Liu v R
[2017] NZCA 573
•7 December 2017
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA440/2016 [2017] NZCA 573 |
| BETWEEN | LIANG LIU |
| AND | THE QUEEN |
| CA443/2016 | |
| BETWEEN | LEI DAI |
| AND | THE QUEEN |
| Hearing: | 3 October 2017 |
Court: | Harrison, Brown and Collins JJ |
Counsel: | L D Burns for Appellant (CA440/2016) |
Judgment: | 7 December 2017 at 12 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction (CA440/2016) is dismissed.
BThe appeal against conviction (CA443/2016) is dismissed.
____________________________________________________________________
REASONS
Harrison and Brown JJ [1]
Collins J [50]
Introduction
The appellants, Lei Dai and Liang Liu, were found guilty on charges of drug dealing following a trial in the District Court at Auckland before Judge Thorburn and a jury. Mr Dai was found guilty of supplying ephedrine, a class B controlled drug. Mr Liu was found guilty of attempting to possess the same drug for the purpose of supply. Both men were convicted and sentenced to terms of imprisonment.[1] They appeal against conviction only.
[1]Mr Dai was sentenced to three years and six months’ imprisonment, and Mr Liu was sentenced to three years’ imprisonment: R v Dai [2016] NZDC 16661.
Mr Dai appeals on the ground of his trial counsel’s failure to advise him adequately of the process for exercising peremptory jury challenges. Mr Liu appeals on the ground of the Judge’s omission to direct the jury on one element of the charge. Both say a miscarriage of justice resulted.
Facts
The material facts can be stated shortly.
In August 2014 a consignment of 12 kilograms of ephedrine with a street value of about $1.2 million was couriered from China to Auckland. The ephedrine was concealed within ornamental buckets. Mr Dai is a courier driver who was instructed via the online social platform WeChat by an associate in China to collect the package from DHL’s premises in Auckland. However, Mr Dai was unable to satisfy the company that he was the intended recipient. DHL refused to release the package to him and instead alerted the New Zealand Customs Services which seized the package and removed the ephedrine.
The same Chinese third party instructed Mr Liu, who is also a courier driver in Auckland, to collect the same package from DHL, unaware that Customs had removed the ephedrine. Mr Liu was successful. On this basis he was found guilty of attempting to possess the ephedrine for supply.
The Chinese third party then instructed Mr Dai to collect three additional ornamental buckets from an Auckland address and deliver them elsewhere. The buckets contained a total of 4.9 kilograms of ephedrine with a street value of about $500,000. Mr Dai made three separate collections and deliveries. He was found guilty of three separate supplies of ephedrine.
There is an irony in Mr Dai’s conviction. He was only charged because of information he volunteered in an interview with a Customs officer after his unsuccessful attempt to collect the first consignment of ephedrine. Mr Dai unwittingly incriminated himself by disclosing to the officer his three subsequent collections and deliveries.
Lei Dai
Ground of appeal
Mr Foley, who was not trial counsel, advances Mr Dai’s appeal on the ground that Mr Dai wished to challenge three of the empanelled jurors but was unable to do so; that Mr Dai’s inability to challenge the jurors was caused by inadequate advice from his trial counsel about the empanelling procedure; and that his trial was unfair and a miscarriage of justice resulted. We shall first outline the statutory framework and the relevant facts before addressing the substance of Mr Foley’s submission.
Statutory framework
Everybody charged with an offence “shall have the right … to the benefit of a trial by jury” where the penalty upon conviction exceeds two years.[2] The jury is to comprise 12 jurors.[3] The “persons who are to comprise the jury” must be selected in the precincts of the court.[4] The jury is to comprise the first 12 persons selected who remain after all proper challenges have been allowed.[5]
[2]New Zealand Bill of Rights Act 1990, s 24(e).
[3]Juries Act 1981, s 17.
[4]Section 18.
[5]Section 19.
The Juries Act 1981 provides :
24 Challenges without cause
(1) In every case to be tried before a jury, each of the parties is entitled to challenge without cause 4 jurors only.
(2) However, if 2 or more defendants in a criminal case are charged together, the Crown or other prosecutor is entitled to challenge without cause 8 jurors only.
