The defence lawyer for one of the men accused of killing Martin Payne called on a jury to acquit his client as he called the Crown’s argument against James Lee Busch weak and speculative.
The Crown on Monday tasked the jury with finding Busch guilty of first-degree murder, but Ryan Drury said the evidence presented over the last month shows there would be a reasonable doubt the escaped inmate could’ve committed the July 2019 killing.
Busch and Zachary Armitage were charged with first-degree murder following their William Head prison escape, but the latter of the accused men was removed from the trial as the jury heard he’s been dealt with in a separate way.
The evidence showing Busch was an active participant and assailant is inconclusive and the Crown’s narrative of what transpired in Payne’s Metchosin home is circumstantial, Drury argued in his closing address.
He presented a four-part defence on Dec. 13 and 14, which includes: the case is built on circumstantial evidence; there’s insufficient evidence to meet first-degree murder requirements; there was minimal evidence forensic evidence against Busch but an overwhelming case supporting Armitage committing the murder alone; and the Crown fell short of showing Busch was guilty beyond a reasonable doubt.
Drury ultimately drew three possible conclusions from evidence: that Busch was never in the home; that he was at the home but had no involvement in the murder and he was just “in the wrong place at the wrong time”; and that his only role was assisting in cleaning up a crime scene that Armitage had solely committed.
His “circumstantial” argument seemingly relied on how there could be no direct eyewitness since the victim was killed.
“No one has given any evidence that they saw Mr. Busch do anything at Mr. Payne’s residence, no one has even given any evidence that they saw Mr. Busch inside Mr. Payne’s residence,” Drury said.
While the Crown said the jury could use evidence to draw inferences that connect how a planned ambush played out, Drury said the same evidence that could lead to inferences that Busch was innocent.
The lawyer pointed to Armitage’s fingerprints and DNA being found in the home and witnesses testifying how he was making calls from Payne’s landline, while the only thing placing Busch at the home was DNA on some underwear and shoes.
That related to Drury’s third argument, where he concluded the evidence was overwhelming that Armitage alone was responsible for Payne’s death. He recalled how Armitage’s DNA was found on the inside of bloody clothing, Asics shoes and on chewed gum left in the main bathroom where a hatchet and bowie knife were found.
A major crutch of Drury’s argument was that the Asics shoes had much more blood all over them compared to a pair of New Balance’s – which held Busch’s DNA and were linked to a footprint left in the ensuite’s bloody floor. He said the shoes prove Busch couldn’t be in close proximity to Payne when the 60-year-old was being struck.
“Do you think for a moment that these shoes would be so utterly lacking in blood if Mr. Busch was wearing them when he had committed a homicide, hitting Mr. Payne in the head with a hatchet or stabbing him with a knife?”
Defence said the New Balance shoes alone prove a reasonable doubt and are a “roadblock to convicting Busch.”
Crown said the bigger Payne could not have been attacked by a lone assailant as witnesses said his wounds came from the front and back, with at least three weapons. Drury refuted that, saying Armitage – armed with the multiple suspected murder weapons – could have overcome Payne and inflicted the myriad of wounds.
“We say the evidence simply does not allow you to figure out what happened,” Drury said.
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