Moala v The Queen - [2017] NZCA 212

IN THE COURT OF APPEAL OF NEW ZEALAND

CA542/2016
[2017] NZCA 212

BETWEEN	JOHN SIONA MOALA Appellant
AND	THE QUEEN Respondent

Hearing:	10 May 2017
Court:	Harrison, Gilbert and Katz JJ
Counsel:	K S Holden for Appellant S K Barr for Respondent
Judgment:	25 May 2017 at 10.15 am

JUDGMENT OF THE COURT

AThe application for an extension of time within which to appeal is granted.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

John Moala was found guilty of one charge of aggravated robbery following a trial by jury in the Auckland District Court. He was convicted and sentenced to five years and nine months’ imprisonment by Judge P I Treston on 16 September 2016.[1]
[1]R v Moala [2016] NZDC 18130.
Mr Moala appeals against his conviction on the grounds that the Judge was wrong to declare one of the Crown witnesses hostile and, further, that the Judge made several errors in his summing‑up. These errors are said to have resulted in a miscarriage of justice.
The appeal has been filed out of time. Mr Moala has filed an affidavit explaining why that is so. The Crown does not oppose an extension of time being granted under r 11 of the Court of Appeal (Criminal) Rules 2001 and we are satisfied that it is appropriate to do so.

Background

On 3 July 2015 a dairy in New Lynn, Auckland, was robbed at gun point. Three men entered the dairy wearing high-visibility vests. Their faces were partially obscured by hoods or beanies. One of the men pointed a rifle at the shopkeeper while the other two took cigarettes and tobacco from behind the counter and cash from inside the register. The armed man kept the rifle trained on the shopkeeper as the other two fled the store. The armed man grabbed bars of chocolate as he left.
Mr Kata was the driver of a Subaru motor vehicle that was stopped by police shortly after the robbery. Mr Kata and his three passengers — Mr Moala, Mr Pulu and Mr Fameatau — were arrested. Mr Moala is Mr Kata’s cousin.
After his arrest, Mr Kata provided two statements to the police. The first was recorded by hand in an officer’s notebook. Mr Kata initially said that he and Mr Moala had been together on the day of the robbery. The other two men had arrived at his house about 3.30 pm and asked him to stash a bag and give them a ride to the train station. All four men then left together in his car and were subsequently stopped by the police. The interviewing officer put it to Mr Kata that he was covering for Mr Moala. Mr Kata admitted that he was, and that in fact all three of the passengers in his car had come to his door on the day of the robbery.
Mr Kata then agreed to make a formal statement. His formal statement accords with and elaborates on…

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 [2017] NZCA 212
Case: [2017] NZCA 212
Decision Date: 25 May 2017 at 10.15 am

CaseChat Overview and Summary

John Moala appeals against his conviction for aggravated robbery, arguing that the trial judge erred in declaring a key Crown witness hostile and that the summing-up was unfair. The appeal was filed out of time, but the Court of Appeal grants an extension of time to hear the appeal. The central issue is whether the trial judge's declaration of the witness as hostile and his summing-up were proper and fair, potentially leading to a miscarriage of justice.

The Court of Appeal first examines whether the judge was correct to declare Mr Kata hostile. Mr Kata's evidence in re-examination contradicted his earlier statements and his evidence-in-chief, showing inconsistency and an intention to be unhelpful to the prosecution. The Court found the judge's assessment to be correct, and there was no miscarriage of justice in the timing of the hostility declaration.

Next, the Court assesses the fairness of the summing-up. The judge's references to the prosecutor's comments were not prejudicial and did not suggest an endorsement of the Crown's position. Although the judge slightly misstated Mr Kata's evidence, this minor error did not contribute to any miscarriage of justice. The summing-up as a whole was balanced and allowed the jury to understand the key issues.

The Court of Appeal concludes that neither the declaration of the witness as hostile nor the summing-up was unfair, and no miscarriage of justice occurred. The appeal is dismissed, and the conviction stands.

Orders