Judge 'ignored' evidence in home invasion, sparking new trial for ex-boxer
A Nova Scotia man who was acquitted in a Cole Harbour home invasion that left a young woman paralyzed has been ordered to stand trial for a second time.
Ashley MacLean Kearse was shot during the November 2014 incident and was paralyzed from the waist down.
In a decision released this week, Justice Jamie Saunders said the trial judge, Michael Wood, made "serious errors" when he considered evidence identifying the shooter.
As a result, Markel Jason Downey was acquitted of all 28 charges, including three counts of attempted murder, and walked out of court a free man in February 2017.
In February of this year, the Crown appealed that decision.
The trial judge said the Crown couldn't prove beyond a reasonable doubt that Downey was the one who pulled the trigger the night four masked men burst into the home.
While Kearse testified that she knew Downey from school and that he was the one who shot her, the trial judge said she failed to identify unique characteristics that pointed to Downey.
Judge 'ignored highly relevant evidence'
Saunders said the trial judge used the wrong legal tests when considering the evidence.
"He ignored highly relevant evidence, and considered irrelevant evidence in his reasoning," Saunders wrote in his April 18 decision. "He misconstrued the Crown's position concerning significant corroborative evidence connecting the respondent to the shooting."
He went on to write that, "he separated Ashley MacLean's evidence from the other evidence, and subjected hers to a criminal standard review instead of asking himself if he were left with a reasonable doubt about the respondent's guilt, based on the whole of the evidence."
Trial date not set yet
That night in November 2014, Kearse was at a friend's house with two other people who were both injured in the incident.
The four men who barged in demanded money and weed, and one of them held a handgun.
Three of the intruders were youth and their identities are protected by a publication ban. They pleaded guilty to aggravated assault, breaking and entering, robbery and wearing a mask to commit a crime and were sentenced in 2015.
No dates have been set for a new trial. The Nova Scotia Public Prosecution Service said it was too soon to comment on the result.
Halifax District RCMP said they are trying to find Downey.
Downey represented Nova Scotia as a boxer in the 2011 Canada Games, which were held in Halifax. He won gold in the 49-kilogram to 52-kilogram category.
