Neale v R

[2010] NZCA 167

IN THE COURT OF APPEAL OF NEW ZEALAND

CA341/2009
[2010] NZCA 167

BETWEENDIONNE LIZA NEALE

Appellant

ANDTHE QUEEN

Respondent

Hearing:23 March 2010

Court:William Young  P, Hammond and Baragwanath JJ

Counsel:G J King for Applicant

C L Mander for Respondent

Judgment:5 May 2010 at 11.00am

JUDGMENT OF THE COURT

The application for directions is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Hammond J)

[1]        We have before us an application for directions as to how one of the grounds of appeal in this case is to be advanced.

[2]        Ms Neale was convicted of murdering Mr Reece Shadbolt on 6 February 2007.[1]  Mr Shadbolt died as a result of a single stab wound to the chest and a subsequent series of stab wounds.  Ms Neale claimed that the first stab wound was the result of an accident; and the subsequent series of stab wounds was inflicted in self defence.  It was also advanced on her behalf that she lacked the requisite mens rea under s 167 (a) (intent) or s 167 (b) (reckless intent) of the Crimes Act 1961.  Alternatively, it was said that she was provoked into doing what she did.

[1]      R v Neale HC Auckland CRI-2007-004-8509, 12 June 2009.

[3]        After the trial one of the jurors, after seeking legal advice, wrote a letter expressing concerns she had about her experience as a juror in the trial.  This letter was sent to the trial Judge; a Registrar of the High Court at Auckland; the General Manager of Higher Courts, Ministry of Justice; and the Secretary to the New Zealand Law Society, Criminal Law Committee.

[4]        The juror raised four kinds of concerns.  The first related to her personal opinion that jurors needed further education as to their role.  A second related to the jury dynamics prior to deliberation.  A third related to the deliberation process itself.  A fourth went to the apparent lack of support available to jurors post-trial and verdict.

[5]        It is the third of these concerns which is of relevance for present purposes, insofar as that concern is said to give rise to possible jury misconduct. 

[6]        Evidently the jury had some difficulty agreeing on a particular issue.  An initial attempt to reach a conclusion on that issue was aborted.  When the jury returned to consider it, according to the juror’s letter, the deliberations degenerated.  The letter writer apparently felt that she was not permitted to set out her reasons for doubting whether Ms Neale had intended to kill Mr Shadbolt.  She became upset.  She felt bullied by one juror in particular.  But she “gave in” on the issue, and the jury subsequently delivered its verdict that Ms Neale was guilty of murder.  She said she was “upset, distraught and disturbed by the way the verdict was reached by we, the jury” and was thus motivated to write the letter.  The conviction was entered before the law changed to allow majority verdicts. [2]

[2]This change was brought about by the insertion of s 29C into the Juries Act 1981 by s 19 of the Juries Amendment Act 2008.

[7]        A Notice of Appeal was filed timeously on 15 June 2009.  In a Minute dated 30 July 2009 Chambers J noted that an Application for Directions was necessary if the Appellant wished to pursue the jury misconduct issue.  This followed the recommended procedures set out by this Court in R v Tainui. [3]

[3] [2008] NZCA 119 at [42].

[8]        The Application for Directions was filed on 3 March 2010.  The Memorandum in Support suggests that an independent barrister be appointed to obtain an affidavit from the juror.  The Court would then be able to consider whether the ground of appeal merited further attention. 

[9]        At common law the general rule was that jury verdicts must remain inscrutable.[4] In R v Mirza  Lord Hope said that there is a need for a “clear and precise rule” and the risk of creating uncertainty if the rule were otherwise.[5]  At common law there was a possible distinction between improprieties which had occurred inside or outside the jury room but that is of no moment in this case.

[4]See R v Mirza [2004] 1 AC 118 (HL) and Attorney-General v Scotcher [2005] 1 WLR 1867 (HL).

[5] At [22].

[10]       Whatever the exact scope at common law of this distinction, and any exceptions to the fundamental rule, the position in New Zealand is now governed by s 76 of the Evidence Act 2006 which provides:

76.         Evidence of jury deliberations

(1)         A person must not give evidence about the deliberations of a jury.

(2)Subsection (1) does not prevent the giving of evidence about matters that do not form part of the deliberations of a jury, including (without limitation) –

(a)the competency or capacity of a juror; or

(b)any conduct of, or knowledge gained by, a juror that is believed to disqualify that juror from holding that position.

(3)Subsection (1) does not prevent a person from giving evidence about the deliberations of a jury if the Judge is satisfied that the particular circumstances are so exceptional that there is a sufficiently compelling reason to allow that evidence to be given.

(4)In determining, under subsection (3), whether to allow evidence to be given in any proceedings, the Judge must weigh –

(a)the public interest in protecting the confidentiality of jury deliberations generally;

(b)the public interest in ensuring that justice is done in those proceedings.

[11]       It will be observed that this section prohibits the giving of evidence about the deliberations of a jury. This is to promote the policy objectives of the finality of verdicts and uninhibited discussion during jury deliberations.  Hence evidence cannot be given as to what was said or done during the time that the jury is undertaking its fact-finding function.  This would, of course, include its function of deciding what the intention of an accused was in relation to an alleged crime.

[12]       Subsection (3) does allow a very narrow escape hatch to avoid a possible miscarriage of justice but only “if the Judge is satisfied that there are exceptional circumstances amounting to a sufficiently compelling reason to allow the evidence”.  That will be a very difficult standard to reach.  One example in the Law Reports of that kind is R v Young[6]  (use of a Ouija board by the jury).

[6] [1995] QB 324.

[13]       This application comes nowhere near the required standard under s 76(3).  The juror has felt remorseful, after the verdict.  She had “capitulated” during deliberation to the other members of the jury. This, without more, could never be a ground for further inquiry by the Court under s 76(3).

[14]       In the circumstances we decline to make the suggested direction that an independent barrister ought to be appointed to obtain an affidavit from the juror; or any other directions.

Solicitors:

B J Hart, Auckland for Appellant

Crown Law Office, Wellington for Respondent