Buddle v R - [2009] NZSC 117

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IN THE SUPREME COURT OF NEW ZEALAND
SC 43/2009
[2009] NZSC 117
PETER DAVID BUDDLE
v
THE QUEEN
Hearing:13 August 2009

Court:Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ
Counsel:J Mather for Appellant
G H Allan for Crown

Judgment:26 November 2009

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe six convictions entered on 9 May 2008 against the appellant, Peter David Buddle, in the District Court at Manukau in relation to the complainants K and N are each set aside.
CA new trial is ordered in relation to the three counts concerning the complainant N.

REASONS

Para No

Elias CJ  [1]
Blanchard J  [12]
Tipping, McGrath and Wilson JJ  [22]

ELIAS CJ
[1] Does a judge have the power to discharge a jury which has indicated it has reached unanimous verdicts on some counts because it has also indicated that it is unable to agree on alternative counts? The only suggested source of power to discharge the jury in such circumstances has been s 374 of the Crimes Act 1961, now repealed but re-enacted in substance in s 22 of the Juries Act 1981.[1] Both sections permit a judge to discharge the jury and postpone the trial where there is “any emergency or casualty rendering it in the opinion of the Court, highly expedient for the ends of justice”[2] to take the step. For the reasons discussed below, I am of the view that there was no such emergency or casualty by reason of the fact that the jury had indicated its disagreement on alternative charges. A judge cannot decline to take the verdicts upon which a jury has indicated it is unanimously agreed. That was not the course adopted in the present case. The Judge discharged the jury without taking its verdicts or indeed formally inquiring in open court whether the jury was in disagreement on the alternative counts, as had been informally communicated. At a subsequent trial the appellant was convicted in respect of the charges upon which the first jury had been able to deliver unanimous verdicts. The present appeal is against the convictions entered at the second trial. I have had the advantage of reading in draft the reasons given by Tipping J and do not rehearse the background which is fully set out by him. I agree with the conclusion that the Judge’s failure to take the available verdicts was wrong and resulted in a miscarriage of justice when the appellant was convicted at the postponed trial. I agree that the convictions must be set aside. The error tainted unrelated charges in respect of which the convictions must also be quashed.
[1]By the Juries Amendment Act 2008.
[2]Section 374(1) of the Crimes Act 1961 and s 22(3)(a) of the Juries Act 1981.
[2] The jury at the first trial, in an informal written communication with the Judge, disclosed that, although it was divided on alternative counts, it had unanimously agreed upon not guilty…

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 Buddle v R

Details

AGLC: Buddle v R [2009] NZSC 117
Case: [2009] NZSC 117
Decision Date: 26 November 2009

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of Buddle v R addressed the validity of an order made by the trial judge discharging the jury from giving verdicts on all counts in the indictment against the appellant, Peter David Buddle. The first trial ended with the jury indicating that they were unable to reach a unanimous verdict on some counts but had reached a unanimous not guilty verdict on others. The trial judge discharged the jury without taking their verdicts, leading to a retrial where the appellant was convicted on all charges. The Court of Appeal dismissed the appellant's appeal against these convictions. The Supreme Court allowed the appeal, setting aside the six convictions and ordering a new trial on the three counts concerning complainant N. The Court found that the trial judge's decision to discharge the jury without taking their verdicts was an abuse of process, as the judge lacked the jurisdiction to do so under section 374 of the Crimes Act 1961. The Court also determined that the presence of the counts concerning complainant K in the second trial's indictment influenced the jury's consideration of the counts concerning complainant N, necessitating the setting aside of the convictions relating to N and ordering a retrial on those counts.

Orders