Davis v The Queen
[2011] NZCA 380
•10 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA767/2010 [2011] NZCA 380 |
| BETWEEN HAIDEN DAVIS |
| AND THE QUEEN |
| Hearing: 18 July 2011 |
| Court: Stevens, Potter and Ronald Young JJ |
| Counsel: W C Pyke for Appellant |
| Judgment: 10 August 2011 at 4.00 pm |
JUDGMENT OF THE COURT
A Extension of time to appeal is granted.
B The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Table of Contents
Para No
Introduction [1]
Factual background [4]
Failure to discharge juror Mr H [13]
Directions on the accused’s statement [29]
The trial context [29]
The need for “particular care” point [33]
The lies direction [37]
The lack of unanimity direction [46]
How the direction arose [46]
Appellant’s submissions [50]
Respondent’s submissions [53]
Our evaluation [59]
Result [68]
Introduction
The appellant, Mr Davis, was convicted of the murder of Mr Augustine Borrell on 30 March 2009 in the High Court at Auckland. On the same day he was sentenced to life imprisonment by Harrison J. He appeals against conviction on the basis of three alleged legal errors in the course of his trial.
His appeal was filed nearly 20 months late. The circumstances in which this occurred are explained in an affidavit affirmed by the appellant. They relate, essentially, to difficulties encountered by the appellant in obtaining legal representation to conduct his appeal. At his trial the appellant was represented by an experienced criminal barrister, Mr Mansfield. For various reasons neither Mr Mansfield, nor his junior counsel, were able to conduct the appeal. Various explained delays occurred before counsel for the appellant, Mr Pyke, was instructed. The circumstances concerning such legal representation for the appeal are not challenged by the respondent. Having regard to the explanation given, as well as the age of the appellant,[1] we are satisfied that the test of being in the interests of justice, both from the perspective of the appellant and society at large, has been met.[2] We therefore grant an extension of time to appeal.
[1] He had just turned 20 years of age prior to his conviction.
[2] R v Lee [2006] 3 NZLR 42 (CA).
The issues on appeal are whether the trial Judge erred in law by:
(a)not discharging a juror, Mr H, under s 22 of the Juries Act 1981;
(b)the directions he gave regarding the appellant’s statement to the police; and
(c)the directions he gave to the jury when, after just under three hours deliberation, a disagreement was signalled.
Factual background
The context in which the homicide occurred is largely undisputed. On the evening of 8 September 2007 two parties taking place in the Auckland suburb of Herne Bay were attended by a large number of young people, both invited guests and those who had not been invited. The appellant was initially at the party in London Street. Without warning, he assaulted an uninvited attendee, David Moynihan, by striking him forcefully on the back of his head. Mr Moynihan had met the appellant once or twice before and testified that before being struck he had not argued “at all” with the appellant. That assault caused a fight between respective supporters. Although the precise means of application of the force is not known, the hard blow to the back of Mr Moynihan’s head caused a scar of about seven centimetres. The Crown submitted at trial that the appellant had, for no apparent reason, resorted to violence at a time close to the homicide.
A short time later, a group of Polynesian men arrived outside the London Street party. The appellant armed himself with a knife from the kitchen and, with others, confronted the group. No violence ensued on that occasion and the group left. The appellant, however, retained possession of the knife.
Meanwhile, the deceased, Mr Borrell, had been invited to, and was attending, the second party in Hamilton Road. Mr Borrell left the party with a friend, Mr Rowan Huruni, and walked towards the junction of Hamilton Road and Jervois Road.
The appellant had by now left the party at London Street and, with a friend named Ziggy, travelled to a nearby BP Service Station. There by chance he met up with his girlfriend, Cara Mustard, who was in the company of two other young men. This seems to have irritated the appellant, as Ms Mustard testified that he seemed angry at her for being with “those boys”. Shortly thereafter a fight broke out between associates of the appellant (including Ziggy) and others. At that time, Mr Borrell and his friend were in the vicinity of the BP Service Station. Video footage records the appellant walking across the forecourt heading in the direction of the altercation and Mr Borrell.
The appellant then removed the knife (taken earlier from the London Street address) from his pocket and, according to the Crown case at trial, lunged at Mr Borrell fatally wounding him. This was by a single stab wound to the chest. In his statement to the police the appellant said that he had the knife in his hand in case his friend was hit with a bottle. He said that he reached out to grab the deceased to stop him from falling over and he “accidentally hit him in the chest with the knife”.
The appellant did not give evidence at his trial. The cause of death, as described by senior pathologist Timothy Koelmeyer, was not in issue. But Dr Koelmeyer said under cross-examination that he could not exclude the possibility that the deceased was propelled onto the knife.
There was no eye witness to the stabbing, although witnesses observed the appellant swinging at the deceased. The video footage from the service station was not continuous. The Crown produced photographs taken from a number of different cameras operated by the service station. These showed the deceased walking over to the area of a fight. The Crown relied on these photographs, a series of incriminating text messages sent by the appellant and conversations had by others with the appellant.
