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Convicted killer gets new trial

Joshua Berner wins appeal over conviction for Ben Warland murder

A convicted killer will be free on bail after winning an appeal against a jury's guilty verdict for murdering a young father.

Joshua Berner will get a new trial after appeal judges ruled that the judge in the original court case erred in her charge to the jury.

Berner, 27, was found guilty back in December 2010 of the second-degree murder of 23-year-old Ben Warland in Richmond in 2009.

Warland was stabbed to death in the 11000 block of Cambie Road in February of that year after an exchange of words on a bus with two men, one of which was Berner.

Berner had been sentenced to life in prison with no chance of parole for 10 years.

But on Monday, the B.C. Court of Appeal ruled that the judge, Madam Justice Sandra Ballance, should have instructed the jury to - in terms of Berner's intent to commit murder - not lend any weight to the lies told by Berner to police immediately after his fight with the victim.

"On the facts of this case, I would think it a near certainty that the jury would be moved to take quite a censorious view of the lies told by the appellant (Berner) to the police near the scene of the struggle," wrote the Honourable Mr. Justice Hall in his judgement.

"This course of action by the appellant foreclosed any hope of saving the life of the deceased. These operative considerations narrowed to near the vanishing point any possibility of acquittal, so that the best possible outcome for the appellant was probably a verdict of manslaughter.

"In my respectful opinion, the judge committed a significant legal error in failing to instruct the jury that Berner's post-offence conduct had no bearing on the issue of intent. On the particular facts of this case, such failure could have tipped the scales in favour of a guilty-as-charged verdict. Given my conclusion that there was this significant legal problem with the jury instruction in this case, I do not consider that the jury's verdict can stand-"

During his trial, the court heard that Berner and a friend, Christian Olegario, encountered Warland on a bus on Jan. 31, 2009.

Berner and Olegario apparently did not know Warland, and it never became clear why Warland and the other two young men came to blows.

The court heard during the trial that both Berner and Warland had had run-ins with the law, with Berner convicted of two prior serious offences.

David Tarnow, the lawyer for Berner, told the judge at the end of the trial that he was shocked by the verdict and felt the jury had erred in its decision. "I can't do anything about that," observed the judge.

Michael Berner, Joshua's father, told the judge that the slaying changed both his family and the Warland family forever.

He said he believed that his son was acting in self-defence and his family was "terrified" at the prospect his son might spend the rest of his life behind bars.

Berner and Olegario testified during the trial that, after getting off a bus on Cambie Road, Warland came up and sucker-punched Olegario - knocking him unconscious - and then came after Berner with a knife.

Berner testified that he managed to get the knife away from Warland and, once he had the upper hand, punched him twice with the knife in his hand. Warland died from a knife wound to the temple.

An ex-girlfriend of Warland had testified that he had a collection of knives and often carried one with him. The knife that killed him was never found.

Berner's actions after the fight may have appeared incriminating.

Police, having received a call about a fight, briefly detained Berner and Olegario then let them go, unaware that a third person was lying dead or dying of a knife wound. The fact Berner and Olegario did not volunteer information about Warland or the knife may have appeared damning in the jury's eyes.

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