…
The Jury Rules 1990 further provide:
19 Calling of jurors
(1)Each juror shall be called as his or her name is drawn in accordance with r 17 or r 18(2);
(2)As a juror is called, he or she shall move forward and take his or her seat unless challenged or ordered to standby.
Mr Barr for the Crown emphasises r 14A of the Juries Act, introduced by the Juries Amendment Act 2008, which limits the provision of jury lists to counsel where the defendant is represented; counsel is permitted to show the list to the defendant but not leave the document with him or her.
The empanelling process
Mr Dai was represented at trial by Michael Kan, a lawyer practising in Auckland. Both are New Zealand citizens of Chinese heritage. Messrs Dai and Kan swore affidavits and were cross-examined before us.
The trial was held in Courtroom 8 of the Auckland District Court. It is a large courtroom designed to accommodate multi-party trials. Counsel were seated at bar tables in the well of the court facing the judicial bench. The jury box ran parallel to the wall, at right angles to where counsel were seated. Messrs Dai and Liu were seated on the opposite side of the court facing the jury box, to the left of and separated from their counsel by a glass partition wall running along the front of the dock. The defendants and their counsel were seated about five metres apart, with the defendants slightly behind counsel at an angle of about 10 to 15 degrees. Mr Dai was able to see part of the side and back of Mr Kan’s head. The potential jurors were sitting in the back of the court, facing forward towards the judicial bench.
When preparing for the trial Messrs Dai and Kan conferred mainly in Mandarin but often in English. Mr Kan discussed the trial procedure with Mr Dai on at least four separate occasions, starting with the subject of jury selection. He specifically recalled advising Mr Dai about the process of challenging jurors. He explained the word “challenge” in Mandarin and told Mr Dai of his right to challenge four jurors without cause, to be exercised before a juror was seated in the jury box. Mr Dai confirmed that Mr Kan used the word “xuan”, which we are advised is Mandarin for challenge, but does not recall him using the English word or writing down the corresponding Chinese characters (挑战).
While they did not discuss who would be ultimately responsible within the courtroom for making the final decisions on which jurors would be challenged, it was agreed that Mr Kan would exercise Mr Dai’s rights of challenge. Mr Kan asked Mr Dai if he had any preferences about the types of people he did not want on the jury. He replied in the negative. Mr Kan advised Mr Dai that his jury pool would be highly likely to have people from Asia, given the diverse ethnicity of the Auckland population. This prospect pleased Mr Dai. He was satisfied Asian people would understand his background and culture. The chosen jury included one or two Indian people, one Chinese and one Korean.
Mr Dai was content to delegate his power of challenge to Mr Kan because he was unfamiliar with selecting a jury. He relied on Mr Kan’s experience and expertise. Mr Kan acknowledges he did not advise Mr Dai that, despite this delegation, Mr Dai retained the residual power to exercise the right personally.
Mr Kan obtained from the criminal registry office a jury panel list when he arrived at the District Court on the morning of the trial. The list is multi-paged and contains basic information about each juror obtained from the electoral roll — names, addresses and occupations. Mr Kan did not discuss the list with Mr Dai or seek further instructions upon it.
As each prospective juror was called from the public gallery following Mr Dai’s arraignment, Mr Kan would scan his or her face before turning a little more than 90 degrees to the left to see whether Mr Dai was expressing any signs of disapproval. Mr Kan accepts that he and Mr Dai did not have an arranged process for Mr Dai to signal his disapproval. Mr Kan would then decide whether to exercise Mr Dai’s right of challenge; if not, the juror was empanelled. The first 11 jurors were selected in four minutes and 22 seconds (there was some delay in selection of the twelfth and final juror).
Mr Dai now says that during the selection process the demeanour of three of the selected jurors caused him great concern. He said that they had “sour or long faces when looking towards myself and Mr Liu”. He says he was worried that they would be hostile towards him. One of the three was selected as foreman. He says that he did not know what to do about stopping these people from selection on the jury. He did not want to do anything himself because he thought it would attract unwanted attention. The Judge would view him as “rude and impolite”. He assumed that once the jurors were in the box he would then be able to speak with Mr Kan about changing them. He says that he was very surprised when Mr Kan did not speak with him about selecting the jury, and equally surprised when the trial simply went ahead.