The appellant’s defence at trial was twofold. First he relied on his statement to the police that the deceased had “lost his balance” and been accidentally stabbed by the knife. Secondly, in the event that the jury found that the deceased had not been accidentally stabbed, the appellant contended that he did not have the necessary mens rea within either s 167(a) or s 167(b) of the Crimes Act 1961.
Evidence led by the Crown included the contextual events leading up to the fatal stabbing, as well as evidence of subsequent events. In particular, the Crown pointed to text messages from the appellant to others within hours of the stabbing stating:
(a) “sum1 got murded” [sic];
(b) “I just murderd sum1” [sic]; and
(c) “I just stabd ths dude” [sic].
Later, the appellant posted a Facebook message saying that he had no intention to kill the deceased and that he was sorry for what had happened.
Failure to discharge juror Mr H
In order to deal with this first point it is necessary to set out some largely undisputed factual detail concerning the circumstances in which it arose. After the Crown’s opening address and the opening statement from the defence, the jury was excused for the day. The trial was adjourned shortly before 1 pm. One juror, Mr H, approached the Registrar before he left the Court precinct to discuss his ability to hear the proceedings. That issue was satisfactorily resolved and requires no further elaboration.
Later that afternoon Mr H telephoned the Registrar indicating that he was “not able to sit as a juror”. The initial reason given was said to be a “conflict of interest”. When asked by the Registrar to elaborate, Mr H stated that eight years ago he had a grandson killed in similar circumstances. In a note of the conversation the Registrar stated:
I posed Mr [H] with the following
a)that although his grandson had been killed in similar circumstances
b)could he stay true to the oath that he swore on his selection as a juror
c)to show no fear or favour
d)to listen to the evidence
e)to enter into discussion with his fellow jurors regarding the evidence heard
f)to return a verdict.
Mr [H] assured me that he would be able to do all asked of him.
The Registrar informed Harrison J of the communication. The next morning the Judge interviewed Mr H in the presence of counsel and the accused. We have reviewed the transcript of the interview in which the Judge carefully questioned Mr H as to whether he was capable of performing his duty as a juror in the case. The Judge made reference to the telephone call to the Registrar the previous day and the fact that he had said that some eight years ago a grandson was killed in similar circumstances. Mr H confirmed this and responded affirmatively to questions about whether he would be able to stay true to his oath. During the course of the interview, Mr H asked whether he could make a comment stating:
I am regarded as a kaumätua. The role of a kaumätua is a wise person who deciphers any information, and in this particular case is to discern and to decipher and to make decisions, judgments or decisions based on evidence provided by the defence and by the Crown. I regard that oath that I took as one of honesty and integrity that I would uphold this position if asked to continue as a juror.
Following the interview Mr H left the courtroom so that the Judge might discuss the issue with counsel. The Court record simply notes that the Judge heard submissions from defence counsel “raising concerns as to juror remaining”. The record notes that the Crown expressing no view. Harrison J issued a minute the same day stating:
[3] The second, and more troubling, issue is Mr [H’s] disclosure that he had what he described as a conflict of interest arising from the death of his grandson in similar circumstances to those arising in this trial some eight years ago. He did, however, confirm to Madam Registrar that he would be able to discharge his oath.
[4] I have had the benefit of speaking with Mr [H] in the presence of counsel and Mr Davis this morning. In my judgment he is eminently qualified to serve on this jury. I have no doubt whatsoever that despite the unfortunate death of his grandson Mr [H] will put that event to one side and in keeping with his assurance hear the evidence and participate in the jury’s deliberations with absolute fairness and objectivity. I am in no doubt that Mr [H] is fully capable of performing his duties as a juror in this trial.
Counsel for the appellant accepts that the Judge followed the correct procedure by questioning the juror in chambers in the presence of counsel and the accused.[3] Counsel also accepts that the decision as to whether Mr H was incapable of performing his duty as a juror under s 22(2)(a) of the Juries Act was one for the Judge to make. But counsel submits that the fact that the Registrar had asked questions of Mr H, as summarised at [14] above, resulted in an “irregular procedure”. This is because the fact of the earlier interview by the Registrar would have involved the juror giving a response to the Judge that would, in all likelihood, be consistent with what the juror had already said. Hence the Judge was not able to evaluate the juror’s first response to the issue.
[3] See R v Pearson [1996] 3 NZLR 275 (CA) and R v N (CA373/04) (2005) 21 CRNZ 621 (CA).
A secondary point, which was only faintly pressed in oral submission, was that the Judge’s decision in allowing Mr H to continue to serve on the jury could only be based “upon intuition and limited information”. Counsel submits that the Judge’s minute did not properly deal with whether Mr H continuing to serve on the jury might give rise to a fair minded and informed member of the public apprehending or suspecting that the juror would not be able to discharge his task impartially.[4]
[4]Adopting the test for determining juror impartiality considered by this Court in R v C (CA395/2008) [2009] NZCA 272, [2010] 2 NZLR 289.
