Masina v The Queen - [2017] NZCA 291

IN THE COURT OF APPEAL OF NEW ZEALAND

CA299/2016
[2017] NZCA 291

BETWEEN	TUPE TACO MASINA Appellant
AND	THE QUEEN Respondent

Hearing:	29 June 2017
Court:	Miller, Lang and Mander JJ
Counsel:	L B Cordwell for Appellant Z R Johnston for Respondent
Judgment:	7 July 2017 at 4.00 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

The appellant and a co-accused were convicted after trial in the Manukau District Court on a number of charges of theft and aggravated robbery, involving the taking or attempted taking of cash registers from small shops. The trial issue was identification, resting on circumstantial evidence collectively tending to identify the men.
The question on appeal against conviction is whether the verdict was rendered unsafe by a juror’s knowledge of the defendants.
On the morning of the third day of trial a juror, MA, handed a note to the court attendant indicating that she worked for a company involved in the monitoring of defendants on electronically monitored (EM) bail and recognised the names of the defendants. The note stated that:
I … wish to inform you (the Jury Service and Court), that I may be in conflict of interest with this case, that I am part of the Jury for. That is, the case against the defendants.
Since I have been in the Jury and attending this case, in the last day or two (being 11th & 12th April), I have noticed that in some way that I recognize the defendants named, mainly due to the job I am employed at.
I work at 3M Monitoring (First Security) where we electronically monitor all offenders & defendants in conjunction with the Department of Corrections, nationwide.
I confirm that, at some point in time, I have monitored these defendants who were on Electronic Bail. In some part, I may have knowledge of where they live, and possibly their movements, where we view their Tracker Bracelets. I also at some point in time could have been in conversation & discussions with the Department of Corrections, regarding the defendants.
I bring this to your attention, as I do not wish to hinder the court process, and if necessary wish to be removed from this case.
Can you please confirm to me whether I am in conflict with this case, and if I may remain on the case or not.
The court attendant immediately separated MA from the remainder of the jury. Following the procedure in R v N (CA373/04), Judge Winter brought MA into court and questioned her in the presence of counsel.[1] The substance of her answers was that she had first realised she might know the defendants the night before; she had spoken to her supervisor; she had not told any other jury member of the detail of her job or that she monitored people on bail (she had given them her employer’s name and they thought she monitored alarms); and she had 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 Masina v The Queen

Details

AGLC: Masina v The Queen [2017] NZCA 291
Case: [2017] NZCA 291
Decision Date: 7 July 2017 at 4.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Masina, the appellant, sought to appeal against his conviction for theft and aggravated robbery involving the taking or attempted taking of cash registers from small shops. The appeal was heard by Miller, Lang and Mander JJ on 29 June 2017, with counsel L B Cordwell representing the appellant and Z R Johnston representing the respondent. The appeal was dismissed on 7 July 2017.

The primary issue before the court was whether the appellant's conviction was rendered unsafe due to a juror's knowledge of the defendants. The juror, MA, who worked for a company involved in the monitoring of defendants on electronically monitored (EM) bail, recognised the names of the defendants and informed the court. The court had to determine if the trial judge's decision to continue with the trial was appropriate. The appellant's counsel suggested that the trial judge should have asked further questions to ensure that the juror's knowledge had not influenced the jury. The court, however, held that the trial judge had followed the correct procedure and accepted the juror's answers as clear and sufficient.

The court concluded that it was speculative to suggest that other jurors were made aware of any prejudicial information, and that there was no reason to believe that the remaining jurors would fail to discharge their task impartially. Consequently, the appeal against conviction was dismissed.

The final orders were that the appeal against conviction was dismissed, and no further appeal would be entertained.

Orders