



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamed, 2014 ONCA 129

DATE: 20140218

DOCKET: C55874

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Liban Mohamed

Appellant

Mark Halfyard, for the
    appellant

Shawn Porter, for the
    respondent

Heard and released
    orally: February 7, 2014

On appeal from the
    conviction entered on March 9, 2011 and the sentence imposed on June 29, 2011 by
    Justice Laurence Patillo of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals his
    conviction for discharging a firearm with intent to wound and aggravated
    assault.  The jury acquitted him of attempted murder and robbery.  He raises
    two grounds of appeal.

[2]

In relation to the first ground of
    appeal, the appellant submits that the trial judge erred in his charge to the
    jury with respect to the complainants admitted perjury by drawing the jurys
    attention not only to the appellants inconsistent statement to the police but,
    in particular, to what amounted to a prior consistent statement made at his
    preliminary inquiry.  He argued that this amounted to an impermissible
    bolstering of the complainants evidence at trial.

[3]

We do not accept this submission. 
    As requested by counsel, the trial judge gave a deliberate lie charge with
    respect to the perjury.  In the impugned portion of the charge, the trial judge
    was merely giving an example of inconsistent statements as part of his
    instructions to the jury about how they could or could not make use of such
    statements.  We do not think that the jury would have been led to the view that
    the judges reference to the prior consistent statement somehow bolstered the
    complainants testimony.

[4]

With respect to the second ground
    of appeal, we do not agree that the jury verdicts are inconsistent.  The
    appellant concedes that the
mens rea
for the different offences is different.  It was open to the jury, in
    resolving the facts, to find that the appellant had the gun and fired it with
    the intent to wound but that he did not have the specific intent to kill
    required for attempted murder.  The jury was also entitled, on the robbery
    charge, to conclude that it was not the appellant who took the mp3 player from
    the complainant.

[5]

For these reasons, we are not
    persuaded that the jury verdicts were inconsistent.

[6]

Accordingly the appeal is
    dismissed.

K.M. Weiler J.A.

Robert J. Sharpe J.A.

R.A. Blair J.A.


