James v R

[2011] NZCA 219

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA397/2010 [2011] NZCA 219

BETWEEN  FRANK WILLIAM JAMES Appellant

ANDTHE QUEEN Respondent

Hearing:         15 March 2011

Court:            Harrison, Courtney and Clifford JJ Counsel:    M Simpkins for the Appellant

S B Edwards for the Respondent

Judgment:      24 May 2011 at 3.45 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The appellant’s conviction and sentence are quashed and a new trial is

ordered.

COrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on internet or other publicly available database until final disposition of retrial.  Publication

in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by Clifford J)

JAMES V R COA CA397/2010 [24 May 2011]

Table of Contents

Para No

Introduction ......................................................................................................... [1] An improperly constituted jury? ....................................................................... [4] Factual context ............................................................................................ [6] Submissions on appeal................................................................................. [9]

Who may be a juror? – The Juries Act 1981 ............................................. [11] Discharge ................................................................................................... [13] Analysis...................................................................................................... [16]

Was evidence improperly admitted at trial? .................................................. [33] Was Mr James sentenced on the wrong factual basis? .................................. [36] Result .................................................................................................................. [40] Addendum.......................................................................................................... [41]

Introduction

[1]      The appellant, Mr Frank James, and Ms Louise Perry lived together from

2001 to 2008.  During that time they were each separately in receipt of the Domestic Purposes Benefit.   The Crown contended that from May 2003 onwards Mr James and Ms Perry were no longer flatmates, but were living in a relationship in the nature of marriage.   Accordingly, they had given false information to Work and Income New Zealand in order to continue to receive the Domestic Purposes Benefit.

[2]      After trial before Judge McGuire and a jury in the District Court at Rotorua, Mr James was found guilty on one count of wilfully omitting to advise that he was living in a relationship in the nature of marriage and on eight counts of dishonestly using a document to obtain a pecuniary advantage.  Ms Perry was found guilty on one count of wilfully omitting to advise that she was living in a relationship in the nature of marriage  and  one count  of dishonestly using  a document  to  obtain  a pecuniary advantage.

[3]      Mr James  was  sentenced  to  two  years  and  three  months’ imprisonment, Ms Perry to three months’ home detention.  Mr James now appeals against both his conviction and sentence.  Ms Perry has not appealed her conviction or sentence.

An improperly constituted jury?

[4]      Mr James challenges his conviction principally on the basis that the jury that convicted  him  was  improperly  constituted  because  it  included  Mr H,  who  is intellectually disabled.  This matter was drawn to the Judge’s attention after the jury had been empanelled.  Section 8 of the Juries Act 1981 provides that persons with an intellectual disability are not to serve on any jury in any Court on any occasion. Section 2 of the Juries Act imports the definition of intellectual disability found in s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the IDCCR).

[5]      As a result, the Judge made enquiries to determine the extent of Mr H’s disability, to try and ascertain whether Mr H was disqualified.   Based on those enquiries, the Judge decided that Mr H should remain on the jury.  Mr James argues that, once that matter was drawn to the Judge’s attention, the Judge improperly allowed Mr H to remain on the jury.

Factual context

[6]      The factual context for the consideration of this aspect of Mr James’ appeal is helpfully recorded in the Judge’s trial ruling of 12 May (Ruling No 2),1  and in his post-trial minute of 24 May 2010 (Minute No 2):2

(a)      Mr H was balloted to serve on the jury at the start of the trial.  Mr H was not challenged and the jury – including him – was duly sworn in. Day one of the trial proceeded without reference to Mr H’s intellectual disability.

