A new trial has been ordered for a man accused of breaking into and ransacking a Surrey home four-and-a-half years ago.
In 2013, a single fingerprint was at the centre of a trial in which Timothy Dale Bornyk was acquitted in connection with a July 2010 home burglary in the Fleetwood area.
The key evidence was a print found on the plastic wrapping of a box containing a “carnival ghoulish” Living Dead doll. (One of the owners of the home, who was away at the time of the break-in, had a business involving purchasing and re-selling novelty items).
Because the print was distorted on the rippled plastic wrap, the trial judge ruled there was reasonable doubt it matched that of the accused and cleared Bornyk.
The Crown appealed the verdict, arguing the judge relied on independently researched articles on fingerprint analysis that were not introduced by either side’s lawyers, not tested in evidence and not put to the police fingerprint expert.
In a Jan. 23 written judgment by the B.C. Court of Appeal, the verdict was set aside and a new trial was granted.
“It is clear from the reasons for judgment that the articles had a material bearing on the acquittal as the judge relied upon them to find that the fingerprint identification was not reliable,” wrote Madam Justice Mary Saunders in her decision, backed by two other appeal court justices.
She added the judge also relied upon his own observation of the two prints.
“The fingerprint witness however was never questioned on that area of the fingerprint. Whether this ‘difference’ is forensically significant is speculation. This unassisted comparison had a material bearing on the verdict.”
