Hunter v The Queen - [2012] NZCA 147

IN THE COURT OF APPEAL OF NEW ZEALAND

CA584/2011
[2012] NZCA 147

BETWEEN ALBERT WAYNE HUNTER
Appellant

AND THE QUEEN
Respondent

Hearing: 28 March 2012

Court: Randerson, Keane and Lang JJ

Counsel: H S Parata for Appellant
K Raftery for Respondent

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…

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.

Continue reading Hunter v The Queen

Details

AGLC: Hunter v The Queen [2012] NZCA 147
Case: [2012] NZCA 147
Decision Date: 17 April 2012

CaseChat Overview and Summary

In the case of Hunter v The Queen, the appellant, Albert Wayne Hunter, appealed against his conviction on nine counts of drug offending. The appellant was found guilty by a jury in a trial before Judge Perkins and was subsequently sentenced to six years imprisonment. The appeal against the conviction was dismissed by the Court of Appeal of New Zealand. The sole ground of appeal was that a miscarriage of justice arose through the trial Judge's failure to interview two jurors to determine their impartiality after the appellant claimed to know them.

The legal issue before the Court was whether the trial Judge was under a duty to interview the two jurors in question to determine their impartiality, in light of the appellant's claim that he knew them. The appellant argued that any knowledge the jurors had about him or any possible prejudice they might have held against him could only have been explored by an inquiry conducted by the trial Judge. The Court considered the relevant authorities, including the New Zealand Bill of Rights Act 1990 and the Juries Act 1981, to determine whether the Judge was required to conduct an inquiry.

The Court concluded that there was no duty on the part of the judge 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. In this case, the appellant's claims about his connections with the jurors were speculative and did not give rise to any realistic suspicion of juror bias or any concern that the claimed connection might have influenced the verdict or created a perception of injustice. Therefore, the appeal against conviction was dismissed.

The Court of Appeal did not make any specific orders in this case, as the appeal against conviction was dismissed. The appellant's conviction and sentence remain in place.

Orders