(b)Prior  to  the  commencement  of  the  trial  on  day  two,  the  Court convened in Court for chambers.   Mr Schultz, defence counsel for Ms Perry, reported that a part-time caregiver of one of his children was  Mr H’s  brother-in-law.    Through  that  person  Mr  Schultz  had

become  aware  that  Mr H  was  ―intellectually   impaired;  mentally

1      R v James DC Rotorua CRI-2008-063-5461, 12 May 2010 [Ruling No 2].

2      R v James DC Rotorua CRI-2008-063-5461, 24 May 2010 [Minute No 2].

impaired, and has the intellectual age of a 12 year old‖.3    Mr Schultz also reported that Mr H lived with his mother, that his occupation was that of handyman, and that he could ―fend for himself‖.4

(c)      The Judge then brought the foreperson into Court and explained the gist of what Mr Schultz had told the Court.  The foreperson advised the Court that he knew the juror being spoken of, but that there were no problems relating to his role as a juror – he was playing his appropriate part.  The Judge asked the foreperson to report back to the Court if any problems arose during the course of the trial.   He also told the foreperson not to refer to the precise nature of the discussions that had taken place in Court when he spoke with the rest of the jury.

(d)Day two of the trial then proceeded.  At 11.45am that day a Deputy Registrar reported to the Judge that the Court had received a call from Mr H’s brother saying that Mr H should not serve on the jury.  The Registrar’s memorandum of that telephone call was as follows:5

On  Tuesday,  11  May,  I  received  a  phone  call  from  the brother  of  a  sitting  juror,  [Mr  H].     The  brother  was concerned that [Mr H] had been selected on a fraud trial. The brother told me [that Mr H] had an intellectual disability and had asked to be excused the last time he had been summonsed because of the disability.    [Mr H] was summonsed again and replied that he would be available for jury service for the week of 10 May.

[Mr H] was in IHC in his childhood, he does work now. Why did the Court not decline [Mr H] when it had the information about his disability?   Why is he allowed on a jury when he is like this?  It is not fair for the accused and he would be easily influenced by other jurors.   He wouldn’t have a clue what is going on.  It was explained to the juror’s brother that jurors’ names are taken from the electoral roll.

(e)      The Court was again convened in Court for chambers and the Judge explained  the  gist  of  the  brother’s  telephone  call  to  counsel. Mr Schultz  correctly drew  the  Judge’s  attention  to  the  fact  that  a

person with an intellectual disability may not serve on any jury.

3 At [2].

4 At [2].

5 At [5].

(f)      The  Judge  decided  to  investigate  the  juror’s  intellectual  disability further.  To that end, contact was made with Mr H’s mother, Mrs H. Mrs H attended Court the next day and, in Court for chambers and, having been sworn, was asked a series of questions by the Judge based  on  the  various  elements  of  the  definition  of  intellectual disability found in the IDCCR.  She was then questioned by counsel and counsel then briefly addressed the Judge.

[7]      The Judge concluded he was not satisfied Mr H was intellectually disabled and therefore declined to discharge Mr H from the jury, notwithstanding the clearly expressed views of the Crown and the defence to the contrary.   We note that, by reference to those clearly expressed views alone, we find the Judge’s decision surprising.

[8]      It is finally appropriate to record that in his post-trial minute of 24 May the Judge made the following comments relating to the conduct of the jury and Mr H’s participation:6

The trial was concluded on day six.  The jury required the remainder of that day and a further day and a half to reach majority verdicts on 11 of 15 counts.   There were a number of written questions from Mr Foreperson whilst the jury were deliberating.  All were sensible questions.  I formed the view that Mr Foreperson was both intelligent and conscientious. At no stage did he raise a concern about the juror Mr H in spite of my invitation to do so if he had any concerns.

Throughout the trial, Mr H appeared to be attentive to both evidence and submissions.  Early on he armed himself with a clipboard.  I do not know whether he took notes.

Submissions on appeal

[9]      For Mr James, Mr Simpkins submitted that, rather than the Judge himself inquiring   into   Mr H’s   intellectual   disability,   that   inquiry  should   have   been undertaken by two ―health assessors‖, as is required in terms of s 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP).  For the Crown, Ms Edwards submitted that there was nothing to suggest that Parliament intended that prospective jurors should be the subject of the prescribed assessment process by two

health assessors. That would, in Ms Edwards’ submission, be totally impracticable.

6      Minute No 2 at [13].

[10]     More generally, Mr James’ appeal on this point was that the Judge improperly arrived at his  conclusion not to discharge Mr H.   On that it was Ms  Edwards’ submission that, on the basis of the evidence he heard, the Judge was properly satisfied that Mr H was not suffering from an intellectual disability.  That being so, there was no basis to remove him from the jury and no basis therefore – by reference to his presence on the jury – to challenge Mr James’ conviction.