Mr Kan accepts that (a) he did not advise Mr Dai that, despite the delegation of his right of challenge to Mr Kan, Mr Dai retained a residual power to exercise the right personally; and (b) he had not settled on an arranged mechanism with Mr Dai for the latter to express disapproval when a juror was called.
The question then is whether the trial did not proceed according to law and there was a miscarriage of justice.
Competing submissions
Mr Foley’s argument raises a narrow but constitutionally important point. In his submission the right to challenge a person called as a juror is personal to the defendant. While a defendant may delegate that right to his counsel, as occurred here, the delegation is non-exclusive. Counsel must advise the defendant that the right is of a personal nature to him or her which he or she may exercise throughout the empanelling process, regardless of the delegation. Mr Foley rejects the notion that it is undesirable and contrary to the defendant’s best interests for the defendant and his or her counsel to remain free to perform the same function, even where they appear in open conflict. His alternative or fall-back submission is that on the facts of this case Mr Kan erred in failing to implement an effective system for Mr Dai to communicate his disapproval during the selection process.
Mr Barr accepts that the right of peremptory challenge is personal to a defendant. However, he relies on the general practice in New Zealand that counsel exercises that right wherever the defendant has legal representation. That is because the function falls generally within the scope of counsel’s role as the defendant’s advocate. The right of challenge, once delegated, is exclusive to counsel and there is no risk of unfairness so long as counsel exercises the right competently, which happened here. Effectively, Mr Barr says, New Zealand law and practice recognise the exclusive delegation of the right to counsel wherever a defendant is represented at trial.
Authorities
Mr Dai’s ground of appeal has not previously fallen for decision in New Zealand. The issue has, however, arisen in Australia and is the subject of a number of appellate authorities, albeit within markedly different factual contexts from Mr Dai’s case. We note also from Mr Dai’s case that the relevant statutory provisions for jury selection in Australia differ between states and materially from our Juries Act.
Mr Foley relies primarily upon Barwick CJ’s judgment in Johns v R.[6] In that case the appellant was found guilty of armed robbery following a trial by the Supreme Court of Western Australia. At Mr Johns’ trial his counsel had advised the Judge immediately after arraignment that he would be exercising the defendant’s right to challenge. An unfortunate exchange followed in open court after two jurors had been selected. Mr Johns himself personally challenged the third juror called. Counsel apparently disagreed with and overrode Mr Johns’ objection, accompanied by an alleged rebuke to his client for interfering. The Judge allowed the challenged juror to take her seat. She sat as a member of the jury which determined Mr Johns’ guilt.
[6]Johns v R (1979) 141 CLR 409.
Mr Johns applied for special leave to appeal on the ground that he was denied the benefit of a peremptory challenge to a juror and thus he was not tried according to law. By s 38(1) of the Juries Act 1957 (WA) “any party at any criminal trial may challenge peremptorily eight jurors”. The Crown’s opposition to Mr John’s application for leave was based on the longstanding practice in Western Australia for counsel to exercise the right of challenge. A similar practice apparently existed in Queensland. In other Australian states the practice was for the defendant personally to exercise the right of challenge assisted by counsel or instructing solicitor.
Barwick CJ, who separately concurred with the other members of the Court in granting leave and quashing the conviction, said this:
[20] The right of challenge, and particularly the right of peremptory challenge, lies at the very root of the jury system as it now exists. That the challenge is peremptory means that the accused need not in any wise justify his challenge. It need represent no more than his personal objection to be tried by the person whom he sees before him and whose name he has heard. No doubt, in deciding whether or not to exercise the right of challenge, an accused may profit by the views of counsel. But, even so, he may prefer his own instinctive reaction to the person he sees to the experience or theories of the advocate. It is his peculiar right to follow his own impressions and inclinations.
[21] When a prior view of the panel of jurors summoned for the sittings is allowed, some guidance in the exercise of the challenge may be gained from the knowledge of the names, addresses and occupations of those named on the panel. But, in my opinion, this advantage cannot displace the importance of a physical view of the jurors or be a reason to overbear the accused’s reaction engendered by it.
