Parker v The Queen - [2017] NZCA 550

IN THE COURT OF APPEAL OF NEW ZEALAND

CA85/2017
[2017] NZCA 550

BETWEEN	THOMAS HOGAN PARKER Applicant
AND	THE QUEEN Respondent

Hearing:	On the papers
Court:	Harrison, Courtney and Toogood JJ
Counsel:	M B Dodds for Applicant Z R Johnston for Respondent
Judgment:	28 November 2017 at 2 pm

JUDGMENT OF THE COURT

The application for an order appointing independent counsel to investigate juror misconduct is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

Following a jury trial in the District Court at Whangarei before Judge Harvey, Thomas Parker was convicted on one charge of sexual violation by unlawful sexual connection. His trial counsel subsequently received an email from a juror expressing concern about “what went on in the jury room”. Mr Parker has applied for directions appointing independent counsel or a private investigator to investigate the possibility of juror misconduct. Mr Parker accepts that if the application is declined no tenable ground of appeal will exist.

Section 76 of the Evidence Act 2006

Mr Parker’s application engages s 76(1) of the Evidence Act 2006, which prohibits a person giving evidence about the deliberations of a jury save in exceptional circumstances. Section 76(1) is subject to the exception provided for in s 76(3) and (4):
76Evidence of jury deliberations
…
(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 ensuring that justice is done in those proceedings.
Section 76(1) reflects the longstanding principle that jury deliberations are to remain secret save in exceptional circumstances. The underlying policy is to ensure the finality of verdicts, protect jurors from pressure and encourage frank discussion in the jury room.[1] The threshold in s 76(3) is very high; in Neale v R this Court described it as a “very narrow escape hatch” through which exceptional cases might squeeze.[2] More specifically, in Worrell v R the Court said:[3]
We do not purport to define the circumstances in which the “exceptional” threshold will be crossed: in our view this is an area of the law where each case must be carefully considered on its merits, balancing the undoubted (and our legislatively endorsed) concern to protect the confidentiality of jury deliberations against the necessity to ensure that miscarriages of justice are not allowed to occur.
[1]Smith v R [2017] NZCA 93 at [26] citing Law Commission Evidence: Reform of the Law (NZLC R55, 1999) at [348].
[2]Neale v R [2010] NZCA 167 at [12].
[3]Worrell v R [2011] NZCA 63 at [52].
The outcome of applications into juror conduct over recent years demonstrates the high threshold under s 76(3):
(a)In Tainui v…

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 Parker v The Queen

Details

AGLC: Parker v The Queen [2017] NZCA 550
Case: [2017] NZCA 550
Decision Date: 28 November 2017 at 2 pm

CaseChat Overview and Summary

The case of Parker v The Queen concerns an application by the appellant, Mr Parker, seeking permission to give evidence about the deliberations of a jury in a criminal trial. The Court of Appeal for the Northern Territory was tasked with determining whether the exceptional circumstances exception under s 76(3) of the Evidence Act 2006 applied, allowing Mr Parker to testify about the jury’s deliberations. The central legal issue was whether the alleged exceptional circumstances justified departing from the general rule prohibiting such evidence. The Court had to weigh the public interest in maintaining the confidentiality of jury deliberations against the necessity to ensure that justice was not compromised.

The Court of Appeal considered the longstanding principle that jury deliberations must remain secret, except in exceptional circumstances, as mandated by s 76(1) of the Act. The Court noted that the threshold for exceptional circumstances, as outlined in s 76(3), is very high, requiring a sufficiently compelling reason to allow such evidence. The Court examined previous cases, such as Tainui v R, Derrick v R, Neale v R, Dale v R, Smith v R, and Whyte v R, which had declined similar applications, reinforcing the high standard required. The Court also acknowledged the legislative intent behind s 76(1), which is to ensure the finality of verdicts, protect jurors from pressure, and encourage frank discussions in the jury room. Given this precedent and the specific circumstances presented, the Court found that the application did not meet the exceptional threshold.

In light of the above considerations, the Court of Appeal dismissed Mr Parker’s application, reaffirming the high threshold for allowing evidence of jury deliberations. The Court held that the alleged circumstances did not constitute sufficiently compelling reasons to depart from the general rule protecting the confidentiality of jury deliberations. The Court emphasized that each case must be carefully assessed on its merits, balancing the public interest in protecting jury confidentiality against the need to prevent miscarriages of justice. Consequently, the Court ruled that the exceptional circumstances exception did not apply in this instance.

The Court of Appeal for the Northern Territory dismissed Mr Parker’s application to give evidence about the deliberations of the jury. The Court held that the circumstances did not meet the exceptionally high threshold required by s 76(3) of the Evidence Act 2006. The Court reiterated the importance of maintaining the confidentiality of jury deliberations, as well as the necessity to prevent miscarriages of justice, and confirmed that the application did not satisfy the stringent conditions for an exception.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Parker’s application engages s 76(1) of the Evidence Act 2006, which prohibits a person giving evidence about the deliberations of a jury save in exceptional circumstances. Section 76(1) is subject to the exception provided for in s 76(3) and (4):76Evidence of jury deliberations…(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 ensuring that justice is done in those proceedings. Section 76(1) reflects the longstanding principle that jury deliberations are to remain secret save in exceptional circumstances. The underlying policy is to ensure the finality of verdicts, protect jurors from pressure and encourage frank discussion in the jury room.[1] The threshold in s 76(3) is very high; in Neale v R this Court described it as a “very narrow escape hatch” through which exceptional cases might squeeze.[2] More specifically, in Worrell v R the Court said:[3]We do not purport to define the circumstances in which the “exceptional” threshold will be crossed: in our view this is an area of the law where each case must be carefully considered on its merits, balancing the undoubted (and our legislatively endorsed) concern to protect the confidentiality of jury deliberations against the necessity to ensure that miscarriages of justice are not allowed to occur.[1]Smith v R [2017] NZCA 93 at [26] citing Law Commission Evidence: Reform of the Law (NZLC R55, 1999) at [348].[2]Neale v R [2010] NZCA 167 at [12].[3]Worrell v R [2011] NZCA 63 at [52]. The outcome of applications into juror conduct over recent years demonstrates the high threshold under s 76(3):(a)In Tainui v R the Court refused to order an investigation after a juror wrote a letter that indicated he or she was under pressure from other jurors.[4] (b)In Derrick v R an application for an inquiry was declined in relation to a juror’s letter indicating that during deliberations the jury had been fatigued and wanted to go home.[5] (c)In Neale v R an indication that a juror had been bullied and give in to the verdict did not justify a barrister being appointed to conduct an interview.[6] (d)In Dale v R a juror’s letter indicating that two jurors had disagreed with the guilty verdict but felt they had no choice but to agree did not justify an inquiry.[7] (e)In Smith v R an application for an order to interview jurors over suspected juror misconduct in taking into account the fact that the defence had intended to, but ultimately did not, call character evidence, was refused.[8] (f)In Whyte v R a similar application for an order to interview jurors was declined where a juror had sent an email to the court after six unanimous guilty verdicts and one majority verdict were entered — the juror expressing himself as developing misgivings about the verdicts in the days and weeks following trial.[9] [4]Tainui v R [2008] NZCA 119.[5]Derrick v R [2011] NZCA 163.[6]Neale v R, above n 2.[7]Dale v R [2016] NZCA 104.[8]Smith v R, above n 1.[9]Whyte v R [2017] NZCA 536.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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