Christopher Mosley v The Queen

IN THE SUPREME COURT OF NEW ZEALAND
SC 58/2008
[2008] NZSC 97
CHRISTOPHER MOSLEY
v
THE QUEEN
Court:Elias CJ, Blanchard and Wilson JJ
Counsel:P T R Heaslip for Applicant

M D Downs for Crown

Judgment:17 November 2008

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.
REASONS
[1]       Having appealed unsuccessfully to the Court of Appeal against his conviction on serious charges of dealing in drugs,[1] the applicant seeks leave to appeal to this Court on two grounds. First, he alleges, the trial Judge (Allan J) was in error in continuing the trial with a jury of 10 pursuant to s 374(4A) of the Crimes Act 1961. Secondly, the Court of Appeal is said to have erred in holding that it was precluded by s 374(8) from reviewing the exercise by Allan J on two occasions of his discretion to discharge jurors.
[1]      R v Mosley [2008] NZCA 319; see also the related judgment in R v Harris [2008] NZCA 298.
[2]       Section 374(4A) provides that a trial must not proceed with fewer than 11 jurors except by consent or because of “exceptional circumstances” and “having regard to the interests of justice”. The question of what constitutes exceptional circumstances has recently been discussed by this Court in R v Rajamani[2] and R v Wong.[3]There is no reason to re-examine these principles.
[2] [2008] 1 NZLR 723.
[3] [2008] 3 NZLR 1.
[3]       The present facts are clearly distinguishable from those of both Rajamani and Wong. The second juror to be discharged in Mr Mosley’s trial was discharged in the seventh week of the trial. It ran for another 12 weeks. More than two years had elapsed between the arrest of the defendants and their trial. There would be a long delay before any retrial could take place. Unsurprisingly, only three of the 10 defendants opposed the continuation of the trial with 10 jurors. The circumstances were plainly “exceptional” for the purposes of s 374(4A), and equally plainly the interests of justice were served by the continuation of the trial.
[4]       Whether or not s 374(8) applies to an attempted appeal against a decision to discharge a juror, in contrast to a decision to discharge a jury, the point cannot possibly avail the applicant on the present facts. Mr Mosley sought the discharge of both the jurors who were discharged. Having adopted that position, he cannot now argue that Allan J was wrong to release the jurors.
[5]       The application for leave to appeal is therefore dismissed.
Solicitors:
P R T Heaslip, Auckland for Applicant
Crown Law, Wellington

CaseChat Overview and Summary

In the case of Christopher Mosley v The Queen, the applicant, Christopher Mosley, sought leave to appeal to the Supreme Court of New Zealand against his conviction on drug-related charges. The application was dismissed by the Supreme Court, which found that the trial judge was justified in continuing the trial with a jury of ten members. Mosley argued that the trial judge erred in continuing the trial with fewer than the required eleven jurors, and that the Court of Appeal was wrong to preclude itself from reviewing the trial judge's discretion to discharge jurors. The Supreme Court found that the circumstances were exceptional, as the trial had already been delayed for over two years, and that Mosley's own actions precluded him from arguing that the jurors should not have been discharged. The court held that the trial judge's decision to continue with ten jurors was in the interests of justice.

The legal issues before the court were whether the trial judge erred in continuing the trial with fewer than eleven jurors, and whether the Court of Appeal was correct to preclude itself from reviewing the trial judge's discretion to discharge jurors. The Supreme Court found that the trial judge's decision to continue with ten jurors was justified under the exceptional circumstances provisions of the Crimes Act 1961, and that the Court of Appeal was correct to preclude itself from reviewing the trial judge's discretion to discharge jurors. The court found that Mosley's own actions precluded him from arguing that the jurors should not have been discharged.

The Supreme Court found that the trial judge's decision to continue with ten jurors was justified under the exceptional circumstances provisions of the Crimes Act 1961. The court found that the trial had already been delayed for over two years, and that there would be a significant delay before any retrial could take place. The court held that the interests of justice were served by continuing the trial with ten jurors. The court also found that the Court of Appeal was correct to preclude itself from reviewing the trial judge's discretion to discharge jurors, as Mosley had sought the discharge of both the jurors who were discharged. The court held that Mosley's own actions precluded him from arguing that the jurors should not have been discharged.

The Supreme Court dismissed the application for leave to appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established