Hatch v The Queen
[2016] NZCA 339
•19 July 2016 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA523/2015 [2016] NZCA 339 |
| BETWEEN | COREY HATCH |
| AND | THE QUEEN |
| Hearing: | 31 May 2016 |
Court: | Ellen France P, Clifford and Katz JJ |
Counsel: | D M Goodlet for Appellant |
Judgment: | 19 July 2016 at 3 pm |
JUDGMENT OF THE COURT
AAn extension of time to file the notice of appeal is granted.
B The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
On 12 February 2015, after a jury trial in the District Court, the appellant Corey Hatch was found guilty by a majority verdict on charges of wounding with intent to cause grievous bodily harm and possession of a knife in a public place. Mr Hatch was sentenced on 4 May 2015 to eight years’ imprisonment, and ordered to serve a minimum period of imprisonment of four years.[1]
[1]R v Hatch [2015] NZDC 7789.
On 15 September 2015 Mr Hatch appealed his conviction.[2] He did so on the basis that his conviction represents a miscarriage of justice because one of the 11 jurors who supported the majority verdict was biased and predetermined.
[2]Mr Hatch also appealed his sentence. The sentence appeal will be heard separately if it is being pursued.
To pursue that ground of appeal, Mr Hatch would need to give evidence of the jury’s deliberations. The purpose of the hearing before us on 31 May 2016 was to determine, in terms of the agreed procedures in this area, whether Mr Hatch’s appeal met the threshold test that applies before such evidence may be given.
Mr Hatch needs an extension of time to file the notice of appeal. Mr Hatch explained the delay, the Crown did not object and we grant an extension accordingly.
Facts
On 26 May 2015 a member of the jury at Mr Hatch’s trial, Ms X, wrote a “to whom it may concern” letter. That letter was left by Ms X’s husband in Mr Hatch’s mother’s mailbox. In that letter Ms X expressed concerns about the fairness of the jury’s deliberations. She also said that, after the jury had given its verdict and had been discharged, another member of the jury (Mr Y) had told her that Mr Hatch had confessed to the offending in prison and, because of that, was not allowed to be in possession of knives. Mr Y knew that, Ms X wrote, because his wife — who was a warden at the local prison — had told him so. Ms X wrote “[w]hether what she [Mr Y’s wife] said was true or not is not up to me to decide but I feel this may have influenced the jury member’s decision.”
That letter was brought to Ms Goodlet’s attention. Very properly, Ms Goodlet approached the Crown. It was agreed that a private detective would obtain a signed statement from Ms X. This Court was advised accordingly in mid-December of 2015. Pursuant to directions from this Court, that statement was filed on 16 February 2016. In that statement Ms X again traversed the matters of concern to her regarding the jury’s deliberations. In addition, and as relevant, she said:
(a)Mr Hatch’s mother had at some time been living across the road from her. Ms X “did not know her well, other than to say hello to as we don’t have a lot to do with our neighbours”. Ms X had disclosed those matters to the Court prior to being empanelled.
(b)During the trial Ms X had spent time with Mr Y. They were both smokers and went outside together and smoked during breaks. They did not discuss the trial at those times.
(c)After the jury was released by the Judge, she and Mr Y had walked back to their cars together. Mr Y had said to her “good on [you] for sticking to your guns”, and had then gone on to say he had made up his mind Mr Hatch was guilty the night before the jury had reached its verdict. He had then referred to what his wife had told him.
(d)Ms X went on to say that she had been “shocked” by what Mr Y told her, as the Judge had given “explicit” instructions to the jurors not to discuss the case with anybody, and that Mr Y had information that had not been “presented” during the trial.
(e)She did not suggest Mr Y had influenced the jury’s deliberations in any material way. In fact she said “[h]e didn’t really get involved in the jury room discussions once we had retired, he just voted guilty.”
(f)She did not know whether Mr Y had told any other juror what his wife had told him — Mr Y did not mention that.
(g)When Ms X had typed up her letter she gave it to her husband to put in “Ange Hatch’s” letterbox, as he knew where she then lived.
A joint memorandum was filed at the same time as that statement. Counsel clarified the issue on appeal. The issue was the significance of Mr Y’s actions (juror misconduct). No issue was taken with any aspect of the jury’s deliberations. That memorandum also sought timetabling orders on an agreed basis. Those timetabling orders anticipated that the Crown might also want to interview a juror or jurors.
