





CITATION:
R. v. Jobateh, 2011 ONCA 171



DATE:  20110303



DOCKET: C48568



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Doherty and Blair JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Kebba Kekuta Jobateh



Appellant



Jill R. Presser, for the appellant



John Pearson, for the respondent



Heard and released orally:
February 28, 2011



On appeal from the conviction entered by a jury presided over
          by Justice Gerald Morin of the Superior Court of Justice, dated October 14,
          2005.



ENDORSEMENT



[1]

The appellant was convicted after a trial by a court
    composed of judge and jury of one count of attempted murder, one count of
    aggravated assault and one count of assault with a weapon.  The first two convictions arose out of an
    attack by the appellant on his wife.  The
    appellant acknowledged stabbing his wife several times, but argued that he did
    not intend to kill her.  The jurys
    verdict indicates that they found otherwise.  The third count relates to an assault against the neighbour who tried to
    come to the assistance of the victim on the first two counts.  The Crowns theory was that the appellant
    threatened the neighbour with the knife.

[2]

The Crown concedes that the convictions on both the
    attempted murder charge and the aggravated assault charge cannot stand and
    submits that the court should stay the conviction on the aggravated assault
    charge.  We agree with that concession
    made by the Crown.

[3]

The appellant raises four grounds of appeal in respect
    of the two remaining convictions. We would not give effect to any of the
    arguments.

The Appellants Prior Bad Conduct

[4]

The nature of the marital relationship between the
    appellant and the victim and their ongoing problems in that relationship were
    central to the Crowns contention that the appellant intended to kill his wife
    when he attacked her and stabbed her several times.  The evidence concerning the appellants attitude
    towards his wife and family, his prior conduct in that relationship, and their
    ongoing financial and other problems were all directly relevant to his state of
    mind at the relevant time and were properly admitted.  We note that there was no objection taken to
    the admissibility of any of the evidence at the trial.

[5]

Counsel submits that the trial judge should have given
    a limiting instruction with respect to the evidence that could reflect badly on
    the appellants character.  We see no
    need for a limiting instruction where, as in this case, the evidence in
    question was directly relevant to the appellants state of mind toward the
    victim.  There was no request at trial
    for any limiting instruction.

[6]

In his charge to the jury, the trial judge did not
    emphasize the evidence of the prior misconduct of the appellant or the reasons
    for the ongoing marital discord.  He focussed
    the jurys attention on the specific events surrounding the stabbing.  In our view, this approach to the evidence
    benefitted the appellant and no doubt explains why the appellants counsel at
    trial did not request a more detailed instruction relating to the evidence
    going to the background of the marital relationship.

[7]

Counsel for the appellant argues that the trial judge
    failed to give a 
W.D.
 instruction on
    the charge of assault with a weapon relating to the neighbour.  No such instruction was given.  It would have been better had the customary 
W.D.
 instruction been given in relation
    to this count.  It was given in relation
    to the attempted murder count.

[8]

The jury was, however, properly instructed on the
    concept of reasonable doubt and its application to both counts.  There was no objection taken to the
    charge.  The real question on this count
    was whether one could reasonably infer a threat from the appellants conduct
    toward the neighbour.  While there was
    some difference in the appellants description of his conduct and the evidence
    given by the neighbour, the difference was not great.  In our view, the verdict on this count did
    not turn on the jurys assessment of the credibility of the appellant.  The failure to give the 
W.D.
 instruction was not non-direction amounting to misdirection.

[9]

The appellant also argues that the trial judge failed to
    tell the jury that the evidence of the appellants prior misconduct that may be
    relevant to his state of mind on the attempted murder count was irrelevant on
    the assault charge.  We think the
    evidence of the appellants state of mind as he was attacking his wife was
    relevant on both counts and it would have been wrong for the trial judge to
    instruct the jury otherwise.  As it was
    the trial judge gave no instruction to the jury with respect to the relevance
    of the appellants state of mind toward his wife as the neighbour approached.  This non-instruction assisted the appellant
    and in all likelihood explains why counsel for the appellant did not request
    any elaboration on the relevance to the assault charge of the appellants state
    of mind towards his wife at the time the neighbour arrived.

[10]

We allow the conviction appeal to the extent that we
    enter a stay in respect of the aggravated assault charge, but otherwise we dismiss
    the conviction appeal.  Counsel made no
    submissions on the sentence appeal.  The sentence
    appeal is dismissed.

Dennis OConnor
    A.C.J.O.

Doherty J.A.

R.A. Blair J.A.


