Moala v The Queen - [2019] NZCA 477

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA156/2019
[2019] NZCA 477

BETWEEN	SIONE UIANE MOALA Appellant
AND	THE QUEEN Respondent

Hearing:	20 August 2019
Court:	Brown, Simon France and Dunningham JJ
Counsel:	E P Priest for Appellant J E L Carruthers for Respondent
Judgment:	2 October 2019 at 3.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

Introduction

In December 2018, the appellant, Mr Moala, was found guilty by a jury on a charge of wounding with intent to injure.
He now appeals his conviction on the sole ground that the Judge’s failure to abort the trial and discharge the jury pursuant to s 22 of the Juries Act 1981 resulted in a miscarriage of justice.
The application to abort the trial was prompted by a ruling that inadmissible identification evidence was led at trial. Although the Judge gave a firm direction to ignore the evidence, Mr Moala says the evidence was so central to the case that a judicial direction could not cure the error and avoid an unfair trial.

Background

The offending

Mr Moala faced three charges: a charge of fighting in a public place, a charge of wounding with intent to cause grievous bodily harm and, in the alternative, a charge of wounding with intent to injure. He entered a plea of guilty to the charge of fighting in a public place before trial but denied the alternate charges.[1]
[1]This was the third trial; the first trial was aborted, and the second jury could not reach a verdict.
The charges arose out of events which occurred in the early hours of the morning on 24 April 2016.
Mr Moala is alleged to have been in a bar in Fort Lane in central Auckland that night, where he became involved in an argument with a female patron. The victim, Mr Tofa, was present in the bar with his cousin, Mr Kerrison, and intervened to protect the female. A minor altercation followed between Mr Moala and Mr Tofa, resulting in Mr Moala being ejected from the bar.
Sometime later, Mr Tofa and his cousin left the bar, and were walking down Fort Lane to Fort Street. Mr Moala is alleged to have seen them and approached them from behind. He then delivered two punches to Mr Tofa’s head, causing him to collapse to the ground. A security guard, Mr Bryljevich, heard the punches and heard the puncher yell out something along the lines of “that’s what you get boy” after landing the second blow. He said he then saw the puncher standing over the victim. While he did not see the puncher’s face, he could describe him as being of M āori or Pacific Island descent, wearing a black singlet, having short black hair, and having chest, neck and arm tattoos.
A short time later, Mr Moala was involved in a fight at the intersection of Commerce Street and Fort…

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 Moala v The Queen

Details

AGLC: Moala v The Queen [2019] NZCA 477
Case: [2019] NZCA 477
Decision Date: 2 October 2019 at 3.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Sione Uiane Moala, challenged his conviction for wounding with intent to injure, arguing that the judge's failure to abort the trial and discharge the jury under s 22 of the Juries Act 1981 resulted in a miscarriage of justice. The key legal issue was whether the judge's direction to the jury to ignore inadmissible identification evidence was sufficient to remedy the potential prejudice, or whether the jury should have been discharged. The Crown argued that the judge's clear and forceful direction was adequate and that the inadmissible evidence did not significantly alter the complexion of the trial. The appellant's counsel contended that the identification evidence was central to the case and that a judicial direction could not cure the error and avoid an unfair trial.

The Court of Appeal found that the judge's direction was firm and clear, and that the inadmissible evidence did not significantly change the complexion of the trial. The Court held that the judge was best placed to determine the appropriate steps to address the inadmissible evidence and that his decision was entitled to respect. The Court concluded that the irregularity was not so central to the Crown case, nor so prejudicial to the defence case, that it could not be remedied by the firm and clear direction the judge gave. Therefore, the Court dismissed the appeal against conviction.

Orders