Court of Appeal for Ontario

CITATION: R. v. Jobateh, 2011 ONCA 171

DATE: 20110303

DOCKET: C48568

O’Connor 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 jury’s 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 Crown’s 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 Appellant’s 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 Crown’s contention that the appellant intended to kill his wife when he attacked her and stabbed her several times. The evidence concerning the appellant’s 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 appellant’s character. We see no need for a limiting instruction where, as in this case, the evidence in question was directly relevant to the appellant’s 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 jury’s 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 appellant’s 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 appellant’s conduct toward the neighbour. While there was some difference in the appellant’s 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 jury’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 O’Connor A.C.J.O.”

“Doherty J.A.”

“R.A. Blair J.A.”