Farquhar v The King
[2025] NZHC 3213
•24 October 2025
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2025-412-3
[2025] NZHC 3213
BETWEEN BRUCE SCOTT FARQUHAR
Appellant
AND
THE KING
Respondent
Hearing: 20 October 2025 (By way of AVL) Appearances:
M E A Brosnan for Crown
T J Jackson and M L Boniface for Respondent
Judgment:
24 October 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 24 October 2025 at 4.15 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
FARQUHAR v R [2025] NZHC 3213 [24 October 2025]
Introduction
[1] On 29 November 2024, a jury found Mr Bruce Farquhar guilty of resisting a constable. He was convicted and sentenced to pay a $600 fine. Mr Farquhar now appeals this conviction.
[2] Initially he advanced his appeal on two grounds. The first challenged his conviction on the grounds the Judge’s summing up was defective. That ground was abandoned at the oral hearing. The remaining ground relates to the Judge’s failure to recuse himself, which the appellant says resulted in a miscarriage of justice.
Facts
[3] It is unnecessary for the purposes of this hearing to set out the allegations. It is enough to note that Mr Farquhar was tried before a jury on the following charges:
(a)assaulting a police officer;1
(b)threatening to kill;2
(c)refusing to accompany a police officer;3 and
(d)resisting police.4
[4] A charge of driving with excess breath alcohol,5 arising from the same incident, was withdrawn on 23 April 2024 under s 147 of the Criminal Procedure Act 2011.
[5] The charges arose from an incident on 15 August 2019 when Mr Farquhar was arrested after being pulled over by a police officer for allegedly speeding. The accounts then diverged. The prosecution evidence was that Mr Farquhar was administered a breath screening test which he failed and he then refused to co-operate
1 Crimes Act 1961, s 192(2)—maximum penalty three years’ imprisonment.
2 Crimes Act, s 306—maximum penalty seven years’ imprisonment.
3 Land Transport Act 1998, s 59(1)(b)—maximum penalty $4,500 fine.
4 Summary Offences Act 1981, s 23(a)—maximum penalty three months’ imprisonment or $2,000 fine.
5 Land Transport Act 1998, s 56(1) and subs (3).
with all subsequent steps and became violent leading the police to physically restrain him. Mr Farquhar, however, said it was the officer who initiated the physical confrontation.
[6] In the end, the jury found Mr Farquhar not guilty on all charges, except the charge of resisting police. He was convicted and fined $600 on that charge.
Principles on appeal
[7] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the jury’s verdict was “unreasonable” or that “a miscarriage of justice has occurred for any reason.”6 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.7
Background to the appeal
[8] On 23 July 2024, Judge Turner issued a ruling refusing Mr Farquhar’s request that the Judge recuse himself from presiding over Mr Farquhar’s jury trial.8 The relevant background which led to Mr Farquhar’s request was detailed in this ruling.
[9] One of the grounds for seeking the Judge’s recusal was the Judge’s decision to remove Mr Farquhar from a jury panel in June 2023. At that time, Mr Farquhar had pleaded not guilty to cannabis growing charges in 2020 and was challenging the admissibility of evidence to be relied on by the Crown which was obtained during the search of his house. The 2019 charges which are the subject of this appeal, were also active at the time.
[10] The circumstances relied on by Mr Farquhar to support this ground were set out in his 4 June 2024 letter (which is replicated from the Judge’s ruling) as follows:
6 Criminal Procedure Act, s 232(2)(a) and (c).
7 Criminal Procedure Act, s 232(4).
8 R v Farquhar [2024] NZDC 17203.
On 19 June 2023 I reported as requested for Jury Duty at the Dunedin District Court. I reported to the jury list Court Staff to report my presence only to be told that I was not required. When I asked what the reason was, I was advised that Judge Turner had crossed my name off the list. I then viewed the present/absent list in which my name was highlighted and a line crossed through it with a note beside my name indicating I had been withdrawn by Judge Turner.
