Two Hamilton men whose murder convictions were quashed by the Ontario Court of Appeal last month, will be in court today to set a new trial date, says Toronto criminal lawyer Catriona Verner. Read Decision

In 2008, Mirko Bucik and Ian Harrington were found guilty of second-degree murder arising from the Aug. 16, 2006 killing of Terry Auld, who was beaten to death in the middle of a Hamilton street while shocked residents watched. This past August however, the appeal court overturned the convictions and ordered a new trial, citing errors in the trial judge’s charge to the jury. Read Story

“This case highlights the need for trial judges to provide a balanced review of the evidence when relating the evidence to the law in their charges to the jury. This duty is particularly high in murder cases, when the legal issues often are quite complex,” says Verner, an associate at Hicks Adams LLP who represented Bucik on his appeal.

Verner further explains that “in the charge to the jury the trial judge bolstered the strength of the Crown’s case, in what was otherwise a weak case of murder over manslaughter.”

With respect to her client, Verner says Bucik was convicted of murder after the jury found he assisted his friend, who beat the deceased to death with a hammer.

“There were essentially two eyewitnesses. One eyewitness suggested Mr. Bucik was appalled at the sight of his friend beating the deceased with a hammer. In contrast, the other eyewitness suggested that Mr. Bucik kicked the deceased while his friend beat the deceased with a hammer.”

Verner says the Court of Appeal took into account the fact that the Crown’s case against Bucik for murder over manslaughter, was not a strong one, and “depended heavily on a couple of key pieces of evidence.”

She says one of those was evidence that Bucik MAY have told his landlord that his co-accused said, “I’ll kill the stupid bastard,” prior to the offence.

“This was the strongest piece of evidence to support murder over manslaughter,” says Verner. “However, it suffered from significant weaknesses, since it was unclear whether Bucik even said that to his landlord, and even if he did, it was unclear whether the statement was taken by him as a serious threat to kill.”

Verner says that generally it was not a strong Crown case for murder against Bucik.

“The Court of Appeal overturned the conviction on the basis that the trial judge did not fairly review the evidence when he related it to the law on murder. The trial judge had a duty to ensure that the jury was aware of how the evidence in this case relating to the relevant law,” says Verner.

“However, instead of giving a fair and balanced review of the evidence, he only highlighted the evidence that pointed towards guilt and most significantly, he suggested that the Crown’s case was stronger than it was.

“As was recognized by the Court of Appeal, the most unfairly prejudicial aspect of the jury charge was that instead of saying that Mirko may have told Prince that his co-accused said, “I’ll kill the stupid bastard,” the trial judge summarized that evidence as follows: “Mirko Bucik told her they were going to “kill the bastard” although he was not the one who made that remark.”