Joseph Douglas McGirr v The Queen - [2022] NZSC 19

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 156/2021
[2022] NZSC 19

BETWEEN	JOSEPH DOUGLAS MCGIRR Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and O’Regan JJ
Counsel:	A J Bailey for Applicant M R L Davie for Respondent
Judgment:	9 March 2022

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

In October 2018 there was a gathering at the applicant’s house in Christchurch. Among those present was a young woman, Lauren Biddle, and the applicant’s friend, Guy Higginson. Over the course of the evening, the applicant and Ms Biddle consumed alcohol, cannabis and MDMA. The MDMA had belonged to the applicant. Sometime after midnight, while in his spa pool, the applicant realised that Ms Biddle was under water and either unconscious or dead. The evidence of the applicant and Mr Higginson differed as to the detail of what happened next but what is clear is that:
(a)Mr Higginson put Ms Biddle’s body in his car, left the property and telephoned emergency services.
(b)After Mr Higginson left with Ms Biddle’s body, the applicant tidied up alcohol bottles and cans, put the cover on the spa pool and concealed items of Ms Biddle’s clothing and her bag by burying them in a bush area on his property. He also took steps to conceal the fact that he had been growing cannabis.
At the time the applicant was serving a community-based sentence under which he was not permitted to consume alcohol.
The applicant was charged with supplying MDMA to Ms Biddle and Mr Higginson, attempting to pervert the course of justice and cultivating cannabis. He pleaded guilty to the last of the charges and went to trial before a jury on the other three. The jury found the applicant not guilty on the supply charges but guilty of attempting to pervert the course of justice.
The applicant’s appeal to the Court of Appeal against conviction was dismissed[1] and he now seeks leave to appeal. His challenge to his conviction arises in this way.
[1]McGirr v R [2021] NZCA 635 (Brown, Mallon and Moore JJ) [CA judgment].
The trial Judge directed the jury that it should find the applicant guilty if sure that:
(a)when the applicant concealed Ms Biddle’s clothing, he knew that a police investigation into Ms Biddle’s death was underway or inevitable;
(b)concealing Ms Biddle’s clothing had a tendency to hinder or obstruct that investigation; and
(c)in concealing the clothing, he was intentionally trying to hinder or obstruct that investigation.
The Judge did not require the jury to consider whether the applicant’s conduct also had a tendency (and was intended) to affect any prosecution which might arise out of the investigation That this is an element of the offence[2] is apparent from the Court of Appeal judgment in R v Meyrick.[3] Best practice in New Zealand (as illustrated by cases cited by the Crown in their submissions) is for trial judges to direct accordingly. [4] For this…

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.

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Details

Case: [2022] NZSC 19
Decision Date: 9 March 2022

CaseChat Overview and Summary

Joseph Douglas McGirr sought leave to appeal against his conviction for attempting to pervert the course of justice, following the death of Lauren Biddle at his home in Christchurch. McGirr had consumed alcohol, cannabis, and MDMA with Biddle, and was found guilty of attempting to pervert justice by concealing evidence related to the incident. The primary legal issue in this case was whether the trial judge's direction to the jury was misdirection, as it did not require them to consider whether McGirr's actions were intended to affect any potential prosecution arising from the investigation. The Supreme Court considered whether the omission of this element constituted a misdirection and if the error led to a miscarriage of justice.

The Supreme Court held that the trial judge's omission to direct the jury on the possibility of prosecution was indeed a misdirection, but it did not lead to a miscarriage of justice. The Court of Appeal had concluded that the jury's finding that McGirr intended to hinder or obstruct a police investigation inevitably implied that he also intended to affect any prosecution that might arise from the investigation. The Court of Appeal's reasoning was consistent with the Court of Appeal of England and Wales' decision in R v Rafique. The Court held that the error did not raise a question of general or public importance, and that the law on the topic was clear.

In light of the above, the Supreme Court dismissed McGirr's application for leave to appeal. The Court found that the Court of Appeal's conclusion that there was no miscarriage of justice was well supported by the evidence and reasoning, and that the misdirection did not impact the outcome of the case. The Court saw no appearance of a miscarriage of justice in the Court of Appeal's conclusion that the inference regarding McGirr's intent was "irresistible."

The Supreme Court's final orders were that the application for leave to appeal was dismissed, and McGirr's conviction for attempting to pervert the course of justice stood.

Orders