Filip Grkovski’s lawyer argues he and his shopper had the suitable to know what Crown prosecutors’ theories or routes to conviction had been, previous to his shopper taking the witness field Tuesday.
Alan Gold instructed Superior Court docket Justice P. Tamara Sugunasiri that it wasn’t till assistant Crown lawyer Jackson Foreman requested Grkovski a collection of questions throughout cross-examination, that led him to imagine that the Crown was pursuing a brand new idea to legal responsibility.
Foreman urged to Grkovski that even when he wasn’t driving his boat on the night time of Could 31, 2022, when it went crashing into rocks close to Outer Harbour Marina, inflicting the boat to flip over and killing two individuals, Grkovski might be discovered responsible.
Grkovski is on trial for prison negligence and impaired operation inflicting demise after 24-year-old Megan Wu and 34-year-old Julio Abrantes had been each trapped within the vessel and drowned.
“I made no objection to ensure that him to complete however within the night after finishing the submissions, we turned involved that perhaps the Crown is severe as a result of their key witness didn’t face up to questioning” Gold instructed Sugunasiri about Grkovski’s cross-examination.
The Crown’s key witness Edward Denkha took the witness stand on Friday and once more on Monday and mentioned Grkovski was driving the boat on the time of the crash.
Denkha testified Grkovski was indignant after combating together with his girlfriend in a cabin beneath deck, got here again up, took the helm and “floored it,” hitting the rocks. Gold argued not one particular person noticed Grkovski driving the boat and accused Denkha of being the motive force.
Grkovski testified Tuesday that he had given Denkha management of his boat and he knew the place to go, testifying he went downstairs.
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Gold mentioned till the cross-examination of his shopper, he believed the one difficulty associated as to whether there was any affordable doubt as as to whether Grkovski was driving the boat on the time of the crash.
“It makes it unthinkable that the Crown may current an alternate idea on the finish of the cross-examination of the accused. Your honor wants to listen to submissions on permissibility and any authorized foundation for convictions,” mentioned Gold.
“If we had discover of alternate theories admitting that Eddie (Denkha) was the motive force primarily based on allegations of prison negligence or some idea of legal responsibility as a result of Eddie was the motive force, we might have moved to a directed verdict. There would have been preparation in proof concerning the driver’s behaviour. Arguments for vicarious legal responsibility,” Gold mentioned.
Assistant Crown lawyer Jordan Howard instructed Sugunasiri that their theories of the case come right down to the other ways during which the Felony Code defines the phrase operational.
“This isn’t a case, the place in my submissions, that driving is the only real approach in your honour to seek out that he (Grkovski) was working the vessel,” mentioned Howard.
Sugunasiri requested if at any level they made it clear to defence what their arguments could be.
“No, I didn’t suppose I wanted to. As a result of operational is broad within the code, I assumed it was apparent,” mentioned Howard.
The decide mentioned it wasn’t apparent to her due to the proof tendered by the Crown.
“There have been no questions concerning the security guidelines of the captain. I didn’t know what the duties are as a captain. I don’t suppose I’ve proof of these issues so in my thoughts that wasn’t a difficulty till the tip of the day yesterday,” mentioned Sugunasiri.
Foreman defined that they had not provide you with an alternate idea declaring that working a vessel is correct within the Felony Code.
“A number of individuals might be working a vessel on the identical time,” he mentioned. “This isn’t some form of back-up idea. That is the definition within the code.”
Sugunasiri mentioned she was not stunned by Gold’s issues. “Simply because operation permits extra than simply driving, I believe it’s a bit extra nuanced than that … You’re utilizing working a vessel in a broader approach than defence thought.”
Relating to the impaired operation cost, Howard mentioned the decide can both discover that Grkovski was driving the boat or she finds that Grkovski was not driving, it’s their submission that there’s a path to legal responsibility if he’s in care answerable for the boat and aiding in navigation on the time of the crash.
On the prison negligence cost, Howard defined there’s a path to legal responsibility primarily based on the way of driving and if the decide finds affordable doubt that Grkovski was driving, there’s nonetheless an avenue in direction of legal responsibility relating to what Grkovski knew about Denkha on the time.
“Is it your place due to the way in which the case has gone, they shouldn’t be in a position to pursue the alternate idea?” mentioned the decide. “Proper,” Gold replied. “I used to be able to make submissions about Grkovski’s driving. I can’t overstate the importance of this to the defence,” Gold added.
Sugunasiri adjourned to permit defence legal professionals and crown prosecutors to arrange for arguments on the difficulty.
Grkovski has pleaded not responsible.
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