DATE: 20010713 DOCKET: C32192
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) - and - JOSE COELHO (Appellant)
BEFORE: DOHERTY, ROSENBERG AND MOLDAVER JJ.A.
COUNSEL: Keith E. Wright For the appellant
Gregory J. Tweney For the respondent
HEARD: July 11, 2001
On appeal from conviction for attempted murder by Justice John F. Hamilton sitting without a jury at Toronto on March 26, 1999
E N D O R S E M E N T
[1] The appellant appeals from his conviction on a charge of attempted murder. The facts giving rise to the charge are summarized in brief below.
[2] In the early morning hours of June 6, 1997, Gary Resendes was struck by a car as it travelled the wrong way down a one-way street at a high rate of speed. The force of impact sent Mr. Resendes flying into the air and he landed on his back in the middle of the street. As a result of the collision, he was in the hospital for six months and he continues to suffer from his injuries.
[3] The car that struck Mr. Resendes was driven by the appellant. Moments before the collision, Mr. Resendes and his friends had a dispute with the appellant's stepson, Pino, over the purchase of marijuana. As they left Pino's house, the appellant was seen getting into his car. Moments later, he drove past Mr. Resendes and his friends as they were crossing the next street over. The appellant then pulled into a driveway, turned his vehicle around and came back towards Mr. Resendes, who by then, was the only one still in the street. The appellant made no attempt to avoid Mr. Resendes, nor did he stop after hitting him. The appellant surrendered to the police the next day following a short investigation.
[4] The appellant was charged with attempted murder, criminal negligence causing bodily harm and failing to remain at the scene of an accident. He was found guilty at trial on all counts but the latter two charges were stayed. Accordingly, he appeals only against the conviction for attempted murder.
[5] Although the appellant raised numerous grounds of appeal, in our view, the only one with merit is the ground relating to the trial judge's alleged misapprehension and misuse of certain evidence going to the crucial issue of intent.
[6] In concluding that the appellant had the requisite intent for the offence of attempted murder, the trial judge placed considerable emphasis on three factors, namely:
(a) that the appellant deliberately drove at the victim;
(b) that he did so from a distance of approximately 70 metres; and
(c) that he was travelling at a speed of not less than 70 kilometres per hour when he struck the victim.
[7] While the first of those three findings was open to the trial judge, in our view, the latter two were not because they were rooted in an out-of-court, unadopted hearsay statement. The admissible evidence concerning distance and speed, though by no means crystal clear, tended to show that the appellant drove at the victim from a distance of approximately 50 to 60 feet and that he was travelling at a rate of speed somewhere between 40 and 50 kilometres per hour at the time of impact.
[8] Had the trial judge factored those numbers into the equation, we think that he may have come to a different conclusion on the issue of intent for attempted murder. Expressed somewhat differently, we cannot be certain that the trial judge would have found that the appellant had the requisite intent to kill had he not used the 70 metre, 70 kilometre per hour figures.
[9] Ordinarily, the error in question would lead to a new trial. In the circumstances of this case however, Mr. Tweney does not ask for that. Rather, he invites us to quash the conviction for attempted murder and in its place, substitute a conviction for the lesser and included offence of aggravated assault.
[10] We see no reason why we should not give effect to Mr. Tweney's request. The error made by the trial judge does not affect the issue of intent in so far as the offence of aggravated assault is concerned and the findings of fact made by the trial judge that were available to him lead inexorably to the conclusion that the appellant is guilty of that offence.
[11] Accordingly, we would dismiss the appeal, set aside the conviction for attempted murder and in its place substitute a conviction for the lesser and included offence of aggravated assault.
[12] In the course of argument, it was agreed that in the event we substituted a conviction for a lesser offence, counsel should be given the opportunity to make submissions in writing with respect to sentence.
[13] Accordingly, the appellant is to file written submissions with the court on the issue of sentence by no later than Tuesday, August 7, 2001. The respondent is to file submissions on sentence with the court by no later than August 13, 2001. If these time frames cannot be met, the parties may apply to a member of the panel for an extension.
Signed: "Doherty J.A."
"Marc Rosenberg J.A."
"M.J. Moldaver J.A."