Who may be a juror? – The Juries Act 1981

[11]     The Juries Act 1981 identifies persons who may, and may not, be jurors.  It also allows judges, in certain circumstances, to discharge juries and jurors.

[12]     In terms of who may be a juror:

(a)      Section  6  provides  that,  subject  to  subs (7)  and  (8),  the  basic qualification for being a juror is that of being an elector in accordance with the Electoral Act 1993.

(b)Section 7 disqualifies certain persons who have been sentenced to imprisonment from serving on juries.

(c)      Section 8 provides that certain persons, including those with an intellectual disability (subs (k)), shall not serve on any jury in any court on any occasion.

Discharge

[13]     Once a jury has been constituted, s 22 provides for the discharge by judges of individual jurors and juries in the following terms:

Discharge of juror or jury

(1)   When this subsection applies, the Court, having regard to the interests of justice, may either—

(a)  discharge the jury without the jury giving a verdict (whether unanimous or majority); or

(b)   discharge the juror or jurors concerned from the panel and jury and proceed with the remaining jurors and take their verdict (whether unanimous or majority).

(2)   Subsection  (1)  applies  if,  and  only  if,  before  or  after  the  jury  is constituted but before the jury's verdict is taken, the Court considers that—

(a)   a juror is incapable of performing, or continuing to perform, the juror's duty as a juror in the case; or

(b)   a juror is disqualified ...

[14]     It is important to record at this juncture that s 22(2) provides a judge with distinctly alternative powers to discharge a juror after the trial has started: either by reason of incapacity (subs (2)(a)) or by reason of disqualification, including because of intellectual disability (subs (2)(b)).

[15]     Section 22B sets out the procedure for determining the question of whether a juror or a jury should be discharged.  It provides:

Further provisions about discharge under section 22

(1)   The Court may discharge the jury or a juror or jurors under section

22(1)(a) or (3)—

(a)   on an application for the purpose; or

(b)   on its own initiative.

(2)   A defendant is entitled to appear and be heard on an application under section 22.

(3)   In considering whether to discharge the jury or a juror or jurors under section 22(1)(a) or (3), the Court may conduct a hearing, and consider any evidence (other than evidence of the jury's deliberations) it thinks fit.

Analysis

[16]     The  Judge  here  approached  the  question  of  whether  Mr H  should  be discharged solely by reference to the s 21(2)(b) ground of disqualification, focussing on the definition of intellectual disability applicable to the Juries Act, namely that found in s 7 of the IDCCR. That definition provides:

(1)   A person has an intellectual disability if the person has a permanent

impairment that─

(a)   results in significantly sub-average general intelligence; and

(b)   results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least 2 of the skills listed in subsection (4); and

(c)   became apparent during the development period of that person.

(2)   Wherever practicable, a person’s general intelligence must be assessed by applying standard psychometric tests generally used by clinicians.

(3)   For  the  purposes  of  subsection  (1)(a),  an  assessment  of  a  person’s general intelligence is indicative of significantly sub-average general intelligence if it results in an intelligence quotient that is expressed─

(a)   as 70 or less; and

(b)   with a confidence level of not less than 95%. (4)   The skills referred to in subsection (1)(b) are─

(a)   communication: (b)   self-care:

(c)   home living: (d)   social skills:

(e)   use of community services: (f)   self-direction:

(g)   health and safety:

(h)   reading, writing, and arithmetic: (i)       leisure and work.

(5)   For the purposes of subsection (1)(c), the developmental period of a person generally finishes when the person turns 18 years.

[17]     The Judge clearly considered himself constrained by the requirements of that definition. At the start of his ruling he observed:7

I need to say to counsel if this were just a case of erring on the side of caution, I would have no hesitation in discharging [Mr H] as a juror, but that is not my prerogative.  I have to follow the criteria in the Act and I do not have discretion about that.  I have to follow the test in s 7 of the Intellectual, Disability (Compulsory Care and Rehabilitation) Act 2003.

