R v Morunga - [2009] NZCA 292

IN THE COURT OF APPEAL OF NEW ZEALAND
CA107/2009
[2009] NZCA 292
THE QUEEN
v
WILLIAM PORA MORUNGA
Hearing:25 June 2009

Court:Baragwanath, Randerson and Miller JJ
Counsel:W M Johnson for Appellant

S B Edwards for Crown

Judgment:9 July 2009 at 10.00 a.m.

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
[1]       Mr Morunga appeals against his conviction for driving on 8 February 2007 with excess blood alcohol, being a third or subsequent offence. A jury found him guilty at trial on 10 February 2009 following a two-day trial.
[2]       Mr Johnson advances two grounds of appeal. The first is that the evidence did not sufficiently prove the previous convictions, because the Crown relied upon no less than three different versions of a certificate recording a conviction entered following a hearing on 9 June 2005. Further, Judge Kiernan failed to leave the reliability of the certificates to the jury and simply ruled that the third certificate evidenced the previous conviction. The second ground of appeal is that there was no sufficient evidence of the blood alcohol level, in circumstances where the doctor who took the blood sample was called but could not confirm that an approved blood specimen collecting kit was used and that it had not passed its expiry date.
The trial
[3]       Mr Morunga was committed for trial after depositions in the Gisborne District Court. It was soon apparent that Mr Johnson would mount evidential challenges. A s 344A application was filed by Crown counsel in relation to certificates of conviction and a certificate of blood analysis, but it was withdrawn and Mr Johnson was directed to file a memorandum identifying in full the pre-trial issues to be determined. He did so by memorandum of 27 August 2008, but no pre-trial hearing was allocated and the objections were determined at trial.
[4]       The trial was split into two phases. The jury was first empanelled and determined, on what counsel called a dummy indictment, whether Mr Morunga was guilty of driving with excess blood alcohol. Having found that he was, the jury was not discharged but was presented with the full indictment containing the allegation that it was a third or subsequent offence. This practice was discussed in R v Livingston [2001] 1 NZLR 167 (CA); see also R v MacLeod (2002) 19 CRNZ 513 (CA) and s 341 of the Crimes Act 1961.
[5]       Before the trial began Mr Johnson moved for a discharge under s 347 of the Crimes Act. Two certificates of conviction had been presented at depositions, evidencing convictions in 1992 and 2005. Counsel took issue with the 2005 conviction, contending that the certificate was invalid because it did not contain a date of offence. The Judge ruled that the record produced at depositions set out Mr Morunga’s name and date of birth, although his second forename, Pora, was mis-spelt as “Para”. The certificate otherwise complied with s 129 [sic] of the Evidence Act 2006. The particulars…

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 R v Morunga

Details

AGLC: R v Morunga [2009] NZCA 292
Case: [2009] NZCA 292
Decision Date: 9 July 2009

CaseChat Overview and Summary

In the case of R v Morunga, the defendant, William Pora Morunga, appealed against his conviction for driving with excess blood alcohol, which was his third or subsequent offence. The appeal was heard in the Court of Appeal of New Zealand and was dismissed on 9 July 2009. The defendant was represented by W M Johnson, while the Crown was represented by S B Edwards. The appeal raised two primary issues: the sufficiency of evidence to prove previous convictions and the adequacy of evidence to establish the blood alcohol level.

The court examined the first ground of appeal, which concerned the proof of previous convictions. The defendant's counsel argued that the evidence did not sufficiently prove the previous convictions, as the Crown had relied on three different versions of a certificate recording a conviction. Counsel further argued that the trial judge had failed to leave the reliability of these certificates to the jury. However, the court held that under the Summary Proceedings Act 1957 and the Evidence Act, a certified copy of a conviction was admissible without further proof. The court found that the third certificate was properly admissible and there was no miscarriage of justice in the trial judge's decision not to admit the second certificate. The court concluded that the certificates sufficiently identified the defendant as the person previously convicted, and the appeal on this ground was dismissed.

The second ground of appeal concerned the sufficiency of evidence of the blood alcohol level. The defendant's counsel argued that there was insufficient evidence of the blood alcohol level because the doctor who took the blood sample could not confirm that an approved blood specimen collecting kit was used and that it had not passed its expiry date. The court noted that the police could not rely on a certificate under the Road Transport Act 1998, as the doctor was called to give evidence. The court held that there was no requirement under the Act that an approved blood specimen collecting kit be used, and the evidence sufficiently established that such a kit was indeed used. The court also found that the mis-spelling of the defendant's second forename in the analyst's certificate did not render the chain of evidence insufficient. The appeal on this ground was also dismissed.

In conclusion, the Court of Appeal dismissed the defendant's appeal against his conviction, finding that the evidence was sufficient to prove both the previous convictions and the blood alcohol level. The court emphasized the importance of giving full effect to parliamentary indications that lower Courts should not strain statutory language to breathe life into technical or unmeritorious defences. The appeal was dismissed, and no further orders were made.

Orders