Borell v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA199/2019
[2020] NZCA 235

BETWEEN	FRANCHESCA KORORIA BORELL Appellant
AND	THE QUEEN Respondent

Hearing:	28 April 2020
Court:	Cooper, Wylie and Muir JJ
Counsel:	E Huda for Appellant J E L Carruthers for Respondent
Judgment:	15 June 2020 at 11 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

The appellant, Franchesca Kororia Borell, stood trial on a charge of murder before Mander J and a jury in the High Court at Christchurch. After the jury found her guilty she was convicted and sentenced to life imprisonment with a direction that she serve a minimum term of 10 years.[1]
[1]R v Borell [2018] NZHC 3281.
She now appeals against her conviction raising two arguments neither of which was raised before or at the trial. She claims, first, that the trial proceeded on the basis of a statement that she made to the police following her arrest which should not have been before the jury. It is said it was improperly obtained in consequence of a breach of her right to a lawyer and her right to silence under s 23 of the New Zealand Bill of Rights Act 1990. Its admission into evidence created a real risk that the outcome of the trial was affected, leading to a miscarriage of justice in terms of s 232(4)(a) of the Criminal Procedure Act 2011.
Secondly, she submits that her trial was procedurally unfair in terms of s 25(a) of the New Zealand Bill of Rights Act. This is because prospective jurors were not questioned and/or challenged for cause under s 25 of the Juries Act 1981 for the purpose of ensuring that jury members were not racially prejudiced against Māori and were therefore indifferent between the Crown and the defendant, a person of the Māori race. The second ground is based on s 232(4)(b) of the Criminal Procedure Act, on the basis that the failure to question or challenge jurors meant there was an error resulting in an unfair trial.
If successful, either ground of appeal would establish there was a miscarriage of justice with the consequence that Ms Borell’s conviction for murder must be set aside and a retrial ordered.

Background

The offending occurred on Christmas Day 2016. The deceased was Ms Borell’s partner, Mr Singh. She was 22 years of age, he was 26. They had been in a relationship for some months and were living together at a house in Cashmere which he was minding for a friend. On the morning of Christmas Day Ms Borell and Mr Singh argued. She left the house and went for a drive.
When she returned, Mr Singh was no longer present. She telephoned him and they arranged to meet in a car park near at the top of the Port Hills. There was further conflict when, while they were at the car park, a friend of Mr Singh’s arrived, and it was suggested that he return with them to the house in Cashmere. The friend left, and both Mr Singh and Ms Borell returned to the house.
After they arrived back, they continued to argue. Ms Borell stated that she was going to leave Mr Singh but he prevented her from leaving by blocking her path. Ms Borell was very angry. She went into the kitchen and obtained a large kitchen knife.
The Crown case was that she used the knife by plunging it into the most vulnerable part of Mr Singh’s body, his chest. The knife penetrated his heart and caused significant internal bleeding.
After the fatal wound occurred Ms Borell rang emergency services and a recording of the call showed that she was in a very distressed state. In the course of this call she said there had been “an argument, domestic violence” and she had thrown an object at her partner. After describing his state and referring to his “really heavy breathing” she said she thought he was going to die. Asked what she had thrown at him she said “I threw a knife at him. I threw a knife at him”.
The police arrived at the scene at about 2.30 pm. Mr Singh appeared to be unconscious. Detective Constable Sell said that Ms Borell was kneeling over Mr Singh and screaming for help. She was in a “hysterical” state. After the ambulance officers arrived another police officer, Constable Collins, knelt beside Ms Borell and asked her what happened, referring to the knife that he had found. She told him she and Mr Singh had argued and she had thrown the knife at him. Ms Borell had to be moved away to enable the ambulance officers to assist Mr Singh. Detective Constable Sell and Constable Collins took her into the adjacent kitchen.
Mr Singh was able to be resuscitated and underwent emergency surgery. However, he died two days later.

