Two Hamilton brothers originally sentenced to life in prison for killing an ex-Hells Angels member are getting a new trial.
Ontario’s Court of Appeal released the decision to overturn their murder convictions Wednesday.
John and Mato “Michael” Josipovic were found guilty after James “Lou” Malone was shot and killed in the east end six years ago. In 2016, they were sentenced to life in prison with no eligibility for parole for 13 years. The Josipovic brothers, the Crown argued, chased Malone down the streets in a pickup truck before cornering him and shooting him point-blank with a shotgun.
Now, the Court of Appeal decided that the judge made errors while giving instructions to the jury and they “resulted in significant disconnect” between how the case was presented and the “narrative revealed by the evidence.” According to the decision, the new trial was ordered on the basis that there was a risk that the jury would have approached the brothers’ verdicts jointly.
The court found that the judge’s instructions supported treatment of the brothers as a single entity and presented them as potential co-perpetrators. The men were charged and tried together, and while each was required to have their cases and evidence weighed separately, grounds for appeal put forward by the brothers shows that the line blurred.
This treatment was in line with the Crown’s argument that both men agreed to hunt down and kill Malone before his murder.
Although the judge made reference at the beginning and end of the trial that the men must be addressed as separate individuals, the court says various actions, such as repeating the phrase “John and/or Mato” suggested “a tone” that the cases for and against the brothers “fell together.”
The court also found that a distinction was not sufficiently made between a perpetrator and an “aider” of the crime during the trial. The decision says the judge wrongly instructed the jury that if it found one brother guilty of murder, the same verdict would apply to the other brother.
The Crown must prove different facts for each charge, which can mean the difference between murder and manslaughter convictions, the decision says. However, the court states that it is “very doubtful” that the jury would have had a doubt as to whether the aider knew the shooter had the intention to kill Malone when he was firing shots at him for several minutes.
The decision also says the judge falsely attributed defences raised to both brothers, which “further linked” their fates. While John claimed he was acting in self-defence, the judgment states, and was provoked by Malone, Mato maintained that he just wanted to go home. The court says that this “invited the jurors to reach common verdicts.”
Both men will be re-tried for second-degree murder. It’s noted that the new trial will determine whether there is an “air of reality” to John’s self-defence claim.
Source: CBC