Ontario Criminal


Appeal

GROUNDS
Accused fired his lawyer and request adjournment to delay and obstruct trial process

Appeal by accused from his convictions for first degree murder and for attempted murder. Accused was drug dealer who arranged to purchase two kilograms of cocaine from deceased. Crown submitted that accused and co-accused, who was acquitted, decided to steal deceased’s cocaine and to murder him. Accused fired shots that killed deceased and that wounded his girlfriend. Co-accused testified that there was no plan to kill deceased and to steal his drugs but accused acted on his own when he shot victims and co-accused was surprised that accused did so. Appeal dismissed. Trial judge did not err when he refused to grant accused adjournment to retain new counsel. Judge relied on testimony of several court officers that accused asked them if he could get mistrial if he fired his lawyer. Such evidence supported inference that accused fired his lawyer and he requested adjournment to delay and obstruct trial process. Judge did not err in exercise of his discretion to deny adjournment and it was proper for judge to ask accused why he wanted to discharge his lawyer. Accused received fair trial for two lawyers were appointed as amicus to assist court in fulfilling its duty to ensure that accused received fair trial and they provided substantial assistance. Judge did not err in refusing to put to jury accused’s claim that co-accused killed deceased in retaliation for attack on his brother. There was no basis for claim in evidence and since it was speculative judge was not required to put it to jury. There was evidence that was left with jury that could support inference of planning and deliberation.

R. v. Phung (Oct. 29, 2012, Ont. C.A., Doherty, Hoy and Pepall JJ.A., File No. CA C47986) 103 W.C.B. (2d) 599.

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