Hunter v The Queen
[2012] NZCA 147
•17 April 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA584/2011 [2012] NZCA 147 |
| BETWEEN ALBERT WAYNE HUNTER |
| AND THE QUEEN |
| Hearing: 28 March 2012 |
| Court: Randerson, Keane and Lang JJ |
| Counsel: H S Parata for Appellant |
| Judgment: 17 April 2012 at 11.30 a.m. |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
___________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
The appellant was tried on nine counts of drug offending before Judge Perkins and a jury. After a three week trial, he was found guilty on 20 July 2011 on all counts.[1] He was sentenced on 31 August 2011 to six years imprisonment and now appeals against his conviction.[2]
[1] R v Hunter DC Auckland CRI-2010-404-94, 20 July 2011.
[2] R v Hunter DC Auckland CRI-2010-404-94, 31 August 2011.
The sole ground of appeal is that a miscarriage of justice arose through the failure by the trial Judge to interview two jurors to determine their impartiality after the appellant claimed to know them.
Background
At the end of the Crown case which had occupied about two weeks, the appellant sought a ruling from the Judge on two grounds, one of which was alleged juror bias. An order was sought declaring a mistrial. Judge Perkins rejected the application.[3]
[3] R v Hunter DC Auckland CRI-2010-404-94, 11 July 2011.
Through his counsel Mr Parata, the appellant accepts the accuracy of the Judge’s summary of the issues raised:
[7] The second point which Mr Hunter raises is that he is of the view that he knows two members of the jury. He says that he would not know them by name. He says that one of them he has apparently socialised with in a sports bar at Mt Albert and that that has been on a regular basis. The other is a juror who he said would have seen him in the area of the pokie machines of the casino and feels that that person may harvest some feelings of jealousy towards him because he has won money at the pokie machines at the casino. The two jurors have been identified by Mr Lance, not by name but by their positions in the jury box, the jury is tending to sit in the same seats each day of the trial.
Counsel informed us that no additional material beyond that in the Judge’s summary was placed before the Judge for his consideration. Even now, the appellant has not filed any further affidavit or other material elaborating on his claims to have known the two jurors. At no stage has he identified the jurors by name.
Prosecuting counsel Mr McCoubrey submitted before Judge Perkins that there was no basis for the Judge to take the matter further. The appellant had been in the Court for two weeks and had not raised any concerns until the end of the Crown case. The Judge discussed with counsel whether he should make an inquiry of the jurors but decided not to do so.
The Judge’s reasons for not conducting any further inquiry and his reasons for dismissing the application to declare a mistrial are summarised in his ruling:
[8] …As a matter of care, an inquiry could be made and I have had some discussion with other counsel about that and in particular, in ascertaining whether, first, the jurors do know Mr Hunter, although it is Mr Hunter who says he knows them, and that a second question could be asked as to whether if they know any of the accused, whether it affects their ability to deal dispassionately, fairly and impartially in their deliberations.
[9] I am of the view on this point that this is purely speculative on the part of Mr Hunter. The crier has intervened during the course of argument to indicate that the jurors receive strong directions at the outset of the trial. It is confirmed in information which is played to them before they even are selected for a jury, that if they know any of the accused or feel unable to deal with the case dispassionately and fairly, then they are able to indicate that to the crier. No indication has been made in this case. Nor, for that matter, any other indication, whether to the crier or directly to me. I am very reluctant indeed to raise this matter with the jury.
[10] I have considered it carefully and I do not consider that it has been put on a basis that there is substance in the submission. Accordingly, I have decided that the jury will not be approached in the manner that has been suggested and that basis which I take it, is for an application from Mr Hunter to have a mis-trial, is also rejected.
Counsel’s submissions
Mr Parata submitted that the Judge was under a duty in the circumstances to make an inquiry of the jurors identified by the appellant. Counsel submitted that any knowledge the jurors had about the appellant or any possible prejudice they might have held against him could only have been explored by an inquiry conducted by the trial Judge. Assurances by the court crier about the general warning given to jurors were not sufficient to discharge the Judge’s obligations. The Judge ought to have informed himself fully about any risk of bias by the jurors identified before making his ruling. Mr Parata supported his submission by reference to s 25(a) of the New Zealand Bill of Rights Act 1990 guaranteeing the appellant’s right to a fair and public hearing by an independent and impartial court.
Mr Parata cited R v C[4] for the proposition that “the test for bias is whether a fair-minded and informed member of the public would have the reasonable apprehension or suspicion that a jury or juror would not discharge their task impartially”. In R v C, the Judge had failed to conduct an inquiry considering that this was not warranted on the basis of the material made available to him. However, affidavit evidence provided to this Court on appeal showed that a woman associated with the complainant or the complainant’s mother had been in conversation with members of the jury and had made remarks to them to the effect that the appellant was “definitely guilty” and that “he did it”. In those circumstances, unsurprisingly, the Court found that the appellant’s conviction must be allowed and a retrial ordered.