[22] For my part, it is of the utmost importance in the trial of accused persons that they not only have adequate opportunity to see and observe the jurors but that they are adequately informed of their personal right of challenge. …
By reference to the Criminal Code of Western Australia, the Chief Justice accepted that a trial judge can allow counsel acting with the appropriate authority to exercise the defendant’s personal right of challenge. But care is necessary to ensure that the defendant has given that authority and understands that its grant does not displace his personal right of challenge.[7] The retainer to defend does not automatically carry that authority, which must come specifically from the defendant either expressly or by clear implication.[8] The delegation cannot be irrevocable or override the defendant’s personal right of challenge when made.
[7]At [25].
[8]At [26].
Gibbs J, with whom Mason J agreed, recognised the strong arguments in favour of the Western Australian practice which was permitted by law.[9] A defendant suffering a disadvantage — whether due to mental disability, inability to speak English, inability to speak articulately, or illiteracy — will be ill-equipped to exercise his or her right of challenge effectively.[10] The statutory provisions did not derogate from the general principle that a defendant may instruct the conduct of proceedings to his or her legal representative including the right of challenge. The authority of counsel instructed to represent a party extended to exercising that right.[11] However, that delegation does not exclude the defendant’s entitlement to exercise the right personally.[12] In Mr Johns’ case, his challenge exercised personally was permitted and should have been given legal effect, however disorderly it may have been.
[9]At [10].
[10]At [9].
[11]At [10].
[12]At [11].
In brief concurring judgments Stephen and Murphy JJ agreed that, whatever practice prevailed about delegation of authority to exercise the right to challenge, that right ultimately belonged to the defendant who was free to exercise it whenever he or she chose.
Mr Foley also relies on Theodoropoulos v R, a decision of the Victorian Court of Appeal which comprehensively recites the common law history of the right to trial by jury.[13]The appellant was found guilty following trial in the District Court of five charges of rape. The appeal arose from an unorthodox empanelling direction by the trial Judge. Its novelty arose in the Judge’s requirement that jurors when called should walk directly from their seated position in the body of the court to the jury box without passing in front of the dock. The Court was satisfied that the procedure deprived Mr Theodoropoulous of a reasonable opportunity to exercise his right of peremptory challenge.[14] He did not have an adequate opportunity to view the faces of prospective jurors before they entered the jury box; and the time available to challenge jurors as they moved to their seats after entering the jury box was also inadequate.
[13]Theodoropoulos v R [2015] VSCA 364, (2015) 257 A Crim R 390.
[14]At [17].
We agree with Mr Barr that Theodoropoulos is of limited assistance in this case. Section 36(3) of the Juries Act 2000 (Victoria) expressly provides for the right of peremptory challenge to be exercised by the defendant, subject only to the Court granting the defendant’s lawyer permission to assist. The practice in New South Wales is different — the decision to challenge rests with counsel who rarely consults with the defendant. A similar practice applies in Queensland.[15]
[15]At [49].
The point has not arisen for express consideration in New Zealand. In 1910 Stout CJ apparently approved the practice of counsel exclusively exercising a defendant’s right of peremptory challenge. In R v Davis and Haines the Chief Justice declined to allow a proposal whereby counsel, who represented both defendants, would exercise six challenges for one defendant and the other defendant would exercise six challenges personally for himself.[16] He directed that counsel alone was entitled to exercise all 12 rights of challenge, providing only that he identified the party on whose behalf he was challenging. Adams on Criminal Law recognises the current practice that a defendant’s challenges are usually made by counsel on instructions.[17]
Analysis
[16]R v Davis and Haines (1910) 12 GLR 700 (SC) at 705.
[17]Simon France (ed) Adams on Criminal Law — Procedure (online looseleaf ed, Thomson Reuters) at [TP8.06].
It emerged as common ground between counsel that the standard practice in New Zealand is similar to the Western Australian practice, which Gibbs and Mason JJ approved in Johns, for trial counsel to exercise the defendant’s delegated right of peremptory challenge. The practice is not contrary to New Zealand’s statutory regime and we are unaware of any difficulties in its implementation. Its advantages are obvious in a trial like this where English is the defendant’s second language. It recognises also the likely reluctance of most defendants themselves to take openly what is an inherently negative and possibly confrontational step with the fear of causing alienation. By delegating to counsel that power to speak on his or her behalf, the defendant introduces an overtly objective element into the process.
