Judges hear appeal in home invasion case that left bystander paralyzed
Ashley MacLean Kearse shot during home invasion 3 years ago; Markel Jason Downey acquitted at trial
Nova Scotia's highest court has reserved its decision in a case of a 22-year-old man acquitted of all charges related to a home invasion that left a young woman paralyzed from the chest down.
Ashley MacLean Kearse was shot during the attack in a house in Cole Harbour in November 2014 after four people wearing disguises burst into the home. Two other people in the house were also wounded.
Markel Jason Downey was arrested and charged with 28 offences relating to crime, including three counts of attempted murder. But in a trial that wrapped up exactly a year ago, Downey was acquitted by Nova Scotia Supreme Court Justice Michael Wood.
The Crown appealed the acquittal and on Wednesday urged a three-member panel of the Nova Scotia Court of Appeal to order a new trial.
The issue at last year's trial was whether anyone could tie Downey to the crimes. Kearse was the only witness to say he was the gunman.
However, there were problems with her evidence. She said the gunman wore a red track suit. All other witnesses said the four people involved in the home invasion that night were dressed entirely in black, with their faces concealed.
"She was 90 per cent wrong about what she said she saw," Downey's lawyer, Pat MacEwen, said in arguments before the Court of Appeal Wednesday.
When pressed on cross-examination by MacEwen at the trial, Kearse also had trouble articulating why she believed Downey was the gunman. She could not point to any distinguishing features, mannerisms or voice patterns to support her contention.
Crown attorney Mark Scott argued Wednesday that Wood held Kearse's evidence to an unfairly high standard in assessing whether she had conclusively identified Downey as her assailant. Scott said Wood also took a piecemeal approach to weighing the evidence tying Downey to the crime.
"Sometimes, the whole is much, much greater than the sum of its parts," Scott said at the conclusion of his arguments.
There is no indication when the Court of Appeal will release a decision, but it is typically weeks or even months after it hears arguments.
Three youths were also charged in the home invasion and pleaded guilty in youth court. Their identities are protected because of their ages at the time.