Police interview

The initial discussion with Constable Collins adjacent to Mr Singh as he lay on the ground understandably took place without any reference to Ms Borell’s right to silence or to legal advice. There was a further discussion in the kitchen in which she was again asked what happened. Detective Constable Sell said that Ms Borell told them Mr Singh had prevented her from leaving, they had argued and the argument had become physical. Ms Borell repeated that she had thrown the knife at Mr Singh. Constable Collins described that she had given a demonstration of how she had thrown the knife, which he said was like throwing a frisbee.
She recounted events during her 111 call and said that Mr Singh had made gurgling noises and then stopped breathing. Ms Borell said she wanted to accompany Mr Singh to the hospital, but the police said she could not do so. They remained at the house awaiting the imminent arrival of police officers from the Criminal Investigation Branch. However, at this point Detective Constable Sell decided to advise Ms Borell of her rights to remain silent and to speak to a lawyer. The Detective Constable explained that she knew it was likely Ms Borell would be questioned and thought she should make sure she knew what her rights were. She read the rights from a form that she kept in the back of her notebook. Ms Borell acknowledged she had done so.
The Criminal Investigation officers arrived at 3.30 pm and at 3.47 pm took over responsibility for dealing with Ms Borell. Detective Healey placed her under arrest and again advised her of her rights. He asked her if she understood her rights and she said that she did. Accompanied by Detective Constable Sell he walked her to a waiting police car. She was searched by Detective Constable Sell before getting into the car. Detective Healey described her as calm and cooperative but upset. He smelt alcohol on her breath and she confirmed she had been drinking.
They arrived at Christchurch Central police station at 3.57 pm. She was then subject to a formal interview commencing at 4.38 pm. There were some preliminary exchanges during which Ms Borell gave Detective Healey her name and address, her cell-phone number and said where she worked. She also said that she was studying criminal law at university. The interview then proceeded:[2]
[2]In this extract CH is Detective Healey, FB is Ms Borell.
CH In terms of how we’ve got to where we are now um I arrived at … Cashmere Road today at um 3.30pm. When I’ve arrived at Cashmere Road I um walked up the driveway and I saw you speaking to a Constable in uniform.
FB       (Nods head)
CH Um Constable SELL and she had been talking to you prior to my arrival. Um she came over and explained the circumstances to me as to as to what had happened and then I came over to you and introduced myself as Chris.
FB       (Nods head)
CHI shook your hand and I started talking to you a ah um about a few a few bits and pieces. I explained the procedure um that was going to happen, namely that we were going to to leave the address and come to the Police Station. While we were there um you asked me who the people were out on the road.
FB       (Nods head)
CHUm and they were the people with all the cameras and I said to you that they were the media um and rightly so you were a bit concerned about the media being there because you said it wasn't your house.
FB       Mm.
CH Um we managed to get to the to the to the car and then we we left straight to Christchurch Central Police Station which probably took about five minutes, is that fair.
FB       Mm (nods head).
CH On, in the back of the patrol car at ah I I advised you before we went to the car that you you are under arrest for assault um and I know that Constable SELL previously gave you some rights but I gave you those rights again in the back of the patrol car. For the record I told you that you have the right to remain silent. You do not have to make any statement. Anything you say will be recorded and may be given in evidence in court. You have the right to consult and instruct a lawyer without delay and in private before deciding whether to answer any questions and Police have a list of lawyers you may speak to for free. I asked you um after I had given you those rights, do you understand your rights which I ah noted in my notebook and you replied yep. Is that fair.
FB       Yeah.
CH On the way to the Police Station you and I talked about ah Christmas morning um and you explained to me how you had ah paua fritters for breakfast.
FB       Mm.
CHAnd you also said that you made some croissants. You said you’d had a lovely morning…
FB       (Nods head)
CHAnd that you had um contacted your whanau in Gisborne and that ah your partner um Hardeep…
FB       Mm.
CH Had contacted his family in India. Um it was about 5 o’clock in the morning in India um and you ah indicated that most or all of his family were living in India. Is that fair.
FB       Yeah.
CH We’ve come to the Police Station. We’ve done a few administrative ah things um and then I’ve uplifted you from ah just next door and we’ve come in here. Is that a fair account of what’s happened so far.
FB       (Nods head)
CH      Happy with that.
FB       Yeah.
In the balance of the interview Ms Borell gave her account of the events that had taken place. She described how she and Mr Singh had argued, how the argument escalated and how at one point he had head-butted her. She continued:
And I think I just got really angry after that, ran into the kitchen, I grabbed a knife and I pointed it at him and I said get out of my way and he wouldn’t move, he wouldn’t move. I was like get out of my way (crying)… I don’t want to be here with you anymore so he just stood and hand it and I just chucked it at him (demonstrates using left arm) … and it slit across his chest (indicates chest area)… and he was still standing. He actually wanted to put the knife inside him like he wanted to grab it and he grabbed it (wiping eyes)… I managed to get it off him and he wanted to put it inside but I just, I managed to chuck it I think (demonstrates swinging left arm)… I don’t know where I chucked it. Luckily he didn’t do anything and then he just, he just blacked out and he stopped breathing and I thought he was acting for like a minute and he wasn’t and then I rung the ambulance and the lady was on the phone with me for ages and then he started coughing and making these gasping sounds and his eyes started rolling back and I didn’t know what to do (crying)… I was trying to fucken get him to breathe but he wouldn’t breathe. I was like babe breathe and the lady was trying to teach me how to do resuscitation on him but it wouldn’t work and he just kept coughing (head in hands crying)… and then the lady, the cop, she turned up and she tried to do the same but nothing was working.
I don’t know what happened (crying)… I did I done it.
CH         You what Fran.
FB I, I, I was the one that was the cause of everything, I (crying)… I, I was the one that threw the knife at his chest.
CH         Mm.
FB         And then he stopped breathing.
CH Fran you mentioned that you wanted to leave because of everything you you’d put Hardeep through.
FB         (Nods head)… Yeah (wipes nose)…
CH         What do you mean by that.
FB         Like all, all the arguing, all of the swearing.
CH         Mm.
FB         All the heartache.
CH         How long have [you] and Hardeep been together.
FB Ah not that long really. We were, we’ve been on and off but I’d say just this year probably about three or four months.
CH Okay and can you tell me a bit about you your relationship, you’ve mentioned or you’ve just said that you put Hardeep through…
FB         Yeah.
CH         Was arg was arguing and and and confrontation frequent.
FB         Ah yep.
CH         Mm hmm.
FB         When I wanted out yep yep (nods head)…
CH So from what you’ve said to me, am I fair in saying that you felt trapped didn’t you.
FB         (Nods head)… Yeah sort of yep.
CH         Yeah.
FB         Yeah.
CH         You wanted a release didn’t you.
FB         (Nods head)…
CH         Mm and it’s pretty hard to get that isn’t it.
FB         Yep.
Ms Borell did not give evidence at the trial. She relied on the video interview to put her account of what happened before the jury. There was no attempt pre-trial to have the interview excluded, nor was any issue raised as to its admissibility at the trial.

