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 complainant’s admitted perjury by drawing the jury’s attention not only to the appellant’s 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 complainant’s 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 judge’s reference to the prior consistent statement somehow bolstered the complainant’s 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.”