Mr Barr submits that the delegated authority to challenge, once made, is exclusive to counsel. However, we accept that the right of challenge remains personal to the defendant throughout and is not surrendered as an incidence of retaining counsel. We agree with all members of the High Court in Johns that the defendant remains personally entitled throughout to exercise his or her right to challenge whomever he or she does not want to sit in judgment on guilt. And, because the right is peremptory, it does not require justification or explanation. The delegation to counsel is not exclusive but subject to this overriding reservation.
Mr Barr submits also that counsel is not obliged to inform the defendant of his or her retention of the residual right to exercise peremptory challenges. He says that is particularly so where counsel and the defendant have discussed the question and the client acquiesces in counsel’s approach. He relies on statements in this Court’s judgment in R v Hookway reciting the relevant limitations on counsel’s duty to advise of the options available in conducting the defence and the risks and benefits associated with particular courses of conduct.[18] Nevertheless, we are satisfied that counsel’s duty when advising on jury selection, which was not at issue in Hookway, extends to the personal right of challenge. The right is of fundamental constitutional importance to a defendant, and he or she can hardly be expected to know of its nature and extent without legal advice.
[18]R v Hookway [2007] NZCA 567 at [23]; leave to appeal declined in [2008] NZSC 21.
We recognise that this practice may possibly lead to duplication or an open impression of discord. However, a defendant is likely to decide it is contrary to his or her best interests to convey a sense of disharmony or indecision to those ultimately charged with deciding his or her guilt. It is for this reason that counsel and the defendant normally arrange a mechanism for the defendant to communicate approval or disapproval, most crudely but effectively by the defendant nodding or shaking his or her head. We assume the apparent rarity in New Zealand of events such as occurred in Australia for Mr Johns reflects the fair and efficient operation of the practice here.
In this case Messrs Dai and Kan adopted the accepted practice of a delegated right of jury selection. But Mr Kan erred in his advice in two respects. As we have noted, Mr Kan accepted he did not advise Mr Dai that, despite his delegation, he remained autonomous to exercise the right of challenge himself; and that he and Mr Dai had not agreed on a specific process for Mr Dai to notify disapproval of a particular juror. The question is whether these omissions deprived Mr Dai of a constitutional right which he wished to exercise.
Having seen and heard Mr Dai, we do not accept his assertion that he wanted but did not know how to challenge three jurors. In our judgment Mr Dai’s current explanation is a convenient reconstruction, designed to avail himself of an opportunity arising from a perceived error by his counsel. We are satisfied that Mr Dai remained content throughout the selection process to place exclusive trust in Mr Kan’s experience and judgement as he conveyed when the two conferred before trial. Mr Dai conceded under Mr Barr’s cross-examination that he never complained to Mr Kan about the jury’s composition or particular jurors. He did not suggest that he showed or conveyed any form of disapproval to Mr Kan during or immediately after the selection process. Mr Dai also conceded that he commented favourably to Mr Kan following his closing address about the number of jurors nodding their heads in apparent approval of Mr Kan’s submissions.
We are not satisfied that Mr Dai ever wished to challenge one or more of his jurors but was unable to exercise his right because he was unaware of its existence or how to exercise it. It would have been inconsequential to the fairness of the trial if Mr Kan had either advised Mr Dai that he retained a right to challenge a juror if he wished or they had agreed on a process for Mr Dai to convey his disapproval.[19] We are satisfied the trial proceeded according to law and there was no miscarriage of justice.
[19]“When one is speaking of fair trial in this context the issue is more whether there is a risk of unfairness rather than whether the trial actually was unfair.”: R v Gordon-Smith (No 2)(on appeal fromR v King) [2009] NZSC 20, [2009] 2 NZLR 725 at [17].
It follows that Mr Dai’s appeal against conviction must fail.
