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Lawyer grills RCMP investigator about forensic testing after police shooting

Last Updated Feb 9, 2017 at 5:20 pm EDT

Justice Leo Barry is shown during the opening day of the Commission into the Death of Donald Dunphy in St. John's, N.L. in a January 9, 2017, file photo. Don Dunphy was killed at his home by a Royal Newfoundland Constabulary officer who says Dunphy aimed a loaded rifle at him. THE CANADIAN PRESS/Paul Daly

ST. JOHN’S, N.L. – Lack of forensic tests and questionable control of the death scene left major gaps in the RCMP’s probe of a fatal police shooting in Newfoundland, a lawyer for the victim’s family suggested Thursday.

At the inquiry into Don Dunphy’s 2015 death, lawyer Bob Simmonds grilled Cpl. Steve Burke, the lead investigator, about how the RCMP handled the case involving a Royal Newfoundland Constabulary officer.

He stressed the Mounties never tried to lift fingerprints from the bullet in a .22-calibre rifle found at Dunphy’s feet at his home in Mitchell’s Brook, N.L.

Nor did the RCMP order a test to detect blood or other DNA on the firearm. And they didn’t immediately collect Dunphy’s mangled reading glasses from the scene, which witnesses have said he wore earlier the day he died.

Simmonds, who represents Dunphy’s daughter Meghan, said those omissions suggest investigative tunnel vision. The Mounties early on took “at face value” the officer’s claim he acted in self-defence, he added.

Burke said the investigation was thorough, and any lack of forensic testing didn’t affect the overall finding that there were no grounds for charges.

“I stick by those decisions.”

Const. Joe Smyth of the RNC shot Dunphy once in the chest and twice in the head after he says he aimed a rifle at him on Easter Sunday 2015. The RCMP found it was an appropriate use of force.

Burke conceded Thursday that, if he had it to do over, he’d seek a checklist of procedures for officer-involved shootings. He confirmed that it wasn’t until after the scene was released that he thought of consulting such a list, like one used by Nova Scotia’s Serious Incident Response Team.

Burke had never investigated an officer-involved shooting before.

Simmonds also asked Burke about deleted Blackberry direct messages on Smyth’s phone that the RCMP just recently retrieved and disclosed to the inquiry.

They include one Smyth sent to a friend the day before the shooting indicating he might have to arrest a “lunatic” who was “threatening” then-premier Paul Davis.

Smyth testified last month — before those messages were retrieved — that he never considered Dunphy a threat and went to his home to “build a rapport.”

Smyth, then a member of the former premier’s security detail, made the solo trip into RCMP jurisdiction after staff in Davis’s office flagged a single post on Twitter. Dunphy, 59, was an advocate for injured workers who often aired his frustrations with workers’ compensation on social media.

Smyth also told the inquiry under oath last month that he did not get advice on his notes before giving a statement to the RCMP the day after the shooting.

But more of those deleted messages show he conferred with RNC Sgt. Tim Buckle about wording.

Commission staff have not confirmed if Smyth will be recalled to answer those discrepancies.

Simmonds was perhaps most incredulous Thursday that the homicide scene was released two days after the shooting without Burke’s immediate knowledge.

“You hear about that the morning after it happened,” he said. “How can that happen?”

Burke said he always understood the scene would be released after the autopsy, which was completed April 7, 2015.

Two medical first responders have testified police photos don’t match what they saw at the scene. Both said a large blue storage tub, on which the rifle rests near Dunphy’s body in the RCMP photos, was not there when they attended.

They also said Dunphy’s left hand was slightly over the left arm of his recliner, not on his lap as in the photos.

A report the day of the shooting by Trevor O’Keefe, one of the first two RCMP officers to observe Dunphy’s body, also says “a long gun was on the floor at his feet.” It says the two medical first responders were allowed in and, after they left, “the scene was completely locked down.”

Smyth’s lawyer, Jerome Kennedy, said Simmonds’ questioning stirs up speculation.

He had Burke confirm that Smyth co-operated at every stage of the investigation, and told Commissioner Leo Barry that Smyth would assist if more forensic work can be done.

“He will provide his fingerprints. He’ll provide his DNA. Let’s get some of the testing done.”

Commission co-counsel Kate O’Brien said there will be evidence to come on whether such tests are possible.

The RCMP said no fingerprints could be lifted from the rifle as its surfaces were too rusted, pitted and old.

Simmonds asked Burke if it was sent to a more advanced forensics lab than the standard testing in Ottawa.

“I understand they can lift prints from human skin,” Simmonds said.

Burke said it was not sent for advanced analysis.

The inquiry is hearing from more than 50 witnesses into March.

Barry will not make findings of criminal or civil responsibility but any new evidence could be investigated by police.

Follow @suebailey on Twitter.

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