Legal wrangling continued Friday during a trial for four men accused of a drug-related kidnapping, confinement and assault, when their lawyers asked provincial court judge Dan Weatherly to exclude the evidence of the alleged victim and his girlfriend.
Michael Andrew Joseph Fitzgerald faces 19 charges while Francois Christiaan Meerholz, Dillan Meerholz and Craig Anthony Niedermayer each face 10 counts in relation to the alleged April 15, 2012 incident.
Police were called to the Ferndale community hall after a bloodied and frightened man burst into the building where a function was being held, saying he had just escaped from a nearby home and that he had been confined and beaten for days.
However, lawyers representing the four accused argued Friday that police failed to adequately secure evidence that could raise doubts about the man's story, particularly whether he was kidnapped and confined or had voluntarily gone with them to the home.
Specifically, they said RCMP took too long to retrieve a videotape from a local fast food restaurant showing all five going through a drive-thru the day before and the clip had been deleted from the system by the time the request was made.
As well, they learned that at one point RCMP had seized two bags owned by the alleged victim that suggested he may have packed up some clothes to stay overnight at the home as opposed to being abducted.
According to an updated evidence flow chart, the bags were soon returned to the man, whose name cannot be printed under a court-ordered publication ban, after a cursory search and documentation of their contents.
As well, they said RCMP failed to record or take notes about the conversations the man had with RCMP a few days after the incident when he was being driven around to the key locations related to the case during a so-called "show and tell."
Defence counsel also noted RCMP did not track down text messages and conversations over Facebook between the man and the girlfriend while he was at the home. The two were also jointly interviewed after the incident rather than separately, the lawyers pointed out.
Add on other last-minute disclosures and concerns and a "cumulative effect" has emerged that compromises defence counsel's ability to properly cross examine the two, Weatherly was told. During the first trial on the matter, cut short when the judge hearing the case had to step down due to health issues, the alleged victim testified but had not yet been cross-examined.
The defence lawyers' application to Weatherly on Friday came a day after the judge rejected a request from Crown prosecutor Tyler Bauman to adjourn the trial to give RCMP time to completely vet the officers involved in the case and make sure all evidence had been disclosed.
That move came after a series of mid-trial disclosures of evidence by police drew concerns from defence counsel about the fairness of the proceedings.
Defence counsel argued against an adjournment, noting in part that their clients have now been behind bars for 15 months, but then raised concerns about Bauman's decision to call less important witnesses in the meantime, saying he was effectively adjourning the trial by doing so.
In response to defence counsel's call to exclude evidence by the alleged victim and his girlfriend, Bauman argued that if Weatherly agreed to the request, "effectively, the case would be over."
Depending on what the witnesses say, the concerns about the missing evidence may be addressed anyway, Bauman further asserted.
He added that in light of the trouble with proper disclosure seen in the trial so far, it would be improper to call certain witnesses without ensuring the vetting process has been complete. Moreover, Bauman contended Crown has the option to change the order of witnesses called.
Further submissions on the matter are expected on Monday.
