DATE: 20060906

DOCKET: C42654

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ABDURZAK IBRO MUSSA (Appellant/Applicant)

BEFORE:

GOUDGE, SHARPE AND BLAIR JJ.A.

COUNSEL:

Andras Schreck

for the appellant

J. Perfetto

for the Crown respondent

HEARD:

August 21, 2006

On appeal from the conviction entered by Justice Norman D. Dyson of the Superior Court of Justice dated October 6, 2004 and of the sentence imposed by Justice Dyson dated October 6, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view there was an evidentiary basis for a reasonable jury to convict the appellant while acquitting him of the more serious charges. This is therefore not an unreasonable verdict.

[2] However one route to this result would have required the use of evidence about which the Crown concedes they were misinstructed. The trial judge did not limit the use of the prior statement of the co-accused for its truth to the coaccused alone. The jury were therefore unaware that they could not use the coaccused’s prior statement that the appellant was one of those beating up the complainant for its truth against the appellant unless they found that the coaccused adopted this statement at trial. We cannot say that without this error the result would necessarily have been the same. The conviction is set aside and a new trial ordered.

"S.T. Goudge J.A."

"Robert J. Sharpe J.A."

"R.A. Blair J.A."