For the respondent, Dr Downs referred to a number of examples involving consideration of whether there was a reasonable apprehension of bias so that a juror is incapable of continuing to perform his or her duty as a juror.[5] In particular, counsel referred to the Australian case of R v Goodall,[6] where a juror was discharged during the closing address for the prosecution after he became distressed. The juror had previously been the victim of sexual offending and the trial concerned a change of maintaining a sexual relationship with a child under 16 years.
[5]Dr Downs cited R v Tainui [2008] NZCA 119; Webb v R (1994) 181 CLR 41; R v Budai (2001) 154 CCC (3d) 289 (BCCA) and R v Sampson CA451/93, 19 July 1994.
[6] R v Goodall [2007] VSCA 63, (2007) 15 VR 673.
The case came before the Victorian Court of Criminal Appeal where the defendant contended that the balance of the jury ought to have been discharged because it would have been tainted by the discharged juror. It seems that the trial Judge had discharged the juror not because of a reasonable apprehension of bias, but rather because he was too emotional to sit. Thus the issue on appeal was framed as:[7]
Putting to one side what might have been the trial judge’s reasons for discharging the juror, … whether a reasonable apprehension of bias existed with respect to that juror and, if so, whether the remainder of the jury were also tainted by that apprehension of bias and should have been discharged.
[7] At [24].
The Court unanimously rejected the contention that a reasonable apprehension of bias existed with respect to the discharged juror. The Court held that the juror’s personal experiences would have been legitimate matters for him to have brought to the deliberations of the jury. The defendant’s submission was summarised as follows:
[26] … The fact that the juror broke down [during the prosecutor’s discussion of the complainant’s evidence], … indicated that his own experience of abuse was intruding, illegitimately, into his assessment of the evidence. Counsel emphasised that the difficulties being experienced by the juror would inevitably have been discussed with the other jurors when they retired. He invited the Court to consider some hypothetical scenarios to indicate how the remainder of the jury might have been ‘infected’. He hypothesised that the juror may have said that the same thing happened to him as a child, and that the complainant had behaved just like a victim of abusive behaviour.
Redlich JA considered:
[27] … There would be nothing impermissible or inappropriate about such a reasoning process had it taken place. Juries are routinely told to evaluate evidence, particularly viva voce evidence, against the background of their own life experience. The prosecutor’s invitation to the jury to use their own knowledge and common sense, quoted above, is one which is extended to juries, in similar terms, every day. The value of consultation is enhanced not merely by the presence of more than one mind, but also by the presence of more than one vantage point. The experience of a member of the jury, shared with other members of the jury, may be accepted or rejected by them as something which may or may not assist their deliberations. The special virtue of the institution of the jury is the collective deliberation process of a fair cross-section of the larger community with the capacity to temper the dangers of irrational, unfair or ignorant reasoning.
[28] Counsel argued that the juror’s use of his own personal experience of abuse in evaluating the evidence would have been illegitimate because it was a matter extraneous to the trial which could not have been subject to any scrutiny by the parties. I do not accept that submission. This was not a case of an experiment conducted by a juror becoming a form of new evidence, or of the jury inadvertently receiving information which was not part of the evidence at trial. Rather, what is raised in this case is the possibility, albeit a speculative one, of a juror evaluating existing evidence by reference to a particular experience they have had. In my view this is something the juror would have been entitled to do.
(Footnotes omitted, emphasis added.)
A similar view was expressed by Neave JA[8] when he rejected the submission that a person who has had a particular life experience cannot serve on a jury in a trial “which concerns matters to which that experience is relevant”[9].
[8] At [3]–[5].
[9] At [3].
Dr Downs relied on the above authorities as supporting two propositions. First, a Judge should not lightly conclude that jurors have indicated bias or possible bias. Secondly, that the mere fact that a juror has experience of, or connection with, an incident of similarity to that being tried will not, of itself, give rise to a reasonable apprehension of bias.
As to the role of the Registrar, Dr Downs submits that Mr H’s contact demonstrated that he was a conscientious juror properly initiating contact with the Court to ensure he was complying with his obligations. Any error by the Registrar in asking him questions during the first telephone contact was harmless.
We are satisfied that the authorities discussed above establish that there was no good reason for Harrison J to conclude that Mr H was incapable of continuing to perform his role as a juror. We agree with counsel that the Judge followed the correct procedure in interviewing the juror in the presence of counsel and the accused. Counsel were able to be heard on the point as contemplated by s 22B of the Juries Act. We are satisfied that nothing has emerged from the transcript of the interview or the Judge’s minute to suggest that Mr H was in any sense locked into, or otherwise felt bound by, his earlier telephone responses to the Registrar’s questions. His unprompted comment quoted at [15] demonstrates to the contrary.
It would, perhaps, have been preferable if the Registrar had not questioned Mr H to the extent that occurred. But we agree with Dr Downs that the preliminary questioning here was entirely harmless. It did not result in a miscarriage of justice.
