A new trial has been ordered for a man convicted of second degree murder in the 2008 stabbing death of his cousin in Hazelton.
In a ruling issued Wednesday, the B.C. Appeals Court found the trial judge erred in failing to "consider the truth" of the argument that Scott Aaron Wright had wrestled the knife from Floyd Mowatt and had used it to defend himself in a July 25, 2008 altercation.
There were no eyewitnesses to the stabbing although Mowatt's girlfriend witnessed part of the fight and testified Wright had stabbed her in the leg. A man who had been talking to the three over a cellphone also said he heard the girlfriend say she had been stabbed and Wright effectively saying he did it.
At issue was the testimony of a woman who testified that she heard Mowatt yell in a loud and threatening voice that he was going to kill Wright and his pregnant girlfriend and then saw a "boy" she did not recognize "running for his life" on the hill above her house.
However, under cross examination, the woman admitted she did not relate that story in her subsequent 911 call, nor in her statement to police about 10 hours later or in her testimony at the preliminary inquiry.
Another witness told the court she heard similar words but did not know who said them.
As a result, the trial judge rejected defence counsel's submission that Mowatt initially had the knife.
The judge's failure to consider the threat for the "truth of their contents constituted a misapprehension of the evidence giving rise to a miscarriage of justice that entitles Mr. Wright to a new trial," Justice David Frankel said in the ruling.
Frankel further said that the judge's failure was "due in no small measure" to the lack of precision both counsel took with respect to the woman's evidence.
"Had counsel clearly stated their positions with respect to the basis on which that evidence was being tendered and then, later, with respect to what used could be made of it, I expect that the judge would have addressed the questions that evidence raises with respect to the defence advanced by Mr. Wright," Frankel said.