Liang Liu
Mr Liu raises a single ground of challenge to the jury’s verdict. On his behalf, Mr Burns submits the Judge failed to direct the jury on an essential element of the charge. The argument falls for consideration within discrete parameters. Originally Mr Liu was charged with possessing pseudoephedrine for the purpose of supply. However, at trial Mr Burns submitted that Mr Liu should be discharged: Customs had removed the ephedrine before Mr Liu collected the package and, as a consequence, he did not collect the controlled drug. The Judge granted the Crown leave to amend by substituting the lesser charge to attempting to possess the ephedrine for the purpose of supply. The Crown accepts that the Judge failed to direct the jury on the element of proof of purpose both in his summing-up and the question trail.
The agreed statement of facts recites that Mr Liu arrived at DHL’s premises in Auckland International Airport at about 9.24 am on 19 August 2014, collected the consignment and placed it in the back of his car at 9.34 am, departed the premises at 9.41 am and arrived at his Mt Wellington address at 10.08 am. In his opening statement to the jury, Mr Burns accepted that Mr Liu had picked up and stored the consignment. The only issue was whether Mr Liu knew of or was wilfully blind of its contents. His essential defence was that he was an unwitting participant, as Mr Burns described it, in the whole operation.
Mr Burns submits that there is a real risk that the jury failed to consider the issue of whether Mr Liu collected the consignment for the purpose of supply. He submits that Mr Liu’s purpose arguably extended only to having the parcel released to him by DHL, not to supplying it to anybody else. However, when interviewed by the police Mr Liu admitted that he collected the package on instructions to supply it to a third party. He said “I waiting for some people to pick up”. No issue was taken in Mr Burns’ closing address with the elements either of purpose or supply. As noted, Mr Liu’s primary (indeed, sole) defence was one of innocent involvement. It was incontrovertible that Mr Liu’s purpose was to supply the consignment to others.
We accept that trial judges should give directions on all elements of the offence regardless of whether they have been put in issue.[20] The Judge’s omission was an error. The question is then whether a miscarriage arose. We are satisfied that the error could not have affected the result.[21] The element of purpose was not in issue and was plainly satisfied on the evidence. Counsel’s failure to raise the omission with the Judge at the end of his summing-up is explicable in this context. The sole issue for the jury’s determination was whether Mr Liu collected and distributed the consignment with the requisite guilty state of mind. The jury was satisfied beyond doubt on that point.
[20]Christian v R [2017] NZSC 145 at [35].
[21]At [37].
This appeal must fail.
Result
Mr Dai’s appeal against conviction is dismissed.
Mr Liu’s appeal against conviction is dismissed.
COLLINS J
Introduction
There is one aspect of the judgment of Harrison and Brown JJ with which I respectfully disagree. The point of divergence concerns the extent of a defence lawyer’s delegated authority to select a jury on behalf of a defendant.
In my assessment, once a defendant has delegated to his or her counsel responsibility to select a jury, that delegation is exclusive. Under the approach that I favour, a defendant could not overrule decisions made by his or her lawyer during the empanelment of a jury.
I shall explain my approach under the following headings:
(a)Context.
(b)The theory of peremptory challenges.
(c)The integrity of jury trials.
(d)Maintaining confidence in defence lawyers.
Context
In 2008, Parliament amended the Juries Act 1981 in two ways that are relevant to this case.[22] First, the number of peremptory challenges to which a defendant is entitled was reduced from six to four, thereby restricting the right to challenge prospective jurors without cause.[23] Second, tight controls were introduced that now restrict a defendant’s access to jury lists so that, when a defendant is represented, their lawyer may show the defendant the jury list but not leave the document in the defendant’s possession.[24] While the second of these changes was motivated by concerns about the security of jurors,[25] an effect of that change is that defendants who are represented by a lawyer no longer have copies of the jury list when the jury is being empanelled.
[22]Juries Amendment Act 2008.
[23]Juries Act, s 24, substituted by s 17 of the Juries Amendment Act 2008.
[24]Section 14A, inserted by s 10 of the Juries Amendment Act 2008. Section 14AB was also introduced in April 2013 by s 18 of the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Act 2012. That section prevents a defendant from accessing protected particulars, including a juror’s address.
[25]Criminal Procedure Bill 2004 (158-1) (explanatory note) at 2.