This ground of appeal therefore fails.
Directions on the accused’s statement
The trial context
The events leading to the murder charge took place on the evening of 8 September 2007. A little over two days later, on the morning of 11 September 2007, the appellant attended at the Auckland Central Police Station in the company of his lawyer, Mr Mansfield, to speak to police officers investigating the death of Mr Borrell. The appellant made a statement to Detective Sergeant Baber about what occurred and answered questions. His statement and the questions and answers were recorded on computer and produced as the appellant’s statement at the trial. In the statement the appellant accepted that he had stabbed Mr Borrell with the knife but said that he “accidentally hit him in the chest with the knife”.
Following the completion of the Crown case, and the defence election not to call evidence, Harrison J conferred with counsel as to the way in which counsel proposed to close to the jury. The matters discussed are recorded in a minute including the following:
[2] The Crown’s case in opening by Ms Sue Gray was that Mr Borrell’s homicide was culpable because his death was caused by Mr Davis’ commission of an assault. That was his act in using the knife (a neutral expression – Mr Mansfield objects to the word ‘stabbed’) against Mr Borrell. Mr Davis did not give evidence or call witnesses in his defence. He did, however, make a full statement to a police officer in Mr Mansfield’s company on 11 September 2007. He admitted stabbing Mr Borrell but rationalised the event in this way:
And then Ziggy pushed or punched the Polynesian guy and he just fell back and when he was falling back he fell back and grabbed me and didn’t fall down as he used me as a balance and I had the knife in my hand at the time just in case he would have hit Ziggy with the bottle, so when he fell back and he hit me with his hand, he had used me as a balance to push me back up and I was about to fall over but I went to grab him and I accidentally hit him in the chest with the knife.
[3] So the essence of Mr Davis’ defence is that he is not guilty of a culpable homicide, whether murder or manslaughter, because his use of the knife which pierced Mr Borrell’s heart was not intentional
[4] Mr Mansfield is aware of the problems faced by Mr Davis in relying on this explanation. Nevertheless, he has firm instructions to pursue this line of defence.
Counsel for the appellant challenges two passages in the Judge’s summing up. The first related to the direction to approach the appellant’s statement to the police “with particular care” so that the jury did not “elevate [it] to the same status as evidence given on oath”.[10] It is said for the appellant that this direction was unfair. There is a related challenge to the direction by the Judge cautioning against inferring guilt if the jury were to conclude that the appellant’s account was “untrue or far‑fetched”.
[10] Summing up at [17].
We set out in full below the parts of the summing up the subject of these challenges:
[17] Another important item of evidence is Mr Davis’ statement to Detective Baber on 11 September 2007. The officer’s questions and Mr Davis’ answers are recorded verbatim in a typed transcript. You have copies as one of your exhibits. It is for you to give what weight you deem to be appropriate to the answers in that statement. I advise you to approach this statement with particular care. Mr Davis went to the police two days after Mr Borrell’s death. What he said in answer to the questions from Detective Sergeant Baber are not answers given on oath in this courtroom. You must be careful that you do not elevate them to the same status as evidence given on oath. They have not been tested under cross-examination. However, subject to those qualifications you can take them into account.
[18] I do, however, add this warning. If you regard Mr Davis’ account of an accidental death as untrue or far-fetched, I warn you against treating that fact as evidence that he is guilty of the crime of murder. People lie for many reasons. Here, if you conclude that Mr Davis did not tell the truth about the circumstances of Mr Borrell’s death, you may conclude for example that he did so because he was trying to avoid criminal responsibility. It does not mean, because he tells a lie, that he is guilty of murder. So, if you do not give particular weight to a part or parts of that statement, just put them aside and do not use them for any other purpose. I hope that is clear.
…
[26] In this case Mr Davis’ intention will be determined by his actions before and after he used the knife and by reference to the words he used in discussions. I should add there, on the Crown’s case, by reference to text messages which he sent, the context in which the words were spoken and the texts were sent, and the person to whom the words were spoken or the texts were sent. In this respect I repeat that it is appropriate to take into account Mr Davis’ explanations to the police officer if they are accepted. But I do repeat the qualification I emphasised to you before. What he said to Detective Sergeant Baber was not on oath at trial and was not the subject of cross-examination.
(Emphasis added.)
The need for “particular care” point
Mr Pyke emphasises that the primary, indeed only direct, evidential basis for the defence of accidental stabbing was the appellant’s statement to the police. He submits that as the statement was a highly important piece of evidence for the defence, any judicial directions critical of it were likely to carry significant adverse weight. Mr Pyke submits that the Judge’s comment that the appellant went to the police two days after the death was unfair because it carried with it the implied assertion that the appellant had time to make up a story.
Dr Downs submits that the authorities support,[11] and perhaps oblige, a trial judge to alert the jury to the qualitative difference between an accused’s out-of-court police interview and his or her courtroom evidence. Even where the distinction is drawn in fairly strong terms,[12] this Court has found such comment to be proper, because of the sharp evidential distinction between courtroom evidence and an out-of-court police interview.
