WRIGHT IS WRONG FOR REVIEW OF MURDER STAY, SAYS LAWYER
A Crown prosecutor who gave legal advice to the RCMP team leader in a botched first-degree murder investigation has been appointed to review allegations of misconduct and the stay of proceedings against Larry Darling in the 2006 murder of 28-year-old Kristy Morrey.
“As the court noted, a number of challenges and issues arose, including with respect to case management, disclosure, and the handling of exhibits and evidence,” Dan McLaughlin, communications counsel for the B.C. Prosecution Service, said in an email to Postmedia News.
“These issues need to be examined. To this end, on July 25, 2018, Peter Juk, the Assistant Deputy Attorney General, asked senior Crown Counsel, Robert Wright, to conduct a review of the handling of the case.”
McLaughlin said he would not be answering questions about the prosecution or personnel “while Mr. Wright’s review is ongoing.”
Defence lawyer Kevin McCullough was flabbergasted.
“As was repeatedly referenced in the filed April 25, 2018, notice of application to stay proceedings, Mr. Wright was directly providing legal advice to the RCMP regarding this undercover operation,” McCullough pointed out.
“To now have Mr. Wright assess whether there was misconduct by a fellow Senior Crown Counsel, and the RCMP involved in that same investigation is neither reasonable or prudent.”
The first-degree murder charge against Larry Darling, 54, was stayed June 13 in Nanaimo. Darling was originally accused of killing Morrey in Port Alberni on Aug. 20, 2006, but police cleared him as a suspect at the time.
In 2015 the RCMP made Darling the focus of a sophisticated Mr. Big sting involving more than 100 scenarios between February and September 2015. He was arrested on Sept. 11, 2015, and charged.
The Port Alberni truck driver, who had been an on-again-offagain boyfriend of Morrey’s, spent two years in jail awaiting trial.
“The decision (to stay the charge) was not related to the conduct of the Crown,” McLaughlin maintained. “It was based on the prosecutors’ conclusion that the evidentiary test of a substantial likelihood of conviction was no longer met; so they directed a stay of proceedings.”
He said Wright has been asked to review the Crown’s handling of the case from its inception to conclusion, to identify any lessons to be learned and to make recommendations to the Assistant Deputy Attorney General about best practices for the future.
“Mr. Wright will have full access to all Crown personnel and file materials for the purpose of conducting his review. He is expected to provide a full report to the ADAG in the early fall . ... A clear statement will be issued following receipt of Mr. Wright’s report.”
In November 2014, RCMP Staff Sgt. Greg Mainman was appointed Team Commander of the Morrey case — which he said meant he was “responsible, accountable and (had) total control of the investigation, both the investigational aspects as well as resources and finances.”
He also testified last August that he specifically had “responsibility to monitor the aspects of the investigation to ensure that (they were) compliant with the law and ultimately the — have evidence — any evidence we gather to be admissible in trial.”
B.C. Supreme Court Justice Douglas Thompson earlier on Friday ordered documents released to Postmedia News that detailed allegations that Mainman withheld material that should have been disclosed to the defence and committed perjury.
“I held a series of seven conferences in open court to try and get the case restarted — Jan. 9, Feb. 2, Feb. 20, March 27, April 17, May 2 and May 9,” Thompson explained in his reasons for judgment issued Friday.
“However, over this period serious and extraordinary complications arose that blocked resumption of the (proceedings). The three documents sought by the newspaper provide details of these complications.”
The first, he said, details “the production of an accordion folder of emails by Mainman after he had repeatedly asserted that he had no more material to disclose” and whether he became aware of the emails before he swore an affidavit required by court order.
In the four-page March 28 letter filed with the court, Crown counsel David Fitzsimmons said that Mainman was under internal RCMP investigation and his impression was that “their inquiries are broader than simply with respect to the production of certain emails.”
Fitzsimmons said there was a difference of opinion within the prosecution service and the RCMP about the impact of an affidavit sworn by Mainman: “There are those who consider it a false affidavit. There are others who consider the affidavit sufficiently benign that there is no actual contradiction.”
Mainman, who hired his own lawyer during the proceedings, also told the court there was key “holdback evidence” that had been guarded and locked in a safe with tightly restricted access — the Crown later conceded many people had access to the information.
“In a nutshell,” Justice Thompson continued, “the second document (the 23-page April application for a stay) details Mr. Darling ’s position that a fair trial is impossible because of the combination of, number one, profound failures by the police in the disclosure process and, number two, police deception outside of permissible bounds. While the courts permit the police to deceive suspects in the course of their investigations as part of their mandate to solve crimes — up to (and) including constructing a sham criminal organization and leading a suspect into it. The stay application argues the police have deceived Crown and the court.”
The third document was a four page May 1 letter filed with the court from the prosecutor that revealed the victim’s aunt, a justice ministry worker in Port Alberni, suggested a piece of writing by her niece composed a month before her slaying reflecting on her relationship with Darling may have been destroyed.
The brief memoir had not been found by the RCMP during the initial investigation and was packed away in her mother’s home along with the rest of her belongings, unread for a decade.
Morrey’s mother Shirley died in December 2016. The letter was later found by Mary Tilley, Kristy Morrey’s aunt.
Tilley alleges that the deputy regional prosecutor in Nanaimo, David Kidd, refused to accept the document when she approached him with the original and two photocopies.
According to Tilley in documents filed in court by the Crown, Kidd allegedly told her: “don’t give it to me; it will just fuel the fire with McCullough.”
The same document reports that Tilley went home and talked to her other sister about the situation. The discussion included the possibility of burning Morrey’s documents. Tilley reports having no recollection of actually burning them, but said she could no longer find them.
Fitzsimmons learned about these events in April.
Some of the allegations against Mainman in the application for a stay concern the creation of a prop memo used in the sophisticated eight-month sting and what role Wright may have played in its preparation.
“The potential for wrongful conviction springs from this type of misleading evidence,” McCullough said.
McCullough said Wright’s advice to police has not been disclosed and alleges “Mainman’s evidence was a complete fabrication.”
He added a special prosecutor should have been appointed to provide an arm’s-length review.