The issues at trial

The Crown relied on expert evidence from Dr Martin Sage, a forensic pathologist and Professor Mark Jermy, a mechanical engineer, to claim that the nature of the wound, the force that would have been needed to cause it and the angle of entry were more consistent with her having used the knife to stab Mr Singh, rather than throwing it at him, as she claimed in her video interview.
The Crown alleged that Ms Borell must have struck a deliberate blow with the knife to Mr Singh’s chest and must have appreciated the risk she was taking that using the knife in that manner would cause his death.
The defence proceeded on the basis that Ms Borell accepted responsibility for manslaughter but lacked murderous intent. Counsel, Mr Shamy, began his closing address by stating:
In admitting to manslaughter Ms Borell has accepted responsibility for taking Mr Singh’s life. His death will be forever on her conscience. She has taken the life of the man she loved. This is tragedy not a murder.
He invited the jury to focus on her state of mind at the critical moment when she used the knife and ask whether they were sure that she appreciated there was then a real risk that her actions could result in Mr Singh’s death. While she admitted wanting to hurt him immediately prior to using the knife, that was not the same thing as wanting to cause his death. The Crown had to show a conscious appreciation that death might result and a conscious decision to use the knife and run that risk. Mr Shamy asked the jury to consider the possibility that it was simply chance or misfortune that resulted in the knife entering Mr Singh’s heart and placed emphasis on the fact that there was only a single wound.
Mr Shamy told the jury that whether the knife was thrown or used to stab the victim was not relevant. However, he reminded them that Dr Sage had said he could not say whether the knife was being held at the time of impact. He also reminded them of Professor Jermy’s concession in cross-examination that he had not viewed or read Ms Borell’s video interview, and had accepted he was not able to comment on her account of how she had thrown the knife.

