DATE: 20060920

DOCKET: C44416

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DARRELL LEE GEORGE (Appellant)

BEFORE:

GOUDGE, JURIANSZ ROULEAU JJ.A.

COUNSEL:

Delmar Doucette

for the appellant

Kimberley Crosbie

for the respondent

HEARD & ENDORSED:

September 8, 2006

On appeal from the conviction entered November 25, 2003 by Justice John F. McGarry of the Superior Court of Justice and from the sentence imposed by Justice McGarry dated March 22, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The Crown fairly concedes that a new trial is necessary due to the ineffective representation of counsel and the fresh evidence but does not concede that at a new trial a conviction is beyond the reach of a reasonable jury. However, again fairly, the Crown concedes that if Timothy George is not believed a conviction is not possible.

[2] In our view the fresh evidence demonstrates that no reasonable jury would believe Timothy George. His admitted false allegations against others, his animus against the appellant’s girlfriend and his recantations make it next to impossible that his evidence would be accepted. Putting this together with the considerations that the charge is now almost 4 years old, that the appellant has already served 26 months and that he has now suffered a stroke we see no purpose to be served by a new trial. We would therefore set aside the conviction and direct an acquittal.