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ST. JOHN’S, N.L. — Two weeks after a St. John’s judge told the Crown it could lose its case against accused sexual predator Markus Hicks unless it changes its procedure for releasing evidence to his lawyers, Hicks case was back in court Thursday.
This time the prosecution was represented by Richard Deveau, senior Crown attorney for the province’s eastern region, who detailed for the court the status of the evidence related to Hicks’ 93 criminal charges, file by file.
Hicks, a 32-year-old high school teacher and volleyball coach, was arrested last fall as part of a Royal Newfoundland Constabulary investigation into allegations of sexual violence against youth. Police say Hicks used aliases and fake identities, mostly female, to arrange sexual acts on social media sites and chat platforms while keeping his identity hidden for years.
His list of charges has grown since his arrest, and includes sexual assault, child pornography offences, child luring, breach of trust by a public officer and others, against more than a dozen complainants. Their identities are protected by a publication ban.
The Crown is proceeding by way of indictment — the most serious route of prosecution, with lengthier prison sentences if Hicks is eventually convicted.
At Hicks’ last provincial court appearance, his legal team indicated it was still waiting on disclosure. Prosecutor Mark James said it had already provided all the disclosure it had, apart from material police retrieved from mobile phones connected to the investigation, which was available for defence counsel to review in person at RNC headquarters, as per the Crown’s general protocol.
The material was particularly sensitive and not appropriate for distribution, James said.
Judge James Walsh described that protocol as “illogical.”
“If that’s your position, you’re at risk of losing your prosecution,” Walsh told James, adding the Crown could consider an undertaking to restrict what happens with the evidence after it’s given to Hicks’ lawyer if it is concerned about the distribution of the material.
An accused person has the legal right to access all evidence against them to prepare a proper defence. The Crown has previously argued in a separate case that it has the authority to restrict how the evidence is provided to the defence, particularly in the case of sensitive images, and there is a legal process for the defence to challenge the restrictions.
On Thursday, Deveau gave an update on the disclosure status, saying the final package of information related to the charges involving one complainant would be ready for the defence later in the day, and the remaining information connected to the rest of the charges would be ready in the coming weeks.
“Some of it we are not able to provide because distribution is not appropriate, given the nature of it,” Deveau said, reiterating the Crown’s position. “We will be able to let the defence know what’s on (the electronic files) and arrange for their access.”
Deveau said the case “needs to proceed,” given Hicks has been in custody for more than four months.
“I want to put that on the record,” he said.
Defence lawyer Jason Edwards told the court he wants to see the case proceed as well, but won’t take any steps to do so until he has reviewed all the disclosure.
“I haven’t had the opportunity to see what we’re dealing with here. I do need to see the disclosure before I can talk to my client about next steps,” he said.
Hicks’ case will be called again Feb. 9.
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