Admissibility of the statement

Mr Huda submitted that Ms Borell’s statement was improperly obtained for the purposes of s 30(1)(a) of the Evidence Act 2006, as a result of the cumulative effect of three considerations. First, he noted that Detective Healey had questioned Ms Borell some 51 minutes after he informed her of the right to a lawyer and the right to silence; he had given Ms Borell the rights information at 3.47 pm, and started to question her at 4.38 pm. In this respect, Mr Huda referred to this Court’s judgments in R v Jones, R v Johnson and Lyttle v R.[3] In Lyttle, this Court said:[4]
It is well settled that where an interview is interrupted before being resumed after a significant time delay, or where a further interview is undertaken after substantial time has elapsed, the suspect should be reminded of those rights.[5]
[3]R v Jones CA312/92, 16 July 1993 at 4; R v Johnson [2007] NZCA 9 at [20]; and Lyttle v R [2017] NZCA 245.
[4]Lyttle v R, above n 3, at [102].
[5]R v Kumar [2015] NZSC 124, [2016] 1 NZLR 204 at [130]; R v V (1996) 3 HRNZ 616 (HC) at 619; and Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed LexisNexis, Wellington, 2015) at [20.11.11].
The second strand of Mr Huda’s argument was a submission that the appellant was informed of her rights when she was under the influence of alcohol, and, most importantly, “transitioning from a uniquely heightened emotional state”. Mr Huda contrasted that with the fact that she was questioned without being further advised of her right to a lawyer and right to silence when she was “in relative terms, more sober and in a settled emotional state in a custodial setting”.
Thirdly, Mr Huda submitted that Ms Borell was not only naïve on account of her age, but also inexperienced in dealing with the police. Only 22 and a half years old at the time of her arrest, and with no previous convictions, she had had no contact with the criminal justice system. Consequently, it would be perfectly possible that she had interpreted Detective Healey’s advice when he started to question her as simply an account of the fact that she had previously been advised of her rights. Mr Huda suggested that it could not be assumed she understood that those rights continued to apply.
Consequently, Mr Huda submitted that Ms Borell was unlikely to have known that her right to a lawyer and her right to silence continued to exist and could be exercised at the formal interview when she had not previously exercised those rights. Mr Huda submitted that because of the substantial lapse of time, the change of Ms Borell’s emotional state during that time, and the change of setting it was incumbent on Detective Healey explicitly to readvise Ms Borell of her right to a lawyer and right to silence before questioning her at the police station. Alternatively, he should have made it plain to her that the rights she had been informed of at the scene previously continued to apply and could be invoked at any time during his questioning of her.
Mr Huda proceeded to address reasons why the statement, having been improperly obtained, should have been excluded in accordance with the balancing process required under s 30(2)(b) and (3) of the Evidence Act.
We do not accept Mr Huda’s submission that the statement was improperly obtained and consequently do not need to address the balancing process that might have otherwise been required under s 30(2) of the Evidence Act.
As Mr Carruthers pointed out for the respondent, Ms Borell had in fact been advised of her rights on three occasions, once by Detective Constable Sell and again by Detective Healey at the scene a short time later. The third occasion occurred at the police station, at the outset of the interview. Mr Huda’s proposition was that the way in which Detective Healey had referred to the rights in the formal interview would not have been effective to inform Ms Borell that the rights previously explained to her continued. That was so, because Detective Healey spoke about what she had previously been told as opposed to simply repeating the rights.
We reject that proposition. The evidence at the interview shows the appellant gave a reasonably articulate account of what happened. There is no suggestion that she had difficulty understanding the questions that were put or in expressing herself. When Detective Healey recounted what he had told her previously, he did so in a way which we consider would have been understood as a statement of her rights as they existed not only when she was first told about them but also at the interview. We consider, for example, the statement that “for the record I told you that you have the right to remain silent. You do not have to make any statement” would have been taken by her as a statement of what her rights were and remained. Similarly, with “you have the right to consult and instruct a lawyer without delay and in private”. Consequently, we are satisfied that the premise on which Mr Huda’s submission about delay was based cannot be sustained. It is worth noting too that the passage in Lyttle on which Mr Huda relied, and we have quoted above, was preceded by the explanation given by the Court that 10 days had elapsed between the arrest and the challenged interview.[6] Clearly, even if (contrary to our view) the advice given at the scene were to be treated as the only effective advice to Ms Borell of her rights, there would be a far less significant delay on the facts of this case.
[6]Lyttle v R, above n 3, at [102].