[18]   In our view, this is where the Judge first erred.   The Judge’s error is understandable to the extent that he and counsel all apparently assumed that his power to discharge Mr H was limited to the ground of disqualification by virtue of intellectual disability.   However, the s 7 test necessarily involves assessment of a person by one or more health professionals.  Judges are simply not in a position to assess themselves whether a juror is intellectually disabled, as defined for Juries Act purposes.

[19]     Those conclusions are confirmed by the following elements of that definition:

(a)      a conclusion of ―significantly sub-average intelligence‖ requires an assessment of a person’s intelligence quotient expressed as 70 or less with a confidence interval of not less than 95 per cent; and

(b)      any  identification  of  ―significant  deficits  in  adaptive  functioning‖

requires an assessment using ―tests generally used by clinicians‖,

[20]    Such an assessment can only properly be undertaken by relevant health professionals.  In the absence of any evidence provided by an assessment of Mr H carried out by relevant health professionals in terms of s 7 of the IDCCR, the Judge was not in a position to deal adequately with the issues raised by Mr H’s intellectual handicap.  Nor did the Judge have jurisdiction to order that Mr H be compulsorily assessed, as in effect Mr Simpkins submitted when he referred to s 14 of the CPMIP.

[21]     In our judgment the Judge should have considered the alternative jurisdiction to  discharge  provided  by  s 22(2)(a).    He  should  have  conducted  an  inquiry  to determine whether Mr H was capable of performing his duty as a juror in the case. In fairness to the Judge, this course was not apparently suggested by counsel.   A juror’s duty is reflected in the terms of the juror’s oath:8

Members of the jury:

Do each of you swear by almighty God (or solemnly, sincerely, and truly declare and affirm) that you will try the case before you to the best of your ability and give your verdict according to the evidence?

[22]     To give a verdict according to the evidence requires an acceptable ability to understand and consider the evidence, and to participate in a jury’s deliberations. Where there is evidence that a person may suffer from a significant intellectual disability, there is likely to be a real issue of that person’s ability to perform their duty to give a verdict according to the evidence.  Thus, where a question is raised as to the possible disqualification of a juror by reference to intellectual handicap or disability,  and  where  medical  evidence  of  the  type  we  have  referred  to  is  not available, judges should consider that issue in terms of a possible discharge under s 22(2)(a).  Such an assessment may be carried out by the judge on the basis of the judge’s general knowledge and experience, and without the judge purporting to make

the professional assessment that the definition of intellectual disability in the IDCCR

calls for.

[23]     From our perspective, and in assessing Mr H’s capability to perform his duty, important aspects of Mrs H’s evidence included:

(a)      Mrs H did not think her son would be good as a juror ―because of his mental disability, which is only a partial disability‖.

(b)Mrs H’s evidence was that ―he was about a 13 year old‖  – which we take to be some reference to a measure of IQ.

(c)      In response to a question of whether Mr H was able to read, Mrs H said he did take books out of the library but she thought he did not read the whole book, rather he looked at some of the pictures.   He was, however, able to read, write and do arithmetic.

(d)Mr H lived at home with his mother and did some things to look after himself.  Mrs H had made arrangements for Mr H to be looked after when she died by shifting into a little house behind one of her other sons on the understanding that that son would look after Mr H.

[24]     We acknowledge that Mrs H did, in answer to questions by the prosecutor and counsel for Ms Perry, provide some confirmation – in response to being shown certain exhibits – that Mr H could understand bank statements and the like.  She also expressed the view that he could understand notions of financial interdependence in the context of the jury’s fundamental decision as to whether or not Mr James and Ms Perry were living in a relationship in the nature of marriage.  Mrs H thought her son would be able to follow legal directions, some of which may or may not be complex, on questions of law.   However, in light of the answers she had earlier provided to the Judge, we have serious reservations about those aspects of Mrs H’s assessment of her son’s capabilities.

[25]     To us there appears a real risk, based on Mrs H’s evidence alone, that Mr H as a juror may not have been in a position to consider the evidence, may have been easily led, and may not have independently reached a view on the matters before

him.  Furthermore, with respect to Mrs H’s assessment, we are concerned that Mr H may not have properly comprehended the quite complex question at the heart of Mr James’ trial, namely whether Mr James was in fact living with Ms Perry in a relationship in the nature of marriage.