[11] In his ruling the Judge explained the decision to remove Mr Farquhar from jury service as follows:
[40] Further, Mr Farquhar has misunderstood the circumstances leading to him being excused/stood aside. As is my standard practice before jury selection, counsel for the defence and the Crown were invited to advise the Court of potential jurors who should be stood aside or excused on the basis they are known to counsel. In this case, the Crown advised of several people, including Mr Farquhar, who were known to Dunedin Crown prosecutors to be stood aside or excused at the request of counsel. Section 16(3)(b) of the Juries Act 1981 permits a judge to excuse a person from jury service on that occasion if the judge “is satisfied that the person is personally concerned with the facts of the case, was closely connected with one of the parties or with one of the prospective witnesses”.
[41] … this was no more than the exercise of a judicial function to ensure that the jury selected was not tainted by reason of knowledge of someone closely connected to the trial.
[12] The Judge also identified it would be for the jury, and not the trial judge, to make a decision on Mr Farquhar’s guilty or innocence. He concluded Mr Farquhar had not raised anything which would lead an objective fair-minded observer to view the Judge as having a bias against him.
Appellant’s submissions
[13] In his written submissions, Mr Jackson alleges both actual and apparent bias. He submits the ordinary sensible member of the public, knowing the Judge had arbitrarily removed Mr Farquhar from an earlier jury panel, would consider it was either an arbitrary decision, or was due to the Judge’s knowledge and impartiality towards Mr Farquhar.
[14] In the hearing, Mr Farquhar focused more on the submission that there was no jurisdiction for the Judge to remove Mr Farquhar from a jury panel before selection begins and so the Judge acted without legal justification. He says this demonstrates
that the Judge’s “pejorative view of Mr Farquhar must have been the sole reason for the removal”.
[15] Mr Jackson submits that the relationship between the Crown prosecutor in Dunedin and Mr Farquhar did not fall within the circumstances in s 16(3) of the Juries Act 1981 (which was relied on by the Judge) and so there was no basis for removing him from the jury panel. Section 16(3) provides as follows:
16Judge’s discretion to excuse from jury service on particular occasion
…
(3)The Judge may excuse the person from attending on that occasion if—
(a)the panel that was used in summoning the person to attend as a juror has been compiled in respect of 1 trial only; and
(b)the Judge is satisfied that the person is personally concerned in the facts of the case, or is closely connected with one of the parties or with one of the prospective witnesses.
…
[16] Mr Jackson submits that the fact Mr Farquhar was being prosecuted by the Crown did not amount to a disqualifying connection with one of the parties as required by s 16(3) and so did not justify the Judge’s actions.
[17] Mr Jackson acknowledges the jury is the determiner of guilt, not the judge, but submits the judge’s role is influential and that the fair-minded observer would consider the Judge unfit to fairly preside over the trial “when confronted by the unlawful and unjustified removal of [the defendant as] a jury panellist” in the earlier trial.9
Respondent’s submissions
[18] Ms Brosnan, for the Crown, submits the Judge’s refusal to recuse himself was consistent with the legal principles that apply to recusals. She submits, Mr Farquhar, as a person being prosecuted by the Dunedin Crown Solicitor’s office on two matters, could be considered “known” to the prosecutor as a party to the trial under s 16(3)(b)
9 Citing Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
of the Juries Act. Further, such a person may be compromised in their ability to impartially consider another matter being prosecuted by the same office in the same District Court. Ms Brosnan submits the fair-minded lay observer would not find the Judge’s decision to stand Mr Farquhar aside from jury duty as being evidence of bias or personal animus against Mr Farquhar.
[19] Furthermore, Ms Brosnan submits for the appellant to succeed, he must prove both that there was a demonstration of bias and that the outcome of the trial was impacted.10 Ms Brosnan submits the appellant has failed to address the second aspect of the legal test and there is therefore no reason to disturb the jury’s verdict.11
Analysis
[20] As recently espoused by the Court of Appeal in Castle v R, the test for recusal is:12
… whether there is a real possibility that, in the eyes of a fair minded and fully informed observer, a judge may not be impartial in reaching a decision in the case. Impartiality must exist as a matter of fact and as a matter of reasonable appearance.13 This is an objective test — how would it appear to an ordinary sensible member of the public with appropriate knowledge of the relevant circumstances, including the general workings of the legal system.14
[21] As identified by the Judge in the recusal ruling, s 16(3)(b) of the Juries Act was relied upon in removing Mr Farquhar from the jury selection in June 2023. However, s16(2) of the Juries Act enables a Judge to excuse a person from attending as a juror under s 16(3) “only on an application made by or on behalf of that person”. Clearly, Mr Farquhar did not initiate an application to have himself removed as a juror so the Judge’s reliance on s 16 was misplaced.