Since we have concluded that Ms Borell was effectively advised of her rights at the outset of the formal interview, the second issue raised by Mr Huda also falls away. As he accepted, by the time of the formal interview, Ms Borell was in relative terms “more sober and in a settled emotional state”.
As to the third point, we do not accept that Ms Borell could properly be described as naïve and unlikely, by virtue of her age, to have understood the advice that Detective Healey gave her in the formal interview. He recorded that she had acknowledged her rights when they were previously given to her. She was studying law at university. We have concluded, for the reasons set out above, that she would have understood the rights continued, because of the way in which the issue was further addressed by the Detective at the formal interview. It is appropriate to record that there is no evidence to the contrary. There was no issue raised prior to or at the trial as to the admissibility of the statement, nor has there been any attempt to place evidence before this Court on appeal that Ms Borell did not understand her rights. All we have is Mr Huda’s submissions.
There is no suggestion of counsel error, and in circumstances where the defence relied on the statement for the narrative that might support a manslaughter verdict, there is nothing to counter the inference that experienced defence counsel who acted at the trial chose not to challenge the statement either because he did not consider the challenge would succeed or because there were tactical advantages in allowing it to go before the jury. As Mr Carruthers pointed out, this approach enabled the defence to emphasise the consistency of Ms Borell’s account of having thrown the knife from when she first spoke to Detective Constable Sell at the scene. The emotion she showed in giving her account of what had happened, her immediate attempt to assist the deceased and her very upset state at the scene all helped the defence narrative that she had lacked murderous intent.
For these reasons, we are satisfied that the challenge to the admissibility of her statement cannot succeed.