As matters transpired the Crown decided not to do so. Rather, on 15 March 2016 the Crown filed a memorandum, advising the Court of its decision and drawing attention to the questionable admissibility of Ms X’s statement. The Crown said a proper consideration of Ms X’s assertions would require other jurors to be questioned. That could only be done with leave. These matters were drawn to the attention of Stevens J. On 21 March the Judge directed there be a hearing before a Divisional Court to determine “whether this potential ground of appeal crosses the threshold of meriting further attention”.
That same day a memorandum from Ms Goodlet was filed in Court. It would appear that, although an electronic copy of the memorandum had been received on 17 March, it was not drawn to Stevens J’s attention when he made his order that day. The Judge was careful to recite receipt of the Crown’s memorandum of 15 March. He did not refer to that later memorandum from Ms Goodlet. Be that as it may, in her memorandum Ms Goodlet submitted that the next consideration was whether Ms X’s hearsay statement could stand on its own in relation to the issue of juror misconduct or whether further investigation needed to be undertaken. Ms Goodlet expressed some preliminary views on those issues.
Law
Where a juror raises issues about the jury’s deliberations or, as not uncommonly (as here) happens at the same time, about juror misconduct revealed outside the jury room, two factors have, over time, influenced the approach the courts take. The first is the longstanding refusal of the courts, as a matter of fundamental principle, to consider evidence of a jury’s deliberations at all. This Court stated that principle in the following terms in R v Papadopoulos:[3]
As to the contents of the juror's affidavit, for centuries the Courts have declined to receive affidavits from jurors purporting to disclose what took place during their deliberations in the jury room or jury box. The rule dates from at least the time of Lord Mansfield CJ, who would not look at an affidavit of two jurors swearing that the jury were divided and reached a verdict by tossing up: Vaise v Delaval (1785) 1 TR 11; 99 ER 944. There are many cases in the reports, ancient and modern, illustrating the rule. It is sufficient to cite as an example Rv Roads [1967] 2 QB 108; [1967] 2 All ER 84 where the Court of Appeal rejected an affidavit from a juror to the effect that she admitted being present in Court and hearing the foreman give the verdict as the verdict of them all, but that although believing the defendant not guilty she was too afraid to protest that she was not in agreement with the verdict. Delivering the judgment Lord Parker CJ said that it was clear that the verdict was returned not only in her presence but also in her hearing, and it was therefore impossible to receive the affidavit.
The rule is essential in the public interest for a number of reasons. Discussion of some of the reasons will be found, for instance, in the judgments of Lord Denning MR in Boston v W S Bagshaw & Sons[1967] 2 All ER 87n; [1966] 1 WLR 1135n, and of the Full Court in Victoria in Re Matthews and Ford [1973] VR 199. One reason is the need for finality in decisions; the uncertainty that would prevail if it were always open to a juror to say afterwards that he or she had not really agreed is obvious. It is also vital that jury discussions should be free and frank; no juror should be deterred from expressing his or her independent opinion by the fear of victimisation or undesired publicity if that opinion could later be disclosed. Public confidence in the jury system could be shaken and jurors could be distracted from doing their duty conscientiously if individual members of the jury were free to publicise their own versions of debates in the jury room. Jurors should not be exposed either to importuning on behalf of the accused or by litigants or to any temptation to capitalise on disclosures. All these reasons are as important today as ever they were.
[3]R v Papadopoulos [1979] 1 NZLR 621 (CA) at 626.
That principle is now reflected in s 76 of the Evidence Act 2006:
76Evidence of jury deliberations
(1)A person must not give evidence about the deliberations of a jury.
(2)Subsection (1) does not prevent the giving of evidence about matters that do not form part of the deliberations of a jury, including (without limitation)—
(a)the competency or capacity of a juror; or
(b)any conduct of, or knowledge gained by, a juror that is believed to disqualify that juror from holding that position.
(3)Subsection (1) does not prevent a person from giving evidence about the deliberations of a jury if the Judge is satisfied that the particular circumstances are so exceptional that there is a sufficiently compelling reason to allow that evidence to be given.
(4)In determining, under subsection (3), whether to allow evidence to be given in any proceedings, the Judge must weigh—
(a)the public interest in protecting the confidentiality of jury deliberations generally;
(b)the public interest in ensuring that justice is done in those proceedings.
