The Queen v Mosley

[2008] NZCA 319

IN THE COURT OF APPEAL OF NEW ZEALAND

CA612/2007
[2008] NZCA 319

THE QUEEN

v

CHRISTOPHER JAMES FULLBECK MOSLEY

Hearing:27 June 2008

Court:Baragwanath, Rodney Hansen and Harrison JJ

Counsel:P Heaslip for Appellant

M D Downs for Crown

Judgment:25 August 2008 at 4pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

[1]       The appellant was tried jointly with Roderick Sidney Harris whose appeal was based on the decision of the trial Judge to continue with the trial after the number of jurors had reduced to ten. 

[2]       On 13 August 2008 we gave judgment dismissing Mr Harris’ appeal.

[3]       Mr Heaslip advanced the same contention on behalf of the present appellant.  For the reasons given in our judgment of 13 August 2008 that contention fails.

[4]       At one stage in his argument Mr Heaslip contended that the Judge should not have discharged the 12th and 11th jurors (even though Mr Mosley sought that result).  But s 374(8) of the Crimes Act 1961 expressly excludes the right to review the exercise of a discretion under the section.  There is no basis for alleging miscarriage under s 385 in relation to that point.

[5]       By minute of 27 June 2008 we recorded that if the appellant wished to pursue further issues listed by Mr Heaslip in his written submissions any affidavits in support of such contentions should be filed and served by 4 July 2008 and any affidavits by the Crown in response by 11 July 2008, after which we would review whether there was a need for a further hearing.  Those issues were whether after the jury had reduced to ten a juror fell asleep, and on other occasions was seen doodling so that the effect of the number of conscious jurors was reduced to nine.  Mr Heaslip later advised that that point was abandoned.  A further point that the Judge should not have refused an application to discharge the jury on the grounds of unreasonable delay was abandoned following argument.

[6]       It follows that the appellant’s appeal fails and it is dismissed.

Solicitors:

Crown Law Office, Wellington