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Moala v R [2019] NZCA 477 (2 October 2019)

Last Updated: 8 October 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA156/2019
[2019] NZCA 477



BETWEEN

SIONE UIANE MOALA
Appellant


AND

THE QUEEN
Respondent

Hearing:

20 August 2019

Court:

Brown, Simon France and Dunningham JJ

Counsel:

E P Priest for Appellant
J E L Carruthers for Respondent

Judgment:

2 October 2019 at 3.30 pm


JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

Introduction

[1] In December 2018, the appellant, Mr Moala, was found guilty by a jury on a charge of wounding with intent to injure.
[2] He now appeals his conviction on the sole ground that the Judge’s failure to abort the trial and discharge the jury pursuant to s 22 of the Juries Act 1981 resulted in a miscarriage of justice.
[3] The application to abort the trial was prompted by a ruling that inadmissible identification evidence was led at trial. Although the Judge gave a firm direction to ignore the evidence, Mr Moala says the evidence was so central to the case that a judicial direction could not cure the error and avoid an unfair trial.

Background

The offending

[4] Mr Moala faced three charges: a charge of fighting in a public place, a charge of wounding with intent to cause grievous bodily harm and, in the alternative, a charge of wounding with intent to injure. He entered a plea of guilty to the charge of fighting in a public place before trial but denied the alternate charges.[1]
[5] The charges arose out of events which occurred in the early hours of the morning on 24 April 2016.
[6] Mr Moala is alleged to have been in a bar in Fort Lane in central Auckland that night, where he became involved in an argument with a female patron. The victim, Mr Tofa, was present in the bar with his cousin, Mr Kerrison, and intervened to protect the female. A minor altercation followed between Mr Moala and Mr Tofa, resulting in Mr Moala being ejected from the bar.
[7] Sometime later, Mr Tofa and his cousin left the bar, and were walking down Fort Lane to Fort Street. Mr Moala is alleged to have seen them and approached them from behind. He then delivered two punches to Mr Tofa’s head, causing him to collapse to the ground. A security guard, Mr Bryljevich, heard the punches and heard the puncher yell out something along the lines of “that’s what you get boy” after landing the second blow. He said he then saw the puncher standing over the victim. While he did not see the puncher’s face, he could describe him as being of M āori or Pacific Island descent, wearing a black singlet, having short black hair, and having chest, neck and arm tattoos.
[8] A short time later, Mr Moala was involved in a fight at the intersection of Commerce Street and Fort Street. He was arrested at the scene as a result of the fight and was handcuffed and placed in the nearby police vehicle. That gave rise to the charge of fighting in a public place which he pleaded guilty to.
[9] Mr Tofa suffered serious injuries including losing the sight in his left eye.

The trial

[10] Both the Crown and the defence recognised that the central issue at trial was whether Mr Moala was the person who punched Mr Tofa. In that regard, the Crown relied on the bar incident as the motive, the CCTV footage which showed someone generally fitting the description of Mr Moala, including his clothing, as the puncher, and various strands of observation and identification evidence, including Mr Kerrison’s and Mr Bryljevich’s, to identify Mr Moala as the puncher.
[11] When Mr Bryljevich was asked in examination-in-chief whether he saw the man who was standing over the victim again that evening, he replied “I did, later on, he was in handcuffs and being loaded into the back of a police vehicle”. It was common ground that this second observation was of Mr Moala. In cross‑examination Mr Bryljevich confirmed it was too far away to see the man’s face but he drew the conclusion that it was the same person from his black singlet, his short black hair, and the presence of tattoos. When Ms Priest put it to Mr Bryljevich that he was mistaken in thinking that the man who was arrested was the same man as the puncher he responded by saying “you can suggest that, but I disagree”.
[12] At the conclusion of the Crown case, Wylie J raised the following issues with counsel:
[13] Having heard from counsel on the issues on Friday afternoon, he issued a ruling on the following Monday. In his reasons judgment he noted that Mr Bryljevich’s assertion that the person he saw standing over the victim was the same person whom he later saw in handcuffs being put in a police vehicle was visual identification evidence, and was inadmissible pursuant to s 45(2) of the Act.[2] He also noted that if he was wrong in that regard the evidence was, nevertheless, inadmissible opinion evidence pursuant to s 23 of the Act, and it was not saved by s 24 of the Act.
[14] As a consequence of his ruling, the Judge issued a direction to the jury which we set out in full below:

[1] You will recollect that the bouncer, Mr Bryljevich, gave evidence that the person he saw standing over Mr Tofa immediately after he heard the punches, was the same person as he saw down Fort Street in handcuffs a few minutes later, and who he saw being placed in the police van.

