Jury v The King

Case [2024] NZCA 320

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
 CA342/2021
 [2024] NZCA 320
BETWEEN

RAYMOND IVEAGH JURY
Appellant

AND

THE KING
Respondent
Hearing:

16 April 2024

Court:

Cooke, Collins and Osborne JJ

Counsel:

C W J Stevenson and S J Parry for Appellant
Z R Johnston and Z R Hamill for Respondent

Judgment:

16 July 2024 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.

BThe appeal against sentence is allowed.  The minimum period of imprisonment of 17 years is set aside and a minimum period of imprisonment of 14 years is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

  1. Mr Jury appeals his conviction for having murdered Mr Rikihana on 30 January 2019.  He also appeals the minimum period of imprisonment (MPI) of 17 years which he must serve before he is eligible to apply for parole.

  2. At the hearing of the appeal, three grounds were advanced against conviction:

    (a)The High Court erred when it allowed the Crown to adduce hearsay statements from the late Rex Maney in which he said that Mr Jury was responsible for the murder of Mr Rikihana.

    (b)Mr Jury’s trial counsel erred when he did not call Jason Maney as a witness.  Jason Maney had previously told an investigator that when he was dying, Rex Maney told him that he, Rex Maney, was responsible for Mr Rikihana’s death.

    (c)The trial Judge should have cautioned the jury about the use that they could make of Rex Maney’s hearsay statement.

  3. Following the appeal, a fourth ground of appeal against conviction was pursued.  The ground alleged Mr Jury’s trial counsel erred by not adducing evidence of Rex Maney’s 2009 conviction for perverting the course of justice.

  4. The appeal against sentence is based on the contention that the High Court erred when it concluded Mr Rikihana’s murder engaged s 104 of the Sentencing Act 2002.  Three questions are raised by the appeal against sentence:

    (a)Was Mr Rikihana’s murder “committed with a high level of brutality, cruelty, depravity, or callousness”?[1]

    (b)Was Mr Rikihana “particularly vulnerable because of his … age, health, or because of any other factor”?[2]

    (c)If s 104 of the Sentencing Act applied, was it manifestly unjust to impose an MPI of 17 years?[3]

    [1]Sentencing Act 2002, s 104(1)(e).

    [2]Section 104(1)(g).

    [3]Section 104(1).

  5. Pursuant to s 232 of the Criminal Procedure Act 2011, we must allow the appeal against conviction if we are satisfied that a miscarriage of justice has occurred.[4]  A miscarriage of justice includes an error that has affected the trial in circumstances where there is real risk that the outcome of the trial was affected.[5]

The murder of Mr Rikihana

[4]Criminal Procedure Act 2011, s 232(2)(c).

[5]Section 232(4)(a).

  1. At the time of his death, Mr Rikihana was 69 years old.  He was a slight man who was 168 cm tall but weighed just 49 kg.  Mr Rikihana, Mr Jury and Rex Maney were all long-term members of the Mongrel Mob. 

  2. Mr Rikihana…

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Details
AGLC
Jury v The King [2024] NZCA 320
Case
[2024] NZCA 320
Decision Date

CaseChat Overview and Summary

This appeal concerns the conviction of a man on multiple counts of child sexual abuse. The applicant, Mr Nabney, appeals against his conviction on the grounds that the trial Judge failed to consider providing a direction to the jury under s 122 of the Evidence Act. The Court of Appeal heard the appeal and considered whether the trial Judge was required to give such a direction and whether the failure to do so amounted to a miscarriage of justice. The legal issue before the Court of Appeal was whether the trial Judge was required to give a direction to the jury under s 122 of the Evidence Act and whether the failure to do so constituted a miscarriage of justice. The Court of Appeal found that the trial Judge was required to consider giving a direction to the jury under s 122 of the Evidence Act, but there was no record of the trial Judge having done so. The Court of Appeal also found that the failure to give such a direction amounted to a miscarriage of justice. The Court of Appeal found that the trial Judge was required to consider giving a direction to the jury under s 122 of the Evidence Act, but there was no record of the trial Judge having done so. The Court of Appeal found that the failure to give such a direction amounted to a miscarriage of justice and quashed the conviction.

The Court of Appeal did not make any orders in relation to the conviction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The provision of judicial directions to juries about evidence which may be unreliable is governed by s 122 of the Evidence Act. The relevant parts of that section state:122 Judicial directions about evidence which may be unreliable(1)If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—(a) whether to accept the evidence:(b) the weight to be given to the evidence.(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:(a) hearsay evidence:(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a Police station, or another place of detention:(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.(3) In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—(a) if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.(4) It is not necessary for a Judge to use a particular form of words in giving the warning.…(6) This section does not affect any other power of the Judge to warn or inform the jury. It is clear from s 122(1) that a reliability direction is not mandatory and may only be considered where the Judge forms the opinion that admissible evidence may nevertheless be unreliable. The only mandatory requirement on a trial judge is to consider giving a warning whenever one or more of the categories of evidence set out in s 122(2) is placed before a jury. In this case, s 122(2)(a) and (c) were engaged and the trial Judge was therefore required to have considered giving a warning under s 122(1). There is no record of the trial Judge having considered giving a direction pursuant to s 122. Mr Nabney thinks he may have raised the issue with the trial Judge, but there is no record of him having done so. Our concerns about the apparent failure of the trial Judge to have considered giving a s 122 direction are reinforced by the guidance in the Supreme Court as given in relation to s 122 directions. In CT v R, a case that concerned historical sex offending and therefore engaged s 122(2)(e), the Supreme Court emphasised that “the whole premise of the section is that it is not always appropriate to leave it to counsel to point out the risks associated with particular types of evidence”.[19] The Supreme Court stressed that the Judge must take responsibility for pointing out these risks where “the jury [is] left with competing contentions from counsel and without any real assistance in addressing them”.[20][19]CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [50] per Elias CJ, McGrath and William Young JJ.[20]At [51] per Elias CJ, McGrath and William Young JJ.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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