Goffe v R - [2011] NZCA 186

For a Court ready (fee required) version please follow this link

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA195/2011
CA217/2011 [2011] NZCA 186

BETWEEN JOSEPH TE AHU GOFFE Appellant

ANDTHE QUEEN Respondent

Hearing: 3 May 2011
Court: Wild, Venning and Courtney JJ Counsel: B J Hunt for Appellant
D R La Hood for Respondent

Judgment: 16 May 2011 at 10.30am

JUDGMENT OF THE COURT

A Leave to appeal the decisions of Judge McKegg of 29 October 2010 and

Judge Zohrab of 18 March 2011 is granted.

B. The appeal against the decision of Judge Zohrab dated 18 March 2011 is dismissed.

C.The appeal against the decision of Judge McKegg dated 29 October 2010 is allowed in part. The first letter is admissible. The content of the second letter is not.

D.Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or

GOFFE V R COA CA195/2011 [16 May 2011]

other publicly available database until final disposition of trial.

Publication in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] The appellant is for trial on 23 May 2011 in the District Court at Nelson. The charge is that, together with William Shane McKay, he wilfully attempted to pervert the course of justice.

[2] There have been a number of pre-trial applications. In a decision delivered on 29 October 2010 Judge McKegg ruled two letters authored by the co-accused Mr McKay were admissible as evidence against the appellant.

[3] On 18 March 2011 Judge Zohrab granted leave to the Crown to produce a copy of a certificate of conviction for Mr McKay to confirm his guilty plea to the charge of wilfully attempting to pervert the course of justice.

[4] The appellant seeks leave to appeal both pre-trial rulings.

Background

[5] On 9 October 2008 the police seized 86 cannabis seedlings from the appellant’s property at Motueka. Shortly afterwards the appellant was charged with cultivating cannabis. He instructed Mr Sandston, a lawyer in Nelson, to represent him.

[6] On 5 December 2008 Mr Sandston received a letter signed by Willy McKay. The letter was addressed “To whom it may concern”. In the letter Mr McKay said that the 86 seedlings found at the appellant’s property were his and gave an explanation as to how the seedlings came to be at the appellant’s property.

[7] On 8 December 2008 Mr Sandston wrote to the Nelson Police Prosecution

Service enclosing a copy of Mr McKay’s letter.

[8] On 13 February 2009 the police executed a search warrant at the appellant’s property. They found a further letter in an envelope on the mantelpiece. The envelope was dated 2 February 2009. The name W S…

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 Goffe v R

Details

AGLC: Goffe v R [2011] NZCA 186
Case: [2011] NZCA 186
Decision Date: 16 May 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Joseph Te Ahu Goffe, the appellant, appealed against the decisions of Judge McKegg and Judge Zohrab, seeking leave to appeal their rulings on the admissibility of evidence related to his charge of wilfully attempting to pervert the course of justice. The Crown opposed the grant of leave on the merits of the appeal. The appellant argued that the letters authored by his co-accused, William Shane McKay, were inadmissible. He also argued that the conviction of his co-accused was inadmissible. The Court had to decide whether the evidence of Mr McKay’s conviction and the letters were admissible against the appellant.

The Court found that the evidence of Mr McKay’s conviction was admissible under s 49 of the Evidence Act 2006. The Court considered the policy reasons for admitting convictions, including saving time and expense and making available highly probative evidence. The Court held that the evidence of the conviction was relevant to the authorship of the first letter and Mr McKay’s purpose in writing the letter. The Court found that the prejudicial effect of the evidence did not outweigh its probative value. The Court also found that the first letter was admissible as it was not strictly a hearsay statement, and the content of the letter was more in the nature of “verbal acts” rather than hearsay. The Court concluded that the content of the first letter was admissible against the appellant. However, the Court found that the second letter was not admissible as it was written outside the period alleged for the offending and was not in furtherance of the conspiracy as charged.

The Court granted leave to appeal. The appeal against the decision of Judge Zohrab was dismissed. The appeal against the decision of Judge McKegg was allowed in part. The first letter was admissible. The content of the second letter was not.

Orders