The Alberta Court of Appeal judgment dismissing an appeal by Innisfail bomber Brian Malley touches on one of the more bizarre events in the lengthy trial.
One of the concerns raised by Malley’s lawyers in their appeal application focused on “jury fairness.”
During the trial, Malley’s wife, Christine, was caught taking photos or video of jurors on a tablet as they walked past her outside the courtroom during a break. Court sheriffs and seven jurors brought the matter to the trial judge’s attention.
Each juror was later questioned by the judge about whether they were concerned about the incident. Six jurors expressed concern with one saying she was worried about her family’s safety.
At the time, the incident caused quite a stir at Red Deer’s courthouse. A sheriff stood watch over Christine Malley in the lobby for a time. No charges were laid against her but she was told not to return to the courthouse unless needed as a witness.
After further questioning, the judge allowed the worried juror to remain on the jury, although the Crown prosecutor had asked that she be discharged — a move not supported by the defence at the time.
However, in appeal, Malley’s lawyer said the juror should have been discharged, arguing the ongoing concerns for her family “represented a real danger that had prejudiced her against the appellant.”
In her judgment, Court of Appeal Justice Barbara Veldhuis rejected that argument and found “no basis to interfere, particularly since the appellant’s trial counsel agreed that the juror should continue.”
Malley, an Innisfail financial adviser, was convicted by a jury of first-degree murder in Red Deer provincial court on Feb. 14, 2015. He was also convicted of intending to cause an explosion likely to cause death or serious bodily harm and intending to cause death or serious bodily harm by delivering an explosive device to someone.
He was automatically sentenced to life in prison with no chance of parole for 25 years.
Victoria Shachtay, 23, was killed on Nov. 25, 2011, opening a gift left on her Innisfail doorstep. When the paraplegic single mother opened the disguised bomb, it went off and killed her instantly.
The appeal also contends that the trial judge erred by not allowing the defence to grill investigating officers to get more information on what the defence called an “inadequate investigation” that did not consider alternate suspects.
The defence had suggested the bomb could have been meant as a warning to one or both of Shachtay’s brothers. It was also alleged that Shachtay had been killed because she complained to police about suspected drug transactions near her home when she lived in Red Deer.
Veldhuis agrees with the trial judge’s finding that there was “no evidence that could support a defence of third party suspect.”