The court heard closing arguments in the attempted murder trial related to a shooting outside a downtown Whitehorse bar. (Yukon News files)

The court heard closing arguments in the attempted murder trial related to a shooting outside a downtown Whitehorse bar. (Yukon News files)

Court hears closing arguments in trial over shooting outside Whitehorse bar

Defence lawyers say there’s not enough proof for guilty verdict on anything but one possession charge

Final arguments have been presented in the attempted murder trial for the man accused of shooting John Thomas Papequash outside a downtown Whitehorse bar in 2019.

Evidence was presented in June for the case against Malakal Tuel, accused of the shooting and also the possession of cocaine, possession of cash derived from crime and firearms charges. Another man, Joseph Wuor is co-accused with Tuel on the drug, gun and cash charges but not for the shooting.

Although the court heard from witnesses months ago, lawyers for the crown and the defence were given a long break in proceedings to prepare written arguments. Some final arguments to supplement the written submissions were presented to Chief Justice Suzanne Duncan of the Yukon Supreme Court on Oct. 3.

Arguing for the Crown, Leo Lane outlined the ways he says it has been proven that Tuel and Wuor were partners in a cocaine trafficking operation and how Tuel was the one who fired the handgun bullet that gravely injured John Thomas Papequash outside the 202 bar on Dec. 1, 2019.

Lane first laid out his case regarding the drug trafficking with the presence of more than 70 grams of cocaine, some packaged for individual sale, implicating both men because it was in the pickup truck they were in or near when they were arrested hours after the shooting. He said what ties both Tuel and Wuor to the trafficking are: The fact they were together “constantly” during the time period in question, loose cocaine found in a pair of vehicles, a pair of fake Ontario identification cards, multiple cell phones and magnetic key holders used to store cocaine.

Lane said that in the Crown’s theory of the case, Tuel and Wuor fled the area of the shooting in a Chevrolet Cruze before abandoning it, doubling back on foot towards downtown and then being picked up by an acquaintance of Tuel’s. Lane said that it is a reasonable inference based on testimony of the acquaintance that the two men were together in the Cruze. One small baggie of cocaine was later found in the Cruze.

Regarding the fake IDs, Lane said the fact there were two of them suggests they were for a two-man operation. He told the court that based on post dates on the package the identification cards were found in, they had likely arrived from Quebec, not Ontario, a few days before the shooting. He said the lack of a return address on the packaging for the IDs suggests they were for an illegal purpose. He said the photos on the cards were at least passable likenesses of Tuel and Wuor.

Thirteen cell phones were found in Tuel’s residence and the vehicle the two men were arrested in. Lane drew attention to testimony from a witness who had seen Wuor using two different cell phones while at the bar on the night of the shooting.

Lane told the court that magnetic key holders, two of which were found with cocaine inside, were located in Tuel’s residence, Wuor’s suitcase in the pickup truck and elsewhere.

Although the court had also heard DNA evidence tying Tuel to the gun later found in his truck, Lane said the key evidence for the judge to consider was the forensic firearms information. It showed that the gun found in Tuel’s truck fired the spent shell casing found outside the bar. Eyewitnesses also described seeing a man walking towards the doors of the bar with a gun from the east.

Lane said that only Tuel or Wuor could have matched the description given by those witnesses and Wuor had been captured on video approaching from the other direction. He said no admissible evidence was given of another man matching that description being at the scene and so the judge should have no trouble finding that Tuel was the shooter.

Each of the accused was represented by their own lawyer, Dale Fedorchuk appealing on behalf of Tuel and Lynn MacDiarmid for Wuor.

Fedorchuk began his final argument by calling the Crown’s assertion in written arguments that there was motive for Tuel to shoot Papequash “pure speculation with no factual basis whatsoever.”

The defence lawyer noted that there had been no physical contact between between Papequash and Tuel during a disagreement between their two groups caught on security camera inside the bar.

Fedorchuk also objected to Lane’s assertion that an identification of the shooter as another man, not Tuel, by one of the witnesses in their initial police report could be disregarded. That witness identified Tuel on the stand. He also pointed to differing descriptions of the shooter’s clothing, appearance and position relative to the bar’s front door reported by different witnesses.

In his defence, Fedorchuk raised possibilities including that it had actually been Wuor seen holding a gun at the southern end of the building after running around the back of it and that the shell casing found at the scene, while proven to have been fired from the gun found in Tuel’s truck, may not have been fired at the scene and that there may have been a third potential shooter matching the description at the scene.

“They all point to a cloud of confusion and that cloud of confusion does not lend itself to proof beyond a reasonable doubt,” Fedorchuk said.

He said with all the evidence considered, Tuel should be found not guilty of the charges related to the shooting and added that the crown hadn’t succeeded in proving essential elements of the drug possession, firearms possession and proceeds of crime charges.

Arguing on Wuor’s behalf, McDiarmid maintained that the drugs in Wuor’s suitcase were for personal use and the pistol, other drugs and cash found in the truck belonged to Tuel. She said Wuor got caught up in something he was not party to and the crown cannot prove anything besides his possession of the drugs in his suitcase beyond a reasonable doubt.

Duncan said she would reserve judgement.

Contact Jim Elliot at

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