George Robert Jolley v The Queen - [2019] NZSC 34

NOTE: COURT OF APPEAL ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSES A AND B PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 109/2018
[2019] NZSC 34

BETWEEN	GEORGE ROBERT JOLLEY Applicant
AND	THE QUEEN Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	S N B Wimsett for Applicant R K Thomson for Respondent
Judgment:	1 April 2019

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted in the High Court at Rotorua of attempted murder, participating in an organised criminal group and unlawfully being in an enclosed building. The offending was committed in the course of a clash between members of Black Power and Mongrel Mob gangs. The applicant is associated with Black Power. His conviction appeal to the Court of Appeal was dismissed.[1]
[1]Jolley v R [2018] NZCA 484 (Asher, Courtney and Moore JJ) [Jolley (CA)].
The basis of the application for leave to appeal to this Court is as follows:
(a)The system of jury vetting carried out in Rotorua (and thus in this case) lies outside the practices approved by this Court in R vGordon-Smith (No 2).[2]
(b)A series of challenges to the Court of Appeal’s decision in respect of a run of the trial issues, including: (i) the way that the prosecutor opened the case; (ii) evidence given by a police officer; (iii) hearsay evidence in respect of identification evidence; and (iv) alleged jury intimidation.
[2]R v Gordon-Smith (No 2) [2009] NZSC 20, [2009] 2 NZLR 725.
Jury vetting in Rotorua involves the police accessing the National Intelligence Application and, in this way, obtaining information about potential jurors which includes, but is not confined to, convictions. The police use this information to mark up the jury list so as to identify those who they do not wish to serve as jurors. This is done without reference to particular trials (and thus without reference to particular defendants). Those recommended for exclusion are those with extensive criminal histories or active alerts such as gang membership, drug use or unlawful firearms convictions. The primary vetting information is not made available to the prosecutor. The details of the practice are set out at [20] of the Court of Appeal’s decision.
The Rotorua practice differs from the process explicitly approved in Gordon‑Smith in that the information provided by the police to the prosecutor does not consist of the details of previous convictions. In that case, the process under challenge involved the police examining the jury list to see whether potential jurors had criminal convictions and then supplying an annotated list to the Crown setting out the result of their inquiries. The Supreme Court indicated that the Crown should disclose to the defence any previous conviction which gave rise to a real risk that the juror might be prejudiced against the…

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.

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Details

Case: [2019] NZSC 34
Decision Date: 1 April 2019

CaseChat Overview and Summary

In the case of George Robert Jolley v The Queen, the applicant, George Robert Jolley, sought leave to appeal against his conviction by the Court of Appeal for attempted murder, participating in an organised criminal group, and unlawfully being in an enclosed building. The case was heard by William Young, O’Regan, and Ellen France JJ. The applicant argued that the jury vetting system in Rotorua was not compliant with the Supreme Court's decision in R v Gordon-Smith (No 2) and that there were errors in the Court of Appeal’s handling of several trial issues. The Crown opposed the application.

The primary legal issue was whether the Rotorua jury vetting system complied with the Supreme Court's decision in Gordon-Smith and whether there were trial errors warranting an appeal. The Supreme Court found that while the Rotorua system differed from the Gordon-Smith process, there was no evidence of tangible prejudice to the applicant. The court noted that the Rotorua system, which did not target specific defendants, likely resulted in the exclusion of jurors with relevant convictions or associations. The Supreme Court also held that the trial issues raised by the applicant did not warrant an appeal as they did not present matters of public or general importance and did not indicate a miscarriage of justice.

The Supreme Court dismissed the application for leave to appeal, ruling that the Rotorua jury vetting system did not cause actual prejudice and that the trial issues were adequately addressed by the Court of Appeal. No appeal was granted, and the applicant's convictions stood.

Orders