Tim Bosma trial: Smich pulled gun and shot Bosma, Millard's lawyer says

Dellen Millard's lawyer alleges that Mark Smich shot Tim Bosma after a struggle broke out inside the Hamilton man's truck on an Ontario highway.

For the first time Thursday, Nadir Sachak presented his narrative as to what he believes happened on the night Bosma died after taking two men on a test drive of a pickup .

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• Smich'sstory 'makes no sense,'Millard's lawyer says

Sachak said that on May 6, 2013, while on a test drive of Bosma's pickup truck, Millard was driving and wanted to take the vehicle out onto Highway 403 near Bosma's home.

While on the highway, Sachak suggested, Smich pulled out a gun and said, "We're going to take the truck,' and Millard said, 'Oh no.'

"Mr. Bosma grabbed the gun that was pointing at him. At that point there was a struggle, and the gun was discharged ... I'm going to suggest to you Mr. Bosma was struck and the window was shattered," Sachak said.

Smich denied all of that outright.

Smich, 28, of Oakville, Ont., and Millard, 30, of Toronto, have both pleaded not guilty to first-degree murder. They are being tried before a jury in Ontario Superior Court.

Millard was 'furious,' lawyer says

In his fourth day of cross-examination, Sachak presented an alternate theory to Smich's story that he wasn't in the truck when Bosma was shot.

"Mr. Millard was furious as to what had transpired," Sachak said in court. "There was reference to getting an ambulance or something, and you said, 'He's dead.'"

"Absolutely not," Smich said.

If you want stories, you can ask your client Walt Disney over there.- Mark Smich

Sachak suggested that Millard panicked, and drove back towards Bosma's home in the dead man's truck, with him inside.

"I'm going to suggest the plan was Dell wanted his GMC Yukon out of the field area because he was concerned he'd be caught red-handed," Sachak said.

Smich replied that isn't what happened. "Your suggestions are incorrect," he said.

"I know the truth of what happened, so I don't need to pay attention to your so-called suggestions, which, if I might say so, sound an awful lot like you're reading from Dellen Millard's letters to Christina Noudga."

• Courtroom erupts in laughter at Christina Noudga's testimony

Smichtold the court that he is testifying as an innocent man."If you want stories, you can ask your client Walt Disney over there," Smich said, before being cautioned by Justice Andrew Goodman.

'I was on the side of a road with a crazy person'

Sachak also tried to poke holes in the details Smich has previously testified about. According to Smich, he was driving behind Millard and Bosma in Millard's SUV when Millard got out of the pickup truck holding a gun, and said he was taking the truck.

Smich said that's when he saw Bosma slumped over the dashboard, but didn't ask too many questions.

"I'm on the side of a dark road with a crazy person who just killed a man," Smich said.

He claims Millard told him to swap the licence plates on Bosma's truck for the plates off Millard's red truck.

Sachak asked Smich why he didn't say no to Millard when he asked.

"He has a gun!" Smich shouted, appearing rattled for the first time.

"Did he point the gun at you did he threaten to kill you?" Sachak asked in a patronizing tone.

"He did not say that sir, I felt threatened from what just happened."

Security camera video examined

In court's morning session, Sachak told the court that security camera footage bolsters his version of events, and discredits Smich.

The video shows the movement of a truck "consistent" with Bosma's truck on May 6.

Sachak said a pickup truck is seen going north on Trinity Road in Ancaster, Ont., near Bosma's home at 9:05 p.m., and then going south at 9:15 p.m.

It then goes north again at 9:20 p.m. followed by Millard's GMC Yukon. Video expert Michael Plaxton previously said the truck was "consistent" with the Bosma truck, and the other vehicle was "consistent" with Millard's SUV.

"In that 10-minute test drive you shot Mr. Bosma, and you were coming to retrieve the GMC Yukon," Sachak said. "That's absolutely incorrect," Smich responded.

"That's not the Bosma vehicle, it's not an uncommon vehicle, especially for the area," Smich said.

An 'impossible scenario,' Smich says

He also said the scenario Sachak described would be "virtually impossible because of the times," when compared to cellphone records.

"Forget the times," Sachak said. He later said that he and fellow lawyer Ravin Pillay have shown over the course of the trial that there were issues with video timestamps.

According to phone records, a call was made to Bosma's phone at 9:05 p.m., and the Crown has alleged Millard was the one who made that call. That would put Millard and Smich in Bosma's driveway at that time, and not driving on Trinity Road.

In an objection to a line of Sachak's questioning, Smich's lawyer, Thomas Dungey, said, "Mr. Plaxton only stated it was a vehicle similar to the other vehicle ... it proves nothing."

Sachak repeatedly asked Smich why he didn't call 911 at some point on the night that Bosma died."Why not pull over at somebody's house, and knock on the doors and say there's a guy who just murdered somebody, call 911?" Sachak asked. "He told me what to do, I was scared," Smich said.

Sachak also asked him why he didn't run, or take off in Millard's SUV."It didn't occur to you to take another road, drive away and get help?" Sachakasked.

Again,Smich saidno.

Millard's lawyer also told the court that it would be almost impossible for Millard to lift Bosma'sbody into the incinerator alone as Smich has alleged.

"Not at all," Smich says. "Dell was a lot bigger than he is right now ... he is very capable."

Sachak's cross-examination has been repetitive at times, as he continuously questions Smich about his testimony. That cross-examination will stretch into its fifth day on Friday.

The CBC's Adam Carter is in the courtroom each day reporting live on the trial. You can read a recap of his live blog right here. On mobile? View it here.

adam.carter@cbc.ca