A provincial court judge has been found a 31-year-old Yorkton man accused of attempting to rob the Scoops Ice Cream bar last summer not guilty.
Judge Brent Klause, who presided over the trial in February rendered his decision March 10, acquitting Troy Mamchur on charges of break and enter, attempted robbery and wearing a disguise in the commission of a criminal offence.
The Crown, represented by Andrew Wyatt brought eye-witness testimony from three people, including Mamchur’s girlfriend, who placed him leaving the City Limits Inn (CI) where he had been drinking all evening on August 25, 2016 and heading in the general direction of Scoops around the time of the attempted robbery. They said he returned within 10 or 15 minutues.
Nicole Roy, the co-owner of Scoops who was there alone on the night of August 25, testified a muscular man about her height wearing a hoodie, khaki shorts, a tea towel over his face and flip flops entered the business and demanded money around 10 p.m. as she was closing up. She picked up a pair of scissors and chased him off then called police.
Another woman, who was walking from the Laundromat across the street testified she heard yelling and saw a man fitting that description run off toward the Farrell building and she went to ice cream shop to investigate.
A few minutes later, while the two women were talking, a man with the same kind of build as the suspect and wearing similar shorts and flip flops walked by. Both said in court he looked at them intently as he passed and both said they were sure it was the same man they had seen before. Roy testified she would never forget his piercing eyes.
She called police again and told them she saw him heading toward the CI. Officers found and arrested Mamchur there.
Police testified they had used police dogs to track the suspect and found a hoodie and tea towel matching the description the witness had given along with a knife and baseball cap.
One officer testified Mamchur had asked during the arrest “what did the woman say?” even though he had not been told the complainant was a woman.
During the trial there was mention of a DNA sample associated with one of the items, but the Crown never brought any DNA evidence to link Mamchur to it.
The defence, led by Saskatoon attorney George Combe, countered the Crown’s story with Mamchur’s own. The accused testified he had left the CI to buy marijuana at a gym down the street. When he was walking back, he noticed the two women staring at him and looked back at them, he said, which was his explanation for asking “what did the ladies say?” in his recollection of the arrest.
He said he had swallowed the drugs to avoid being charged with possession and had not initially presented that alibi to police to protect the dealer who had sold them.
On the witness stand, Mamchur again categorically denied having attempted to rob the store as he has since the beginning.
In a written decision, Judge Klause said the burden of proof in the case revolved around positive identification of the suspect.
He said there were implausible aspects to the Crown’s story such as a robber returning so quickly to the scene of the crime and that someone would leave his girlfriend at a bar, walk 100 metres to a small town ice cream store, rob it, then come back to resume his evening.
The judge was equally troubled by some aspects of the defendant’s testimony, but was ultimately left with reasonable doubt regarding the identification of Mamchur as the would-be robber.
“In my opinion, the identification is simply too frail to meet the standard of proof that the case law requires,” Klause wrote.
He did comment, however, on one aspect of the investigation that would have made the case for the Crown.
“No further [dog] tracking was undertaken from the point where the clothes were discovered,” he wrote. “If the track had been continued and had led back around the store to Scoops and the accused, in my opinion, that would have completely closed the circle of identification.”
Mamchur spent almost six months in jail awaiting his trial and acquittal.
