McGirr v The Queen - [2021] NZCA 635

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA102/2021
[2021] NZCA 635

BETWEEN	JOSEPH DOUGLAS MCGIRR Appellant
AND	THE QUEEN Respondent

Hearing:	11 November 2021
Court:	Brown, Mallon and Moore JJ
Counsel:	A J Bailey for Appellant M R L Davie for Respondent
Judgment:	30 November 2021 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Following the death of Lauren Biddle in a spa pool at his home, apparently from an overdose of MDMA, Mr McGirr was found guilty of attempting to pervert the course of justice by removing her clothing from his house and concealing it down a bank at his property. He appealed his conviction on the ground that a miscarriage of justice occurred because of a jury misdirection.

Factual background

At a gathering in October 2018 at Mr McGirr’s Christchurch property the appellant and Ms Biddle consumed alcohol, cannabis and MDMA, a Class B controlled drug which belonged to Mr McGirr. At the time Mr McGirr was serving a community‑based sentence with the condition that he not consume alcohol. Some time after midnight while they were in his spa pool Mr McGirr realised that Ms Biddle was under the water, apparently deceased.
Mr McGirr and the other person still present, Mr Higginson, gave conflicting evidence as to what occurred. Mr Higginson said Mr McGirr told him that Ms Biddle was dead. Mr Higginson wanted to call an ambulance but Mr McGirr was insistent that should not happen. Mr Higginson tried to revive Ms Biddle by the spa and again spoke to Mr McGirr about calling for help. According to Mr Higginson, Mr McGirr said: “You’re not fucken ringing the police … You’ve gotta take her somewhere else.” Mr Higginson put Ms Biddle in his car and left the property. He then summonsed emergency services but Ms Biddle could not be revived.
By contrast Mr McGirr said that it was he who had attempted to revive Ms Biddle by administering CPR. Having noticed that Mr Higginson was also unconscious in the spa pool, Mr McGirr then rescued him and alternated between Mr Higginson and Ms Biddle in his resuscitation efforts. Once Mr Higginson was successfully revived, Mr Higginson took Ms Biddle away to hospital. Mr McGirr explained that he could not leave the property on account of his curfew.
What was not in dispute is that after Mr Higginson left with Ms Biddle, Mr McGirr proceeded to tidy up alcohol bottles and cans and put the cover on the spa pool. He removed various items of Ms Biddle’s clothing and her bag to a bush area down a bank on his property and used a shovel to conceal them beneath dirt and leaves.
Mr McGirr faced a trial on four charges: two of supplying a Class B controlled drug (to Mr Higginson and Ms Biddle), one charge of attempting to pervert the course of justice and one charge of…

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 McGirr v The Queen

Details

AGLC: McGirr v The Queen [2021] NZCA 635
Case: [2021] NZCA 635
Decision Date: 30 November 2021 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand dismissed an appeal by Joseph Douglas McGirr against his conviction of attempting to pervert the course of justice by removing the clothing of Lauren Biddle from his property and concealing it. The appeal was based on the contention that the trial judge had misdirected the jury by not requiring them to consider whether McGirr's actions were intended to interfere with judicial proceedings in addition to the police investigation into Ms Biddle's death. The Court found that the question trail and summing up by the judge sufficiently focused the jury's attention on whether McGirr's actions had a tendency to hinder or obstruct the police investigation into Ms Biddle's death. The Court held that there was no material misdirection that resulted in a miscarriage of justice. The appeal was therefore dismissed.

Orders