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Tim Bosma trial: 'Fumbling amateurs' would have left evidence, lawyer says

Mark Smich and Dellen Millard were amateurs fumbling in the dark on the night Tim Bosma died in 2013, Smich's lawyer says, so it makes no sense they didn't leave any evidence behind in the field where the Crown alleges the Hamilton man died.

'These aren't hitmen! Give me a break,' Smich's lawyer Thomas Dungey tells jury

Mark Smich, seen here at his sister's wedding in May 2013 with his then-girlfriend, Marlena Meneses, and Dellen Millard are charged with first-degree murder in the 2013 slaying of Tim Bosma. After four months, the trial in Hamilton is in the closing arguments phase. (Court exhibit)

Mark Smich and Dellen Millard were amateurs fumbling in the dark on the night Tim Bosma died in 2013, Smich's lawyer says, so it makes no sense they didn't leave any evidence behind in the field where the Crown alleges the Hamilton man died.

Thomas Dungey laid responsibility for the murder in the hands of Dellen Millard, saying there is a "mountain of independent evidence" against him and that his attempts at witness tampering from behind bars show the "criminal mind" of a guilty man.

Dungey began his closing statements Wednesday by attempting to poke holes in the Crown's theory that Bosma was shot in a field not far from his home.

No evidence was ever found in that field, Dungey said.

"How could that be? Two fumbling amateurs? These aren't hitmen!" Dungey boomed in front of the jury in Ontario Superior Court in Hamilton. "Give me a break."

Surely, Dungey said, a millionaire and a small time drug dealer would have left something behind.

"They would have dropped something. Surely there'd be some glass from the window being shot ... but there's nothing found. Not a trace."

​Smich, 28, of Oakville, Ont., and Millard, 30, of Toronto, have pleaded not guilty to first-degree murder.

Bosma, who was from the Ancaster area of Hamilton, disappeared on May 6, 2013, after going on a test drive with Smich and Millard in a pickup truck he was trying to sell.

That's what this letter shows — the depth of this demonic mind.- Thomas Dungey, Mark Smich's lawyer

Dungey also pointed out that if Smich had taken part in killing Bosma, and then had been in Millard's SUV, as the Crown alleges, there would be evidence of the murder, left behind in the SUV. 

"There's no forensics. No blood. No clothing. No shell casing. No broken glass. The Crown has no evidence whatsoever of their theory."

Further to that point, Dungey told the jury it wouldn't make any sense for Millard to drive Bosma's truck after he died, as was presented by Millard's lawyers, if he wasn't the one who shot Bosma.

"Millard's going to drive the Bosma truck for 20 minutes, with a man in the seat dead?" Dungey said. "Millard wouldn't put himself in jeopardy ladies and gentlemen, for Mark Smich."

Millard's letters provide glimpse into his mind, lawyer says

Dungey also spent a large chunk of his closing on the letters Millard sent to his girlfriend, Christina Noudga, from jail. That damning evidence shows that Millard was ready and willing to frame Smich, Dungey said.

"That's what this letter shows — the depth of this demonic mind," Dungey said.

This security camera photo shows Millard and Smich inside the MillardAir hangar in the early morning hours of May 7, 2013, just hours after Tim Bosma disappeared. (Court exhibit)

In the letter, which the jury has already seen, Millard asks his girlfriend to reach out to friend Andrew Michalski and convince him to change his testimony on key elements, like whether Millard owned a gun or if he was there at all when Bosma died.

Elsewhere in the letter, Millard suggests maybe Smich and "his boys" were "involved with the dead guy or his wife."

"What does this letter tell us about the mind of Mr. Millard? What is he doing here? What if we had not had this letter?" Dungey said.

"There is no doubt. There is no question. This is a letter to frame my client of murder."

If not for the investigative work done by police digging up those letters, that very well could have happened, Dungey said.

Dungey addresses gun burial amnesia

Smich's lawyer also addressed one of the most damning pieces of evidence against Smich — that he buried what's believed to be the murder weapon.

According to Smich's testimony in court, he buried the gun in a forest, somewhere in Oakville, and now can't remember where it is. No gun ever was recovered.

Mark Smich's legal team of Thomas Dungey, right, and Jennifer Trahearne, left, leave the John Sopinka Courthouse in Hamilton. (Robert Krbavac/CBC)

"Is it so unfathomable, that if you thought you were being framed and a lunatic had shot someone ... and you're not the most sophisticated kid in town, that's for sure, that you jump on your bike and off you go [to bury the gun?]" Dungey asked. 

"And we're supposed to make big of it that he doesn't remember where he went?"

Dungey said that instead, Smich could have told a "simple" lie like "I threw it in Lake Ontario."

"He's getting rid of it because of the pressure on him and he doesn't know what to do, and he's too dimwitted to go to the police," Dungey said.

Marathon cross-examination

Throughout a marathon cross-examination, Millard's lawyers dissected some of Smich's rap lyrics, alleging that it gave a glimpse into Smich's innermost thoughts — much like Dungey alleged with Millard's letters from jail.

On Wednesday, Dungey said you can't analyze rap lyrics as if they're confessions of fact.

"If people do raps, that means they have a criminal mind?" Dungey said. "I listen to opera all the time. Opera is filled with violence. Does that mean all these great composers have a criminal mind?"

"Out, out, damn spot!" Dungey called out in the courtroom, channeling Lady Macbeth. "Does that mean Shakespeare had a criminal mind?"

At the end of his address to the jury, Dungey said that Smich is guilty of being an accessory after the fact. "But that's all he's guilty of," he said.

"I am asking you to return the verdict that Mark Smich is not guilty."

The final closing argument, from the Crown, will be presented to the jury Thursday morning.

​The CBC's Adam Carter is in the courtroom each day reporting live on the trial.You can read a recap of his live blog right here. On mobile? View it here

adam.carter@cbc.ca

About the Author

Adam Carter

Reporter

Adam Carter is a Newfoundlander who now calls Toronto home. He enjoys a good story and playing loud music. You can follow him on Twitter @AdamCarterCBC or drop him an email at adam.carter@cbc.ca.

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