The Queen v Morgan - [2008] NZCA 537

IN THE COURT OF APPEAL OF NEW ZEALAND
CA481/2008
[2008] NZCA 537
THE QUEEN
v
DERYCK JOSEPH MORGAN
Hearing:20 November 2008

Court:Arnold, Venning and Miller JJ
Counsel:A J Bailey and S G Bailey for Appellant

A Markham and L C Preston for Crown

Judgment:5 December 2008 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Arnold J)

[1]       The appellant was convicted of one count of aggravated robbery following a jury trial before Judge Saunders. He appeals against his conviction.
Factual background
[2]       On the evening of Saturday 15 April 2006 two men gained entry to a book and stationery shop (the shop) which had just closed for the day. The men wore gloves and disguises, and one was armed with a sawn-off shotgun. They forced the two shop attendants, at gunpoint, to open a safe, from which the men took approximately $10,000. They then fled the scene.
[3]       The appellant was arrested some months later and charged with the robbery. The Crown case was that he had committed the robbery with an unknown associate. The sole issue at trial was identification.
[4]       The Crown case against the appellant was largely circumstantial. In particular:
(a)The offenders entered the shop through a service door, which required an entry code. Only a limited number of people knew the code. One was the appellant’s cousin, Ms Danielle Morgan, who worked at the shop and had left early on the evening in question.
(b)The appellant matched the general description of the offenders.
(c)A police officer who was in the process of responding to the callout in relation to the robbery noticed a “grey/silver Nissan Cefiro or similar” with three occupants, one wearing a white hoodie. He noted this sighting in a jobsheet later in the evening. It later turned out that the appellant drove a grey Nissan Cefiro and that one of the offenders had been wearing a white hoodie during the robbery.
(d)Three weeks after the robbery the police attended an unrelated incident in which the appellant was involved. A sawn-off shotgun was seized. The appellant admitted that he was familiar with the gun, saying that a “mate” had purchased it in a pub about two months before the robbery. One of the shop assistants, Mrs Walder, said that this gun was the “same or very similar to” the gun which the offenders had used in the robbery.
(e)In the course of executing a search warrant at the place where the appellant lived, the police found a number of empty coin bags similar to those taken in the robbery and a black hooded sweatshirt with a “Huffer” brand logo similar to one worn by one of the offenders.

[5] Apart from this evidence, there was “cell mate confession” evidence from Mr Roskam, who shared a prison cell with the appellant prior to trial.
[6] The appellant was to be tried with Ms Morgan, but she could not be found at the time of trial and…

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 Morgan

Details

AGLC: The Queen v Morgan [2008] NZCA 537
Case: [2008] NZCA 537
Decision Date: 5 December 2008

CaseChat Overview and Summary

In the case of The Queen v Morgan, the appellant Deryck Joseph Morgan was convicted of aggravated robbery and appealed against his conviction. The factual background of the case involves two men who robbed a book and stationery shop at gunpoint, taking approximately $10,000. The appellant was later arrested and charged with the robbery. The sole issue at trial was identification. The Crown's case against the appellant was largely circumstantial, involving evidence such as the appellant matching the general description of the offenders, possession of a sawn-off shotgun similar to the one used in the robbery, and the presence of empty coin bags and a hooded sweatshirt similar to those worn by the offenders. The appellant's counsel advanced seven grounds in support of the appeal, including issues with the judge's instructions to the jury, the admissibility of a statement made by a fellow inmate, and the reliability of the evidence presented.

The court found that the judge's instructions to the jury regarding the co-accused, Ms Morgan, were appropriate, and there was no risk of a miscarriage of justice from the failure to give an identification warning in relation to the shotgun. The court also found that the summing up was not unbalanced and that the evidence of Constable Mooney was credible and reliable. In addition, the court agreed with the judge's ruling on the non-disclosure of Mr Pomare's statement, as there was nothing in the statement that could assist the appellant in the presentation of his case.

As a result of these findings, the court dismissed the appeal. The final orders of the court would have been to uphold the conviction of the appellant, Deryck Joseph Morgan, for the charge of aggravated robbery.

Orders