In light of that principle, the courts have long had, and now with reference to s 76 continue to have, a practice of not receiving such evidence without prior leave. The purpose of the requirement for leave is to allow the Court to assess whether there is a sufficient likelihood that the very rare circumstances in which such evidence may be received, as now provided in s 76(3), exist. This Court in R v Taka described that practice in the following terms:[4]
When there is reasonable ground for contending that, despite the general rule, a disclosure of jury deliberations is admissible, the proper course is an agreed memorandum by prosecuting and defending counsel or, failing that, an application to this Court for directions. Members of the jury should not be approached by counsel without the leave of the Court or the agreement of the Crown. Examples of the agreed memorandum procedure are the cases of R v Norton-Bennett [1990] 1 NZLR 559 (CA) and R v Bates [1985] 1 NZLR 326 (CA) and R v Gillespie CA277/88, 7 February 1989.
[4]R v Taka (1991) 7 CRNZ 544 (CA) at 546.
In that sense, a threshold test exists as regards the admissibility of such evidence.
The second factor is that not every instance of juror misconduct will give rise to miscarriage of justice. In R v Bates a threshold test was articulated: namely there must be a suspicion on reasonable grounds, that is on an objective view, that the misconduct may have influenced the verdict.[5] The Court went on to find in Bates that, where that threshold test would have been met if some incident affecting a juror stood without explanation, the Court, where fully apprised of the circumstances, might nevertheless conclude that no miscarriage of justice had occurred.[6]
[5]R v Bates [1985] 1 NZLR 326 (CA) at 328.
[6]At 329.
Here Ms X’s concerns based on perceptions of unfairness in the jury’s deliberations were raised at the same time as concerns with a juror’s misconduct. Evidence of the first type of concerns necessarily engages the prohibition now expressed in s 76. As s 76(2) reflects, however, evidence of concerns of the second type do not necessarily do so. It is now clear that Mr Hatch would not seek to adduce evidence from Ms X as to the jury’s deliberations. Rather, that evidence would be limited to the question of Mr Y’s misconduct as a juror, as reflected in the allegation that he had discussed the case with his wife and may have been biased or predetermined.
In R v Absolum a similar circumstance arose.[7] There, the allegation was that one or more members of the jury had made enquiries of their own in the course of the trial. The submission was made that that allegation of itself was sufficient for the Court to order an enquiry into jury misconduct. This Court did not accept that proposition. Having noted that not every instance of improper enquiries by jurors will give rise to a miscarriage,[8] the Court said:
[14] Mr Mansfield expressed concern about the lack of guidance in circumstances such as arose here. We think it emerges from the authorities, and particularly R v Taka (1991) 7 CRNZ 544 (CA) that where there is evidence of juror misconduct, so long as the evidence is extrinsic to the jury deliberations, that evidence may be placed before the Court. The issue of misconduct in the course of jury deliberations is more difficult. Then the grounds for concern should be set out in a memorandum from counsel (and if possible a joint memorandum) and provided to the Court with a request for directions. Jurors should not be approached. If the Court is satisfied, on oral argument if necessary, that some enquiry is warranted (and that will be relatively uncommon) directions may be given for independent counsel to be instructed to investigate. That may involve approaching the foreman or another or other members of the jury. More commonly, if on extrinsic evidence it appears the verdict may be unsafe, the appeal should proceed and, where appropriate, a new trial will be ordered.
[7]R v Absolum CA118/2003, 21 August 2003.
[8]At [8].
The Court concluded that even if the jurors had made the enquiries alleged, the Court was not persuaded that would have influenced the verdict that was given. That is, it did not find that the threshold test from Bates had been met. It applied that test to assist in reaching a decision on whether allegations of juror misconduct should be investigated further.[9]
Submissions
[9]At [11].
Ms Goodlet argued that if Mr Y had, the night before the jury’s deliberations, made up his mind that Mr Hatch was guilty because of what his wife had told him, then on an objective assessment that was misconduct that could have influenced the verdict and, accordingly, a miscarriage had occurred. Ms Goodlet drew our attention to decisions of this Court such as R v Gillespie,[10] R v Bates[11] and R v Tinker[12] in support of that proposition. She distinguished a number of other decisions, R v Taka,[13] R v Taunoa[14] and Neale v R,[15] where the Court had been able to come to the decision that, even if substantiated, no real risk of miscarriage arose. Ms Goodlet submitted that we could be satisfied the substantive threshold test had been met.
[10]R v Gillespie CA227/88, 7 February 1989.
