Dellen Millard applied for a mistrial at the Laura Babcock murder trial today. He said his co-accused Mark Smich had changed his defence tactic in closing arguments to the jury and that surprise attack compromised his right to a fair trial.  Justice Michael Code did not agree.

Millard says that during pre-trial arguments in June, he and his co-accused Mark Smich agreed not to have antagonistic defence tactics and Millard said he conducted his whole defence with that understanding. In Mark Smich’s lawyer’s closing address, Tom Dungey told the jury that if they believed Laura Babcock was dead, they should look at the evidence against Millard and find that he was the more culpable of the two accused. Millard called this an unfair ambush.

Justice Code said it was obvious that if the jury was likely to believe Laura Babcock was indeed dead, then Mark Smich’s lawyer would remind the jury about the evidence the crown presented.

“Did you really expect Mr. Dungey not to point out to the jury that the preponderance of evidence points to you?” the judge asked Millard.

Mark Smich could have testified against Millard from the stand, like he did at the Bosma trial, the judge reminded Millard.

“There were 101 things I could have said about Mr. Smich but I did not do that.”

Millard argued and the judge said that was wise of Millard because it could have provoked Smich to testify, instead he said all we have is the crown’s evidence, which Millard has known about for years.

“I’ve beaten you up badly in oral arguments,” the judge told Millard. “Which is what happens when you make a weak argument.”

The motion was dismissed and the jury continues to deliberate. They have been at it since about 2 pm Tuesday.