[26]     We are also concerned that the Judge did not himself interview Mr H in the course of conducting the hearing pursuant to s 22B(3).   This was, we think, an essential step in an inquiry which required the Judge’s own evaluation of Mr H’s capability.   While that might not always be an easy course, we are satisfied that Judges are well equipped to interview a juror with sensitivity and insight, with the interests of justice and the accused well in mind.  The decision of this Court in R v

N,9   which  provides  general  guidance  on  how  a  trial  judge  should  respond  to

communications from a jury which raise issues about a particular juror, supports the proposition that here the Judge should have spoken to the juror in question, and have done so in the presence of counsel and the accused.

[27]     We also think the Judge, in the circumstances, would have been well advised to speak with Mr H’s brother, if he were available.  In our view, the Judge’s failure to discuss matters directly with either Mr H or his brother, means that the very real possibility that Mr H was, by reason of his intellectual disability, not capable of performing his duty as a juror was not adequately investigated.

[28]     What is the significance of these errors?

[29]     The general principle is that an accused person is entitled to be tried by 12 jurors capable of performing their duty as such.   The Juries Act provides for the discharge of a jury who is not so capable.   There is also the very fundamental principle that justice must not only be done, but be seen to be done.  We therefore consider  that  the  Judge’s  failure  to  address  the  question  of  Mr H’s  capability properly, albeit that if he had done so and discharged Mr H the verdict of 11 jurors would have stood, does raise a real issue going to the safety of the jury’s verdict, and

therefore the possibility of a miscarriage of justice.

9      R v N (CA373/04) (2005) 21 CRNZ 621 at [19(3)].

[30]     Moreover, we do not think it appropriate to resolve this appeal on the basis that Mr H’s continuing presence on the jury may not have had any impact on its deliberations.  That would be to speculate.  We simply observe that the foreman, but not the other jurors, was aware of the issues raised by the Judge.  That itself may have had an impact on the jury’s deliberations.   Similarly, given the fact that the jurors were not aware of the matters considered by the Judge, they may – and we can put the matter no more highly than that – have been influenced by Mr H in reaching their verdict in a way they would not have been if they had been aware of the full position.

[31]     We therefore do not consider that the possibility that Mr H’s presence on the

jury has caused a miscarriage of justice can be set aside.

[32]     We allow Mr James’ appeal against his conviction accordingly.

Was evidence improperly admitted at trial?

[33]     At trial, two witnesses, Mr James’ former partner and an administrator at the school  attended  by  Ms Perry’s  daughter  and  Mr James’ sons,  gave  evidence  of Ms Perry’s daughter calling Mr James ―dad‖  and Mr James’ son calling Ms Perry

―mum‖.  The defence objected to that evidence on the basis that it was hearsay.  The Judge rejected the Crown argument that the evidence was not being used to prove the truth of its contents, but nevertheless decided it was admissible as res gestae.  In this appeal Mr Simpkins for Mr James again raised the hearsay objection, contending at the same time that the evidence was not admissible as res gestae.

[34]     As Mr Simpkins accepted during the hearing of this appeal, we think the Crown’s initial position at trial that the challenged evidence was not hearsay was clearly correct.   That evidence was led not to prove the truth of its contents, but rather to establish the fact of what the children had called the accused.  From that fact the jury would then be asked to make inferences as to the nature of the relationship between them.

[35]     If we had not already allowed Mr James’ appeal against his conviction, we

would have dismissed his appeal on that ground.

Was Mr James sentenced on the wrong factual basis?

[36]     Mr James was sentenced on the basis that his offending had occurred over a period of some five years and had involved him dishonestly receiving Domestic Purposes Benefit payments totalling some $85,000.   Mr Simpkins challenged the sentence on the basis that the Judge should have allowed for the receipt by Mr James of the unemployment benefit during the relevant period, as he was unemployed throughout that period.  If that allowance had been made, the amount involved would have been considerably less, in effect resulting in a starting point sentence which may have entitled Mr James to consideration for home detention.

