MICHAEL ROY FILOA AND THE KING - [2024] NZCA 484

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA496/2023
[2024] NZCA 484

BETWEEN	MICHAEL ROY FILOA Appellant
AND	THE KING Respondent

Hearing:	30 July 2024
Court:	Courtney, Mander and Walker JJ
Counsel:	M J Dyhrberg KC and H G de Groot for Appellant A J Ewing and J G Fenton for Respondent
Judgment:	26 September 2024 at 11 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

Michael Filoa was convicted by a jury in the Auckland High Court of the murder of Clifford Umuhuri. He was sentenced to life imprisonment with a minimum period of imprisonment of 10 years and six months by the trial Judge, Harvey J, on 27 September 2022,[1] but did not file an appeal against his conviction and sentence until 29 August 2023. He seeks an extension of approximately 11 months to file his appeal out of time. The Crown opposes the application for an extension of time, which was directed to be heard separately from the proposed appeal.

Background

The homicide

[1]R v Filoa [2022] NZHC 2461 [sentencing notes].

The circumstances of Mr Umuhuri’s death arose out of a drug transaction that went awry. The transaction was to take place in the rear of a vehicle. Messrs Filoa and Umuhuri got into the backseat. Witnesses observed the car rocking back and forth before Mr Filoa exited the rear door. He drew a gun which he fired twice into the car at Mr Umuhuri who died from the resulting bullet wounds. The location of those wounds suggested Mr Umuhuri was not facing Mr Filoa when he was shot.
At trial, Mr Filoa gave evidence claiming he acted in self-defence. On his account, he had been repeatedly struck in the face with a hard object by Mr Umuhuri in the rear of the vehicle. After being assisted out of the vehicle by his associate, two of Mr Umuhuri’s companions advanced on him. His associate ran away and Mr Filoa was left in a dazed state, leaning on the car door for support.
Mr Filoa’s evidence was that he believed Mr Umuhuri had a gun. He heard the words “it’s jammed” followed by loud clicks which, as he told the pre-sentence report writer, “he distinctively knew [to be caused by] a firearm”. He could not see Mr Umuhuri in the backseat or a gun but believed what he heard was an attempt to fire at him. In fear of his life, he drew his firearm and fired two shots into the vehicle. Mr Filoa maintained he only wanted to deter Mr Umuhuri from harming him and was not aiming at anything in particular.

The trial

The Judge directed the jury about self-defence and provided a question trail that both parties agree was orthodox in its structure. After posing sequential questions regarding Mr Filoa’s involvement in the homicide which included whether the jury was sure…

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: [2024] NZCA 484
Decision Date: 26 September 2024 at 11 am

CaseChat Overview and Summary

Michael Filoa, convicted of the murder of Clifford Umuhuri and sentenced to life imprisonment, applied for an extension of time to appeal against his conviction and sentence. The primary legal issues were whether the trial Judge erred in permitting the jury to consider the mental elements of murder before resolving the issue of self-defence, and whether there were deficiencies in the Judge's summing up on self-defence and murderous intent. The Court also considered the potential merits of a proposed appeal regarding the severity of the sentence.

The Court held that the sequence in which the jury considered the issues of self-defence and murderous intent did not result in a miscarriage of justice, as the Judge directed the jury to return to the issue of the proportionality of the force used in light of any conclusion on murderous intent. The Court further found that the Judge's summing up on self-defence was adequate, and that the omission of certain details did not prejudice the jury's consideration of the case. Regarding the sentence, the Court upheld the Judge's decision that life imprisonment was not manifestly unjust in the circumstances of the case.

The Court concluded that the application for an extension of time was not warranted because the proposed grounds of appeal lacked merit and the significant delay in filing the appeal remained largely unexplained. Therefore, the application was declined.

The Court declined the application for an extension of time to appeal, affirming the conviction and sentence imposed on Michael Filoa.

Orders