FELETI MOIMOI AND THE KING - [2024] NZCA 503

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA49/2024
[2024] NZCA 503

BETWEEN	FELETI MOIMOI Appellant
AND	THE KING Respondent

Hearing:	25 July 2024
Court:	Hinton, Mander, Walker JJ
Counsel:	G H Vear and D J Taumihau for the Appellant I S Auld for the Respondent
Judgment:	4 October 2024 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Walker J)

Feleti Moimoi appeals his conviction on a charge of wounding with intent to injure following a jury trial before Judge G A Andrée Wiltens in the Manukau District Court in September 2023.[1]
[1]Pursuant to the Crimes Act 1961, s 188(2).
Mr Moimoi was subsequently sentenced to nine months’ home detention with six months of post-detention conditions.[2] He does not appeal against his sentence.

Background and procedural history

[2]R v Moimoi [2024] NZDC 676 [sentencing notes].

Mr Moimoi and the complainant were neighbours sharing a driveway with others. Interactions between them over time led to tension in their relationship.
The incident giving rise to the charge began when someone visiting Mr Moimoi’s wife parked in the shared driveway. Their car blocked the complainant’s wife from driving out of the driveway to pick up her children. The complainant became involved in the interaction which ensued. Mr Moimoi, a mechanic by trade, was working in his garage when the fracas started. He came out of the garage. A verbal altercation followed between Mr Moimoi and the complainant.
The prosecution case was that Mr Moimoi was holding an angle grinder, raised it and struck the complainant on his left forearm, causing a significant wound to his left wrist. There was no dispute that the angle grinder was switched on when it struck the complainant. Mr Moimoi claimed that the complainant had tried to punch him to the head; Mr Moimoi raised his arm to block the blow; and in doing so, his thumb accidentally switched on the operating mechanism.
Mr Moimoi was arrested and participated in an evidential video interview (EVI) on the day of the incident. He accepted that he caused the wound to the complainant but explained that he did not intend to assault the complainant. During the interview, Detective Constable Adamski had the following exchange with Mr Moimoi:
Detective:Okay so we’ve had the opportunity to operate the grinder ourselves. Um, the grinder itself takes quite a bit of force to turn on the switch.
Mr Moimoi: Yeah.
Detective:Um not something that I believe would be able to be done accidentally. What can you tell me about that?
Mr Moimoi:Well I was in the shock when it was my thumb just went on when I try to protect myself and the grinder is not a, it’s not a very ah heavy grinder it just would be the normal grinder.
Pre-trial, counsel for Mr Moimoi sought to have this exchange ruled inadmissible and removed from the EVI. The Crown accepted that the Detective Constable’s reference to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FELETI MOIMOI AND THE KING

Details

AGLC: FELETI MOIMOI AND THE KING [2024] NZCA 503
Case: [2024] NZCA 503
Decision Date: 4 October 2024 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Feleti Moimoi appeals his conviction for wounding with intent to injure, following a jury trial in the Manukau District Court. Moimoi was sentenced to nine months' home detention with six months of post-detention conditions but does not appeal his sentence. The appeal focuses on two primary issues: the admissibility of evidence regarding the ease of operating the angle grinder and the adequacy of the Judge’s directions to the jury regarding propensity evidence.

The first ground of appeal concerns the Detective Constable's evidence about the angle grinder's switch mechanism. Moimoi argues that the evidence was inadmissible opinion, not grounded in expertise, and that the Judge erred in admitting it after a pre-trial ruling to exclude it. The Crown contends that the evidence was admissible as it was based on personal observation and relevant to the issue of whether the injury was accidental or intentional. The Court found that the evidence was admissible either as fact or opinion under the Evidence Act 2006. Furthermore, the Court noted that the Judge had the authority to revisit the admissibility of evidence in light of new circumstances presented during the trial. The Court concluded that any error in admitting the evidence did not unfairly prejudice Moimoi or affect the trial’s outcome.

The second ground of appeal pertains to the Judge’s direction to the jury regarding the complainant’s prior convictions for violence and a previous incident between Moimoi and the complainant. Moimoi's counsel argues that the Judge’s direction was inadequate, as it failed to properly inform the jury of the probative value of the propensity evidence. The Crown submits that the direction was sufficient, particularly given the historical nature of the convictions and the context in which they were presented. The Court found that the Judge’s direction appropriately allowed the jury to consider the prior convictions in assessing the complainant’s credibility without undermining the defence case. The Court held that the direction was sufficient, and this ground of appeal also fails.

In conclusion, the Court found no error or miscarriage of justice in the trial and dismissed the appeal. The evidence regarding the angle grinder was properly admitted, and the Judge’s directions to the jury were adequate. The appeal is dismissed, and the conviction stands.

Orders