[11]Including R v Collins [2009] NZCA 519; R v Hunter [2009] NZCA 249; R v H CA241/04, 26 November 2004 and R v Peters CA383/97, 26 November 1997.
[12] Such as in R v Collins and R v H.
We agree with the submissions of Dr Downs. The Judge’s directions at [17] and [26] were not unfair. The distinction needed to be drawn in the circumstances of this case and the Judge’s directions made the distinction plain. The appellant did not give evidence to support this claim of accidental stabbing. The timing of the visit to the police was factually accurate. It was a matter for the jury what, if anything, they took from that.
This case could well be characterised as one where the comment on the failure of the accused to give evidence was justified.[13] We agree with Dr Downs that it is possible to analyse the directions as involving an implicit comment on the appellant’s election not to give evidence. Such comment would be defensible on the basis referred to by this Court in R v McRae.[14] It would, therefore, be permissible for the Judge to comment because, as the Court said in R v McRae, the appellant “relies on an exculpatory statement and the matters referred to therein but gives no evidence to back up the statement”. Hence a “balanced [but adverse] comment might well be justified”.[15] We also note that the appellant’s experienced trial counsel did not raise this issue at the trial. This aspect of the second ground of appeal fails.
The lies direction
[13]See Mahomed v R [2010] NZCA 419, leave to appeal being refused on this ground in Mahomed v R [2011] NZSC 5.
[14] R v McRae (1993) 10 CRNZ 61 (CA).
[15] At 64.
The appellant submits there was no need in this case for any lies direction. His statement to the police was merely an “exculpatory explanation”. Mr Pyke accepts that, plainly, the Crown case was that the explanation was false. But even the prosecutor’s closing address did not refer to the statement as containing “lies”. Mr Pyke relied on a decision of this Court in R v Guo,[16] particularly the following passage:[17]
As noted, on the Crown case, the appellant’s whole account of Ah Ming, and his associated denial of guilt, were untrue. It was all just a “big lie”. Plainly, however, a lies direction is not required where the Crown simply maintains that a defendant’s exculpatory explanation is false.”
[16] R v Guo [2009] NZCA 612.
[17]At [68]. Counsel also relied on R v Worden CA111/99, 8 July 1999 at [20] and R v Takiari CA273/98, 22 July 1999.
In summary, Mr Pyke submits that the lies direction carried a risk of prejudice to the appellant. This was not a case where there was a “pattern of lies” or one where the appellant made the statement to “avoid criminal responsibility”. Hence there was no need for the Judge to give a lies direction.
Mr Downs submits that the Judge’s remarks in the summing up need to be assessed in context because the Judge considered that the appellant’s explanation of an accident was, at best, problematic. But it risked the jury concluding guilt through the rejection of the account as a lie. In such circumstances the direction was fair.
In elaboration as to the context, Dr Downs submits:
29.While the prosecutor used restrained language in discussing the appellant’s Police statement, it was an essential aspect of the Crown case that the most important element of the appellant’s statement was untrue. This had to be so, for, if the jury had a reasonable doubt that the injury was accidentally inflicted, at worst, the verdict was one of manslaughter. Moreover, the prosecutor spent some time identifying various matters in that statement which were politely described as either inaccurate or untrue. In particular, the prosecutor noted that the appellant couldn’t have forgotten about the knife in his pocket, as the appellant had claimed, having regard to its size; that the appellant’s account differed from Ziggy’s, in that the appellant had not gone to assist Ziggy; that the appellant’s claim of holding the knife out while allegedly attempting to grab the deceased to keep his own balance didn’t “hang together”; and that the appellant was an angry young man on the night in light of his conduct throughout the evening.
30.Moreover, while no one remarked upon this at trial, it is difficult to see how the appellant’s account of the deceased falling forward onto him – and on his own account, the knife – could be reconciled with the pathologist’s undisputed evidence that the wound’s track was parallel to the ground. But as the prosecutor did observe, the contention of an accident sat awkwardly with the appellant’s account to Ethan Buchanan that the appellant had stabbed the deceased but that he was confused as to why there was no blood on the knife.
(Footnotes omitted.)
The competing submissions on this aspect of the appeal must be assessed against the provisions of s 124 of the Evidence Act 2006, which provides:
124 Judicial warnings about lies
(1) This section applies if evidence offered in a criminal proceeding suggests that a defendant has lied either before or during the proceeding.
(2) If evidence of a defendant's lie is offered in a criminal proceeding tried with a jury, the Judge is not obliged to give a specific direction as to what inference the jury may draw from that evidence.
(3) Despite subsection (2), if, in a criminal proceeding tried with a jury, the Judge is of the opinion that the jury may place undue weight on evidence of a defendant's lie, or if the defendant so requests, the Judge must warn the jury that—
(a) the jury must be satisfied before using the evidence that the defendant did lie; and
(b) people lie for various reasons; and
(c) the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
(4) In a criminal proceeding tried without a jury, the Judge must have regard to the matters set out in paragraphs (a) to (c) of subsection (3) before placing any weight on evidence of a defendant's lie.
