THUNDER BAY - Lawyers representing David Hui and Musab Saboon on charges of first-degree murder and kidnapping for their alleged role in the 2019 death of 40-year-old Lee Chiodo questioned Marshall Hardy-Fox, a key Crown witness, pointing out inconsistencies in his testimony and what he originally said in an interview after turning himself in to police.
Hardy-Fox took to the stand on Friday to testify on behalf of the Crown where he provided details of Chiodo’s last moments the night of Feb. 23, 2019, before his body was found near 108th Avenue on Mission Island the next day. The cause of death was determined to be a gunshot to the back of the head.
On Monday, during day six of the trial against Hui and Saboon, defence counsel George Joseph and Brennan Smart, representing the two respectively, undertook a cross-examination of Hardy-Fox’s evidence.
Much of the questioning focussed on discrepancies between what Hardy-Fox said during an interview with Det. Const. Jason Rybak after turning himself in to the Thunder Bay Police Service on March 3, 2019 on charges of first-degree murder and kidnapping.
Hardy-Fox has since pleaded guilty to kidnapping and accessory after the fact to murder. He will be sentenced later this year.
According to Hardy-Fox, he was advised by his lawyer to not talk, but he said he also wanted to help police with their investigation.
Joseph asked Hardy-Fox about conflicting accounts of Hui’s actions the night of Feb. 23, 2019, with Hardy-Fox testifying earlier that Hui said ‘I’ll do it’ when he and Saboon were discussing what to do with Chiodo, which contradicts statements made to police.
“On two occasions in that March 3 statement to police, when asked to describe Dave Hui’s actions, your response to Rybak is ‘I don’t know,’” Joseph said. “You were lying at one point in your evidence. You are lying on the stand today or you lied to police in March.”
“I’m telling the truth when I was talking about Hui,” Hardy-Fox responded. “I guess I was lying to the cops. I don’t like to think of myself as a liar. I was just scared and I didn’t know what to do.”
Evidence that Chiodo was begging for his life while in the car was also questioned by Joseph, as he pointed out to Hardy-Fox that he initially told police that he didn’t hear what was being said in the backseat of the car, which he said is at odds with what he told the court.
“Lee was begging for his life,” Hardy-Fox said on Monday.
Joseph also asked Hardy-Fox about his participation in the incident as a driver. He had testified on Friday that he agreed to do so under the assumption that he would be paid in drugs.
However, Joseph pointed out that when Hardy-Fox said the plan changed to grab Chiodo from the bowling alley, he was still a willing participant.
“Yeah. Everything happened so fast I didn’t know what to do,” Hardy-Fox said.
“As you leave, you are still a driver, you are still a willing participant,” Joseph said. “Nobody has threatened you or forced you to do what’s happening.”
“Right,” Hardy-Fox said.
Joseph then went on to question why Hardy-Fox didn’t leave when he realized that something serious was about to happen, including the assumption that someone was going to die.
“I cannot for the life of me understand why you didn’t just put that car in drive and abandon everyone there and drive to Trillium Way,” Joseph said.
“Because these people kill people and I was scared for my safety and my family,” Hardy-Fox said.
Joseph concluded his cross-examination by asking Hardy-Fox about testifying for the Crown, suggesting he knew the consequences of a possible conviction on charges of first-degree murder, which includes a life-sentence with no possibility of parole for 25 years, and in order to avoid that, he pointed the finger at the other two accused.
“You knew that you had to be a good witness for the prosecution, that you had to have evidence to convict the other two guys, because it would help you on your charges of first-degree murder and kidnapping,” Joseph said.
“Yeah,” Hardy-Fox replied.
Smart also questioned Hardy-Fox on inconsistencies between statements he made to police and his testimony in court, asking him how he thought he was helping with the investigation by lying.
“You said you wanted to help the police,” Smart said. “Clearly you must agree that telling them lies doesn’t help them.”
“I just left out some details,” Hardy-Fox said.
“You were lying with the police to assist you in your position,” Smart said.
“I was just trying to, I just think the Lee family have a right to know what happened to him,” Hardy-Fox said.
But Smart continued by saying that lies do not assist the family in learning what happened to him, to which Hardy-Fox agreed.
Hardy-Fox was also asked about his level of intoxication on the night of Feb. 23, 2019. He had testified previously that he had been consuming alcohol prior to going to the Trillium Way residence and that while there he was using crack cocaine.
Smart said these substances can affect one’s ability to remember things accurately, to which Hardy-Fox agreed.
“If I was to suggest to you, that if you're high on drugs and asked to recall things, sometimes it becomes a blur,” Smart asked.
"Yeah, it can become a blur,” Hardy-Fox said. “It depends on what you do.”
Hardy-Fox also said during cross-examination that when he turned himself in to police on March 3, 2019, he had consumed between four and five beers and was intoxicated.
Smart pointed out that he had never mentioned any level of intoxication while giving a statement to police until being questioned under cross-examination on Monday.
“The reason you didn’t is that you weren’t intoxicated,” Smart said. “You were sober but you are looking for an excuse for why you lied.”
“No,” Hardy-Fox said.
Previously, Hardy-Fox testified that he witnessed Saboon holding a gun while in the car with Chiodo, having first seen a red laser mark on the ceiling. Smart asked Hardy-Fox how he saw something on the ceiling while driving, to which he replied through his peripheral vision.
Smart pointed out that during previous testimony, Hardy-Fox said he saw the gun at chest level.
“You are mindful of the difficulties you had at the prelim and you are altering your evidence to make it better,” Smart said.
“By saying it’s at chin level?” Hardy-Fox said. “Saboon is a big guy. You can see most of his upper body in the rear-view mirror.”
At the conclusion of his cross-examination, Smart asked Hardy-Fox to stand and raise his right hand to waist level. He was asked how high his hand was off the ground, to which Hardy-Fox replied, “about four feet.”
The day concluded with Crown attorney, Rob Kozak, reading into the court record a transcript from testimony given by a witness during the preliminary hearing who was subpoenaed in December 2021 to testify during the trial, but failed to appear.
The witness shared the name with someone who messaged Chiodo on the night of Feb. 23, 2019 about meeting at the bowling alley on Memorial Avenue about possibly obtaining drugs. During that interaction, Chiodo asked if he was being set up.
According to the witnesses’ testimony during the preliminary hearing, she did not possess her own device and was using Saboon’s cell phone earlier in the day on Feb. 23 and did not have a chance to logout before he took it back.
“From 10 p.m. forward I did not make any of those [messages],” she said during the preliminary hearing. “I did not have a device to make them.”
The Crown concluded its evidence in the trial. The defense is expected to call a witness to testify on Tuesday.
Both Hui and Saboon have pleaded not guilty to the charges before the court.
