David Obiaga v The Queen - [2016] NZSC 162

IN THE SUPREME COURT OF NEW ZEALAND

SC 77/2016
[2016] NZSC 162

BETWEEN	DAVID OBIAGA Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Arnold and OʼRegan JJ
Counsel:	G L Turkington K S Grau for Respondent
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…

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 David Obiaga v The Queen

Details

AGLC: David Obiaga v The Queen [2016] NZSC 162
Case: [2016] NZSC 162
Decision Date: 8 December 2016

CaseChat Overview and Summary

David Obiaga was convicted of importing methamphetamine and sentenced to 15 years and ten months’ imprisonment. Obiaga appealed against both his conviction and sentence, which were dismissed by the Court of Appeal on 20 June 2016. He now sought leave to appeal to the Supreme Court of New Zealand. The legal issues in this case concerned whether the trial judge should have conducted a proportionality analysis under the New Zealand Bill of Rights Act 1990 when deciding to discharge two jurors and not to discharge the jury. The court found that the ability to continue with fewer than 12 jurors implied legislative acceptance that a fair trial could still occur. There was also no evidence of a risk of miscarriage of justice in this case. The court also found that the Court of Appeal had not prevented Obiaga from raising issues of trial counsel error on appeal. 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.

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