By: Cam Fortems, KTW

A B.C. Supreme Court justice has ordered a new trial for a Lower Mainland resident convicted of illegally killing and abandoning a moose in the Nicola Valley.

Xin Xiao, 49, was found guilty after a trial last year on three charges under the Wildlife Act: hunting out of season, possession of an animal and abandoning an animal.

On appeal, B.C. Supreme Court Justice Dev Dley found Xiao did not receive a fair trial in provincial court because the judge allowed a conservation officer to provide what was tantamount to expert evidence about the time of the moose’s death.

The Crown’s case was built on circumstantial evidence.

Two deer hunters came across a dead bull moose at a spur road in the Nicola Valley near Merritt in October 2013.

They testified that, when they returned to the same logging road later, they saw two Asian men with a Ford Raptor truck backed up to the moose.

One of the deer hunters said the pair appeared to be using a winch to get the moose — not yet field dressed or gutted — into the truck.

Officer Kelly Dahl was called to the finding of the dead moose.

He examined the carcass and concluded the moose was killed that day.

A veteran hunter who first came across the carcass testified, however, the moose could have been killed up to two days before.

But the Crown objected he wasn’t qualified to give that evidence.

Dahl wasn’t qualified during the trial as an expert witness.

“The purpose of providing notice of expert evidence is fairness,” Dley wrote.

“The notice allows the defence to properly prepare for cross-examination and, if necessary, to consult with or call its own expert. Mr. Xiao was deprived of those benefits and that resulted in an unfair trial.”

A surveillance camera at a gas station in Merritt recorded Xiao and Li the morning before the moose was found.

Food and gas receipts from Merritt the day before were also found inside the Ford pickup.

Inside that pickup, registered to a woman from Vancouver, they found Xiao’s Canadian passport, as well as a wallet with his driver’s and hunting licences and credit cards.

Conservation officers used DNA to link the moose to blood found on a jacket in the truck.

The civil forfeiture office applied successfully to have the Ford Raptor sold, with half the $48,000 proceeds going to the Crown.

Xiao’s co-accused, Wei Li, was acquitted on all charges.