Dale v The Queen
[2016] NZCA 104
•8 April 2016 at 11:30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA86/2015 [2016] NZCA 104 |
| BETWEEN | PETER GEORGE DALE |
| AND | THE QUEEN |
| Court: | Randerson, Peters and Collins JJ |
Counsel: | A J D Bamford for Applicant |
Judgment: (On the papers) | 8 April 2016 at 11:30 am |
JUDGMENT OF THE COURT
The application for directions is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Peters J)
The applicant, Mr Dale, appeals his conviction on two counts of sexual violation following a jury trial in the District Court at Nelson in December 2012. One ground of appeal concerns juror misconduct and it is in connection with this ground that Mr Dale seeks a direction that enquiry be made of two jurors who served on the jury in his trial. Mr Bamford for Mr Dale and Mr Corlett for the Crown agree that we may decide the application on the papers.
Background
The background to the application may be summarised as follows.
Shortly after Mr Dale’s trial, a juror on the trial (“A”) telephoned Mr Bamford. The gist of A’s comments was that she did not agree with the verdicts and she sought advice on what she should do. Mr Bamford suggested she write to the Court, which she did.
In March 2013, Mr Bamford sought a copy of A’s letter from the Court. The request was refused. At the time, Mr Dale elected not to pursue the point, or an appeal for that matter, but he has since reconsidered.
This Court obtained a copy of A’s letter in August 2015 and provided it to counsel.
The gist of A’s letter is that the foreman and another juror told the jurors that a unanimous verdict was required, and that A and another juror disagreed with the guilty verdict but “in the end felt we had no choice but to agree with the rest”. A also said that the other juror to whom she referred had changed her verdict after being spoken to rudely by another juror, and that this had left A “holding up proceedings and feeling very pressurised”.
Application
In R v Tainui, this Court said that a party who wishes enquiry to be made of a juror should make a formal application for a direction that an independent person, such as a police officer or counsel, “approach the juror with a view to an affidavit being obtained”.[1]
[1]R v Tainui [2008] NZCA 119 at [42].
Mr Bamford seeks the following direction:
2.The appellant applies (and counsel requests that this memorandum be treated as a formal application) for directions that an independent lawyer approach the juror who wrote the letter and the other juror named in the letter with a view to an affidavit being obtained from each (this is in accordance with the procedure set out in R v Tainui [2008] NZCA 119 at para 42).
Section 76 of the Evidence Act 2006 governs the circumstances in which evidence of jury deliberations may be admissible:
76 Evidence of jury deliberations
(1) A person must not give evidence about the deliberations of a jury.
...
(3)Subsection (1) does not prevent a person from giving evidence about the deliberations of a jury if the Judge is satisfied that the particular circumstances are so exceptional that there is a sufficiently compelling reason to allow that evidence to be given.
(4)In determining, under subsection (3), whether to allow evidence to be given in any proceedings, the Judge must weigh—
(a)the public interest in protecting the confidentiality of jury deliberations generally:
(b) the public interest in ensuring that justice is done in those proceedings.
Section 76(3) is treated as governing whether or not the Court should order that enquiry be made because there would be no point in making such an order if any evidence gathered were inadmissible.[2] Accordingly, an application such as the present will be granted only if the Court is satisfied that the circumstances are “exceptional” in the sense of s 76(3).
[2]Pearson v R [2011] NZCA 572 at [19]; and M v R [2016] NZCA 37 at [5].
Mr Bamford submits that the circumstances of the present case are exceptional and that there is a compelling reason to make the direction sought. That is because, taking A’s letter at face value, the statement that a unanimous verdict was required was made when two jurors wished to acquit. Two dissenters would have precluded a majority guilty verdict.[3] Counsel submits that it is apparent from A’s letter that the other juror referred to in the letter only changed her mind after being “bullied” into doing so.
[3]Juries Act 1981, s 29C(1).
Counsel referred us to several authorities in which this Court has determined similar applications, and in particular to Tainui and Neale v R.[4] In each of these the Court declined to direct enquiry of a juror who had expressed similar concerns to those in A’s letter.
[4]R v Tainui, above n 1; Neale v R [2010] NZCA 167.
In Tainui, the juror expressed doubt about the guilty verdict reached and advised that she had only agreed to the verdict in response to pressure from other jurors. The Court considered that, at best, the letter was evidence of a change of heart or misgivings about the verdict. The letter did not “particularise jury misconduct or improper pressure, or bring into question the integrity of the jury’s verdict”.[5]
[5]R v Tainui, above n 1, at [44].
In Neale, a juror advised that she felt “bullied”, that she “gave in” on a particular issue and that she was “upset, distraught and disturbed by the way the verdict was reached”. The Court declined to order an enquiry, saying that remorse after the verdict and an acknowledgment of capitulation came “nowhere near the required standard under s 76(3)”.[6]
[6]Neale v R, above n 4, at [13].
We are not able to distinguish the present case from Tainui and Neale. A statement by a juror, subsequent to trial, that he or she felt pressured to agree to a guilty verdict, did so, and now has misgivings, does not constitute an “exceptional” circumstance for the purposes of s 76(3).
We decline this application accordingly.
Solicitors:
Bamford Law, Nelson for Applicant
Crown Law, Wellington for Respondent