THUNDER BAY - After eight days of evidence presented to the court detailing the last moments of Lee Chiodo’s life in February 2019, including statements to police from the two accused in his murder, and a key witness who has already pleaded guilty to charges related to the incident and testified he was there, Justice Danial Newton will determine if it all proves beyond a reasonable doubt that Musab Saboon and David Hui are guilty of first-degree murder.
Closing submissions were heard Wednesday on the eighth and final day of the trial against Hui, 50, and Saboon, 30, who stand charged with first-degree murder and kidnapping for their alleged role in the shooting death of 40-year-old Chiodo, whose body was found near 108thAvenue on Mission Island on Feb. 24, 2019.
Both Hui and Saboon have pleaded not guilty to the charges.
Crown attorney Rob Kozak is asking Justice Newton to convict Saboon and Hui on both charges, arguing the culmination of evidence backs up the testimony of the Crown’s key witness, Marshall Hardy-Fox, who testified during the trial to driving the two accused and Chiodo to Mission Island where he was ultimately killed.
Hardy-Fox, who was first charged with first-degree murder as well, has since pleaded guilty to charges of kidnapping and accessory after the fact to murder and is yet to be sentenced.
Defense counsel on behalf of the two accused maintain there is a lack of physical evidence linking them to the murder, and that Hardy-Fox lied about what happened in order to spare himself a life sentence on the charge of first-degree murder.
Kozak’s closing submission included a breakdown of all the evidence presented throughout the trial, including a surveillance video from a Memorial Avenue bowling alley where Chiodo is seen running past the counter and then being approached by another individual matching the description of Saboon before following him out.
Kozak also highlighted a text conversation between Chiodo and another individual asking to meet at the bowling alley the night of Feb. 23, which he argues was done with Saboon’s phone after the individual failed to logout of the social media account on his phone and was a way to lure Chiodo to the location where he was then forced into the car.
Other evidence cited by Kozak include Saboon and Hui being placed at a Trillium Way residence selling drugs where Hardy-Fox first met them the night of Feb. 23, Hardy-Fox saying he then drove the two to the bowling alley to confront someone who owed them money, and video surveillance showing the headlights of a car near the scene of the murder shortly after Chiodo was seen at the bowling alley.
“This is a case about four men in a car,” Kozak said. “I propose to you that there should be no dispute that the driver of that car is Marshall Hardy-Fox and the man in the car being transported to that location and is ultimately found by civilians is Lee Chiodo. I propose to you that the other two people in the car are Dave Hui and Musab Saboon.”
Kozak acknowledged that the Crown’s case boiled down to its key witness, Hardy-Fox, but added that the other evidence supports and confirms his testimony.
“Witnesses help Hardy-Fox, video helps Hardy-Fox. These are all confirmatory evidence that will add up,” Kozak said. “I am seeking the court accept the evidence of Mr. Hardy-Fox.”
Defense counsel George Joseph, who is representing Hui, argued that it is not the court’s function to determine who murdered Chiodo, but rather determine if there is sufficient evidence to prove the charges against the accused.
Joseph began by arguing the charge of kidnapping against Hui was not proven by the Crown, saying Chiodo leaves the bowling alley voluntarily and the video evidence shows no force being exerted on him to force him out.
“When you combine those exhibits, the police interview with David Hui and what you see in the video at [the bowling alley], when you combine with the objective evidence of the patrons and employees of [the bowling alley], it is my submission that the Crown is missing all of the key elements in the charge of kidnapping against David Hui,” Joseph said.
On the charge of first-degree murder against Hui, Joseph said the Crown’s case relies on the testimony of Hardy-Fox, who he called an ‘unsavoury witness’ who had ‘motive to lie.'
“Mr. Hardy-Fox is not a witness you should repose any confidence in,” Joseph said. “He has a lifetime of reasons to lie. Mr. Hardy-Fox’s testimony on the events of Feb. 23 at best do not make sense and at worst is a complete lie.”
Joseph added that there is no other independent evidence to confirm Hardy-Fox’s testimony and Hui’s statement to police after being arrested demonstrates his bewilderment at the charges and what happened to Chiodo.
“He is either an Academy Award winning actor or he is telling the truth,” Joseph said of Hui’s statement to police, adding that the charge of murder is not corroborative that Hardy-Fox’s testimony was the truth.
“The Crown cannot prove independent or corroborative evidence of Hardy-Fox, this case rests solely in the hands of a liar and it would be dangerous for you to convict on those circumstances,” Joseph said.
Defense counsel Brennan Smart, who is representing Saboon, focussed much of his closing submission on statements Saboon made to police after being detained on March 1, 2019 where he stated he and Hui were in Kitchener, Ont. on Feb. 23, 2019.
“He identifies where he was and provides more details the police can look at to confirm he was in Kitchener on that weekend,” Smart said.
“You know from the cross-examination of the interviewing officer and the absence of any evidence being introduced in this case disproving the alibi. There was no investigation conducted.”
Smart added that the Crown did not submit any evidence to refute Saboon’s alibi, aside from the testimony of Hardy-Fox, about which Smart also raised concerns, including his identification of Saboon, who was known to him as Tony.
“Mr. Hardy-Fox’s opportunity to observe Tony and identify him later is relatively brief, under circumstances in which he is high and impaired by alcohol, and that takes this away from a classic recognition case,” Smart said. “Mr. Hardy-Fox did not even provide a description of Tony in his evidence at trial other than to say he’s a big guy.”
Smart concluded by arguing Hardy-Fox benefited from testifying on behalf of the Crown and accusing Hui and Saboon by having the first-degree murder charge against him withdrawn and that he lied to police after turning himself in and had access to disclosure to help inform his testimony at trial.
“The Crown is resting their prosecution of these two men on a charge of first-degree murder entirely on the evidence of an individual who has lied to the police and lied to the court and derived a benefit,” Smart said.
“I will say in closing that the justice system does not found convictions on perjured evidence and that is what the Crown is asking this court to do.”
The matter has been adjourned to March 28, 2022 to set a date for Justice Newton to deliver his verdict. Saboon remains in custody while Hui was previously released on bail.