We are satisfied that the Judge properly exercised his discretion under s 124(3) of the Evidence Act when he gave the warning. We agree with the submission of Dr Downs that, seen in context, the direction was not unfair. As the appellant has not given evidence, the summing up did not contain a tri-partite direction. Given the importance of the accident explanation to the defence, we can readily understand why the Judge would have been concerned about the jury reasoning in favour of a guilty verdict upon rejection of the appellant’s explanation as a lie. The warning broadly followed the structure set out in s 124.
We do not find the case of R v Guo and the other case relied upon by Mr Pyke to be of assistance. Each of these cases arose in a different factual setting to the present. For example, in R v Guo the complaint by the appellant was that the Judge had not given a stand-alone lies direction.[18] Here the complaint is the opposite. It is true that the dicta relied upon by Mr Pyke suggest that where an accused’s false exculpatory explanation is offered in defence, a standard lies direction is not “required”.[19] But that does not mean that a lies direction, in either standard or limited form, is inappropriate in that context.
[18] At [62].
[19] Guo at [68].
We have no doubt that the Judge considered a lies direction was necessary for the reasons advanced by Dr Downs. We see no proper basis for interfering with the exercise of the Judge’s discretion on this issue. Once again, we note that none of the very experienced counsel appearing at the trial (including the appellant’s counsel Mr Mansfield) suggested that such warning should not have been given.
Accordingly, this aspect of the second ground of appeal also fails.
The lack of unanimity direction
How the direction arose
The Judge concluded his summing up just after 1.00 pm on Monday 30 March 2009. After receiving confirmation from counsel that no issues arose from the summing up, the Court taker was sworn at 1.06 pm and jury deliberations began. At 4.15 pm, the Registrar received a message from the foreperson that the jury was split on a decision and asked for guidance.[20] Although the jury communication identified the numerical split, the Judge determined not to disclose the numerical division to counsel or the accused.[21] Counsel for the appellant does not challenge the correctness of this approach.
[20] Minute No 4 of Harrison J at [1].
[21] Ibid at [2].
The Judge met with counsel in the presence of the accused and, after dealing with the non-disclosure point, discussed the nature of the directions he proposed to give. Although this issue is not canvassed in Minute No 4, the Court record states that the Judge would “bring the jury in & address them but not with a full [Papadopoulos]”. There is no reference to any objection by counsel to this course.[22]
[22] The same is the case in Minute No 4.
The Judge then directed the jury at 4.40 pm in terms of the recorded direction set out below. After referring to the fact that the jury communication had said that they were unable to agree and that he had decided it was “inappropriate and unnecessary that [he] disclose the division publicly”, he stated:
I am really going to repeat what I said to you earlier. The law in New Zealand currently is that all jury verdicts must be unanimous; that is, they must be verdicts on which you all agree. There is no room for majority verdicts.
I repeat my request also that you work together as a team and seek the objective of unanimity. It is not uncommon in trials of this nature for juries to be unable to agree after three hours of deliberation. I ask you to maintain open minds; to listen to each other; to go back and review the evidence; to reconsider your positions; to respect what each other has said; and give due deference to the opinions of other jury members. I particularly repeat my request that you approach your task calmly, dispassionately, clinically and logically, like all good judges. You must act according to reason, not instinct. Put aside fear or favour. As Mr Mansfield said, you are here to do justice according to the law, and that means according to reason and fairness.
For what it is worth, Madam Foreman, members of the jury, I am confident that with some more time – and you can have as much time as you want – that you will be able to reach a unanimous verdict.
So with those few words I am going to ask you to return to the jury room and resume your deliberations. Thank you very much.
The Court record confirms that at 5.18 pm the jury told the Registrar that they had reached a verdict.
Appellant’s submissions
Mr Pyke submits that this direction lacked a necessary component that each juror was to be true to their oath and it unintentionally conveyed pressure to reach a unanimous verdict by virtue of the Judge’s expressed confidence that they would reach a unanimous verdict. Counsel relied upon the decisions of this Court in R v Accused[23] and Q v R.[24] Particular reference is made to the fact that three cardinal points are to be covered, namely, the jurors’ acceptance of their duty to give a verdict according to the evidence; collective deliberation; and being true to their oath. As to the third of these points counsel referred to the passage in R v Accused stating:[25]
The third cardinal point is that no juror should change his or her mind merely for the sake of conformity or out of submission to pressure by other jurors; in the end no juror should vote against his or her conscientious view based on the evidence. This is an elementary and essential bulwark of the jury system.
[23] R v Accused (CA87/88) [1988] 2 NZLR 46 (CA).
[24] Q(CA63/2010) v R [2010] NZCA 487, [2011] 1 NZLR 328.
[25] At 58.
