FELETI MOIMOI AND THE KING
[2024] NZCA 503
•4 October 2024 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA49/2024 |
| BETWEEN | FELETI MOIMOI |
| AND | THE KING |
| Hearing: | 25 July 2024 |
Court: | Hinton, Mander, Walker JJ |
Counsel: | G H Vear and D J Taumihau for the Appellant |
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 his belief that it would not be able to be done accidentally was inadmissible but argued that the rest of this passage was unobjectionable. At the conclusion of a brief in-chambers discussion on 28 July 2023, Judge Andrée Wiltens ruled that the whole portion of the EVI set out at [6] above was to be removed. Reasons were not provided. The transcript of the exchange between the Judge and counsel does not disclose the rationale for removal of the first four lines either. The Judge put to defence counsel that this part was innocuous, achieved nothing and so was not objectionable per se. However, he put to the prosecutor that the issue was whether this was opinion, a statement or a question. Although not explicit from the transcript, he was addressing the first four lines as this is what the prosecutor addressed in response, submitting that it was a statement of fact and admissible. The Judge expressly disagreed with that proposition but, as noted, did not record his reasons. He then ruled that the whole exchange should be excised.
At trial, the Crown called the complainant, police officers who attended the scene after the incident, the complainant’s wife, and Detective Constable Adamski. A statement from another attending police officer was read by consent. Mr Moimoi gave evidence in his own defence but did not call any other witness.
Detective Constable Adamski gave evidence in the afternoon of the second day of the trial. During his evidence, the edited EVI was played. He was then cross‑examined and re-examined. At completion of the re-examination, the Judge asked the following questions of him:
Q. Did you try and operate the grinder yourself?
A. Yes, I did, Sir.
Q. And was it easy or difficult, how would you describe it?
Defence counsel immediately rose and asked to see the Judge in chambers. In the absence of the jury, he raised the issue of admissibility and reminded the Judge of the pre-trial ruling. The Crown accepted that a pre-trial ruling had been made but went on to submit that it was helpful evidence for the jury. The Judge considered this was an issue that would trouble the jury given the question was whether the angle grinder could have been turned on accidentally or not and ruled that the evidence could be led. When the jury returned, the Crown was permitted to ask supplementary questions of Detective Constable Adamski as follows:
Q. Now His Honour just raised quite an interesting point, I hope I ask the question as well as His Honour did but have you had an opportunity to operate the angle grinder yourself Detective Constable?
A. Yes I did.
Q. And can you just talk to us a bit about how easy or how difficult it was for you to turn the angle grinder on?
A. When I turned the angle grinder on I thought to myself that it was quite a stubborn mechanism or switch.
Q. And you’re not obviously an expert at angle grinders, but when you say you thought that it was stubborn, do you mean in comparison to other things that you’ve experienced that has on and off buttons?
A. That’s correct, yes.
Defence counsel conducted further cross-examination as follows:
Q. Constable, you didn’t make any notes about that test of the angle grinder, did you?
A. I didn’t make any notes in relation to the testing of that angle grinder. However, I did ask about the angle grinder and the switch.
Q. When you say that it was quite stubborn, are you able to tell us how much force you applied to the angle grinder?
A. No, but I do recall just thinking that the switch was stubborn. By that I mean hard to turn on.
Q. Did you provide the angle grinder to someone like ESR or some sort of scientist to measure how much force would be needed to turn the angle grinder on or?
A. No, we did not.
Q. And just to confirm, your description about the trigger as from your experience?
A. That’s correct.
Q. And you don’t have any specialised expertise in how much force is needed to turn?
A. Not specialised but I do have tools at home that I use.
There was no re-examination.[3]
[3]We observe also that on cross-examination, the Crown put to Mr Moimoi that he could “with [his] experience” turn on the angle grinder pretty easily to which he responded “[s]ure”.
Defence counsel then addressed this point with Mr Moimoi. The key passage in the evidence was Mr Moimoi’s following explanation:
Q.Now you’ve heard not that long ago Constable Adamski saying that it was quite a stubborn switch?
A. Sure.
Q. What was your response to that?
A.He could be right to his point of view as different person using different tools, it’s depend (sic) on the experience and the way you been using it. He would be right for him but it could be wrong for me.