[37]     Mr Simpkins based that submission on the High Court decision of Ioane v Department of Social Welfare.10   We think that decision is readily distinguishable.  In Ioane, the Crown conceded that the accused would probably have been entitled to the unemployment benefit throughout the relevant period of the dishonest receipt of another benefit.  No such concession was, or as we understand the facts could, have been made here.  There is therefore no ―rule‖ in Ioane that the District Court Judge failed to follow.   Rather, the District Court Judge in sentencing Mr James gave a credit for the average period of time that persons in the Rotorua area spend on the

unemployment benefit, namely 43 weeks.   It was after that allowance that the sentence was fixed.   Mr Simpkins was not able to advance any factual basis upon which the conclusion could have been drawn that Mr James would, in fact, have been entitled to the unemployment benefit throughout the time covered by his offending.

[38]     It follows that the Judge did not err in that manner.  Again, if we had not already allowed Mr James’ appeal against conviction we would have dismissed his appeal against sentence.

[39]     We ask that Mr Simpkins refer this judgment to Mr Schultz, defence counsel for Ms Perry.

Result

[40]     The appeal against conviction is allowed.  We quash Mr James’ conviction

and sentence and order a new trial.

Addendum

[41]     In addition to our analysis as necessary for the disposition of Mr James’ appeal, we observe more generally that we consider that the incorporation into the Juries Act of the definition of intellectual disability in the IDCCR causes significant difficulties.

[42]     The assessments called  for by that definition are carried out, often on a compulsory basis, by health professionals pursuant to the regime created by the IDCCR and its companion legislation the CPMIP.  That legislation, in combination, creates a regime for the detention and/or compulsory care of intellectually disabled persons who are charged with and convicted of an imprisonable offence or, having been so charged, who are found unfit to plead or not guilty by reason of insanity. Therefore, an intellectually disabled person must have been charged with an imprisonable offence before they become subject to that regime.

[43]     Intellectually disabled jurors are not, just because they have been summonsed as jurors, subject to any compulsory assessment procedures.  Moreover, it would be quite inappropriate – given that those procedures only apply to intellectually disabled persons who are charged with imprisonable offences and with respect to whom the Court has made the threshold determination that they ―caused  the act or omission that forms the basis of the offence with which the defendant is charged‖11   – if they were.  Additionally, a trial judge is most unlikely to have time to arrange a voluntary assessment, even if a juror was in the position to, and did, consent.

[44]     These  considerations  highlight  the  practical  difficulties  that  arise  in  this context.

[45]     This position may be seen as being further confused by the implications of s 6 of the Juries Act.  Section 6 sets out the basic qualification to serve as a juror, namely that of being an elector in accordance with the Electoral Act 1993.  Section

80(1)(c) of the Electoral Act disqualifies certain intellectually disabled persons who are  subject  to  compulsory  detention  pursuant  to  the  relevant  provisions  of  the IDCCR from registering as electors.  In effect, therefore, s 80(1)(c) of the Electoral Act means certain intellectually disabled persons are disqualified.  And yet s 8(k) of the Juries Act provides that all intellectually disabled persons are not to serve on juries. The inconsistency seems obvious.

[46]     It may be observed, moreover, that the reference to intellectual disability in s 8 of the Juries Act, and in turn to the definition thereof found in IDCCR, would appear  deliberate.    In  2008,  when  various Acts  were  amended  following  New Zealand’s ratification of the United Nations Convention on the Rights of Persons with Disabilities, s 8 of the Juries Act was amended by the deletion of the reference

to persons who were mentally disordered.12     At that time, however, reference to

persons who were intellectually disabled was consciously retained.

[47]     We therefore consider that these provisions of the Juries Act would benefit from legislative review.  We understand that the Ministry of Justice may currently be undertaking a review of the IDCCR and the CPMIP.  We direct the Registrar to refer this judgment to the Secretary for Justice in that context.

Solicitors:

Lance Lawson, Rotorua for Appellant

Crown Law Office, Wellington for Respondent

12     Disability (United Nations Convention on the Rights of Persons with Disabilities) Act 2008, s 5(4).