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Sunday, February 13, 2011

Canada - New trial ordered in bid to have Hells Angels declared criminal group

OFF THE WIRE
Appeal court overturns decision on two gang members by B.C. Supreme Court Justice Peter Leask for third time in a year
Federal prosecutors will get another chance to have the Hells Angels declared a criminal organization after a B.C. Court of Appeal victory Thursday.
The appeal court overturned B.C. Supreme Court Justice Peter Leask's ruling in November 2009 that prosecutors could not proceed with criminal organization charges against two men linked to the East End chapter of the notorious biker gang.
And the appeal court ordered a new trial on the gxxgsterism charges for John Punko and Randy Potts, who were drug trafficking in the mid-2000s while they were both full-patch Hells Angels.
It was the third time in a year that the appeal court overturned Leask in a case involving Punko and Potts.
Lawyers for the pair are expected to seek leave to appeal Thursday's ruling to the Supreme Court of Canada.
RCMP Insp. Gary Shinkaruk said Thursday he appreciated the court's ruling and looked forward "to bringing the evidence before the court for them to make the ultimate decision."
"Certainly is has been my belief that the Hells Angels are a criminal organization and remain a criminal organization," Shinkaruk said.
Neither Punko nor Potts were present in courtroom 70 Thursday when Appeal Court Justice Pamela Kirkpatrick said the appeal was allowed.
In the ruling, Kirkpatrick agreed with prosecutors who said Leask was wrong when he ruled that criminal organization charges could not proceed against Punko and Potts.
Leask reasoned that because a jury had already acquitted the pair and two other Hells Angels on criminal organization charges in the summer of 2009, the Crown could not get a second crack on the same charges in a new trial.
But Kirkpatrick said she was not satisfied "that the issue of whether the East End Hells Angels was a criminal organization was clearly and unequivocally decided in the first trial."
"It follows that I would allow the Crown appeal and order a new trial on the criminal organization counts on which the accused were acquitted," Kirkpatrick said in her 30-page ruling.
Leask made his original order after a pre-trial motion by defence lawyers who said the Crown should be "estopped" -- prevented -- from arguing that the East End chapter of the Hells Angels was a criminal organization at the second trial of Potts and Punko. At the time, they were also facing charges of producing and trafficking methamphetamine.
Leask said the earlier jury had decided that the East End Hells Angels was not a criminal organization or they wouldn't have acquitted on that count.
But the Crown argued that the jury might have acquitted because they didn't feel that the evidence showed the crimes in the first case were committed for the benefit of the Hells Angels, as opposed to deciding the biker gxxg was not a criminal organization.
On appeal, the Crown said Leask erred by speculating on the jury's reasons when they are unknown.
Kirkpatrick agreed, saying: "The trial judge ultimately failed to properly apply the legal test and thus erred in law."
Both Punko and Potts pleaded guilty to their drug charges. Leask handed Punko a 14-month sentence and Potts just 12 months after Leask criticized police tactics in the investigation.
But last month, the appeal court upped Potts's sentence to five years, saying Leask had erred.
And last August, the appeal court more than quadrupled Punko's sentence, also overturning Leask.
Potts and Punko were arrested in July 2005 as part of the RCMP's $10-million crackdown on the East End chapter of the Hells Angels.
http://www.vancouversun.com/news/trial+ordered+have+Hells+Angels+declared+criminal+group/4266427/story.html