A prisoner who objected to being transferred to a maximum-security unit grabbed a milk crate in one hand, ripped a payphone off the wall with the other and allegedly took a swing at a Corrections officer with the phone.
Following a “tussle” between the officer and John Sione Moala, the officer fell over a balustrade and landed on his back.
Moala was convicted and sentenced for the alleged offending and racked up further time in prison as a result.
However, a senior court has now ruled that a miscarriage of justice occurred at his trial and quashed one of his convictions and sent him back before a jury.
He went to a mezzanine floor outside the Department of Corrections (Corrections) staff office, ripped a prisoner telephone from a wall and held it in one hand.
Moala picked up a milk crate and held it in his other hand and then used the crate to hit the door of the staff office.
The Corrections officer came out of the office with his pepper spray drawn.
There was a dispute at trial about whether Moala was sprayed with pepper spray as the officer exited the office.
Moala claims he was sprayed in the eyes and could not see.
He was then seen on CCTV footage with his face turned away from the officer and moving away from the door.
Then, with his head pointing towards the floor, Moala moved towards the officer, swinging the phone in that direction.
But the phone did not connect.
“There was a tussle between Mr Moala and the complainant, with the complainant falling over a balustrade and landing on his back,” the judgment detailed.
Following a jury trial in the District Court, Moala was found guilty and convicted of one charge of assault with a weapon and one charge of intentional damage.
In February last year, he was sentenced by Judge Warren Cathcart to nine and a half months’ imprisonment on the assault with a weapon charge – the weapon being the phone – to be served cumulatively.
He was convicted and discharged on the intentional damage charge, relating to ripping the phone from the wall, and acquitted of injuring with reckless disregard, relating to the officer falling over the balustrade.
Moala went on to appeal his conviction for assault with a weapon, arguing a miscarriage of justice had occurred.
He claimed the judge’s summing up at trial, and the question trail provided to the jury, included material errors regarding the intention required to prove an assault.
At trial, Moala admitted swinging the phone but said he was disabled by the pepper spray and was not looking where he swung it.
He said he did not intend to hit the officer with it.
The Court of Appeal granted Moala’s applications to amend his ground of appeal, and for an extension of time to file an appeal.
When considering the appeal, the court found an issue with a question given to the jury.
It said: “Are you sure that on 25 July 2022 at the Auckland Prison, Mr Moala, in his attempt to strike [the complainant], intentionally swung a payphone at him?”
The Court of Appeal found the question conflated the intentional movement – of deliberately swinging the phone at the officer – with the intention to apply force.
“The two forms of intention are not the same. It is possible to deliberately swing a phone at a person without intending to strike them, for example, to stop someone from advancing towards you.”
The judgment said the phrasing of the question was incorrect and had not been corrected by the judge’s direction to the jury.
“The framing of the question suggested that the attempt to strike the complainant had already been determined, or that it would be determined by considering whether Mr Moala had deliberately swung the phone in the complainant’s direction.”
The senior court found the errors were critical because whether Moala was attempting to strike the officer when he swung the phone was the key issue in dispute.
“We consider the errors in the question trail, compounded by the Judge’s summing up, are likely to have caused confusion in the minds of the jury as to an essential element of the charge.
“There is a real risk that the outcome of the trial was affected. We are satisfied that a miscarriage of justice has occurred.”
As a result, the appeal was allowed and the conviction was quashed with a retrial ordered.
- Tara Shaskey