[2] That it was the same person is opinion evidence by Mr Bryljevich. Mr Bryljevich is offering an opinion that the alleged offender was the same person he saw being placed in the police van.

[3] Opinion evidence of this kind is known as visual identification evidence. Visual identification evidence has inherent and well-known dangers. There have been miscarriages of justice arising from misidentification by an honest and apparently believable eye witness.

[4] To guard against such miscarriages, the law puts in place strict requirements. It provides for a formal identification process using photo montage boards of the type you have heard discussed in evidence. These requirements were not followed in this case in respect of Mr Bryljevich. As a result, his evidence linking the person he saw standing over Mr Tofa with the person he saw handcuffed and being placed in the police van is inadmissible evidence. You should ignore it completely and put it out of your minds.

[5] You are entitled to take into account Mr Bryljevich’s description of the person he saw standing over Mr Tofa, and Mr Bryljevich’s description of the person he saw handcuffed and being put in the police van. But whether it was the same person is a matter for you. I have no doubt that counsel will address you in their respective closing addresses as to the reliability of, or the limitations in, Mr Bryljevich’s descriptions. The Crown will be asking you to infer that it was the same person, and the defence will be saying that you cannot properly draw that inference. I will be saying more about this, about visual identification evidence and the drawing of inferences generally, to you in my summing up.

[6] For present purposes, I direct you to ignore and put out of your minds entirely Mr Bryljevich’s assertion that it was the same person. You must not take this assertion into account. It would be wrong and unfair to Mr Moala to do so.

[15] Ms Priest immediately made an application for the Judge to discharge the jury pursuant to s 22 of the Juries Act 1981. Wylie J declined that application and his reasons were set out in his second ruling.[3]
[16] In giving his reasons for declining to discharge the jury, Wylie J accepted that the accidental disclosure of prejudicial material could be a “casualty” under s 22(3)(a) of the Juries Act which could lead to a discharge.[4] However, he said that a discharge when prejudicial material is disclosed to a jury is not automatic.[5] Rather it will be required only when no other remedial steps would be effective to counter any prejudice. In that regard he was guided by this Court’s decision in R v R where the following observation was made:[6]

... what the cases make clear is that where an irregularity involving the jury is discovered during a trial, the actions the judge takes must: address the substance of that irregularity; identify the risk to the principles of a fair trial that irregularity has raised; and give specific and firm directions so that risk can effectively be addressed and eliminated on the basis of the court’s acceptance that juries generally follow the directions they receive.

[17] In this case, the Judge reached the view that a firm direction would suffice to remedy the prejudice. He noted that:[7]
[18] In summing up, the Judge reiterated that the evidence Mr Bryljevich gave identifying the person he saw standing over the victim as the same person he saw being handcuffed and placed in the police van, was inadmissible, and he referred back to his previous direction. He stated again:

... you must ignore Mr Bryljevich’s assertion, and put it out of your minds entirely. You must not take it into account in your deliberations. It would be wrong and unfair to Mr Moala to do so.

