



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Dinh, 2012
    ONCA 812

DATE: 20121123

DOCKET: C51834

Doherty and LaForme JJ.A. and Glithero J. (
Ad
    Hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Duc Xuan Dinh

Appellant

David Wilson, for the appellant

Mary Henschel, for the respondent

Heard and released orally: November 16, 2012

On appeal from the conviction entered on November 21,
    2009 by Justice J. A. Ramsay of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant was charged as a party to the offences of robbery (theft
    while armed with an offence weapon), aggravated assault, and assault with a
    weapon. These charges arose out of an event in which four men set upon two
    others in an apartment stairwell while armed with baseball bats and possibly a
    machete.

[2]

The four stole the money from the two victims who were known to be
    carrying a significant amount of cash as a result of an arrangement made
    between them and the appellant in which the appellant would sell them 10 cell
    phones.

[3]

The Crown theory was that the appellant knew of the plan to take the
    money from the victims and led the victims into the apartment knowing what was
    waiting for them. The jury convicted the appellant of the two robbery charges,
    one in respect of each victim.  Given that the trial judge did not charge on
    the objective component of s. 21(2) (ought to have known), the jury must have
    been satisfied beyond a reasonable doubt that the appellant knew of the planned
    theft and that the thieves would be armed.

[4]

During the robbery the two victims received significant injuries
    resulting from the use of the weapons. The appellant was convicted of the two
    counts of aggravated assault as the jury was necessarily satisfied that he knew
    of the plan to cause the victims some degree of physical harm. The appellant
    was found not guilty of the two counts of assault with a weapon, one in respect
    of each victim.

[5]

The ground of appeal at issue here is whether the verdicts of guilty of
    aggravated assault can stand together with the verdicts of not guilty on the
    charges of assault with a weapon. The appellant argues that they are
    inconsistent.  We dont agree.  It is for the jury to determine the facts. As
    long as it was reasonably possible for the jury to determine a set of facts
    based upon the evidence which supports the differing results here in terms of
    verdicts, then there is no reason to interfere.

[6]

We are of the view that it was open to the jury to conclude that the
    appellant knew of the thefts while armed with offensive weapons; knew that some
    degree of injury would be a likely result in any effort to relieve the two
    victims of their cash and yet not be satisfied beyond a reasonable doubt that he
    knew that it was probable that the plan involved the actual use or threatened
    use of the weapons during the taking of the money. The charge to the jury left
    open this possibility as did the decision tree provided to the jury. There was
    no objection taken to either.

[7]

For these reasons the appeal is dismissed.

Doherty
    J.A.


H.S. LaForme J.A.


C. Stephen Glithero J. (
ad hoc
)


