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'No basis' for prisoner's appeal
The appeal of a man who beat his cousin with a pipe and left him for dead at the side of a South Surrey road nine years ago was dismissed in short order Thursday.
In a brief oral judgment, B.C. Court of Appeal Justice David Frankel told Daniel Lewis Allan he "can see no basis" to dispute the inferences or determinations of the trial judge who, in April 2006, found Allan guilty of six charges in connection with the brutal attack.
The appeal, Frankel noted, was "essentially an attempt to re-argue the case."
To succeed, an appeal must identify that legal error was made by the trial judge.
Thursday's unanimous decision by three justices was reached without hearing from Crown Jennifer Duncan.
"We don't find it necessary to call upon you," Frankel told Duncan, after giving Allan – who was representing himself – the morning to state his case.
Allan, 56, was arrested in 2003, following the Aug. 29, 2003 kidnapping and assault of his cousin, Allan Sutton.
Over the course of the lengthy subsequent trial in B.C. Supreme Court in New Westminster, the court heard how Allan kidnapped Sutton from his home in the 16300-block of 20 Avenue. He "piped" the 47-year-old in the head, bound him with duct tape, put him in the trunk of a Lincoln and dumped him at the side of a dirt road, court documents state.
Sutton testified that Allan had appeared unexpectedly at the bathroom door, as he was getting ready for work, and demanded to speak with him.
He recalled telling Allan it was a bad time, then waking up in Royal Columbian Hospital three weeks later.
Allan was convicted of kidnapping, aggravated assault, robbery, possession of a weapon for a dangerous purpose, break-and-enter with intent to commit assault and possession of a stolen vehicle worth more than $5,000.
In sentencing, Crown successfully argued for Allan to be deemed a dangerous offender, a designation which carries an indeterminate jail term. (Allan's appeal of that sentence is expected to be heard sometime next year.)
Thursday, Sutton and his sister-in-law, Debbie Sutton, listened – taking extensive notes and at times shaking their heads in disbelief – as Allan pleaded his case for either acquittals or a new trial.
Allan's nine points to Frankel and Justices Elizabeth Bennett and Kathryn Neilson included that he did not receive full disclosure and that the trial judge "failed to address the significance" that information detailing a lack of forensic evidence placing him in Sutton's home was missing from an RCMP flow-chart.
Allan also maintained there were contradictions in witness statements, including Sutton's; that three officers had "altered their initial experience with the complainant" to support Sutton; and that two others who testified, including a former roommate of his, lied on the stand.
The trial judge erred in accepting those witnesses' testimony, Allan said.
"She repetitively said that she found the evidence of these two to be reliable and fair," Allan said.
In dismissing the appeal, Frankel noted the trial dealt with identifying the accused. The trial judge found that evidence "overwhelming," he said.
Regarding the lack of disclosure, Frankel said it was addressed at trial. Allegations of a conspiracy were not raised at trial, he said.
Prior to the appeal court's decision, Allan Sutton told Peace Arch News he never fully recovered from the attack by his cousin. The former lawyer often can't get on with his day until hours after waking.
In order to attend Thursday's appeal, he said, he had to stay up the entire night before. His inability to function in the morning is one of the reasons he will never return to work.
"There's no way I could be reliable enough," he said, noting the attack impacted his balance. "I can't even look up without holding onto something."
Sutton said he is certain Allan intended to kill him.
"I'm thoroughly convinced he thought I was dead."
He has not forgiven Allan.
"I'm furious," Sutton said, noting the attack was the first time he'd seen his cousin in nearly 20 years.
"He's ruined my life over a bunch of ridiculous nonsense.
"We keep trying to wrap some sense around what happened, but you can't."
Debbie Sutton said she has attended every court proceeding regarding the case and doesn't leave the room until Allan has been escorted out.
Citing Allan's inexplicable animosity toward the family, she said she will continue to be vigilant. The risk he poses to her family – should he ever be released – is too great, she said.
"We'll always be aware of where he is."