The appellant’s submissions

[19] The focus of Ms Priest’s submissions was on whether the direction given by Wylie J was sufficient to remove the prejudice to Mr Moala of having Mr Bryljevich’s opinion evidence before the jury. In this case, she says it was not and so the jury should have been discharged.
[20] First, she noted that the evidence is identification evidence, which is inherently problematic, which is why Judges are routinely required to give directions cautioning juries about the risks of relying on such evidence.
[21] Furthermore, identification was the central issue in this case. In the Crown opening the jury were told that the only issue they needed to decide was whether Mr Moala was the puncher. In that regard, the Crown described three separate episodes which could be linked and would lead to the conclusion that the puncher was Mr Moala. These were: the incident in the bar; the punching incident itself; and, finally, the agreed fact that Mr Moala was arrested for fighting in a public place nearby which resulted in him being placed in a police van.
[22] Mr Bryljevich was the only independent and credible witness who was able to link the puncher to being Mr Moala. The fact he identified the puncher and the man being placed in the back of a police van as “the same person” was a fundamental plank of the Crown case that should never have been before the jury. In contrast, Mr Kerrison’s identification of Mr Moala was problematic and the CCTV footage was of sufficiently poor quality that it could not assist with the identification of the puncher.[8] That said, she also criticised Mr Bryljevich’s evidence as unreliable, because he described seeing the puncher standing over the victim whereas the CCTV footage shows the puncher retreating as soon as he had landed the punches.
[23] Ms Priest also noted that the direction was given several days after the evidence was led at trial. Thus, the error went unchecked while the jury listened to the balance of the Crown case.
[24] Furthermore, she said this is a case where issues were finely balanced. Mr Moala had already gone to trial where there was a hung jury, so it could not be said that the evidence was overwhelmingly in favour of him being the assailant.
[25] Finally, she expressed scepticism about whether the jury would have understood the subtle distinctions in the Judge’s direction between the evidence Mr Bryljevich gave on the link between the two observations, as opposed to the inference they could draw from the evidence of his observations. It was a very difficult concept to convey and there could be no confidence that a judicial direction could have done so in order to effectively remedy the prejudice to a fair trial.

Crown submissions

[26] Mr Carruthers for the Crown points out that s 22(3)(a) of the Juries Act may only be invoked where, in the Judge’s opinion, the casualty or emergency makes it highly expedient for the ends of justice to discharge the jury. That is an exacting threshold which will generally only be met if there are no remedial steps available to the Judge which would allow the trial to continue through to a natural and satisfactory conclusion.
[27] In this case, that threshold was not reached as any prejudice arising was able to be remedied by the judicial direction which was given. The Judge identified the evidence in issue and directed the jury in clear and forceful terms to ignore it. As this Court has commonly held, juries can be entrusted to follow such directions and there is no reason to suspect the jury did otherwise in this case.[9]
[28] In any event, the removal of this evidence did not significantly change the complexion of the trial. It was common ground that Mr Bryljevich’s description of what he saw (which comprised the majority of his evidence) remained admissible. The only inadmissible element was his drawing of the link between the person he saw standing over the victim and the person he later saw being loaded into the police van.
[29] However, that link was always going to be drawn by the Crown and there was ample other evidence to support that. For example, Mr Kerrison, the victim’s cousin, said the man who punched his cousin was the person his cousin had an altercation with in the club. He also identified Mr Moala from a photo board montage as the person involved in the bar altercation and hence the puncher. There was also consistent evidence as to Mr Moala’s clothing being a black or dark singlet, a cap, and a distinctive chest tattoo which could be seen where it was not covered by his singlet.
[30] Equally, defence counsel was always going to challenge the reliability of Mr Bryljevich’s observations. She did so by establishing that:
[31] In any event, Mr Carruthers urges this Court to give weight to the Judge’s “privileged perspective” when exercising the discretion as to whether to discharge a jury. As was said in Ngatai-Check v R:[10]

Appellate courts will only interfere if when declining an application to discharge the jury the trial Judge erred in law, failed to give proper weight to a relevant factor or gave improper weight to an irrelevant factor, or was plainly wrong. Williams J had the unique benefit of familiarity with all the trial dynamics. He was best placed to exercise what was quintessentially a judgment on what step or steps should be taken to address the inadmissible evidence. His decision is entitled to particular respect as a result.

Discussion

[32] No issue was taken with the Judge’s evidential ruling and we proceed on the basis that the evidence was inadmissible, whether because it was visual identification evidence or opinion.[11]

