Acquittal in swarming attack

A Penticton man charged in a swarming attack outside the Mule Nightclub in 2017 has been found not guilty.

Zachary Eden-Burke, 23, was acquitted of assault with a weapon and assault causing bodily harm by Judge Michelle Daneliuk in Penticton court Friday.

Eden-Burke was charged after an incident Feb. 18, 2017 at 12:30 a.m., when a group brutally assaulted two men walking by the Mule Nightclub. The more severely-injured victim saw his foot broken in four places and required surgery.

The Crown alleged Eden-Burke participated in the attack and used a pipe or bat to hit one of the victims on the ground.

The two victims of the assault were drunk at the time and unable to identify their attackers, with much of the Crown’s case resting on testimony of two Mule bouncers that said they saw Eden-Burke take part in the attack.

The testimony of the two bouncers, however, did not stand up and had several “glaring” inconsistencies. One of the bouncers maintained the two victims were assaulted by two separate groups, running contrary to the accounts of everyone else involved.

The other bouncer incorrectly maintained the assault happened at 3:45 a.m., something contradicted by responding police officers. That same bouncer also was not wearing his glasses at the time and admitted to struggling to make out faces when breaking up the melee.

Even the bouncers did not identify Eden-Burke by his face, but rather by a sweatshirt they said they saw him wearing earlier in the night.

Eden-Burke himself testified that he came across the altercation between the two men exiting the nightclub and a group of youth he recognized outside. He admitted to intervening in a fight, and hitting another man who was assaulting one of the teens.

Judge Michelle Daneliuk said it was clear the victims were not hurt as a result of a consensual fight, but the Crown failed to prove beyond a reasonable doubt Eden-Burke participated in the swarming.

“Essentially I have concluded that I am not certain whose evidence to believe on the issue of identity [of the main attacker],” she said.

The acquittal came after three days of trial in October 2018 and January 2019.

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