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Moffat v R

Moffat v R

Case [2009] NZCA 437 25 September 2009

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Propensity Evidence

Admissibility of Evidence

Judicial Discretion

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA196/2009
[2009] NZCA 437
THE 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…

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 Moffat v R

Details

AGLC: Moffat v R [2009] NZCA 437
Case: [2009] NZCA 437
Decision Date: 25 September 2009

CaseChat Overview and Summary

Ashleigh Jordan Moffat appeals against his conviction for manslaughter following the death of Wayne Kerry Bray. The appeal focuses on the trial Judge's decision to not allow evidence of the previous convictions of Moffat's co-accused, specifically Mr Jamieson. Moffat argues that the exclusion of this evidence was a miscarriage of justice. The Court of Appeal assesses the relevance of the evidence under the Evidence Act 2006 and considers whether the exclusion of this evidence led to a miscarriage of justice. The Court of Appeal concludes that while the evidence was relevant, its exclusion did not result in a miscarriage of justice as the jury found all six defendants guilty of manslaughter. The appeal is therefore dismissed.

Orders