R. v. Goran,

• Jurisdiction: Ontario
• Judge: Gillese, Armstrong and Blair, JJ.A.
• Neutral Citation: 2008 ONCA 195
• Citation: (2008), 234 O.A.C. 283 (CA),2008 ONCA 195,[2008] OJ No 1069 (QL),234 OAC 283,(2008), 234 OAC 283 (CA),[2008] O.J. No 1069 (QL),234 O.A.C. 283
• Date: 29 February 2008
• Court: Court of Appeal (Ontario)

R. v. Goran (M.) (2008), 234 O.A.C. 283 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. MR.082

Her Majesty the Queen (respondent) v. Mohamud Goran (appellant)

(C46514; 2008 ONCA 195)

Indexed As: R. v. Goran (M.)

Ontario Court of Appeal

Gillese, Armstrong and Blair, JJ.A.

March 19, 2008.

Summary:

The accused was convicted of robbery and assault causing bodily harm following an attack on Philipose. He was also convicted of assaulting Philipose's cousin. The accused was sentenced to eight months' imprisonment and one year of probation. A weapons prohibition and a DNA order were also imposed. The accused appealed the conviction and sought leave to appeal the sentence.

The Ontario Court of Appeal allowed the appeal from conviction and directed a new trial. The court refused leave to appeal the sentence.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - Philipose was swarmed and attacked by at least three men - One of the men, who appeared to be "Somalian", had previously identified himself as Mo G - The men stated that they were from Ramsey (a housing complex) - Philipose's cousin (James) chased the attackers and was struck in the face by Mo G - Eleven days later, Philipose identified Mohamed Guled from a photo lineup with 75% certainty - The next day, after viewing an electronic "mug book", he commented that Nur might be the assailant - A month later James viewed more lineups and identified Nur as the assailant - Subsequently, Philipose and James went to Ramsey and found a person who knew Mo G - They arranged to meet Mo G in a park - At the arranged spot, they were approached by "Somalian" men - At 20-30 feet, Philipose recognized the accused (Mohamud Goran) as his assailant, Mo G - At about the same time, Goran identified himself as Mo G - Philipose recognized the voice as that of his assailant - Philipose and James left - Philipose and James then obtained a high school yearbook and identified Goran's picture as that of the assailant - Goran was convicted of robbery and assault charges - The Ontario Court of Appeal set aside the convictions and directed a new trial where the trial judge failed to instruct himself properly about the eyewitness testimony and to direct his mind to its inherent frailties - Specifically, he failed to instruct himself properly about the fallacy of mistaking certainty for accuracy; the remarkable coincidence of both James and Philipose identifying Nur as the perpetrator; the weaknesses of James testimony; and the fundamental flaws respecting the identification in the park (i.e., the risk of a pre-conceived expectation or disposition) and yearbook identifications (which would have no value if the park identification was tainted) - See paragraphs 25 to 33.

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - [See Criminal Law - Topic 4361 ].

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - Philipose was swarmed and attacked by at least three men - One of the men, who appeared to be "Somalian", had previously identified himself as Mo G - Philipose heard the men say that they were from Ramsey (a housing complex) - Philipose's cousin (James) chased the attackers and was struck in the face by Mo G - Eleven days later, Philipose identified Mohamed Guled from a photo lineup with 75% certainty - The next day, after viewing an electronic "mug book", he commented that Nur might be the assailant - A month later James viewed more lineups and identified Nur as the assailant - Philipose and James went to Ramsey and found a person who knew Mo G - They arranged to meet Mo G in a park - At the arranged spot, they were approached by "Somalian" men - At 20-30 feet, Philipose recognized the accused (Mohamud Goran) as his assailant, Mo G - At about the same time, Goran identified himself as Mo G - Philipose recognized the voice as that of his assailant - Philipose and James left - Philipose and James then obtained a high school yearbook and identified Goran's picture as that of the assailant - Goran was convicted of robbery and assault charges - The Ontario Court of Appeal stated that although the eyewitness identification was flawed and frail, there was some evidence bolstering the identification - Prior to the assault, Philipose had sufficient opportunity to observe the assailants in close proximity in a non-confrontational atmosphere and had spoken to Mo G at length - Secondly, Philipose testified that he was not necessarily expecting to see his assailant at the park - Had a trier of fact, properly instructed and acting reasonably, accepted that evidence he could have put some faith in the reliability of Philipose's identification and convicted - See paragraphs 18 to 24.

Criminal Law - Topic 5241.1

Evidence and witnesses - Identification - Out-of-court identification - [See Criminal Law - Topic 4361 and second Criminal Law - Topic 5241 ].

Criminal Law - Topic 5244.1

Evidence and witnesses - Identification - Voice identification - [See Criminal Law - Topic 4361 and second Criminal Law - Topic 5241 ].

Criminal Law - Topic 5254

Evidence and witnesses - Identification - By name - [See Criminal Law - Topic 4361 and second Criminal Law - Topic 5241 ].

Cases Noticed:

R. v. Miaponoose (A.) (1996), 93 O.A.C. 115; 110 C.C.C.(3d) 445 (C.A.), refd to. [para. 19].

R. v. F.A. (2004), 184 O.A.C. 324; 183 C.C.C.(3d) 518 (C.A.), refd to. [para. 19].

R. v. T.T. and S.L. (1997), 103 O.A.C. 15; 117 C.C.C.(3d) 481 (C.A.), refd to. [para. 20].

R. v. Quercia (1990), 41 O.A.C. 305; 60 C.C.C.(3d) 380 (C.A.), refd to. [para. 26].

R. v. Spatola, [1970] 4 C.C.C. 241 (Ont. C.A.), refd to. [para. 31].

R. v. Whittle, [1984] A.J. No. 563 (C.A.), refd to. [para. 31].

Counsel:

Howard L. Krongold, for the appellant;

Greg Skerkowski, for the respondent.

This appeal was heard on February 29, 2008, by Gillese, Armstrong and Blair, JJ.A, of the Ontario Court of Appeal. Blair, J.A., released the following judgment for the court on March 19, 2008.