The Crown’s closing identified the central issue as whether the wounding was intentional. There were two mentions of the stubbornness of the trigger, including in the following submission:
And then we have the angle grinder itself. That’s my fifth point. You can see how big it is and you’ve heard Detective Constable Adamski’s evidence that the trigger was stubborn and hard to turn on and you might find, given the sheer size of it, and the stubbornness of the trigger, that’s consistent with it being used deliberately.
Counsel went on to say:
Power tools are designed to avoid them being turned on accidentally. They’re heavy, they are hard to turn on and with good reason. And you might find yourself looking at that angle grinder that Mr Moimoi must have been acting deliberately for it to turn on like that.
We observe that there had been no expert evidence led about the safety design of power tools.
In closing, defence counsel referred to the Detective Constable’s suggestion that the trigger of the grinder was stubborn, as a “red herring”. He reminded the jury of Mr Moimoi’s answer that it may have been stubborn for someone like the Detective Constable but for Mr Moimoi, with over 30 years’ experience as a mechanic, the trigger was not stubborn at all as he was used to using this tool. He went on to say:
Now, who knows how much pressure was required to turn on that specific grinder. We haven’t heard any independent evidence that would enable you to assess this on any real objective standard. And in any event, Mr Moimoi has told you that his reaction to [the complainant’s] punch was instinctive. He’s told us that he didn’t even think about it, it happened all in a split second. It is, I suggest, more than possible for the grinder to have been accidentally turned on based on Mr Moimoi’s version of events.
Grounds of appeal
Mr Moimoi advanced two primary grounds of appeal. First, in respect of the Detective Constable’s evidence regarding the grinder switch at [9] and [10] above, he contended that:
(a)it was opinion evidence and inadmissible as the Detective Constable was not a qualified expert, having no specialised knowledge or skill;
(b)the Judge erred by admitting evidence which he had already excluded at a pre-trial hearing. He had no jurisdiction to do so absent a change in circumstances. The defence case was prejudiced as expert evidence could otherwise have been sought and the late introduction of the evidence influenced Mr Moimoi’s election to give evidence himself; and
(c)the Judge failed to adequately direct the jury once that evidence was admitted, although no direction could have cured the error.
Secondly, Mr Moimoi contended that the Judge did not sufficiently direct the jury in respect of the relevance of the complainant’s prior convictions for violence.
Appeal principles
We must allow the conviction appeal if an error, irregularity, or occurrence has created a real risk that the outcome of the trial was affected, has resulted in an unfair trial or a trial that is a nullity.[4] A real risk the outcome was affected arises if there is a reasonable possibility another verdict would have been reached, while an assessment of whether a trial is “unfair” requires an assessment of the trial overall.[5] If the Court finds that any error or irregularity rendered the trial unfair, the appeal must be allowed irrespective of whether the outcome of the trial was affected.[6]
Admissibility of the Detective Constable’s evidence
[4]Criminal Procedure Act 2011, s 232.
[5]R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
[6]Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [37].
The difficulty Mr Moimoi faces on this first ground is that evidence from the Detective Constable that he found the on/off switch stubborn in comparison to others he had experienced, is not objectionable. On the contrary, we find that it was admissible. Such evidence is his personal observation, the basis for which was clearly stated. It is either evidence of fact or, if opinion, it falls within the ambit of s 24 of the Evidence Act 2006 and is admissible on that basis. That section reads:
24 General admissibility of opinions
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact‑finder to understand, what the witness saw, heard, or otherwise perceived.
The statement as to the “stubbornness” of the operating mechanism was necessary to effectively communicate something he personally perceived. No specific expertise is required to describe whether the witness found it “easy” or “difficult” to operate a particular switch mechanism.
We do not consider Ms Vear’s analogy with firearm trigger weight advances Mr Moimoi’s appeal. While that evidence is commonly given by experts, that does not make it opinion evidence per se. It is factual evidence of testing to measure trigger pull weight. As Mr Auld, counsel for the Crown put it, the only opinion element of that sort of evidence would be as to the likelihood of someone accidentally discharging a firearm with a given trigger pull weight. Merely because something could theoretically be accurately measured by an expert does not of itself preclude a layperson giving similar evidence, even if there are limitations to that evidence. The potential for an expert to test the ease of the grinder’s operating mechanism does not make a police officer or layperson’s observation inadmissible. To the contrary: the Detective Constable’s evidence is the sort of evidence that police regularly give.
