Kitson v The Queen - [2014] NZCA 634

IN THE COURT OF APPEAL OF NEW ZEALAND

CA333/2013
[2014] NZCA 634

BETWEEN	JAMES DALE KITSON Appellant
AND	THE QUEEN Respondent

Hearing:	17 November 2014 (further submissions received 10 December 2014)
Court:	French, Asher and Clifford JJ
Counsel:	B J Hesketh and N P Chisnall for Appellant P K Feltham for Respondent
Judgment:	19 December 2014 at 3.00 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is dismissed.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

James Dale Kitson was found guilty on 7 February 2013, following a jury trial before Judge Moses in the Papakura District Court, of one count of possession of cannabis for supply. He was sentenced to one year and five months’ imprisonment.[1]
[1]R v Kitson DC Manakau CRI-2010-092-12162, 24 April 2013.
He has filed an appeal against his conviction. The single ground of appeal is that a prosecuting lawyer inadvertently showed irrelevant and prejudicial material to the jury and the resulting prejudice was not adequately remedied by judicial direction. It is submitted that there is a real risk this occurrence affected the outcome of the trial, and resulted in an unfair trial giving rise to a miscarriage of justice.
The appeal was filed out of time. In the circumstances, and there being no objection from the Crown, we consider an extension of time is appropriate. We grant one accordingly.

The unintended viewing of unrelated material

Mr Kitson filed an affidavit in support of the appeal setting out the facts as he recalled them. Since the hearing of the appeal, we have received a transcript of the exchanges between trial counsel and the Judge on the topic, the Judge’s direction to the jury, and an affidavit from the prosecuting lawyer, Mr N.
On the second day of the trial Mr N, who was one of two Crown prosecutors present and who had a support and assistance role in the trial, was looking at a booklet of photographs not connected to Mr Kitson’s case. The booklet was on his lap and had the name “Vincent Kitson” on the front. Vincent Kitson, a different person from Mr Kitson, was charged with methamphetamine offending. Mr N was preparing for his pending trial. That pending trial had nothing to do with Mr Kitson. Mr Kitson deposed that he saw some of the jurors looking at the material.
The booklet contained photographs of items of glassware. In some of the photographs it was possible to see boxes. The booklet also included copies of documents, such as records relating to the importation of items into New Zealand from overseas. Mr N deposed that he was seated some two metres away from Mr Kitson and some two and a half metres away from the closest juror.
At the next break Mr Kitson pointed out to his counsel, Ms Dyhrberg QC, that some of the jurors had been looking at the material. She brought the matter to the Judge’s…

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 Kitson v The Queen

Details

AGLC: Kitson v The Queen [2014] NZCA 634
Case: [2014] NZCA 634
Decision Date: 19 December 2014 at 3.00 pm

CaseChat Overview and Summary

In Kitson v The Queen, the appellant, James Dale Kitson, sought to appeal his conviction for possession of cannabis for supply, arguing that a prosecuting lawyer inadvertently exposed the jury to irrelevant and prejudicial material, potentially affecting the outcome of his trial. The appeal was filed out of time, but the Court of Appeal granted an extension of time to hear the appeal. The legal issue before the court was whether the inadvertent exposure to irrelevant material constituted a fundamental breach of natural justice warranting a retrial.

The Court of Appeal found that the inadvertent exposure to irrelevant material did not constitute a fundamental breach of natural justice warranting a retrial. The court reasoned that only five jurors saw the material, the jury did not know what the pictures were of or what they related to, the Judge promptly informed the jury that the material was irrelevant to the trial, and the experienced trial counsel did not assert prejudice or object to the trial proceeding. The court further noted that the situation in this case was different from the situation in Guy v R, where the wrongly introduced material related to the trial, had been deliberately excluded from admission at that trial, the jury had the wrongly introduced material in the jury room throughout its deliberations, and there was no direction given to the jury to ignore the wrongly introduced material. The court concluded that the integrity of the trial was not undermined by the prosecuting lawyer's error and that any possible unfairness was rectified by the Judge's direction.

The appeal was dismissed. The court did not make any further orders.

Orders