Two brothers convicted of gunning down a former Hells Angel in Hamilton should get a new second-degree murder trial because the judge gave faulty instructions to the jury, Ontario’s top court ruled on Wednesday.

In its decision, the Court of Appeal said the judge had unfairly lumped John and Mato Josipovic together during his charge instead of treating them as individual accused.

“In a case in which liability for one accused flows as a perpetrator, and liability for another flows as an aider or abettor, the trial judge must clearly draw that distinction,” the Appeal Court ruled. “The manner in which the trial judge described the elements of the offence of murder did not make that distinction clear, but instead treated the two appellants as a single entity.”

The brothers, of Grimsby, Ont., who had not been in trouble with the law for many years, were charged with the first-degree murder of James (Lou) Malone, someone they had known since childhood from growing up in east-end Hamilton, in November 2013.

According to court documents, both brothers were present when one of them shot and killed Malone execution style.

The prosecution argued the duo, who are in their 50s, had agreed to hunt down and kill Malone, which they did after chasing him and firing several shots before catching up to him. One of them then hit Malone over the head with a shotgun before putting a fatal bullet in his head, court heard.

Trial evidence was that the killing came after John Josipovic demanded a loan repayment from an acquaintance of Malone, who took offence at the request. Malone then tried to extort money and assaulted the brother, who feared his family was at risk and started carrying a shotgun in his truck.

Things came to a head on the night of the killing when Malone attacked the younger brother, leading to the chase and execution.

At trial, John Josipovic testified in his own defence that it was he who killed his one-time friend. He denied any plan with his brother to find and kill Malone. He also claimed he was acting in self-defence under provocation.

Mato Josipovic, the younger brother, denied having anything to do with a plot or taking part in the killing of Malone, a long-time criminal known for violence and member of the Ruthless gang.

Who killed Malone was a point of contention but the prosecution argued it was irrelevant for purposes of criminal liability because the brothers had plotted together.

The jury convicted each of second-degree murder in December 2015, and Superior Court Justice Harrison Arrell jailed both for life without parole eligibility for 13 years.

On appeal, the brothers argued the Arrell’s instructions unfairly treated them as a “single entity.” Doing so, they said, strongly favoured the prosecution’s theory they had acted in concert, and undermined their right to have their cases considered individually on its own merits.

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The defence also argued the judge wrongly instructed the jury that convicting one of murder should automatically lead to convicting the other of murder for helping, a position the Appeal Court rejected.

“Near the end of his instructions, he fairly and thoroughly set out the individual positions of the appellants,” Justice David Doherty said for the Appeal Court. “I am not satisfied, however, that his instructions in respect of the defence arguments would overcome the very strong impression created by the rest of his instructions that the appellants stood or fell together on the murder charge.”