WITNESS NOT CREDIBLE, CASE THROWN OUT

A court decision to disallow the statement from a key witness for the
prosecution set free the three men accused of a drive-by shooting in
downtown Aug. 6, 2008.

Fabian James Charlie, 23, Jesse Darren Bird, 26, and Eric Vernon
West, 28, were charged with attempted murder, causing bodily harm
with a firearm, aggravated assault and a number of firearms charges
in relation to the shooting. On Oct. 26, 2009 Judge Karen Walker made
her ruling on a key piece of evidence - a video statement by a
witness recorded two days after the shooting.

All three accused were acquitted on all charges related to the incident.

"The only conclusion that can be reached is that the evidence does
not support a finding that the statement is inherently reliable,"
Walker said in her reasons for judgement. "It follows that because
the statement lacks reliability, it cannot be admissible as a
principled exception to the hearsay rule."

The name, or any identifying information, of the witness cannot be
published because of a court-ordered publication ban.

The witness was one of a number of people at the crack shack in the
2100 block of Upland Street where Charlie, Bird and West were
arrested the night of the shooting.

About 5:45 p.m. on Aug. 6, 2008 police received, "many phone calls
from citizens who witnessed a firearm protruding from the driver's
side of a red SUV or pickup truck, which was being driven very
recklessly," Walker summarized in her judgement. "Others called to
say they had heard shots fired in the area of Fifth (Avenue) and
Dominion. Some witnesses thought only one person was in the vehicle,
and others thought there might be as many as four or five. The
descriptions given the suspect(s) were no more specific than
Caucasian male(s) in his or their 20s, wearing white t-shirts."

Police found a red Ford Explorer parked outside the crack shack on
Upland Street within 20 minutes of the shooting. The engine was still warm.

"Ultimately the license plate was found to match that provided by
witnesses," Walker said. "The three accused, all of whom are
aboriginal males, and three Caucasian males, were captured minutes
later trying to jump over the fence of the backyard. All six were
arrested, but only West, Bird and Charlie were proceeded against."

Police found a shotgun wrapped in a T-shirt in the crack shack and
three shotgun shells in a garbage can outside the home.

"Meanwhile, at Prince George Regional Hospital, the victim of the
shooting, W.B., was being treated for his significant wounds. He
refused to cooperate with police, as did his associates Garrett
McComb and Brittany Giese, who were deceased by the time of the
trial," Walker said. "W.B. testified at trial about having been shot,
the injuries he suffered and the treatment he received. However, he
professed not to recall any details about the shooting. Uncannily,
several other witnesses closest in time and space to the shooting
when it occurred were also, by the time of the trial, unable or
unwilling to provide any meaningful testimony."

McComb and Giese were founded murdered in a home on Webber Crescent
on Oct. 7, 2008.

On Oct. 12, 2008 an explosive devise was thrown through the window of
G'z Up Clothing and Apparel, which faces directly onto the scene of
the shooting.

The witness said Charlie, Bird and West disclosed they had been in a
shoot-out downtown.

"They said it was about a drug turf war downtown,'" Walker said.

The witness said they had seen the shotgun shells, but couldn't
recall how many there were, and didn't know the shotgun was in the
house until after the police arrived.

"(The witness's) statement was replete with answers indicating
(he/she) was not paying attention to what was being said or to what
the three were doing in (his/her) presence," Walker said.

In her ruling, Walker said the internal inconsistencies in the
statement, inability of the witness to confirm the statement under
cross-examination, and inability to associate specific statements and
actions with specific people made the statement inadmissible.

"(The witness) professed to recall very little of (his/her) life at
the time of the incident, the events of the day of the shooting, or
the circumstances leading up to and the giving of (his/her) statement
to the police less than 40 hours later on Aug. 8," Walker said in her ruling.

The witness was a crack cocaine addict and alcoholic at the time of
the statement.

On the stand, the witness couldn't recall if they were being truthful
with the police at the time the video statement was recorded.

Neil MacKenzie, communications counsel for the Criminal Justice
Branch, said without solid evidence to support the case an appeal was unlikely.