| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 77/2016 [2016] NZSC 162 |
| BETWEEN | DAVID OBIAGA |
| AND | THE QUEEN |
| Court: | Glazebrook, Arnold and OʼRegan JJ |
Counsel: | G L Turkington |
Judgment: | 8 December 2016 |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
____________________________________________________________________
REASONS
Introduction
Mr Obiaga was convicted on a number of charges relating to the importation of methamphetamine. He was sentenced to 15 years and ten months’ imprisonment.
His appeal against conviction and sentence was dismissed by the Court of Appeal on 20 June 2016.[1] He now seeks leave to appeal to this Court.
Background
[1]Obiaga v R [2016] NZCA 270 (Harrison, Simon France and Woolford JJ).
Mr Obiaga was tried with a number of other defendants. In the course of the trial two jurors were discharged. The first was discharged on 20 February 2015, some four days after the start of the trial. This was after the trial judge (Thomas J) received a medical certificate confirming the juror had been diagnosed with a condition rendering her unfit for jury service for a month.
On 29 April 2015, during the jury’s deliberation, the foreperson of the jury was also discharged. He had suffered a heart attack and was resuscitated by another juror and the detective in charge of the case. By the next day the foreperson had recovered and was out of immediate danger.[2] An application to discharge the jury pursuant to s 22(3) of the Juries Act 1981 was refused. The trial judge, Thomas J, had interviewed each of the jurors individually and was satisfied that they were willing and able to continue.[3]
The application
[2]The remaining jury members had been told of the foreperson’s recovery.
[3]For more detail, see Obiaga v R, above n 1, at [19]–[25].
Mr Obiaga’s main ground for the proposed appeal against conviction relates to the decision to discharge the two jurors. He says that the trial judge should have considered whether s 22 of the Juries Act required a proportionality analysis to determine whether proceeding with fewer than 12 jurors was a justified limitation, having regard to s 5 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) read purposively in conjunction with s 24(e) of the Bill of Rights and s 17 of the Juries Act.
Mr Obiaga also wishes to challenge the decision not to discharge the jury. He submits that the trial judge failed to apply the established legal tests when making that decision.[4]
[4]Mr Obiaga points to Buddle v R [2009] NZSC 117, [2010] 1 NZLR 717 at [36] (Blanchard J dissenting); R v Marshall [2004] 1 NZLR 793 (CA) at [16]; and R v Hetherington [2015] NZCA 248 at [39].
Finally, on the conviction appeal Mr Obiaga says that the Court of Appeal erred in disallowing evidence from him and cross-examination of trial counsel on whether trial counsel error had affected the trial process.
On his sentence appeal, Mr Obiaga…
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- AGLC
- David Obiaga v The Queen [2016] NZSC 162
- Case
- [2016] NZSC 162
- Decision Date
CaseChat Overview and Summary
The court found that the trial judge did not err in discharging two jurors or in deciding not to discharge the jury. The court found that there was no basis for the proposition that the jury may have favoured the prosecution case out of admiration or gratitude to the officer in charge. The court also found that the Court of Appeal did not prohibit Obiaga from raising issues of trial counsel error on appeal. Finally, the court found that the sentence appeal did not raise an issue of general or public importance, and the sentence of 15 years and ten months’ imprisonment was not outside an appropriate range for this type of offending. The application for leave to appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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