Counsel also points to the content of the approved direction dealing with the third point in R v Accused:[26]
But of course no one should be false to his or her oath. No one should give in merely for the sake of agreement or to avoid inconvenience. If in the end you honestly cannot agree, after trying to look at the case calmly and objectively and weighing carefully the opinions of others, you must say so. If regrettably that is the final position, you will be discharged and in all probability there will have to be a new trial before another jury.
[26] At 59.
Finally, Mr Pyke emphasises that the jury had reached a “deadlock” as opposed to a state of indecision.[27] Accordingly counsel submits that the nature of the direction given resulted in an unsafe verdict: it was based on “a faulty Papadopoulos direction”.[28] There was, therefore, a miscarriage of justice.
Respondent’s submissions
[27] Citing the decision of this Court in R v Bradbury [2007] NZCA 84 at [27].
[28] The decision in R v Sila [2009] NZCA 233, relied upon by the respondent, being distinguishable.
Dr Downs submits that there is no reason to consider that a juror was, or jurors were, untrue to their oath. The contrary submission involves pure speculation. Consideration of adherence to the oath lies at the heart of this ground of appeal. Dr Downs accepts that Harrison J did not recite the full template direction from R v Accused. But he submits that it emerges from more than one passage of the judgment in R v Accused that such was a model rather than a mandatory direction in relation to its terms. By way of illustration, when introducing the direction, Cooke P (as he then was) observed “that words on the following lines or to the like effect will ordinarily be appropriate in New Zealand when the jury report difficulty in agreeing” (emphasis added).[29] Later, the Judge stated:[30]
In future we think it will be preferable if a fuller direction is given, when a report or question from the jury indicates difficulty in agreeing, on the lines that we have set out, though the suggested wording is not hard-and-fast and the particular circumstances of a case may justify some modification.
[29]At 59.
[30] Ibid.
Dr Downs noted that the Judge at first instance in R v Accused had not given a direction in the proposed terms. But the Court of Appeal considered that: “In this particular case we consider that the direction was sufficient.”[31] Therefore, departure from the terms of the template direction does not necessitate a conclusion that there was a miscarriage of justice.
[31]Ibid.
Dr Downs refers to the decision of this Court in R v Sila.[32] The accused was convicted of two counts of murder and eight counts of intentionally causing grievous bodily harm after he drove into a crowd. During jury deliberation, a note was sent to the Judge stating: “What happens when an impasse is reached?” and “Are we please able to have guidance as to steps to take to carry on with our deliberations?” The Judge gave a condensed direction that: “Judges always hesitate to discharge a jury, because it usually means that the case has to be tried again before another jury and experience has shown that juries are often able to agree in the end if given more time.”[33] The jury deliberated for another day before returning verdicts. Some time after the direction had been given, but long before the taking of verdicts, the jury advised they had overcome their “impasse”.[34]
[32] R v Sila [2009] NZCA 233.
[33] At [70].
[34] At [72].
On appeal, the appellant in R v Silva contended that the Judge ought to have given a complete direction in terms of R v Accused. Appellant’s counsel submitted that “dissenting jurors had given in after hearing that a retrial would occur if there was a hung jury”.[35] But this Court rejected both points. For the Court, O’Regan J stated:
[74] The answer which the Judge gave to the jury’s question included wording which features in the R v Accused direction, and did not include anything that is not in that direction. While it may have been preferable for the whole direction to be given, we see no cause for concern about the course the Judge followed.
[35] Ibid.
That ground of appeal therefore failed. With respect to Q v R relied upon by the appellant, counsel submits that this appears to have turned on the point that it was known that the jury was unanimous on one count and very nearly so on the remaining count. Unusually, the existence of an 11 to one split was not suppressed by the Judge. This Court concluded that, in the absence of the full direction in R v Accused, “the juror who clearly joined with the majority in a unanimous verdict so soon after that direction was given may well have considered that to do so was what his or her oath called for”.[36]
[36] At [84].
Dr Downs also submits that the nature of the case is important. It attracted considerable media attention and that would have served to reinforce to the jury that the verdict carried consequences for all concerned including, most obviously, the appellant. Thus, the possibility of acquiescence in the verdict must be examined in this light. Further, it was implicit in the Judge’s remarks that no juror should acquiesce for the sake of apparent unanimity, and further, that a hung jury was possible. In this context counsel notes the following:
(a)the direction that the jury could have “as much time as you want” to consider their verdict;
(b)the central direction spoke of due deference, respect, reconsideration and review. Such terminology was inconsistent with capitulation on the part of a juror or jurors; and
(c)the direction to approach the task calmly, clinically and dispassionately signalled a process by which reason was to prevail over emotion including, it may be thought, stress or pressure from fellow jurors.
Our evaluation
As with any other jury directions, we consider that the direction following the indication of lack of unanimity must be viewed in context. We note that twice in the relatively short direction the Judge referred back to what he had said in his summing up about four hours earlier. The first repetition reference was to the need to “work together as a team and seek the objective of unanimity”. We agree with Dr Downs that the content of the whole direction is important. But so too is what the Judge had said earlier in his summing up.