[4] R v C (CA395/08) [2009] NZCA 272, [2010] 2 NZLR 289 at [36] – [46].
In R v C this Court also cited R v Blackwell [5] for the proposition that a judge may be under a duty to investigate issues of possible juror bias or interference. However, we note that any obligation on the part of the judge to investigate by questioning jurors was qualified by the observations by the English Court of Appeal that a “realistic suspicion” of jury interference was required and that an investigation by questioning jurors would depend on the circumstances.[6]
Discussion
[5] R v Blackwell [1995] 2 CrAppR 625.
[6] At 633 and 634.
Section 374 of the Crimes Act 1961 provides:
374 Discharge of juror or jury
Nothing in this Act affects the powers of a court or Judge or Registrar to discharge a juror or jury for a criminal case under section 22 or 22C of the Juries Act 1981.
Section 22(1) of the Juries Act 1981 gives the court the power, having regard to the interests of justice, to discharge the jury or one or more members of it. One of the grounds upon which the court may act under s 22 is where it considers that a juror is “closely connected” with a party, a witness or a prospective witness.[7] The court may act under s 22(1) on an application or on the court’s own initiative.[8] The defendant is entitled to appear and be heard on any such application.[9] In considering whether to discharge the jury or one or more of its members, the court may conduct a hearing and consider any evidence (other than evidence of the jury’s deliberations) it thinks fit.[10]
[7] Juries Act 1981, s 22(2)(e).
[8] Juries Act 1981, s 22B(1).
[9] Juries Act 1981, s 22B(2).
[10] Juries Act 1981, s 22B(3).
When an issue is raised at trial about the impartiality of a juror, it is clear both from s 22B of the Juries Act and from the authorities that the presiding judge may determine the issue in such manner as he or she thinks fit. There is no duty to conduct an inquiry by, for example, speaking to the jurors or the foreperson of the jury. The course the judge chooses to take will depend very much on the circumstances. There must be some realistic basis for suspicion of partiality or prejudice on the part of one or more jurors.
For example, in R v S[11] it was suggested that an historic connection between the appellant and the juror (who had been workmates for a short period ten years earlier) might have influenced the verdict. This Court noted that the matter was not drawn to the Judge’s attention at the time but, in any event, there was nothing to suggest that the juror would have been biased in any way towards the appellant[12]. There was no suggestion that the appellant and the juror were closely connected, other than by physical location. The appellant acknowledged he did not recognise the juror’s name when shown the jury list. This Court found there was no basis for any concern that the historical connection between the appellant and the juror might have influenced the verdict or otherwise created an appearance of injustice in the trial.
[11] R v S (CA369/01) (2002) 19 CRNZ 442.
[12] At [8].
Mr Raftery also referred us to R v Belcher.[13] In that case, the appellant said that he knew one of the jurors although not by name. The appellant said he had met the juror “sometime in my life”. The Judge made an inquiry of the juror who denied knowing the appellant. This Court found there was no reason to disbelieve the juror’s assertion that he had never known or worked with the appellant and noted that the appellant could not say where he had previously met the juror. There were no grounds to suggest the juror would have been prejudiced against the appellant and no basis for a concern that such a brief, historic connection would have influenced the jury’s verdict.[14] A similar case of an historic connection arose in R v S.[15]This Court found that the connection was not sufficiently strong to give rise to any perception of possible injustice.[16]
[13] R v Belcher CA367/05, 4 April 2006.
[14] At [12].
[15] R v S [1998] 3 NZLR 392.
[16] At 401.
This brief analysis of the authorities demonstrates clearly that the approach to be taken by a judge in cases as this is highly fact-dependent. In the present case, it would perhaps have been best for the Judge to have cleared up any doubt by questioning the two jurors. However, we are not persuaded that, in the circumstances, there was any realistic suspicion of juror bias or any concern that the claimed connection between the appellant and the jurors might have influenced the verdict or created a perception of injustice. If, as the appellant claimed, he had socialised with one of the jurors in a sports bar at Mt Albert on a regular basis, then it was surprising that the appellant could not name the juror and that he had not recognised the juror (or raised any concern) until, some two weeks after the commencement of the trial. If there was a connection, it could not have been a close connection.
Importantly, it was not suggested at the time that there might be some reason why the juror might have been prejudiced against the appellant. The appellant was represented by experienced counsel who could have been expected to raise any concern that the juror might not have been well-disposed towards the appellant. As already noted, even now, nothing of that kind has been placed before us.
As to the second juror, the claimed connection is even more remote. The mere fact that the juror might have seen the appellant in the area of the pokie machines at the casino could not possibly be a ground to suggest that the juror might have some form of animus towards the appellant. The suggestion that the juror might harvest some feelings of jealousy towards the appellant because he had won money at the pokie machines is far-fetched. Again, nothing further has been placed before us to support this contention.
We conclude that there was, in the circumstances, no basis to suggest there was any material risk of a miscarriage of justice arising through the appellant’s claimed connection with the jurors.
Result
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent