DATE: 20040408

DOCKET: C37450 &

C37517

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent/Appellant by way of cross-appeal) – and – HAMAYUN MOHAMMED (Appellant/Respondent by way of cross-appeal)

BEFORE:

MACPHERSON, SIMMONS JJ.A. and JURIANSZ J. (ad hoc)

COUNSEL:

Leslie Maunder

for Hamayun Mohammed

Trevor Shaw

for Her Majesty the Queen

HEARD:

April 5, 2004

On appeal from the conviction entered on November 16, 2001 and the sentence imposed on December 7, 2001 by Justice Hugh R. Locke of the Superior Court of Justice.

E N D O R S E M E N T

Released Orally: April 5, 2004

[1] The appellant appeals against his conviction on the basis that the trial judge misapprehended the evidence at the trial in three domains – (1) the forensic evidence relating to the complainant’s injuries; (2) the evidence relating to the appellant’s after the fact conduct; and (3) the evidence with respect to the appellant’s alleged prior employment at the complainant’s convenience store.

[2] In spite of Ms. Maunder’s able submissions, we do not think that the trial judge misapprehended the evidence in any of these domains.

[3] The trial judge’s analysis of the circumstances giving rise to, and the nature of, the complainant’s injuries was comprehensive and balanced. In particular, he was entitled to rely on Dr. Walkovich’s testimony about the nature and the extent of the complainant’s injuries.

[4] The trial judge’s interpretation of the evidence of Mr. Hartounian – namely, that the appellant admitted to him his involvement in the events at the store (although he tried to minimize it by saying that “a friend” actually did it) – is a supportable interpretation, even though in cross‑examination Mr. Hartounian agreed with the suggestion that the appellant might have used the wording “the other guy”.

[5] There was a good deal of evidence supporting the Crown’s position that the appellant had never worked at the convenience store. The trial judge was entitled to accept that evidence and reject the defence evidence on this issue. This is what he did, with reasons.

[6] Both the appellant and the Crown challenge the sentence imposed by the trial judge. We see no merit in their duelling submissions. The sentence imposed by the trial judge was an appropriate one.

[7] The appellant’s appeal is dismissed. The Crown’s cross‑appeal is dismissed.

“J. C. MacPherson J.A.”

“Janet Simmons J.A.”

“R. G. Juriansz J. (ad hoc)”