The Ontario Court of Appeal is set to revisit the so-called “panhandler murder” of 2007 and the claim by the convicted killer that the courts have locked away the wrong person. 

In a hearing that will start next week, the court will delve into just how a St. Catharines, Ont., man died on a downtown Toronto street after an encounter near an ATM with a group of young people.

Hamiltonian Nicole Kish, 27, still maintains her innocence after more than two years in prison, says her mother, Christine Bivens. “We’re hopeful, yet scared. The system hasn’t worked really well for us,” she told CBC Hamilton. Kish’s appeal will be heard on Oct. 29 in Toronto.

“The appeals process is bizarre and very difficult to understand,” Bivens said. “It doesn’t seem to be about guilt or innocence – more so about mistakes in the courts.”

Kish was convicted of second-degree murder in 2011 in connection to the death of 32-year-old Ross Hammond.

Hammond was stabbed repeatedly early on Aug. 9, 2007 after an encounter with a group of panhandlers on Queen Street West near Niagara Street. The incident happened just after Kish returned from an 18-month backpacking trip, Bivens says. She was out celebrating her twenty-first birthday with a group of people that was described in court as “homeless squeegee kids.”

A fight broke out when a woman in Kish’s group asked Hammond and his friend for money while they were at an ATM. The Crown alleged that woman was Kish, and that she was responsible for the stabbing.

“There was a significant hole in the Crown’s case,” Kish’s lawyer Phil Campbell said in his factum for the appeal. “No one saw her — or anyone else — with a knife during the fight on the north side of Queen St. where the Crown alleged that Hammond suffered the fatal wounds.”

Eyewitness testimony unreliable, lawyer says

Campbell also says that eyewitness testimony used in the case was unreliable, as many mistook Kish for her friend Faith Watts — who admitted during the trial to have been carrying a knife that she had stolen from a store in Montreal.

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((CBC))

In her testimony, Watts said that on the night Hammond was stabbed, she had been drinking all day and was high on Oxycontin — so she couldn’t recall exactly what happened.

Watts, a U.S. citizen, was ordered to leave Canada after serving time for assaulting a police officer and obstructing justice the night Hammond died.

“Watts and (Kish) were dressed in a similar punk style, and witnesses could easily have confused one for the other,” Campbell wrote in his factum. He also says numerous deposits of Hammond’s DNA were also found on Watts’s clothing, Campbell says, but only a “small speck” was found on Kish’s shoe.

“It is difficult to see how (Kish), flailing wildly atop Hammond on the north side of the street, while stabbing him four times in the chest, would have received only a single, tiny deposit on her shoe,” he wrote.

DNA found on weapon

But the respondent’s factum in the appeal paints a different picture. “The evidence that pointed to [Kish] as the person who murdered Ross Hammond was substantial and detailed circumstantial evidence,” wrote Susan Reid, counsel for the Attorney General.   

Reid wrote that identifying Kish in connection to the case was built on the way she was dressed, as well as an injury to her arm. Kish’s DNA was also found mixed with Hammond’s on the thumb switch of a knife Hammond was found holding where the blade meets the handle.

Hammond’s widow Kara could not immediately be reached for comment.

Injustice Anywhere, a group that “works to correct wrongful convictions,” has been publicizing the case. A “Free Nyki” Facebook page has garnered almost 1,300 likes and she has been blogging from prison.

“She just got out of the max unit — two years in a place that you would not put a dog,” her mother said. “It has just been truly horrible.”

Bivens says her daughter had been working a variety of jobs while on her backpacking trip, like cleaning homes and washing dishes. She also worked at a linen store in Burlington, Ont. for several months before the trip, she says.

She says her daughter was not a panhandler. “Only the police and the media described her like that,” she said.

“There was absolutely no testimony that Nyki panhandled anywhere.”