In New Zealand, the task of empanelling a jury is undertaken by a defendant’s lawyer in cases where the defendant is represented.[26] Until this case, there has been no suggestion that a defendant retains ultimate control over the exercise of peremptory challenges.
[26]R v Davis and Haines, above n 16, at 705.
Lawyers who conduct jury trials appreciate that the process of empanelling a jury will usually be preceded by the lawyer discussing with his or her client which persons should be excluded from the jury, if it is possible to do so with the limited number of peremptory challenges available to a defendant. The lawyer may even arrange a subtle means of communication with the defendant during the empanelment process, but where such arrangements are put in place, the ultimate authority to challenge a prospective juror rests with the lawyer. The defendant does not exercise any overriding control over the jury selection process when the authority to challenge a prospective juror has been delegated to the defendant’s lawyer.[27]
[27]See Stephen Dunstan “The State of New Zealand Jurors” [1996] NZLJ 231 at 233 in which the author refers to the role and objectives of defence lawyers when “selecting the jury”.
When a jury is empanelled there is a short period of time between the calling of the prospective juror’s name by the Registrar and that person taking a seat in the jury box. In the present case, where the trial occurred in a large courtroom, we were advised by counsel that it took approximately 20 to 25 seconds for a prospective jury member to walk from the body of the courtroom to the jury box after their name was called by the Registrar. During that short period of time, the defendant’s lawyer had the opportunity to ascertain the prospective juror’s full name, gender, address and occupation from the jury list. They also had the opportunity to assess the prospective juror’s general demeanour and make an assessment as to whether or not there was any obvious reason why that person should not be a member of the jury. During this process the defendant would hear the prospective juror’s name, and assess their physical features. Any other evaluation of a prospective juror by the defendant is likely to be intuitive.
The theory of peremptory challenges
Peremptory challenges are a vestige of medieval times when defendants did not have the benefit of a defence lawyer.[28] At common law a defendant could exercise up to 35 peremptory challenges in person. This was changed by statute in 1509, when the number of peremptory challenges was reduced to 20.[29] Further legislative reductions in the number of peremptory challenges available to a defendant have resulted in the current limit of four peremptory challenges in New Zealand.[30]
[28]In Lord Roskill’s Fraud Trials Committee Report 1986 (The Roskill Report), which informed the decision to abolish peremptory challenges in England and Wales, the writers noted at [7.18]: “[l]ike much else in our legal history [the peremptory challenge] is rooted in the distant past when defendants were left undefended by counsel”.
[29]Ian Kawaley “Abolishing the peremptory challenge” (1988) 85(22) LS Gaz 22 at 22.
[30]See [53] of this judgment.
The view that peremptory challenges vest in a defendant personally is underpinned, in part, by the theory that allowing a defendant some control over the makeup of his or her jury will give the defendant more confidence in the fairness of the jury’s verdict.[31] There are, however, some difficulties with this theory.
[31]Law Commission Juries in Criminal Trials (NZLC R69, 2001) at [218].
First, a number of cognate jurisdictions have abolished peremptory jury challenges, including the entire United Kingdom.[32] In the United States federal criminal justice system, peremptory challenges are not vested in a defendant in person but belong to each side of the case.[33] In New Zealand, while the right of peremptory challenge has not been entirely abolished, it is now limited. This suggests that policymakers in New Zealand and in many cognate jurisdictions see little merit in the theory that peremptory challenges enhance a defendant’s confidence in the fairness of jury verdicts.
[32]See Criminal Justice Act 1988 (UK) c 33, s 118; Criminal Justice (Scotland) Act 1995 (Scot) c 20, s 8; and Justice and Security (Northern Ireland) Act 2007 (NI) c 6, s 13.
[33]Fed. Rules Cr. Proc. Rule 24(b), 18 USCA; United States v Boyd 86 F3d 719 (7th Cir 1996); Clark v Neven 171 F Supp 3d 1045 (D Nev 2016).
Second, in jurisdictions where the issue before us has been tested, it has been said that defendants personally exercise peremptory challenges on the basis of their intuitive reaction to a potential juror. Thus, in Johns v R, Barwick CJ said that a peremptory challenge:[34]
… need represent no more than [a defendant’s] personal objection to be tried by the person whom he sees before him and whose name he has heard … he may prefer his own instinctive reaction to the person he sees to the experience or theories of the advocate. It is his peculiar right to follow his own impressions and inclinations.
