A Toronto judge has declared a mistrial in a beating death trial after finding the prosecution improperly played videos to the jury during the cross-examination of one of the accused.
“It is with considerable regret a mistrial is required in this case,” Superior Court Justice Maureen Forestell said Thursday, dismissing jurors who began hearing evidence Oct. 9.
William Cummins, Matthew Moreira and Patrick Smith, who are charged with the first-degree murder of Zaher (Zack) Noureddine and the robbery of Mitchell Conery, were ordered to appear back in court Tuesday.
Noureddine and Conery were attacked around midnight on Dec. 30, 2015, after leaving a restaurant and walking to Conery’s car, which was parked near Yonge St. and Eglinton Ave.
Noureddine was punched, kicked and kneed in the attack and died as a result of blunt-force trauma to his head. Conery survived and testified last month.
The defence did not contest the accused men were present during the assault. The issues at trial were the intent of the accused, their level of intoxication and the roles played by each man.
At the outset of the trial, the prosecution rejected an attempt by the three to plead guilty to the reduced charge of manslaughter.
The Crown’s case closed Oct. 15 after the jury saw dozens of video clips taken from surveillance cameras that evening, including footage from the apartment building, at 100 Merton St., where Smith and Cummins lived at the time.
Cummins took the stand and admitted he caused the death of Noureddine and assault of Conery.
But his chronology of the events leading up to the attack was not consistent with much of the video evidence introduced by the Crown, Forestell wrote in her ruling.
During her cross-examination of Cummins, prosecutor Bev Richards played him 17 video clips, including 11 that had not been previously played in court before.
Counsel for all three men objected and asked for a mistrial, arguing the videos were not properly introduced in court.
Richards and co-counsel Mihael Cole argued the cross-examination was appropriate and admissible both to impeach Cummins and as evidence of the level of impairment of the three accused. Seven of the new videos “bolstered” the Crown’s case on the issue of the intoxication level of the accused, the judge noted.
In her Thursday ruling, Forestell agreed with the defence lawyers, writing that Crown acted improperly and should have first sought permission beforehand on the videos’ admissibility.
She cited a Supreme Court of Canada decision that says the Crown must produce and enter all clearly relevant evidence that it intends to rely on so an accused knows “what must be met in response.”
“The issue … is not the admissibility of the videos but their admissibility at this point in the trial,” Forestell said.
Forestell wrote that she concluded that a mistrial is the only way to “redress the harm caused by the introduction of this evidence.”
“I reach this conclusion with considerable regret in light of the resulting hardship on all of the participants in the trial process including the jury, the accused, the victim and the family of the deceased,” she wrote.
“It is profoundly disappointing that the Crown chose (to) play video evidence to the jury which the Crown knew to be the subject of objection by the defence and to do so in a manner that prevented timely objection and control of harm to trial fairness.”
“The conduct of the Crown in simply playing the videos to the jury without leave of the Court was improper,” Forestell wrote in her 19-page ruling.
Betsy Powell is a Toronto-based reporter covering crime and courts. Follow her on Twitter: @powellbetsy