February 29, 2016 - 1:08 PM
KAMLOOPS - An appeal requesting a retrial for a Kamloops man convicted of double murder was dismissed in the B.C. Court of Appeal today, Feb. 29.
In December 2013, a Kamloops jury convicted Roy Frederick Fraser of the first degree murder of Damien Marks, 31, and the second degree murder of Kenneth Yaretz Jr., 24.
Marks and Yaretz Jr. were killed after traveling to Fraser’s rental property in Knouff Lake in 2009. Shot and stabbed, the men’s bodies were found bound with rope in a freshly dug hole on the property.
Fraser and Yaretz Jr. were using the property for a marijuana grow operation. The last time Yaretz Jr. and Marks were seen alive was when they traveled in a work van to visit Fraser in Knouff Lake April 17, 2009. Their bodies were recovered a month later.
Crown outlined Fraser’s frustrations with Yaretz Jr. after he did not return a truck he borrowed or the cash owing from the marijuana harvest. The jury convicted him based on the Crown’s theory Fraser shot Yaretz Jr. out of anger and killed Marks because he was a witness.
Fraser’s appeal said the judge erred in his instruction to jury when he told them to consider a witness’ credibility and said all witnesses have an obvious interest in the outcome of the case. The specific instruction was considered in the appeal because Fraser testified in his own defence.
"The judge instructed the jury on the presumption of innocence and the burden of proof in his opening to the jury, in his charge and in his summary of the defence position,” the Court of Appeal decision read. "The Crown said nothing in its closing address to suggest the appellant had a motive to lie or an interest in the outcome of the case."
Because of the evidence leading to Fraser’s conviction was circumstantial, his appeal argued the first degree murder verdict was unreasonable, suggesting there was no proof Fraser plotted to kill Marks.
"This is not a case where any significant time was required to form a plan to murder. In this scenario, the appellant was already holding the gun he had just fired. The jury could reasonably infer the appellant planned in this brief period of time to chase down Marks, incapacitate him by stabbing him, pull him out of the van and shoot him to ensure his death,” Justice Anne MacKenzie said. "Likewise, the jury could infer the appellant deliberated on the killing of Marks in that interval of time. That is, having rapidly considered his options, he chose, in the interests of self-preservation, to eliminate a witness rather than to allow Marks to escape and incriminate him."
Both murder convictions carry automatic life sentences. Fraser will be eligible to apply for parole in 2038.
To read the court's decision, click here.
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