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IN THE COURT OF APPEAL OF NEW ZEALAND
CA196/2009
[2009] NZCA 437THE QUEEN
v
ASHLEIGH JORDAN MOFFAT
Hearing:4 August 2009
Court:William Young P, Baragwanath and MacKenzie JJ
Counsel:P H B Hall and K H Cook for Appellant
K A L Bicknell and E J Watt for Crown
Judgment:25 September 2009 at 12.30pm
JUDGMENT OF THE COURT
THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS
Baragwanath J [1]
William Young P [38]
MacKenzie J [62]BARAGWANATH J
[1] Following his trial for the murder of Wayne Kerry Bray, Ashleigh Jordan Moffat was convicted with five others of manslaughter. He appeals against his conviction on the ground that the trial Judge, Cooper J, erred in ruling that his counsel could not lead evidence as to the previous convictions of his co-accused.
[2] The issue, submitted by Mr Hall for the appellant to be of consequence to the determination of the trial, concerned the respective roles of the participants in a melée which the Crown asserted included the appellant. The appellant denied involvement. He contends that his cross-examination of a co-accused, Mr Jamieson, would have assisted the jury to conclude that the fatal blows inflicted upon the deceased derived from Mr Jamieson, who might have been convicted of murder. He reasons that the more powerful the evidence to that effect the greater the likelihood that the jury would convict Mr Jamieson. That, he submits, would equally tend to distract the jurors’ minds from the Crown theory that the appellant was involved in the killing. He submits that the Evidence Act 2006 retains the policy of the former common law which imposes upon an accused no constraints beyond relevance. When cross-examining a co-accused the remedy for any perceived injustice to the co-accused is, he submitted, not inhibiting cross-examination but severance.
The ruling
[3] This is the relevant passage from the Judge’s ruling:
[17] The statutory test that applies is simply whether the proposed evidence is relevant to a defence raised or to be raised by the party seeking to offer the evidence (s 42(1)(b)). But the permission of the Judge is necessary before a defendant may offer the propensity evidence. The statutory scheme obviously involves the exercise of a judicial discretion even where the evidence might be said to be relevant. To that extent there may very well have been a change to the pre-existing law as a consequence of the enactment of the Evidence Act.
[18] Counsel for Messrs Parker and Jamieson opposed the application contending that the evidence would not in fact be relevant to the defence. All counsel referred in the course of argument to the decision of the House of Lords in R v Randall [2004] 1 All ER 467. As that case shows, the question of whether evidence of this nature is relevant to a defence can raise some difficult issues. However, as I read the leading judgment, that of Lord Steyn, there was approval for the following dictum…
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- Moffat v R [2009] NZCA 437
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- [2009] NZCA 437
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