We also accept that the evidence was relevant to the key issue in the trial – whether the injury caused by the grinder was accidental or not.
For the above reasons we consider that the brief passages of evidence set out at [9] and [10] above were admissible.
Ms Vear submitted that the Judge had no jurisdiction to revisit his earlier ruling and that doing so caused unfairness to Mr Moimoi.
A pre-trial ruling can be, and may need to be, revisited at trial having regard to the evidence that has been given. This Court said in M v R:[7]
[15] This does not affect the ability of trial judges to control the evidence that is given at trial, where there may be new circumstances justifying a different admissibility decision to that made prior to trial. That jurisdiction is effectively preserved for trials governed by the Criminal Procedure Act 2011 by ss 79(4) and 101(6) of that Act dealing respectively with judge-alone and jury trials. But a decision made in the course of the trial would not be remaking the pre-trial decision. And there are restrictions on the ability of the trial judge to differ from the pre-trial ruling, as the decisions in R v Gallaher, R v Hines and R v Howse show. Decisions to allow or exclude evidence during the trial must still be made “in accordance with any rule of law” as ss 79(4)(b) and 101(6)(b) state.
[7]M (CA245/2015) v R [2015] NZCA 413; referring to R v Gallagher [1993] 1 NZLR 659 (CA), R v Hines [1997] 3 NZLR 529 (CA), and R v Howse [2003] 3 NZLR 767 (CA). Emphasis in original.
As Mr Auld contended, there were new circumstances in the trial which justified revisiting the issue. The complainant’s oral evidence had expanded on his formal written statement. The complainant gave evidence that Mr Moimoi had swung the grinder towards his head twice and connected with his wrist the second time. He also gave evidence that Mr Moimoi said “I’m going fuckin cut you” when he swung the second time. In his formal written statement, the complainant had described Mr Moimoi as “swinging” the grinder towards his face once and connecting with his (the complainant’s) wrist. He made no mention of the verbal threat. Defence counsel emphasised the inconsistent narrative in cross-examination of the complainant.
In addition, the jury had the opportunity to view the grinder, which had been produced as an exhibit. The Judge would understandably consider it helpful to the jury if the Detective Constable had himself tried the switch. The elicited evidence was strictly limited to that point and did not extend to the objectionable statement by the Detective Constable in Mr Moimoi’s EVI that turning on the switch was not something he believed could have been done accidentally.
We acknowledge that the way the issue emerged was unfortunate. By intervening to ask the Detective Constable the question regarding the operation of the grinder, the Judge may have elevated the importance of the witness’s use of the piece of machinery. The prosecutor capitalised on this by prefacing her questions of the witness with a reminder to the jury of the Judge’s intervention.
But for the reasons stated below, even if the Judge was wrong in allowing the evidence at trial, we do not consider the error was one that led to an unfair trial or that there was a reasonable possibility the verdict was affected.
We consider defence counsel ably dealt with the turn of events, both in cross‑examination and through Mr Moimoi’s evidence in his own defence which we have recited above.
Second, this relating to Ms Vear’s third point as to the Judge’s direction, when explaining the question trail to the jury, the Judge identified the crux of the case as whether the prosecution had proved that the use of the angle grinder was deliberate as opposed to accidental. He made no mention of whether it was turned on or not, or the ease of doing so. Rather, the emphasis was on whether Mr Moimoi deliberately used the angle grinder which cut the complainant. We consider that to have appropriately captured the core issue. It was unnecessary in the circumstances to specifically direct the jury how to weigh the evidence of Detective Constable Adamski.
