Penticton

The B.C. Court of Appeal has set aside the first degree murder conviction of Corey Swite.

Swite, 25, was convicted of first degree murder in 2009.

He was accused in the sexual assault and murder of an elderly woman in her home in August of 2006 at her home in the Belair Apartments.

In a lengthy decision handed down Tuesday, Honourable Madam Justice Prowse set aside the verdict and ordered a new trial due to a procedural error made by the trial judge.

Swite appealed saying the judge, Justice Peter Rogers, erred by not following the mandatory procedure set out in section 640(2) of the Criminal Code for the conduct of the challenge for cause.

As a result, the jury was never properly empanelled, the trial court never had jurisdiction to try the offence and the trial was a nullity.

Swite, of First Nation heritage, filed an application prior to the start of his trial to challenge prospective jurors for cause.

In his application, Swite sought to challenge the impartiality of the potential jurors by asking two questions as follows:

TAKE NOTICE that the Accused, Corey Wolf Swite, hereby intends to challenge for cause potential jurors for his trial pursuant to Section 638(1)(b) of the Criminal Code of Canada. It is intended that a Voir Dire be conducted on the jurors to determine whether the jurors can view the evidence without bias, prejudice, or partiality. It is intended that the jurors will be asked (2) questions. The form of these questions is intended as follows:

As the Judge will tell you, in deciding whether or not the prosecution has proven the charge against an accused a juror must judge the evidence of the witnesses without bias, prejudice or partiality:

• Would your ability to judge the evidence in the case without bias, prejudice, or partiality be affected by the fact that the person charged is Native Indian person and,
• Would your ability to judge the evidence in the case without bias, prejudice, or partiality be affected by the fact that the charge against the Native Indian involves the murder and sexual assault of an 85 year old woman.
  
  While the trial judge agreed to the request, he and Defence Counsel disagreed on the process.
  
  Because of the procedure followed, the BC Court of Appeals found in favour of Swite.
  
  "In my view, not only was the process fatally flawed, but the appearance of justice was compromised. In summary, the fundamental nature of the error made by the trial judge was such that the curative provisions were simply not available. In the alternative, if they were available, Mr. Swite suffered both presumed and actual prejudice such that the error could not be cured," wrote Justice Prowse.
  
  Swite was originally sentenced to life in prison with no possibility of parole for 25 years.
  
  A date for a new trial has not been set.