Failure to challenge for cause

Section 25 of the Juries Act permits the questioning of prospective jurors. It provides:
25 Challenges for cause
(1) In addition to the right to challenge under sections 23 and 24, each party to the proceedings is entitled to any number of challenges for cause on the grounds that—
(a) a juror is not indifferent between the parties; or
(b) a juror is not capable of acting effectively as a juror in the proceedings because of disability.
(2) Except as provided in section 23, no other ground of challenge for cause shall be allowed.
(3) The Judge shall determine every challenge for cause, in private, in such manner and on such evidence as he thinks fit.
The foundation of this ground of appeal is that Ms Borell is a young Māori woman by descent and appearance. The complaint is that at her trial, no safeguard was put in place to reduce, to the extent possible, the illegitimate effects of racial prejudice that jurors may have held against her by reason of her being Māori.
That argument is placed in the context of ss 25 and 19 of the New Zealand Bill of Rights Act. Under s 25(a) of that Act, everyone who is charged with an offence has, in relation to the determination of the charge, “the right to a fair and public hearing by an independent and impartial court.” Then, under s 19 of the Act, there is an affirmation of the right to freedom from discrimination. Under s 19(1), everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993, which includes discrimination on the basis of race.
Mr Huda submitted that the failure to guard against the illegitimate effects of jury prejudice had given rise to a miscarriage of justice. He essentially invited this Court to adopt the approach taken by the Supreme Court of Canada in R v Williams where it was said:[7]
… bias may affect the trial in different ways. It may incline a juror to believe that the accused is likely to have committed the crime alleged. It may incline a juror to reject or put less weight on the evidence of the accused. Or it may, in a general way, predispose the juror to the Crown, perceived as representative of the “white” majority against the minority-member accused, inclining the juror, for example, to resolve doubts about aspects of the Crown’s case more readily … When these things occur, a juror, however well intentioned, is not indifferent between the Crown and the accused. The juror’s own deliberations and the deliberations of other jurors who may be influenced by the juror, risk a verdict that reflects, not the evidence and the law, but juror preconceptions and prejudices.
[7]R v Williams [1998] 1 SCR 1128 at [11].
As to an evidential foundation to support a claim of widespread racial prejudice against Māori, Mr Huda referred us to another passage in Williams, in which it was said:[8]
… where widespread prejudice against people of the accused’s race is demonstrated at a national or provincial level, it will often be reasonable to infer that such prejudice is replicated at the community level.
[8]At [41].
He then referred us to the report of the Safe and Effective Justice Advisory Group, Turuki! Turuki! Move together!,[9] where it was said:
Racism is common in New Zealand society. Many people hold negative stereotypes of Māori, Pacific and other ethnic and cultural groups, and this is reflected in individual actions that discriminate on the basis of race. We heard numerous examples of institutional racial discrimination in the justice system, particularly towards Māori and Pacific communities. High rates of arrest and imprisonment of Māori reflect systematic discrimination both within justice and the wider community.
…

And:[10]

Many saw the justice system as a tool of colonisation, which operated according to Anglocentric cultural ideas while systematically discriminating against and subjugating Māori.
[9]Safe and Effective Justice Advisory Group Turuki! Turuki! Move Together! (2nd report, 2019) at 12.
[10]At 45.

