombowsky, but Hana changed his mind partway through and said he was satisfied with the beating.
Greyeyes contacted police in 2012, while in custody on a breakand-enter charge, and told them about the Dombowsky beating, but said he wasn’t released or paid and his charges were not dropped in exchange for testifying.
One of Danyliuk’s main concerns with Greyeyes’s testimony was it didn’t corroborate what Yakimchuk told Mr. Big about the Dombowsky beating (Yakimchuk said Dombowsky escaped a first attempt to beat him up in the basement of a home swathed in plastic but was later beaten in an alley outside a nightclub).
Contradictions in his police statements and “discordant testimony,” as well as Greyeyes’ sometimes “foggy” recollections, also gave Danyliuk pause.
Danyliuk reserved some of his harshest words for Noel Harder, a drug dealer turned police informant who became a surprise witness partway through the trial after the unrelated investigation for which he was a police agent, Project Forseti, wrapped up and he agreed to testify.
In 2004, Harder knew the key players on both sides of the supposed drug turf war in Saskatoon. He testified he was at a lunch meeting about two months before Hana’s murder where, when the topic of problems with Hana came up, Dombowsky said not to worry because Luu had put up $25,000 to “take care of ” Hana.
The Crown pointed to this meeting as corroborating its theory about who hired Yakimchuk.
As Danyliuk noted in his ruling, Harder is also the only Crown witness whose evidence would allow the court to draw a clear link between Luu and the Asian man called “Jesse” in Yakimchuk’s Mr. Big statements. Harder testified he had known Luu since high school and that Luu was a cocaine dealer known as Jesse who worked in partnership with Dombowsky.
However, establishing Luu’s identity only worked if Danyliuk accepted anything Harder had to say. He called Harder “shifty,” “uncertain, evasive, or even argumentative.” Harder’s testimony was “unreliable,” “self-serving and self-aggrandizing,” the judge wrote.
In case that wasn’t clear enough, Danyliuk wrote the overall flavour of Harder’s testimony left “a distinctly foul taste in my mouth.”
During five days of cross-examination, Harder told “outright untruths” and suppressed or masked the truth, Danyliuk concluded.
“I do not find I can put much faith at all in what he told this court,” the judge wrote. “While many of the Crown arguments draw links amongst pieces of evidence, those links dissipate when Mr. Harder’s veracity is properly assessed ... I do not consider him to be a credible or reliable witness.”
Yakimchuk’s Mr. Big statements were the “cornerstone” of the Crown’s case against Dombowsky, Luu and Tingle. If he couldn’t rely on them, Danyliuk couldn’t return a guilty verdict, let alone three.
In relation to Luu, the question for Danyliuk was relatively simple: Did the Crown even establish, beyond a reasonable doubt, that Luu was the “Jesse” who contracted with Yakimchuk to kill Hana? Given it was Harder who provided the main evidence, and Danyliuk didn’t believe him, the answer was no.
“The failure to prove identity is a fatal wound to the Crown’s case against Mr. Luu,” he wrote.
Regarding Tingle’s role, apart from Yakimchuk telling Mr. Big that Tingle came with him to kill Hana, Danyliuk only had Tingle’s statement to police that he was with Yakimchuk that night, but had no idea Yakimchuk was going to kill anyone and was waiting for his friend in the car when the shooting happened.
Danyliuk didn’t fully accept Tingle’s account, but neither did he fully accept Yakimchuk’s.
“Suspicions do not equate to guilt,” he wrote.
In the case of Dombowsky, Danyliuk had Yakimchuk’s statements to consider, along with Harder’s testimony about the lunch meeting and Greyeyes’ testimony about the beating. He also had some other evidence, such as hospital records showing Dombowsky was beaten and car rental records confirming Yakimchuk’s story about coming to Saskatoon to see Dombowsky.
“The question is, is enough confirmed by that relatively modest amount of confirmatory evidence to resolve doubts created by all the other evidence?” Danyliuk wrote. “It is not. I remain seized with reasonable doubt.”