The Queen v Moore - [2009] NZCA 78

IN THE COURT OF APPEAL OF NEW ZEALAND
CA311/2008
[2009] NZCA 78
THE QUEEN
v
SHAUN MICHAEL MOORE
Hearing:19 February 2009

Court:Ellen France, Harrison and Cooper JJ
Counsel:C B Wilkinson-Smith for Appellant

N P Chisnall for Crown

Judgment:16 March 2009 at 11.30 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION AND SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]       Shaun Moore was found guilty after trial in the High Court at Auckland on one charge of manufacturing methamphetamine and three lesser related charges. He filed an appeal against his convictions and sentence of five years and nine months imprisonment. His counsel, Mr Christopher Wilkinson-Smith, did not pursue the appeal against sentence.
[2]       Mr Moore appeals against his conviction on four grounds: the first two fall into the category of error or misconduct by trial counsel; the other two allege misdirections by the trial Judge.
Background
[3]       The Crown case that a person or persons had recently manufactured methamphetamine by using a mobile or clandestine laboratory found in a garage at the subject property was not really in dispute. What was in issue was whether Mr Moore and his co-accused, Mr Jade Bates, had participated in the manufacturing process.
[4]       The relevant evidence was that at 10.47 pm on 17 July 2006 Samuel Burrett called police to a semi-rural property at Hobsonville in West Auckland. Mr Burrett was then aged 16 years and lived at the address with his father, Mr Peter Blakey, mother, Ms Darine Burrett, and a sibling.
[5]       Mr Burrett had arrived home from rugby practice at school between 5.30 pm and 6 pm. He went into the garage where he saw his mother with five others. Two were introduced as ‘Shaun’ and ‘Jade’. He saw a methamphetamine pipe in the garage and coiled plastic piping sitting on a table near the sink together with a portable oven with a large pot. Mr Burrett said that the garage ‘had a very harsh smell to it’ which struck him as ‘a bit odd’. The smell permeated the interior and was still noticeable when he was standing outside on the deck.
[6]       Mr Burrett then went for a ride on his motorcycle. The garage door was shut when he returned, which was unusual. So he left his bike leaning against a tree. He saw Shaun and Jade come and go from the garage on various occasions during the evening. His mother returned to the house and cooked dinner.
[7]       Mr Burrett later ‘clicked on to what they were doing’ in the garage. He ‘knew they were cooking’. He confronted his mother about the activity which she and the others were carrying out; he was angry about her involvement and distressed that it would break up his parents’ relationship. His father arrived home shortly afterwards.
[8]       Mr Burrett rang the police. He pretended to be a neighbour complaining about a disturbance between Mrs Burrett and her son. Mr Burrett’s younger brother overheard the telephone…

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 The Queen v Moore

Details

AGLC: The Queen v Moore [2009] NZCA 78
Case: [2009] NZCA 78
Decision Date: 16 March 2009

CaseChat Overview and Summary

Shaun Michael Moore was convicted by the High Court at Auckland of manufacturing methamphetamine and three lesser related charges. He filed an appeal against his convictions and sentence of five years and nine months imprisonment. The appeal was dismissed by the Court of Appeal of New Zealand. Moore's counsel advanced four grounds of appeal: the first two were errors or misconduct by trial counsel, and the other two were misdirections by the trial Judge. The first ground of appeal was that trial counsel failed to call an available witness who could have established that Moore did not arrive at the property until about 8.30 pm on 17 July, which would have limited the window of opportunity for him to participate in the manufacturing process. The court found that this evidence would not have improved Moore's defence and that trial counsel's advice was reasonable. The second ground of appeal was that junior counsel was guilty of misconduct by advising Moore that if he gave evidence, his co-accused would also testify and incriminate Moore. The court found that this ground of appeal was improperly raised and failed. The third ground of appeal was that the trial Judge misdirected the jury about the effect of expert evidence. The court found that the Judge's direction was of no consequence as it was for the jury to determine whether Moore had participated in the manufacturing process. The final ground of appeal was that no jury could reasonably have found that Moore was guilty of manufacturing methamphetamine as distinct from an attempt. The court found that the jury had a sufficient evidential foundation for its verdict.

The appeal against conviction and sentence is dismissed.

Orders