Mr Huda also referred us to observations made by the Law Commission:[11]
It was emphasised to us that many Māori feel very strongly that juries are not representative of Māori society, and this contributes to a general feeling of alienation from the criminal justice system.
[11]Law Commission Juries in Criminal Trials: Part Two (NZLC PP37, 1999) at 80, cited in Law Commission Juries in Criminal Trials (NZLC R69, 2001) at 68.
Mr Huda also relied on observations made about racism by this Court in Kearns v R:[12]
[24] … There is ample research which shows that unconscious bias exists, though (for those not negatively affected) it is rarely obvious and easily overlooked. Few who discriminate on the basis of race will admit it. Some will prefer to hide it. Most will be unaware of it and so will find the suggestion they do so insulting.
[25] Racial bias finds expression in policing as it does in other parts of the community. An internal survey of frontline police officers (independently conducted for the New Zealand Police and Te Puni Kōkiri) concluded that, while cultural awareness within police was improving, racially biased attitudes persisted in a minority of officers. While this study is more than 15 years old, the disparity in “criminal justice outcomes” that triggered concerns explored in it and other studies remains unchanged, and in some respects has become worse.
(Footnotes omitted.)
[12]Kearns v R [2017] NZCA 51, [2017] 2 NZLR 835.
Mr Huda submitted that in the absence of questioning of potential jurors at Ms Borell’s trial, the Court could not be confident that jury members were not racially prejudiced against Māori to an extent that would have impaired their ability to be “indifferent” between Ms Borell and the Crown as required by s 25 of the Juries Act. Mr Huda also raised the related issue of the absence of a tailored anti-discrimination direction by the Judge.[13]
[13]The Judge directed the jury as follows: “You must not allow your judgment to be swayed by considerations of prejudice and sympathy. You need to be entirely objective in your assessment of the case, however difficult that may be. It is often said in trials that jurors are effectively sitting or acting as Judges, and you must approach your task in the same way as you would expect a Judge would, dispassionately and objectively.”
For the respondent, Mr Carruthers submitted that it was unsurprising that counsel for Ms Borell had not sought to make inquiries of prospective jurors in light of this Court’s decision in R v Sanders.[14] In that case, which was a decision of a Full Court, it was observed that challenges for cause have been rare in New Zealand, and challenges accompanied by cross-examination were even more rare.[15] After discussing relevant authorities, the Court referred to the reluctance of English, Australian and New Zealand courts “to allow intrusive and quite possibly fruitless cross‑examination of potential jurors”, although it was noted that a different approach had been taken in Canada.[16] The Court concluded:[17]
One can only remain unconvinced that any novelty should be introduced into ordinary New Zealand criminal practice, while recognising that in wholly exceptional cases a trial judge may properly exercise the judicial discretion of allowing jurors, whose names have been called, to be cross‑examined before taking their seats.
[14]R v Sanders [1995] 3 NZLR 545 (CA).
[15]At 548–549.
[16]At 550.
[17]At 550. It may be noted that the kind of procedure for which Mr Huda advocated would not be adopted in “wholly exceptional cases” but would be of general application.
Given this, Mr Carruthers submitted that had defence counsel in this case sought to cross‑examine jurors to ascertain whether they were prejudiced against Māori, there would have been little prospect of the trial Judge allowing it.
Mr Carruthers also submitted that acceding to the appellant’s argument would run contrary to the assumption that jurors will approach their task conscientiously, and will follow judicial directions to decide the case putting to one side any prejudice or sympathy. The system of trial by jury has long been said to turn on such an assumption.[18] Such a direction was given in the present case, although as is usual it made no mention of racial prejudice.
[18]See Winter v R [2019] NZSC 98, [2019] 1 NZLR 710 at [146]; Green v R [2016] NZCA 196 at [24]–[25]; and R (CA340/2015) v R [2015] NZCA 287 at [22].
Mr Carruthers also pointed out that there is no evidence to suggest that even if prospective jurors had been questioned, there would have been any change to the composition of the jury who in fact tried the case. He also referred to the possibility that if jurors had been set aside by reason of prejudice against Māori, it was possible that persons with different kinds of prejudice (perhaps against those who act violently whilst under the influence of alcohol) might have been substituted.
Finally, Mr Carruthers submitted that the process proposed by Mr Huda would radically alter the way jury trials are conducted in New Zealand having regard to the rarity of questioning prospective jurors that has prevailed to this point. A shift of such magnitude from established practice could obviously not be made lightly and, in his submission, should be left to Parliament.
There is no doubt that the submissions made by Mr Huda open up a very large subject. But we do not consider they can be accepted in the circumstances of this case. We say that for three principal reasons.
First, Mr Huda effectively asks this Court to go much further than the Supreme Court of Canada went in R v Williams. That case involved an Aboriginal defendant and a white complainant. Counsel for the defendant sought to challenge potential jurors for cause to determine whether they were prejudiced against Aboriginals so as to impair their impartiality. Although such a challenge had been allowed at the original trial it was declined at a retrial. The question to be determined, ultimately by the Supreme Court, was whether the Judge who presided at the retrial should have allowed challenges for cause as had been allowed at the first trial. That issue was determined in the affirmative. Similarly, in R v Sanders the issue was also whether a challenge for cause should have been allowed. These were not cases where it was asserted, as Mr Huda argues here, that there had been a miscarriage of justice because no challenge was sought to be made.
