R. v. Mussa
The conviction was set aside because the trial judge failed to limit the use of the co‑accused's prior statement for its truth against the appellant unless adoption at trial was proven; the misinstruction could not be shown harmless and therefore rendered the conviction unsafe, necessitating a new trial.
Source-derived case information.
- Citation
- C42654
- Parties
- Respondent: Her Majesty the Queen; Appellant: Abdurzak Ibro Mussa
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 7 September 2006
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence to Court of Appeal for Ontario; New Trial Ordered
- Outcome
- Conviction set aside and new trial ordered.
- Legal Topics
- Prior Statements, Co‑accused Statements, Jury Instructions, Misinstruction, Unreasonable Verdict, New Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Her Majesty the Queen
Respondent
Abdurzak Ibro Mussa
Appellant
Procedural Posture
Criminal / Appeal From Conviction and Sentence to Court of Appeal for Ontario; New Trial Ordered
Legal Issues
- 1 Whether the trial judge misdirected the jury by failing to limit the use of a co‑accused's prior statement to the co‑accused for its truth
- 2 Whether the misinstruction rendered the conviction unsafe or was harmless
- 3 Whether there was an evidentiary basis for the jury's verdict that could stand absent the error
Ratio Decidendi
The conviction was set aside because the trial judge failed to limit the use of the co‑accused's prior statement for its truth against the appellant unless adoption at trial was proven; the misinstruction could not be shown harmless and therefore rendered the conviction unsafe, necessitating a new trial.
Court Disposition
Conviction set aside and new trial ordered.
Orders
- Conviction set aside.
- New trial ordered.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Mussa Collection Decisions of the Court of Appeal Date 2006-09-07 Docket numbers C42654 Judges Goudge, Stephen Thomas; Sharpe, Robert J.; Blair, Robert Ashley Subject Criminal Decision Content 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. APPEAL BOOK ENDORSEMENT [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.”