A lack of sufficient evidence identifying John Raymond Leippy as the gunman in the El Rancho armed robbery led to his acquittal in Court of Queen's Bench on Monday.

A crucial testimony by jailhouse informant Justin Rivers was completely rejected by Justice F.J. Kovach, and no other evidence presented at the two-day trial connected Leippy with the crime scene.

Leippy was released after spending more than 13 months in custody on charges of attempted murder and armed robbery with violence in connection with the robbery, in which El Rancho owner Harry Siourounis was robbed of $11,000 in cash and shot twice in the upper leg on Aug. 1, 1998.

Asked for a comment on the decision, Siourounis said, "No comments. That's what we have courts for, and if the decision found he is not guilty, then there's no comments."

The Crown Prosecutor's office in Regina said no decision had been made if there will be an appeal, but prosecutor Al Johnston will make that decision after he has reviewed the decision. Johnston is currently co-prosecuting the Larry Fisher trial in Yorkton, and was unavailable for comment.

Justice Kovach made the only decision he could have under the circumstances, said defence lawyer Jamie Struthers, noting the lack of strong evidence for identification was the key in the decision.

"The whole case turned on the facts and lack of solid and hard evidence against the accused. Identification was the major issue. We know there was a robbery, it's a question of who did it. We thought there was an element of doubt, a large element of doubt, and the court found that to be the case," said Struthers.

In his decision, Justice Kovach summarized the evidence presented before him, and pointed out "there was no physical evidence connecting Leippy to the crime scene or to the Suburban," adding there was circumstantial evidence which was not corroborated, and Rivers' testimony had no independent confirmation to show it was credible.

There were testimonies provided by two people, Const. Dana Pretzer and Jim Kopec, that they had seen Leippy in the area of the crime scene and near to where the Suburban was stolen from, but the Crown did not prove Leippy was at the crime scene by identifying him. The Suburban referred to was stolen from Barber Motors' lot and was used in the robbery; it was found abandoned in an alleyway a few blocks away.

Crown prosecutor Johnston had argued that Leippy did not provide testimony that he was not at the crime scene, with circumstantial evidence suggesting that he was there. Justice Kovach agreed that in a prima facie case the accused risks conviction if he doesn't explain or give a reason for suspicious behaviour, but added, "it does not relieve the Crown of responsibility to establish guilt beyond a reasonable doubt."

On the identification by Siourounis of Leippy in a photo lineup, the justice noted the victim admitted at the time he was not 100 per cent sure of the identification.

Quoting case law, Justice Kovach said, "The spectre of erroneous convictions haunts criminal law. The existence of confirmatory or circumstantial evidence can go a long way. Justin Rivers' testimony, if accepted, would provide that confirmation."

In going over the testimony of the jailhouse informant, Justice Kovach pointed out Rivers has 64 criminal convictions on his record and had motive to get out of jail, as he was facing six counts of break-and-enter from Moose Jaw when he was in the Remand Centre with Leippy. The Crown agreed to stay or withdraw the charges and paid him a total of $6,000 in three instalments to testify against Leippy.

Quoting extensively from case law, the justice said there are innumerable warnings against relying on jailhouse information to convict an accused unless there is independent confirmation from other evidence. In the case of Rivers, Justice Kovach could find no evidence to confirm that what he said was reliable or proved that Leippy made a jailhouse confession about the crime, noting no gun was ever found.

Given the weakness of evidence to identify Leippy and discounting the testimony of Rivers, said Justice Kovach, "I am unable to say the Crown has proven Mr. Leippy's guilty beyond a reasonable doubt, and accordingly there will be an acquittal entered on both counts."