Tensions boil over at murder trial as lawyers spar over ‘coaching’

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ST. THOMAS – The courtroom tensions at Boris Panovski’s retrial have been simmering for several days.

But on Thursday, they almost reached the boiling point and were on the verge of putting the brakes on the 10-year-old first-degree murder case that has already been tried, appealed, moved and started over again.

The Crown, the defence and the judge all agree that the main issue in the case is the identity of the shooter who ambushed Donato Frigo, 70, and his wife Eva Willer Frigo while they were riding horses following the annual field dog trials at the Hullett Provincial Wildlife Area north of Clinton on Sept. 13, 2014.

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Panovski has pleaded not guilty to first-degree murder of Frigo and not guilty to attempted murder of Frigo’s spouse. As was argued in the first trial, the Crown has set out to prove that Panovski, 79, a one-time high-flying dog breeder in the field dog world, held a grudge against Frigo for his loss of reputation following an arrest in Waynesboro, Ga., the epicentre of the field dog world, in 2005.

That has led to another lengthy trial, this time by Superior Court Justice Marc Garson alone with no jury, that is hearing the testimony from witnesses with fragile memories of a decade ago, some of whom had brief contact with Panovski in the days before and after the shooting.

The tensions finally spilled over Thursday during the testimony from Amr Saber, who was the general manager of the World Gym location on McGowan Avenue in Scarborough in September 2014. He was testifying remotely and answering questions through an online link.

Garson has already heard that two days after the shooting Panovski bought a same-day ticket to Macedonia, bought a new set of luggage at Walmart, cancelled his car insurance and jumped on a plane to eastern Europe.

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On Thursday, he heard that Panovski attempted to cancel his life insurance and was successful at cancelling his gym membership. Panovski signed up for the gym in July 2014 and the cancellation cost him $110.00, Saber said, after reviewing the gym’s receipt.

He also agreed after reviewing his previous trial testimony that he had a brief conversation with Panovski asking why he was cancelling. “He said he was moving, leaving the country, I believe,” Saber said.

Saber said he might have seen Panovski around the gym working out less than 10 times. Assistant Crown attorney Elizabeth Brown asked him to describe Panovski.

“I think he was an elderly gentleman, black hair. I believe. Average height, 5-9, 5-10, something like that. Decent shape, not severely overweight, regular build, I would say,” Saber said.

It was that moment that defence lawyer Margaret Barnes asked to speak to the judge without the witness present. “This by-video is not working. It’s not giving Mr. Panovski a fair trial,” she said. “I think you’re going to have to stand (the trial down) and have everybody come to St. Thomas.”

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At the heart of Barnes’s complaint was the height estimates given by Saber and the Walmart customer service manager who testified remotely Wednesday. Neither witness had given specific heights in feet and inches at the previous court proceedings or in police statements, but they did at the retrial.

Barnes went further, suggesting the witnesses’ testimonies were “recently fabricated” and they are being “coached” and the Crown is “following a script” because their description falls in line with the main eye-witness yet to be called.

Also, she said, they need to be in the courtroom to identifiy Panovski and for Barnes to properly cross-examine them.

Brown said the accusations from Barnes had the potential to cause a mistrial because Barnes was accusing the Crown of impropriety that ultimately might have to be adjudicated by the law society.

She was adamant the Crown was acting in good faith and asked Garson to tell Barnes to stop with the allegations of “coaching.”

Brown said she was concerned about the defence “continuing on the record levelling baseless allegations of impropriety which goes directly to our professional integrity as well as our ability to continue in this case,” she said.

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Garson decided that allowing witnesses to testify remotely did not impede on Panovski’s fair trial interests, but instructed court staff to have a camera in place that pointed at Panovski in the courtroom for witnesses to see.

He added that this case, given its age, needed to be tried efficiently and in a timely way, which makes remote access important for witnesses living in other jurisdictions.

“What’s becoming clear to me is time is becoming an important element here, because our criminal justice system is one where the passage of time often makes it difficult for persons to recollect events,” Garson said.

He also said that “the banter between counsel I have noticed in recent days is getting a tad more heated and a tad more tense.”

He wants the lawyers to turn down the temperature and said about Barnes’s suggestions, “I think that although the defence counsel raises suspicions and concerns, I also think some of the words are strong words and at the present time, lack the evidentiary foundation to support them.”

The recent witnesses were primarily there to discuss Panovski’s activities after the shooting and they had “fleetingly” short interactions with him, Garson said.

Barnes argued that it was not the Crown, but the OPP investigators who may not be providing the court with all their information, adding she “doubts the veracity of the OPP.”

Garson said he would not halt the case, nor would he agree to Barnes’s request to adjourn for a few days so to seek additional Crown disclosure.

The trial continues on Friday.

jsims@postmedia.com

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