[33] While we acknowledge that Mr Bryljevich’s evidence was important to the Crown case, it was only one strand of evidence that linked Mr Moala to the punching incident. Importantly, Mr Kerrison, the victim’s cousin, was present at the earlier altercation in the bar and then recognised Mr Moala as the person who punched the victim. Mr Kerrison was able to identify Mr Moala in a photo board montage.
[34] While Ms Priest was critical of Mr Kerrison’s identification of Mr Moala, those criticisms were fully canvassed in two pre-trial rulings, and the evidence ruled admissible.[12] That was potent evidence that the Crown could rely on.
[35] Furthermore, the bar altercation could be pointed to as providing a motive for the punching, with Mr Bryljevich reporting the puncher as saying something along the lines of “that’s what you get, boy”.
[36] The clothing worn in all three incidents could be connected to Mr Moala.[13] In addition, the fact all three events happened in close proximity helped tie them together.
[37] The fact that Mr Bryljevich admitted he did not see the face of the attacker, and was only drawing his conclusions from observations of the man’s ethnicity, clothing, tattoos and hairstyle was always apparent to the jury and was the subject of both cross‑examination and commentary in the defence’s closing and in the Judge’s summing up. Thus, the risk of the jury putting undue weight on Mr Bryljevich’s opinion was unlikely, even without the Judge’s warning.
[38] We therefore turn to the Judge’s warning and examine its adequacy.
[39] We have set it out in full at [14] above. We do not consider what he was asking the jury to do was so nuanced and difficult that they would have had trouble following it. The Judge said of Mr Bryljevich’s evidence, that the person he saw standing over Mr Tofa was the same person that was subsequently arrested and placed into the police van some minutes later on Fort Street, that “you should ignore it completely”. He also said “whether it was the same person is a matter for you”, and reminded the jury that they would hear the competing contentions about the reliability of Mr Bryljevich’s observations. He concluded with the words:

I direct you to ignore and put out of your minds entirely Mr Bryljevich’s assertion that it was the same person. You must not take this assertion into account. It would be wrong and unfair to Mr Moala to do so.

[40] We do not consider the Judge could have put things more forcefully or more clearly than that. Furthermore, he reminded them of that direction in his summing up.
[41] While Ms Priest was critical of the time delay before this direction was given, we do not accept that affected the outcome. Juries are warned not to come to firm conclusions before they hear all the evidence, the closing addresses and the summing up. To suggest that a delay in giving that direction until the closing of the Crown case could have adversely affected the verdict would be to suggest that guidance given by a Judge in summing up might be equally ineffective. We do not accept that to be the case.

Conclusion

[42] We are satisfied that the irregularity which the Judge ruled occurred when Mr Bryljevich expressed his opinion was not so central to the Crown case, nor so prejudicial to the defence case, that it could not be remedied by the firm and clear direction the Judge gave. For these reasons, we are satisfied that a discharge of the jury was not necessary to prevent a miscarriage of justice.
[43] The appeal against conviction is dismissed.




Solicitors:
Crown Law Office, Wellington for Respondent

[1] This was the third trial; the first trial was aborted, and the second jury could not reach a verdict.

[2] See R v Moala HC Auckland CRI-2016-004-4682, 6 December 2018 at [9].

[3] R v Moala HC Auckland CRI-2016-004-4682, 7 December 2018.

[4] At [7], referring to Guy v R [2014] NZSC 165, [2015] 1 NZLR 315.

[5] R v Moala, above n 3, at [8].

[6] R (CA679/2015) v R [2016] NZCA 444 at [59].

[7] R v Moala, above n 3, at [10].

[8] Ms Priest had contested the way the formal identification procedure had been conducted with Mr Kerrison although the identification evidence was ruled admissible.

[9] Citing for example Shadrock v R [2011] NZCA 388, [2011] 3 NZLR 573 at [96]–[107]; and Weatherston v R [2011] NZCA 276 at [24].

[10] Ngatai-Check v R [2011] NZCA 543 at [32].

[11] Noting we have reservations about this when:

(a) there would have been no utility in conducting a formal identification procedure under s 45(3) of the Evidence Act 2006 when Mr Bryljevich did not see the man’s face properly on either occasion; and

(b) the evidence is of the witness’s perception that the two sightings were of the same person for the reasons he explained, and as such, is generally regarded as admissible (see the discussion in Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (Thomson Reuters, Wellington, 2018) at EV24.02.

[12] R v Moala [2017] NZHC 863; and R v Moala [2018] NZHC 1533. This Court dismissed Mr Moala’s appeal against the latter pre-trial ruling: Moala v R [2018] NZCA 488.

[13] Various witnesses described the man in each of the three incidents as wearing a black singlet.

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