Biddle v The Queen - [2021] NZSC 89

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 35/2021
[2021] NZSC 89

BETWEEN	RIHARI CHANCE MATTHEW BIDDLE Applicant
AND	THE QUEEN Respondent

SC 36/2021
BETWEEN	JORDAN MATHEW THACKER Applicant
AND	THE QUEEN Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	N P Chisnall for Applicant in SC 35/2021 N M Dutch for Applicant in SC 36/2021 M R L Davie for Respondent
Judgment:	19 July 2021

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.

____________________________________________________________________

REASONS

Mr Biddle and Mr Thacker were convicted on rape charges after a District Court jury trial. A third offender was also convicted, but is not party to the present applications.
The incident involving all three offenders occurred on the 18th birthday of the complainant. The Crown case was as follows. Mr Biddle contacted the complainant and said he had a present for her. They arranged to meet. When they met, she got into the car, in which the other two offenders were present. She was taken to a beach where Mr Biddle raped her and then directed the other two offenders to also rape her.
During the course of an earlier trial that was aborted, it became apparent that Mr Biddle had raped the complainant on an earlier occasion as well. He was then charged with that rape, and was convicted of that charge too. Mr Thacker was not involved in the earlier incident.
Both Mr Biddle and Mr Thacker appealed to the Court of Appeal against conviction and sentence. The conviction appeals were dismissed and Mr Biddle’s sentence appeal was also dismissed.[1] Mr Thacker’s sentence appeal was allowed.
[1]Biddle v R [2021] NZCA 57 (Goddard, Lang and Hinton JJ) [CA judgment].
Both now seek leave to appeal to this Court against the Court of Appeal’s decision to dismiss their appeals against conviction.
The applicants have identified two issues on which they say leave should be given. The first concerns an incident involving a juror and the second concerns expert evidence about the conduct of gangs.[2]

The juror

[2]The Crown case was that Mr Biddle was, at the relevant time, a member of the Tribesmen gang and the two other offenders were prospects for membership of that gang. See the discussion below at [18].

After the jury had been selected on the first day of the trial, the Judge received communications from two jurors. The focus of the present applications is on one of these. The relevant communication came from a male juror who said he may know Mr Biddle’s family. The juror said that if Mr Biddle was from the Ōpōtiki area, then the juror was a close friend to many of his family members. He asked “[w]ould being in this trial affect me after the trial ends because of this reason?”.
The Judge did not tell counsel about this…

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 Biddle v The Queen

Details

AGLC: Biddle v The Queen [2021] NZSC 89
Case: [2021] NZSC 89
Decision Date: 19 July 2021

CaseChat Overview and Summary

In the case of Biddle v The Queen, the applicants, Rihari Chance Matthew Biddle and Jordan Mathew Thacker, sought leave to appeal against the Court of Appeal's decision to dismiss their appeals against conviction. Both applicants were convicted on rape charges following a jury trial in the District Court. The case involved a third offender who was also convicted but is not a party to the present applications. The Supreme Court dismissed the applications for leave to appeal, addressing two issues raised by the applicants: the alleged bias of a juror and the admissibility of expert evidence about gang conduct.

The juror bias issue arose from a communication from a male juror who indicated he might know the Biddle family. The juror inquired if his potential connection to the Biddle family could affect him after the trial. The Judge responded to the juror without consulting counsel, simply stating "No". The Court of Appeal found that the Judge should have made inquiries in the presence of counsel and the defendants but concluded that the failure to do so did not render the trial unfair. The Court held that Biddle was fully aware of the risks posed by the juror, made an informed decision to keep the juror on the panel, and therefore there was no basis for a post-trial complaint of apparent juror bias. The applicants argued that the Court of Appeal's conclusion that the waiver principle applies in the criminal context and the correctness of Turner v R may be points of general and public importance. However, the Supreme Court found the juror's concern to be of insufficient moment to found a convincing argument of apparent bias and did not consider it appropriate to grant leave on this point.

The second issue concerned the admissibility of expert evidence about gang conduct. The Court of Appeal held that there was a proper evidential basis for the Crown's theory that the rape was committed in a gang context, as it had been established that Biddle was a member of the Tribesmen gang at the relevant time and the other two offenders were prospects. The Supreme Court noted that the question of the applicability of s 25 of the Evidence Act is a factual assessment and does not give rise to any matter of general or public importance. The Court found that the Judge gave comprehensive directions to the jury on the subject of gangs, and there was no appearance of a miscarriage of justice. Consequently, the applications for leave to appeal were dismissed.

The Supreme Court's decision highlights the importance of the Judge's response to juror inquiries and the admissibility of expert evidence in criminal trials. The Court found that the failure to inquire into the juror's potential bias did not render the trial unfair, as the defendant was fully aware of the risks and made an informed decision to keep the juror on the panel. Additionally, the Court held that the admissibility of expert evidence about gang conduct was properly assessed by the Court of Appeal and did not give rise to any matter of general or public importance.

Orders