Hearing: Further submissions:	3 October 2019 31 October 2019
Court:	Winkelmann CJ, Glazebrook, O’Regan, Ellen France and Williams JJ
Counsel:	R M Lithgow QC and N Levy QC for Appellant A Markham for Respondent
Judgment:	14 September 2020

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

Para No.
Glazebrook, O’Regan and Ellen France JJ	[1]
Winkelmann CJ and Williams J	[80]

GLAZEBROOK, O’REGAN AND ELLEN FRANCE JJ
(Given by Ellen France J)

Table of Contents

Para No.
Introduction	[1]
Background	[4]
Narrative of events	[5]
The Crown case against the appellant at trial	[15]
The inmate evidence	[26]
The defence case at trial	[36]
The Court of Appeal decision	[38]
Exclusion under s 8 of the Evidence Act	[40]
Context	[40]
The submissions	[46]
Principles	[53]
Assessment	[57]
The application of s 30 of the Evidence Act	[72]
Result	[79]

Introduction

The appellant, David Roigard, was convicted after trial of the murder of his son, Aaron Roigard.[1] The appellant was also convicted of eight charges of theft in a special relationship. He was sentenced by the trial Judge, Heath J, to life imprisonment with a minimum period of imprisonment of 19 years.[2] Mr Roigard’s appeal against conviction and sentence was dismissed by the Court of Appeal.[3] He was granted leave to appeal to this Court against conviction.[4]
[1]We refer to David Roigard either as Mr Roigard or the appellant and to his son as Aaron.
[2]R v Roigard [2016] NZHC 166.
[3]Roigard v R [2019] NZCA 8 (French, Cooper and Clifford JJ) [CA judgment].
[4]Roigard v R [2019] NZSC 63 [Leave judgment]. Leave to appeal against other matters including sentence was declined: at [4]–[8].
Aaron’s body has not been found. The case at trial against Mr Roigard was largely circumstantial. This appeal focuses on the evidence called by the Crown from two men who had been in prison with Mr Roigard. The two men are referred to as Mr F and Mr W, as both have name suppression. They gave evidence as to admissions they said Mr Roigard had made to them. The appeal raises the question of whether the evidence of these admissions was properly admitted.[5] This requires us to consider issues about the approach to the exclusion of evidence from such witnesses which are similar to those being considered on the appeal in W (SC 38/2019) v R. Judgment in that case is being delivered contemporaneously.[6]
[5]The approved question is “whether the Court of Appeal erred in upholding the admissibility of the … evidence of the witnesses F and W”.
[6]W (SC 38/2019) v R [2020] NZSC 93 (details of which are suppressed until…

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 Roigard v R

Details

AGLC: Roigard v R [2020] NZSC 94
Case: [2020] NZSC 94
Decision Date: 14 September 2020

CaseChat Overview and Summary

The appellant, David Noel Roigard, was convicted of the murder of his son, Aaron Roigard, and sentenced to life imprisonment with a minimum period of 19 years. The appeal to the Supreme Court of New Zealand focused on the admissibility of evidence provided by two prison informants, Mr F and Mr W, who claimed that Mr Roigard had made admissions to them regarding the murder. The primary issue in the appeal was whether the evidence of Mr F and Mr W should have been excluded under s 8 of the Evidence Act 2006 on the basis that its probative value was outweighed by the risk that it would have an unfairly prejudicial effect on the proceeding. The Supreme Court concluded that the evidence of Mr F was admissible as its probative value outweighed the risk of unfair prejudice, while the evidence of Mr W should have been excluded as the risk of unfair prejudice outweighed its probative value. As a majority of the Court found that the wrongful admission of the evidence did not lead to a miscarriage of justice, the appeal was dismissed.

Orders