There is also authority which would be against accepting the argument, even in Canada. In R v Rollocks the appellant argued that that the absence of a challenge for cause resulted in a miscarriage of justice, but not that racism had in fact affected the verdict.[19] The appeal was dismissed. The Ontario Court of Appeal held there was a strong onus on a defendant to raise such challenges at the outset of a trial, noting that the challenge goes to the validity of the court constituted to try the case. Doherty JA, writing for the Court observed that a challenge for cause could only be initiated by the defendant, not the judge, and continued:[20]
A challenge for cause is the accused’s personal opportunity to take a direct role in ensuring the impartiality of the jury selected to try that accused. Where the accused does not avail herself or himself of that opportunity at the appropriate time, an appellate court must be very reluctant to find that the absence of the unrequested challenge for cause resulted in a miscarriage of justice.
[19]R v Rollocks (1994) 19 OR (3d) 448 (ONCA).
[20]At 454.
As in Canada,[21] s 25 of the Juries Act confers only an entitlement on the accused to challenge potential jurors for cause. The section does not require that challenges for cause be made, and a challenge for cause on the basis of Williams could only have been made by the appellant’s trial counsel. The necessary implication of Mr Huda’s argument is therefore that trial counsel should have made a challenge for cause but did not. Accordingly, the only way failure to challenge for cause could be relevant in this case would be if the appellant’s trial counsel committed an error which resulted in a miscarriage of justice.[22] The fact Mr Huda did not seek to pursue this argument is not surprising. Challenging jurors for cause based on potential racial prejudice is not established practice in New Zealand, and in light of R v Sanders it cannot be said that trial counsel committed any error by not doing so. In the circumstances, s 25 of the Juries Act cannot assist the appellant.
[21]Criminal Code RSC 1985 c C-46, s 638.
[22]We do not consider this is one of those “rare cases” where a miscarriage of justice can be said to have occurred absent any error by trial counsel: Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [67] per Gault, Keith and Blanchard JJ. See also [68]–[70].
Secondly, and in any event, notwithstanding the statements on which Mr Huda relied in Turuki! Turuki!, the Law Commission report and this Court’s judgment in Kearns v R, we do not consider that there is an evidential foundation for concluding that there has been, or might have been, an unfair trial in this case as a consequence of failure to challenge for cause in the jury selection process. There was such evidence in R v Williams, on the basis of which the Judge at the first trial had allowed the challenges for cause to proceed.[23] While Mr Huda has been able to rely on the Law Commission statement in which concerns were reflected about juries not being representative of Māori, the failure to provide evidence about this issue at the trial means it cannot be pursued now. The same applies with respect to what was said in Turuki! Turuki!. This Court’s observations in Kearns acknowledging the possibility of unconscious racial bias affecting members of the community show that there could be an issue that needs to be addressed, but we do not consider there is a demonstrated risk this trial might have been affected by bias. To allow the appeal on the basis for which Mr Huda contends would be to make an assumption about the potential state of mind of one or more members of this jury which might be completely unjustified.
[23]R v Williams, above n 7, at [54].
We do not think it would be appropriate to do so, especially having regard to the requirement for jury unanimity or near unanimity, and the narrowness of the issues this jury had to decide. The defence accepted there was a homicide and the focus of the trial was whether this was murder or manslaughter. We have to say the idea that jurors might decide this was a murder because the defendant was a Māori seems extremely implausible.
Thirdly, acceding to Mr Huda’s submission would, as Mr Carruthers submitted, amount to a fundamental change in criminal trial practice in this country. The implication would be that a failure to challenge for cause would constitute an error resulting in an unfair trial because of inferred lack of impartiality in the case of any trial where a person of Māori race had been convicted by a jury consisting of persons who were not Māori. Such a conclusion would require the most careful consideration and a far more in-depth examination of the need for, and implications of, change than is contained in any of the materials to which we were referred by counsel. As we have noted above, this would be an outcome well beyond what was decided in R v Williams.
It may be necessary in an appropriate case to re‑examine some of the statements made in R v Sanders, particularly in a case where the issue of racial prejudice might be thought to arise. We note for example that when that case was decided, the Court was able to record that it had not been referred “to any in‑depth discussion of the subject by the Supreme Court of Canada”.[24] That could not now be said, because R v Williams does represent an in‑depth discussion of the subject, in the course of which McLachlin J (writing for the Court) analysed the justification for contemplating inquiries into the potential prejudice of jurors at a trial under statutory provisions similar to s 25 of the Juries Act, and provisions in the Canadian Charter of Rights and Freedoms analogous to ss 19 and 25(a) of the New Zealand Bill of Rights Act.[25]
[24]R v Sanders, above n 14, at 550.
[25]Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK), ss 11(d) and 15(1).
However, it is clear that this is not the appropriate case to embark on a thoroughgoing examination of the potential application of these conclusions in New Zealand.
The second ground of appeal also fails.

Result

The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[2020] NZCA 235

15 June 2020 at 11 am