Third, as noted, the evidence was relevant and admissible. We are not persuaded that the defence was prejudiced or that there was resulting unfairness which tainted the trial. The ruling itself was ambiguous. The prospect that expert evidence would have been called to test the mechanism is speculative and remote. We are not satisfied it is realistic to say that Mr Moimoi was compelled to give evidence only because of the late introduction of clearly admissible evidence. He does not say on oath that was the case. His defence of accidental triggering of the switch was one where a defendant would commonly elect to give evidence. Mr Moimoi’s response to the Detective Constable’s evidence highlighted the limitations to the prosecution evidence. It was a matter for the jury to weigh that evidence in the light of Mr Moimoi’s response.
It follows that this ground of appeal fails.
Propensity evidence
Part of the defence case was that the complainant was the aggressor. Two pieces of propensity evidence were led at trial about the complainant’s propensity for violence. These were first, the complainant’s prior convictions for violence and secondly, evidence as to a prior incident between the complainant and Mr Moimoi. Defence counsel cross-examined the complainant in respect of both. The complainant denied both, despite the convictions being a matter of record and despite the evidence of his own wife who had witnessed the previous aggression against Mr Moimoi.
The Judge’s direction in relation to use of this propensity evidence was as follows:
[30] The one thing I must warn you about is that you know that [the complainant] has criminal convictions for violence. They happened a long time ago and does the fact that he has convictions in 2012 mean that he was violent on 17 July 2022? The answer is no. It does not show that at all. It shows he could have been but equally it shows that he might not have been. It does not help you very much other than to help you assess whether you believe his evidence, and that is the use of that evidence for you.
[31] Remember, the important thing is the prosecution need to prove these things and the big one is whose hands went up in self-defence as opposed to being aggressive. Because each said the other did it. That is your job, to decide that. …
Ms Vear submitted that this direction was inadequate for the following reasons:
(a)Rather than being limited to nullifying any unfairly prejudicial effect, it undermined the defence case by failing to direct the jury on the legitimate use of the evidence.
(b)It failed to tell the jury that the convictions were conclusive proof of prior acts of violence which, she contended, was important when the complainant himself denied those acts on cross-examination.
(c)The overall impact was to tell the jury to ignore the prior convictions.
(d)It did not refer to the other strand of propensity evidence, being the earlier alleged assault by the complainant against Mr Moimoi.
Evidence of the prior convictions was adduced by the defence through cross‑examination of the Detective Constable, after the complainant had disavowed them. That cross‑examination made it clear that a conviction can only arise from someone entering a guilty plea or where they had been found guilty at a trial. The officer confirmed that the complainant had five convictions for assault with a blunt instrument (also known as assault with a weapon) – those offences being committed between December 2010 and August 2012 and the convictions entered in 2014. In closing, defence counsel referred to the Detective Constable’s confirmation that the complainant “was a violent man”. This could be viewed as taking liberties with the conviction history given the age of the convictions. This may well have informed the nature of the direction the Judge gave to the jury to guard against illegitimate reasoning.
We agree with the Crown that the prior convictions had limited probative value in the circumstances, primarily due to their historical nature. We also consider that the jury would have been under no illusion what a conviction meant in the light of the Detective Constable’s evidence. The Judge’s direction in that context that the conviction evidence “does not help you very much other than to help you assess whether you believe [the complainant’s] evidence” was sufficient.[8] The Judge was directing the jury that they could consider the conviction history (and presumably his denial of the convictions) in relation to the complainant’s credibility. In short, not that they should disregard it altogether.
[8]Emphasis added.
The second strand of propensity evidence was different. We accept Mr Auld’s submission that it was “relationship propensity” evidence, part of the contextual narrative leading to the incident, rather than orthodox propensity evidence.[9] Aspects of the prior interactions between the complainant and Mr Moimoi were disputed. Against the backdrop of that conflict, it was for the jury to make of the evidence what they will. In listing the competing narratives that were part of the “background”, the Judge specifically referred to “[w]hether on other occasions [the complainant] has punched Mr Moimoi.” We consider the Judge appropriately directed the jury that they could use that evidence to assess the competing narratives.
[9]K (CA445/2018) v R [2019] NZCA 264 at [18]–[19].
This ground of appeal fails.
Result
We are satisfied there was no error and no miscarriage of justice.
The appeal is dismissed.
Solicitors:
Ratonga Wawao ā-Ture Tūmatanui | Public Defence Service, Tauranga for Appellant
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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