We say this because it serves to blunt Mr Pyke’s criticism of the lack of reference to the “third cardinal point” and the suggestion of pressure to reach a unanimous verdict. We would add that the direction did not include a reference to the usual need following a discharge of the jury for the accused to be retried before another jury. Any pressure normally arising from such a statement did not arise in this case.
As to the summing up, it relevantly stated:
[7] It is easy for me to say this, Madam Foreman and members of the jury, but society expects Judges, and in this case that is you and me, to go about our business as calmly, dispassionately, clinically and logically as possible. You are, as I have said, the judges of the facts. Please approach your task in a fair and rational way. I repeat the warnings given to you by Mr Mansfield and by Mr Burns. I ask you to put aside any feelings of prejudice, sympathy and anger.
[8] You are very well aware from what you have seen and heard over the past week, and from what the two lawyers have said this morning, of the effects of Mr Borrell’s death. You know of the whanau support in this courtroom throughout the trial, and of the assistance that is provided for Mr Davis and for Mr Borrell’s memory. It is only natural that from time to time you will have experienced emotional responses. It is appropriate to acknowledge that reality. But having done so I ask you to disregard it. When you sit down in the jury room please put those emotions out of your mind. In particular, ignore what you may think is anything you have heard about this trial from outside sources or any feeling of pressure that you may have to decide the case in one way or another.
[9] Regrettably, Madam Foreman and members of the jury, I cannot give you any simple or magic formula for assessing the evidence and deciding what weight you should give to certain facts. If I could, you would not be here. Your evaluation of the facts is your responsibility alone. Can I simply ask you to do this. Please work together as a team when assessing the evidence. Each and every one of you must participate. Each of you has a voice of equal weight and importance. Please listen, as I know you will, with respect to each other, and please give deference duly and properly to other viewpoints. The process you follow should be a disciplined one and you should work progressively through the elements of the charge.
[10] Also, and I cannot emphasise this too strongly, you must use your robust common sense, your judgment and your experience. That is why you are here. Your experience and knowledge of the world is critical. Draw on what you know about people and of their affairs. You are, after all, selected from the wider Auckland area to exercise this community’s judgment. Together as a group you reflect its values. If you follow that advice you will, I hope, find making progress towards resolution that much easier.
…
[15] The next introductory topic is this. You must be unanimous on whatever verdict you reach. That means each of you must individually be of the opinion that Mr Davis is guilty or not guilty, whether of murder or the lesser charge of manslaughter. There is no room for compromise verdicts. When you come to deliver your verdict in open Court, Madam Foreman, you will be asked by Madam Registrar whether as a group you have agreed on your verdict. She will ask you first whether you find Mr Davis guilty or not guilty on the charge of murder. If you find him not guilty, then she will ask you whether you find him guilty or not guilty on the charge of manslaughter. You can take as long as you like or feel you need or you want for this purpose. But I stress the ultimate verdict must be one on which you all agree.
(Emphasis added.)
The emphasised portions of the summing up all confirm in various ways the need for all jurors to agree on the verdict reached. Although the notion of being true to the jurors’ oath is not expressed in those precise terms, that is the gravamen of the message conveyed. Likewise, in the shortened direction given by the Judge after three hours of jury deliberation, the concept of not changing one’s mind for the sake of conformity is the clear import of the message given, particularly when there were two references back to the summing up delivered earlier the same day. Moreover, the Judge had exhorted the jurors to act “like all good judges”.
We consider that, as in R v Sila, in the particular circumstances of this case the condensed direction was appropriate. The whole tenor of the message to the jury emphasised the need for open minds, deference to the opinions of others and the taking of a calm, dispassionate, clinical and logical approach “like all good judges”. The jury was also told that they “can have as much time as [they] want”. While it might have been preferable for the Judge to refer explicitly to jurors not submitting to pressure from others, we do not have a concern about the approach followed in this case.
We also refer specifically to the Judge’s comment: “For what it is worth, … I am confident that with some more time – and you can have as much time as you want – that you will be able to reach a unanimous verdict”. It seems to have been a throw-away line and was probably unnecessary.
We acknowledge Mr Pyke's point that, in R v Sila, the jury continued to deliberate for a considerable period of time after the Papadopoulos warning had been given. But that is not surprising as there were a total of ten charges in the indictment to consider – two counts of murder and eight of intentionally causing grievous bodily harm. Hereafter the direction at 4.40 pm, the jury deliberated for almost another forty minutes. We consider that any suggestion of pressure on the jury members – which is really the key point here – is pure speculation.
We are satisfied that the whole direction responding to the jury question as to how they might “fix this issue” of lack of unanimity, taken in context, did not amount to a miscarriage of justice. That being the case, no question of application of the proviso in s 385(1) of the Crimes Act arises.
The third ground of appeal must therefore fail.
Result
For the reasons set out above, the result of the appeal is that:
(a)an extension of time to appeal is granted; and
(b)the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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