A provincial court judge has acquitted a 24-year-old Yorkton man of armed robbery.
At trial last week, the Court heard that on the night of October 31, 2015, James Willis, a businessman from Regina, was walking back to his hotel from the Painted Hand Casino when he was accosted by Billy Gambini.
Prosecutor Jim Trotter told the court Gambini pulled a gun on Willis and demanded money. The victim handed over his wallet containing $320, which he had won playing blackjack. After the alleged robber fled by foot east on Broadway Street, the victim called the RCMP, who caught up with Gambini near McDonalds. The suspect had the wallet and a handgun in his possession.
The defence, led by Vincent Gambini, the defendant’s cousin, claimed Mr. Willis had voluntarily given the accused his wallet as a gift.
The Crown produced a surveillance video from the Kahkewistehaw Gas Bar that had captured the alleged robbery. The video was grainy, but clearly showed a man who looked like the accused pointing a gun-like object at a well-dressed man, who then immediately reached into his jacket and handed something over.
Trotter called Willis as his primary witness. When the victim described handing over his wallet, the judge interrupted.
“So, you are testifying that you just gave your money to this man?” Judge Chamberlain Haller asked.
The Crown objected.
“He was being held at gunpoint,” Trotter argued.
The judge replied: “Are you saying a person being held at gunpoint can’t consent to giving another less fortunate person a gift?”
As testimony continued, Haller interrupted Willis again. He asked the victim, accidentally calling him the defendant, whether on the night in question he was wearing the same kind of clothing—an expensive suit and tie—as he was in court.
When the witness answered ‘yes’ the judge said: “Can you see how wearing provocative clothing like that might lead someone to believe you wanted to give them money?” the judge asked.
Again the Crown objected, saying what the man was wearing is irrelevant.
Haller admonished Trotter.
“Of course, it’s relevant,” he said, adding: “It’s almost as if he was asking for it.”
On cross-examination, the defence lawyer again asked Willis to describe how he had reached into his pocket, took out his wallet and gave it to the accused.
Again the judge intervened directly asking Willis, “If you didn’t want to give up your money, why didn’t you just keep your hand out of your pocket?”
In an oral decision delivered after a 30-minute adjournment, the judge said he could not convict because in the video Mr. Willis showed no signs of resisting, that clearly his appearance had been provocative and that the Crown had not proved beyond a reasonable doubt the wallet and money were not given voluntarily.
“Clearly, a person at gunpoint can still consent to giving a gift,” Haller concluded. “I find the victim not guilty.”