[11]R v Bates, above n 5.
[12]R v Tinker [1985] 1 NZLR 330 (CA).
[13]R v Taka, above n 4.
[14]R v Taunoa CA170/97, 22 September 1997.
[15]Neale v R [2010] NZCA 167.
However, if we were not so satisfied, we should at least order that further enquiries be made, on an agreed basis, into Ms X’s allegation of misconduct by Mr Y. That would involve evidence of matters extrinsic to the jury’s deliberations, and therefore not presumptively inadmissible, of juror misconduct.
For the Crown, Mr Pike’s principal submission was that the potential evidence was unsatisfactory. There were considerable variations between Ms X’s initial complaints, as expressed in her letter to Mrs Hatch, and in the statement she had made to the private investigator. In particular, in that statement she had not repeated her concern that what Mr Y had learnt from his wife (true or not) may have influenced his decisions. Rather, she had gone as far as saying that Mr Y had, in effect, told her he had predetermined the matter the night before the jury’s deliberations, based on what he said his wife had told him. The difference was obvious and concerning.
There were other difficulties with the proposed evidence, including what would appear to be a degree of familiarity between Ms X and Mrs “Ange” Hatch, and something of a lack of candour: why would Ms X refer to her husband knowing where Mrs “Ange” Hatch lived? Surely if her husband knew that, so would she.
Mr Pike’s submission was, therefore, that there was no basis upon which it could be said the substantive threshold for miscarriage had been reached.
The Court could do no more at this point than consider the possibility of further investigations. The threshold for further investigation had not, Mr Pike submitted, been reached. In light of the difficulties with the evidence, and the underlying principle that a jury’s deliberations should remain confidential and that jurors should not fear that after having given their verdict they will be questioned about it, we should not allow such investigations.
Analysis
We say at once that there is no basis upon which we could come to the conclusion that the substantive threshold test is met by the putative evidence that is before us. Clearly, we could not come to any substantive decision for no other reason than that the statement is not sworn and was taken by a private investigator. We also agree with Mr Pike that that evidence suffers from a number of substantive weaknesses. We are concerned that there has been considerable elaboration from Ms X’s letter to her written statement. The statement would appear to have been crafted, we feel forced to say, with the relevant legal principles in mind, rather than as a frank statement of fact.
The real issue here is whether, as was the subject matter of our hearing at the time set down by Stevens J, there is a basis for further investigations being made into the matters raised by Ms X on an agreed basis. As in Absolum,[16] we think that assessment needs to be made with the substantive test in mind, but also bearing in mind that the evidence now proposed is not subject to the presumptive inadmissibility set out in s 76(1).
[16]R v Absolum, above n 7.
Having said that, we think the underlying principle — that is the courts’ concern to maintain the confidentiality of jury deliberations — remains a relevant factor. Jurors who are questioned about possible misconduct will not easily draw the distinction that s 76 makes. For that reason, a threshold assessment is appropriate and can only be made on the basis of the materials before us.
For four principal reasons, we are not satisfied that that threshold is met here. Those reasons are:
(a)There are the substantive difficulties with the two quite different statements Ms X has now made. We refer to the factors we discussed above as regards the substantive threshold.
(b)There is the prima facie improbability of what Mr Y is said to have been told by his wife, and the absence of any evidence from Mr Hatch himself that would support those comments. It is to us simply improbable in the extreme that, having consistently claimed (as his only defence) that he was not carrying a knife on the night in question and did not stab the victim, Mr Hatch should confess in prison that he had done so. The suggestion, moreover, that it was for that reason he was not allowed a knife in prison does not make sense. The reason is obvious. It must go without saying that prison authorities will, as a matter of course, control the access that prisoners have to knives and other dangerous instruments.
(c)We think there is something of a hint of, if not collusion, then sympathy based on a pre-existing relationship. Although Ms X says that she had not, to the best of her ability, met Mr Hatch, she was sufficiently familiar with Mrs Hatch that, in her statement, she referred to her by the familiar name “Ange”.
(d)Finally, there is also the coincidence that Mr Y chose to make the remarks he did to the one juror who had not joined the majority verdict. It may be that the human explanation for that was that he was in some way seeking to extend empathy or support to her. But if he was, then that itself raises questions about the reliability of the narrative Ms X now advances.
Outcome
We therefore decline to order any further investigations. On that basis, Mr Hatch is granted an extension of time to file the notice of appeal but his appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
0