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Defendant cross-examines Royal Newfoundland Constabulary officers in home invasion case

Gary Hennessey (left) and Mitchell Nippard chat during a break in their trial at provincial court in St. John's Tuesday morning.
Gary Hennessey (left) and Mitchell Nippard chat during a break in their trial at provincial court in St. John's Tuesday morning. - Tara Bradbury

Accused was found in snow without boots on, court hears

As three of the four men accused of a series of violent home invasions last year sat in the courtroom Tuesday, the fourth stood, reviewing his notes as he prepared to cross-examine the Crown’s witnesses.

Dressed in a black suit, Abdifatah Mohamed, 28, held a pen as he greeted the testifying police officers —who arrested him a year ago — and referred to defence lawyers as “my friend.”

“I’d like to take you back to the evening of Feb. 9 and the scene of the crime — the proposed scene of the crime,” Mohamed told Const. Kevin Morgan of the RNC’s dog service unit.

Morgan had just told the jury he and police dog Edge had been at the scene of a home invasion on Angels Road in Paradise that night last year, and had tracked two suspects from a Mazda 3 located by police stuck in a snowdrift with its engine still running. Following two sets of tracks, the dog led Morgan from the vehicle through the woods and a bog, stopping at one point to dig a boot from the snow, then across Three Island Pond and the C.B.S. Highway, and into the woods on the other side.

Related story:
Police had no right to cellphone evidence, lawyers say at St. John's home invasion trial

Tyler Donahue, 24, was the first one apprehended by Edge, who bit him on the back of the leg, Morgan said. Mohamed was located about 40 minutes later, the officer said, sitting underneath a tree in socked feet, looking “extremely cold.”

“So you’re testifying that it’s because of you and your dog’s experience that you found the two suspects?” Mohamed asked Morgan.

“One hundred per cent, yes,” Morgan replied.

“Did your dog fail you that night?” Mohamed asked, to which Morgan replied, “No, absolutely not.”

“I’m going to suggest your dog did fail you, because you didn’t find the third suspect,” Mohamed said.

Morgan told him he wasn’t looking for a certain number of suspects, but was just tracking a scent.

Later, Mohamed asked questions about his own arrest.

“It is not common practice that as soon as you arrest me you read me my Miranda rights?” he asked, using an American term not used in Canada.

“Practice is to get you somewhere safe first, not under a tree in the snow with just socks on,” Morgan replied.

Morgan was one of five RNC officers called by Crown prosecutor Chris McCarthy to testify at the trial of Mohamed, Donahue, Gary Hennessey, 33, and Mitchell Nippard, 26, at provincial court in St. John’s.

The officers told individual accounts of the night a report of a break-in involving a firearm — later determined to be a home invasion — happened on Angels Road. A female victim told police two armed men were involved, and police noticed a dark-coloured Mazda leaving the area.

Donahue asked to speak to a lawyer when police found him and took him to hospital for treatment of the dog bite before bringing him to RNC headquarters. His lawyer, Michelle Elliott, questioned police about why his request wasn’t granted sooner.

Mohamed was found with no boots in knee-high snow, the court heard, and police found a gold ring and $620 cash in his pocket. He, too, was taken to hospital for treatment for his feet.

On Monday, RNC Const. Michael Hunt told the court of his involvement that night, saying Nippard’s wallet and ID was located in the abandoned car. When officers stopped a vehicle in the area and found Nippard and Hennessey inside, Hunt detained Hennessey and searched him for a weapon.

When a cellphone rang in Hennessey’s pocket, Hunt said, he removed it and, without pressing the button or touching anything, saw a text message on the screen from Donahue, saying, “Next to sign on highway, C.B.S. next four exits.”

That information later formed part of an “information to obtain” document — the information provided to the court by police as an explanation of grounds for seeking a warrant.

Before the trial began on Tuesday, Judge Mike Madden ruled the cellphone evidence inadmissible, saying Hunt had breached Hennessey’s rights by reading the text.

“The search went beyond what was necessary to establish public safety,” Madden said. “Once he determined it was a phone, he had no reason to remove it from (Hennessey’s) pocket. It would be very different if the accused was under arrest at the time, but he was not.”

Defence lawyers can now apply to have other evidence, obtained as a result of the warrant, thrown out. Hennessey’s lawyer, Derek Hogan, has said he will apply to have the entire Information to Obtain excluded from evidence.

Hennessey, Donahue, Mohamed and Nippard are facing a slew of charges in connection with four home invasions in February 2017, during which victims were reportedly tied up, assaulted and robbed. Nippard is also accused of shooting two dogs during the robberies, killing one.

A fifth man, 28-year-old Mohamed Salim, is also believed to have been involved, but was found dead March 3 in a quarry off the Trans-Canada Highway near Paradise. It is believed he died in the cold while attempting to escape from police.

Twitter: @tara_bradbury

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