MUR­DER TRIAL Crown and de­fence wage pitched bat­tle over wit­ness state­ment at Du­rant case

The Standard (St. Catharines) - - Front Page - Bill Sawchuk is a St. Cathari­nes­based re­porter with the Stan­dard. Reach him via email: wil­liam.sawchuk@ni­a­garadailie­s.com BILL SAWCHUK THE ST. CATHARINES STAN­DARD

The gloves have come off at Michael Du­rant’s first-de­gree mur­der trial.

Joe Wilkin­son, the at­tor­ney for Du­rant, spent a sec­ond day cit­ing prece­dent and im­plor­ing the judge to al­low wit­ness tes­ti­mony from Du­rant’s first trial into the record.

The twist is that the Crown led ev­i­dence in 2012, but now wants Kevin Fancy’s tes­ti­mony ruled in­ad­mis­si­ble be­cause he died in 2018 and can’t be cros­sex­am­ined.

“How could you pos­si­bly rule that the ev­i­dence that led to Mr. Du­rant’s con­vic­tion is so un­re­li­able, you can’t even ad­mit it,” Wilkin­son said. “It sounds ab­surd on its face. Ev­ery­body felt the jury was equipped to judge the re­li­a­bil­ity of Mr. Fancy’s tes­ti­mony.”

Wilkin­son’s ef­forts at le­gal ji­u­jitsu have come as part of es­tab­lish­ing an al­ter­na­tive sus­pect de­fence for Du­rant, whose con­vic­tion was over­turned last year.

Wilkin­son has al­ready told Su­pe­rior Court Jus­tice Ger­ald Tay­lor he is, in ef­fect, putting the vic­tim’s boyfriend, John Mcneil, on trial.

Du­rant, 47, is ac­cused of killing a 32-year-old Niagara Falls woman in Au­gust 2003. The vic­tim’s body was dis­cov­ered in a ditch near Darby Road and Grassy­brook Road on the out­skirts of Niagara Falls. The court has a pub­li­ca­tion ban in place on the vic­tim’s name.

Be­cause Fancy can’t tes­tify, the court con­sid­ers his ev­i­dence as hearsay. How­ever, there are pro­vi­sions in the crim­i­nal code that make tes­ti­mony avail­able if the wit­ness dies or is un­avail­able.

“The state­ments were given in an ad­ju­di­cated set­ting as part of the ad­ver­sar­ial process where one of the par­ties had the op­por­tu­nity to cross-ex­am­ine the wit­ness,” Wilkin­son said. “That is suf­fi­cient to get you over thresh­old li­a­bil­ity for hearsay.”

Lead Crown at­tor­ney An­drew Sab­ba­dini told the judge he should ex­clude Fancy’s ev­i­dence be­cause Fancy wasn’t prop­erly cross-ex­am­ined on dif­fer­ences in state­ments he gave to po­lice dur­ing the in­ves­ti­ga­tion.

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