“Devastated.”
That's how Annie Hutton describes her feelings after the man convicted of murdering her son successfully appealed his conviction Tuesday.
A three-judge panel of the BC Court of Appeals ruled Tuesday in favour of Steven Pirko, ordering his conviction of second-degree murder of Chris Ausman be set aside and a new trial be ordered.
Hutton said after spending the past three years since Pirko was sentenced trying to move forward with her life, Tuesday's news was “like losing Chris all over again.”
“We're devastated, we've had that Band-Aid ripped off. We're hurting horribly,” Hutton said Wednesday from her home in Cranbrook.
“We all made peace with it, we were happy with the outcome. We celebrated afterwards, we told stories about Chris. We laughed and we hadn't done that in a long time ... and now it's just been tossed.”
During a seven-week trial in the spring of 2019, the jury heard how Pirko had struck Ausman three times in the back of the head in the early morning hours of Jan. 25, 2014, after Ausman and Pirko's friend Elrich Dyck got into an intoxicated fight.
In his defence, Pirko claimed he had acted to defend Dyck, but the jury determined Pirko's actions constituted second-degree murder.
Pirko was then sentenced to life in prison with no chance at parole for 11 years on Jan. 31, 2020.
Hutton said she was aware Pirko was appealing his conviction, but she never thought he would be successful.
“Any way you look at this, he killed my son,” Hutton said. “As it was said at the trial, he had a minute and 13 seconds to make a decision on how to split these two boys up from fighting ... in a minute and 13 seconds he took a hammer out and he hit my Chris three times in the head.
“Why in God's name was he carrying a hammer? He intended to use that on somebody.”
Pirko's appeal was based on several issues he had with trial judge Justice Allan Betton's final charge to the jury back on June 13, 2019.
A judge's charge to a jury is the final instructions given which helps summarize the keys elements of a case and explain the relevant laws.
Prior to delivering the charge to the jury, Justice Betton had a number of discussions with both Crown and defence counsel about the charge, and Appeals judge Justice Gregory Fitch noted the final instructions to the jury “were crafted following substantial input from Crown and defence counsel.”
The defence took no issue during the trial with any aspect of the final charge that was put to the jury.
But ultimately, close to four years later, Justice Fitch concluded that Justice Betton “misdirected the jury” with regards to how to apply the law in relation to Pirko's claim that he was defending Dyck.
“More importantly, I have found that the instructions given on the appellant’s primary defence were, taken as a whole, so confusing as to amount to error in law,” Justice Fitch said in his ruling.
“I have also concluded that those instructions were, on occasion, wrong in law and prejudicial to Pirko.”
He added that Justice Betton erred in regards to instructing the jury about how to interpret Pirko's “post-incident conduct” and on how the jury could use Pirko's criminal record in its deliberations.
“In my respectful view, the cumulative effect of these errors resulted in an unsatisfactory trial,” Justice Fitch said.
But Hutton said the jury wasn't stupid, and if any of the jurors were confused, they could have easily asked for clarification.
Justice Betton is the second most senior Supreme Court judge in B.C.'s Southern Interior, having served in the role since 2011. He oversaw the high-profile and lengthy Jonathan Bacon murder trial back in 2017 and 2018.
With Pirko's murder conviction now set aside, it's up to the BC Prosecution Service lawyers to decide if they want to proceed with a second trial. Otherwise, Pirko could walk free.
BC Prosecution Service spokesperson Dan McLaughlin said they are “currently reviewing the decision and expect to make a decision as soon as the review is complete.”
McLaughlin said Pirko remains in custody at this time, and he would need to apply for release pending a possible second trial.
