Ontario’s top court has ordered a new trial for two of three men convicted in a shocking home invasion robbery in south London five years ago.
The Ontario Court of Appeal cited errors in the jury instructions at the Superior Court trial of Elias Akhi and Jezreel Moxam. “The jury instructions did not properly equip the jury with the tools necessary to decide this case fairly,” the Appeal Court wrote in its decision.
The two were convicted on Feb. 12, 2019, of robbery, assault with a weapon, kidnapping and other offenses stemming from events at a White Oaks Road home on Sept. 28, 2016.
A woman lived at the house with her two daughters, her boyfriend and her boyfriend’s brother. The boyfriend and his brother were producing “shatter,” a marijuana byproduct. Two men, identified as Moxam and a third man convicted in the case, Azizullah Hadi, entered the house, bound the adults with zip-ties and held them at gunpoint.
The robbers rummaged through the house for drugs, money and valuables, pistol-whipped the boyfriend and then, not satisfied with what they found, threatened to take the children. The woman was blindfolded and driven to an apartment building by three men to knock on the door of a unit where they believed there were drugs.
They put a second vehicle carrying three other men. One opened the door to the apartment building and Hadi took the woman to the unit. No one answered the door.
They retired downstairs, where Moxam gave the women some money for a phone call and told her not to take off her blindfold until they were gone.
The driver of the second car went to police and said Ahki was in the car and forced the driver into taking part and gave instructions over the phone to Moxam and Hadi.
Five people were charged, but charges against two accused were dropped. Hadi pleaded guilty before Ahki and Moxam went to trial.
The Appeal Court said the case was complicated by the initial 26 criminal counts – a mix of individual and joint counts – laid in the case. Once Hadi pleaded guilty, there were 14 counts left for trial.
More confusing were Justice Kelly Gorman’s instructions on the liability of each man, whether they were principals or parties to the offences.
Eleven of the 14 counts were joint charges. The jury was told the men had to be treated separately, but there was a failure to keep their names separate when reviewing the charges and instructions.
The Appeal Court said, even if the instructions were repetitive, the liability of each man should have been treated separately. The facts pointed to Akhi never being in the house, for example, so his case was distinct from Moxam’s.
The Appeal Court rejected the Crown’s argument that the only issue at trial to excuse Moxam was that he was under duress at the time of the home invasion. The court said the judge failed to include that in the instructions and lumped the two men together in all joint counts.
“In our view, there is no safe way of separating out the confusion that was created by the erroneous jury instructions as between the various counts or as between the two appellants,” the Appeal Court said in its decision.
“If the jury was left in a state of confusion regarding what the Crown needed to establish for a conviction beyond a reasonable doubt, it cannot be said with any level of comfort that the confusion would only have permeated their consideration of some charges and not others .”
The Appeal Court said the case “demonstrates the risks associated with including multiple counts in an indictment that arise out of the same conduct,” and suggested the Crown needs to identify “key offences” and take those to trial.
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