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This article was published 10/06/2022 (359 days ago), so information in it may no longer be current.

Jonathan Flett admits he hit a Good Samaritan nine times in the head with a hammer so forcefully that it became lodged in the victim’s skull, but a judge has ruled he had no intent to kill the man.

Flett, 20, stood trial last April for attempted murder in relation to a Sept. 1, 2020, attack that severely injured 27-year-old Zachary Fitzsimmons.

Flett, who is cognitively challenged and was impaired by alcohol at the time of the attack, had agreed at the start of trial to plead guilty to the lesser offence of aggravated assault — but the Crown didn’t accept the plea.

“The only issue at trial was whether Mr. Flett possessed the specific intent to end Mr. Fitzsimmons’s life,” Queen’s Bench Justice Theodor Bock wrote in a 16-page ruling Friday. “Despite the Crown’s very able submission, the evidence does not persuade me beyond a reasonable doubt of Mr. Flett’s guilt on the charge of attempted murder.”

Fitzsimmons testified he had been “hanging out” and drinking with his fiancée and friends when they drove to the Maryland Hotel to pick up more beer before going home.

Fitzsimmons said he was approaching the beer vendor entrance when he saw “a group of guys messing around with this younger kid… They were circled round him. I could sense something was going to happen. They were bullying him.”

Several bystanders were walking in the area but did nothing to assist the boy, he said.

“I came up (to the group) and said: ‘Leave that kid alone,’” he said. “They didn’t like that. They got up in my face and said: ‘What are you going to do?’ I felt like I was going to be the one they were fighting, that’s how close they were to my face.”

Fitzsimmons said he may have thrown the first punch in self-defence and found himself fighting two of the men, while a third struck him on the head several times with a retractable baton.

“Everything flashed white” and the next thing he remembered was waking up in hospital with his fiancée, feeling “very confused,” Fitzsimmons said.

Fitzsimmons did not testify to being hit with a hammer, but security video of the attack shows Flett striking Fitzsimmons nine times with a drywall hammer, at one point lodging the tool in his skull.

Fitzsimmons suffered a broken jaw, a shattered nose and injuries to his skull, and spent three weeks in hospital.

“I have titanium in my nose and skull in various places,” he testified. “My nose is all titanium.”

Fitzsimmons testified wearing a patch over his right eye.

“My eye popped out of my skull (during the attack) and I had to go through reconstructive surgery,” he said. “They took cartilage from my right ear and made a new eyelid.”

Flett testified he believed Fitzsimmons struck him first. Video of the attack shows an errant baton strike from a co-accused hit Flett, and opened a bloody gash to his head.

Court heard Flett’s childhood was rife with family violence and at 13 he was initiated into a gang with a beating that left him blind in one eye.

Defence lawyer Scott Newman told court in a closing argument that Flett has mental disabilities, including post-traumatic stress disorder, and an inability to concentrate or process information quickly. He said he lacked the ability to form the intent to commit murder.

“He meets the province’s formal definition of a vulnerable person living with a mental disability,” the defence lawyer told court last April.

Bok said he attached “little weight” to Flett’s testimony, noting his claims as to what he could and could not remember shifted a number of times, but was satisfied Flett’s personal circumstances and circumstances of the attack could not support a finding that he had the intent to kill.

“I acknowledge that as a matter of common sense someone in Mr. Flett’s position would usually know the predicable consequences of his attack… and mean to bring them about,” Bock said.

“But Mr. Flett’s intellectual and cognitive deficits, his intoxication, the wound to his head and his personal experiences with physical violence all combine to leave me with a reasonable doubt as to his guilt.”

Flett will return to court for sentencing in the fall on a charge of aggravated assault.

dean.pritchard@freepress.mb.ca