[34]Johns v R, above n 6, at [20].
The line of reasoning favoured by Barwick CJ does not, however, fit comfortably into the New Zealand practice of selecting juries, and was rejected by the Supreme Court in Gordon-Smith v R when it was said:[35]
We must, however, say that we cannot accept [appellate counsel’s] submission that peremptory challenges are meant to be exercised on an intuitive rather than a reasoned basis. If that were so there would be little, if any, reason for jury panel lists to be made available to the parties.
The integrity of jury trials
[35]R v Gordon-Smith, above n 19, at [11].
The approach adopted by my colleagues enables a defendant to override their lawyer during the process of empanelling a jury. This in turn creates the possibility of unseemly disagreements between a defendant and their lawyer that will fuel discontent and appeals. This is not a fanciful concern. In Johns, the defendant intervened in the process of empanelling the jury by personally challenging a juror. His counsel informed the Judge that the prospective juror was not in fact challenged. That prospective juror entered the jury box and was sworn in as a member of the jury. The High Court of Australia held that a defence lawyer’s delegated authority to peremptorily challenge a prospective juror could be revoked at the discretion of the defendant. The consequence of this approach is that in Australian jurisdictions a defendant retains the ultimate control over the exercise of peremptory challenges.
While I am not aware of the situation that occurred in Johns having arisen in New Zealand, it would be most unfortunate if the effect of the decision of my colleagues is to allow, in this country, a repetition of what occurred in the trial of Mr Johns.
Maintaining confidence in defence lawyers
Defence counsel are entrusted to make trial decisions and, in doing so, to act in the best interests of their client.[36] This Court said in R v Pointon, “[t]he effective conduct of a client’s case would be impossible if he had to be consulted at every turn during preparation and at the trial itself”.[37] Peremptory challenges are clearly within the bounds of trial counsel’s responsibilities.
[36]Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.13 refers to the defence lawyer’s obligation to “protect his or her client so far as is possible from being convicted”.
[37]R v Pointon [1985] 1 NZLR 109 (CA) at 112. See also Hall v R [2015] NZCA 403 at [65]–[77].
The fact peremptory challenges are made on a reasoned basis corresponds with defence counsel’s role to act in the best interests of the defendant. Counsel exercise peremptory challenges on behalf of defendants with the benefit of the information they can glean from the jury list, any other legitimate sources of information and on the basis of their skill and judgment.[38]
[38]See John Rowan “Jury Vetting Again” [2009] NZLJ 300 in which the author refers to the practice of lawyers in smaller centres having a broad knowledge of many of the prospective jurors. Defence counsel may also have the benefit of expert advice in selecting juries.
The spectacle of a defendant overriding their counsel in the presence of the confirmed members of the jury who have already taken their seat and the remaining members of the pool awaiting selection is a matter of grave concern. The indignity of a defendant undermining decisions made by their counsel during the selection of a jury is a burden that defence lawyers should not have to endure. A dispute between a defendant and their lawyer during the process of empanelling is also likely to undermine the standing of that lawyer in the eyes of the jury, and may undermine the defendant’s case.
Conclusion
Throughout this country’s history of criminal trials, it has been accepted that defence lawyers have the ultimate responsibility for exercising a defendant’s peremptory challenges. The way in which defence lawyers have exercised peremptory challenges on behalf of defendants has not caused problems in this country.
I see no need to graft onto New Zealand law the Australian jurisprudence that underpins the basis of the reasoning of my colleagues, particularly as it is founded on the view that peremptory challenges are entirely intuitive — a view that the Supreme Court has rejected.
Whilst I endorse the result set out in the judgment of Harrison and Brown JJ, I disagree with their conclusion concerning the limits to a defence lawyer’s delegated authority to select a jury on behalf of a defendant. I prefer not to follow the Australian position, and instead hold that once a defendant delegates to their lawyer the task of exercising peremptory challenges, then that delegation is exclusive.
Solicitors:
Crown Law Office, Wellington for Respondent
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