GRAND BANK, N.L. — A Burin Peninsula man has successfully appealed his conviction on charges relating to a break and enter at a Marystown area business in 2018.
In her written decision dated Feb. 7, Justice Katherine O‘Brien ordered the case against Dillon Albert Drake back to the Provincial Court of Newfoundland and Labrador for retrial.
“Although defence counsel submitted that, in the event the appeal was allowed, the appropriate remedy was to set aside the conviction and enter an acquittal, I cannot agree,” wrote O‘Brien, who heard the appeal at the Supreme Court in Grand Bank on Dec. 9.
“Defence counsel reasoned that there was no other possible evidence and thus the evidence on a retrial would be the same that was before me. However, further evidence is possible and I cannot conclude that the evidentiary record would be the same following a retrial.”
On June 5, 2019 at provincial court in Grand Bank, Judge Harold Porter found Drake guilty of break and enter, theft, as well as a breach of probation.
Porter concluded in his written decision on the case that Drake was one of two people who had been captured on security video in a bungalow at a construction yard in the Marystown area.
Drake denied he had been in the building during the trial and challenged the recognition of him on the video recording by two police officers with the Burin Peninsula RCMP.
Porter stated in the decision he was satisfied with the RCMP’s process to identify Drake beyond a reasonable doubt as one of the men in the video.
Porter also questioned Drake’s credibility as a witness, testimony he gave relating to his whereabouts when the crime was committed in particular.
Basis of appeal
Drake, who was represented by lawyer Don MacBeath, appealed on the basis that Porter erred in assessing his credibility as well as in evaluating the evidence of the two officers who recognized him in the surveillance video.
The court also heard during the trial that the date stamp on the surveillance video was July 12, 2018, two days after the complainant had discovered and reported the break-in.
This also formed part of the appeal, with Drake arguing Porter was wrong in finding the tape was created at the time the offences occurred.
O‘Brien rejected the notion Porter was mistaken in finding Drake’s evidence lacked credibility and didn’t raise a reasonable doubt.
“The trial judge gave reasons why he did not find the appellant credible and I find that those reasons are sufficient,” she wrote.
As for the surveillance video, however, O‘Brien found Porter erred in law by not considering the quality of the footage in assessing the reliability of the evidence presented by the two police officers.
“The error is that the trial judge ended his assessment of the officers’ evidence too soon. He assessed their relationship to the accused, and how they articulated their recognition, but he did not go on to assess the quality of the video they relied upon,” she wrote.
O‘Brien also found Porter stumbled in determining the surveillance tape was made “at the time of the commission of the offence because he failed to consider another reasonable inference that arose from the evidence and lack of evidence.”
Drake was on probation for pleading guilty to a 2015 break and enter at a home in Marystown at the time of the crime at the construction site.
Porter gave him a conditional sentence and probation for the three charges.
A date has not yet been set for the retrial.