[22] The removal of Mr Farquhar may have been better dealt with under s 25 of the Juries Act as a Crown challenge for cause on the ground Mr Farquhar was not indifferent between the parties. The fact he was being actively prosecuted by the
10 Citing Hartley v R [2014] NZCA 162 at [120].
11 Citing Hartley v R, above n 11, at [123]–[124].
12 Castle v R [2025] NZCA 539 at [35].
13 Guidelines for Judicial Conduct 2019 at [23].
14 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 10, at [3] per Blanchard J, [37] per Tipping J, [89] per McGrath J and [127] per Anderson J.
Crown was clearly a circumstance which might suggest that he would not be indifferent between the parties. While s 16 only arises on application by the potential jurors themselves, the Juries Act allows the parties to also raise issues that might suggest a juror is not impartial. Here, both the Crown and defence were able to raise concerns about the members of the jury panel in advance of the trial, thus avoiding needing to challenge for cause during the jury selection process. That ability, afforded to both parties, cannot be said to demonstrate bias in favour of one party.
[23] In the circumstances, there is no basis for Mr Jackson’s allegations of actual bias—the Judge explained he undertook a usual practice in removing Mr Farquhar from the jury panel by virtue of his current charges and therefore his association with the Crown. Notwithstanding the unclear jurisdictional basis for Mr Farquhar’s removal, the reason for the removal was clearly explained and no adverse inference could be drawn from that about the Judge’s impartiality.
Was there any impact on the outcome of Mr Farquahr’s trial?
[24] However, whether or not the Judge had jurisdiction to remove Mr Farquhar from the jury panel in advance of the empanelling process, the real issue (as Mr Jackson acknowledged) is whether there is any logical connection between the decision to discharge Mr Farquhar from the jury service in another trial and any impact, apparent or actual, on the outcome of Mr Farquhar’s trial.
[25] As was explained in Hartley v R15 (where it was argued the trial Judge should have recused himself for apparent bias), when applying the test in Saxmere Co Ltd, it was necessary to, first, identify what might have led the Judge to decide the case other than upon its merits and, second, to identify a logical connection between that matter and the possible outcome. In a jury trial, the apparent bias would have to manifest itself in interlocutory rulings or the Judge’s conduct and directions vis-à-vis the jury. No reasonable apprehension of bias can arise “merely because a trial Judge makes interlocutory rulings or is aware of matters that are not before the jury”.16
15 Hartley v R, above n 11 at [120].
16 At [120].
[26] Here, the jury, which is the factfinder, was not aware of the Judge’s decision to remove Mr Farquhar from the jury panel on another trial. Furthermore, Mr Jackson acknowledged he could not point to any part of Mr Farquhar’s trial where it could be said the Judge displayed bias or where the Judge’s alleged bias adversely impacted the outcome at trial.17 It was the Judge’s role in this case to preside over the trial while it was the jury’s role was to decide on guilt or acquittal. Here, the jury did acquit on three of the four charges which further indicates the jury was not affected in its decision-making by any alleged bias on the part of the Judge.
[27] I am satisfied that the fair-minded observer, with knowledge of the full context for the removal, and having read the recusal decision, would not think personal bias motivated the Judge’s decision to remove Mr Farquhar from the jury panel. Further, there is no real possibility that the fair-minded and fully informed observer would consider the outcome of Mr Farquhar’s subsequent trial was affected in any way by this earlier decision.
Result
[28]The appeal is dismissed.
Solicitors:
Crown Solicitor, Dunedin JMJ Lawyers Ltd, Timaru
17 At [123].
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