R v Boyce HC Christchurch CRI 2005-009-13766
[2007] NZHC 1601
•9 February 2007
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2005-009-013766
REGINA
v
TERESA MARIE BOYCE KEXI CHEN
BOON LIM CHIN DEBORAH JAN GORDON-SMITH ANGIE LEE HURRING
JONATHAN NUKI LUMMIS JARDEN SHAUN ANTHONY KING ROBYN KIRI LOVE
PETER BARRY STEVENS XIAOKANG WANG
Hearing: 9 February 2007
Appearances: D J Orchard and C E Butchard for Crown
J R Rapley for P Stevens
Judgment: 9 February 2007
Reasons: 21 February 2007
JUDGMENT OF FOGARTY J
R V BOYCE AND ORS HC CHCH CRI 2005-009-013766 9 February 2007
Application
[1] On Friday, 9 February, I ruled that Crown counsel were not to rely on information obtained from the police as to criminal records of individuals in the jury list for this trial.
[2] The background is that following ordinary practice, at least here in Christchurch, the Police have provided to counsel for the Crown criminal histories of potential jurors. The Police have obtained that information from the criminal records database. The information has been provided to counsel as material which counsel can use in deciding whether or not to challenge eligible jurors when exercising the limited right of peremptory challenge or in forming a judgment as to whether to challenge for cause.
[3] The question that had to be resolved was whether or not it is the scheme and purpose of the Juries Act 1981 that the criminal history of persons on the jury list are confidential to the Registrar of the Court, for the purpose of jury selection, or can be accessed by the police using their powers to examine the criminal database.
[4] Counsel for the accused, Stevens, has made an application to the Court for an order either:
(a) prohibiting the Crown from using any data which lists whether a juror has a criminal conviction when considering whether to challenge a person selected by ballot to be on the jury; or
(b) that the accused have access to the same information
[5] This is opposed by the Crown. The Crown oppose the application on a number of grounds:
(a) That the application is too late as the Crown has already received this information.
(b)That the Crown has relied on the dicta of Tipping J in R v Greening [1991] 1 NZLR 110, and that from that decision and from other authorities it is lawful for the Police to conduct a search of the criminal histories of potential jurors and provide it to the Crown solicitor; that the Court of Appeal did not demure from that view in R v Tukuafu (CA34/02, 18 December 2002 at [126]) or in R v Watson (CA384/99, 8 May 2000 at [55]).
(c)That the decision of the High Court of Australia in Katsuno v R (1999) 73 ALJR 1458 should be distinguished as the relevant legislation and practice is materially different.
Statutory background
[6] The Juries Act 1981 provides for the selection of a jury pool. Every person who is currently registered as an elector in accordance with the Electoral Act 1993 is qualified and liable to serve as a juror upon all juries that may be empanelled, unless they are disqualified. Section 7 provides:
7 Disqualification
The following persons are not qualified to serve on any jury in any Court on any occasion:
(a) Any one who, at any time, has been sentenced to imprisonment for life or for a term of 3 years or more, or to preventive detention:
(b) Any one who, at any time within the preceding 5 years, has been sentenced to imprisonment for a term of 3 months or more, or to corrective training.
[7] Sections 9-12A inclusive deal with the preparation of jury lists, access to and confidentiality of them and amendments by the Registrar by deleting names of persons who are disqualified:
9 Preparation of jury lists
(1) Whenever the chief executive considers it expedient he or she may ask the Chief Registrar of Electors to prepare a jury list for one or more jury districts.
(2) In relation to each jury list requested under subclause (1), the chief executive must advise the Chief Registrar of Electors of—
(a) the number of names to be included in the jury list; and
(b) the date by which the list is required.
(3) The Chief Registrar of Electors must, for each jury district, prepare a jury list containing a random selection of the names of people who, according to the electoral roll, reside in the jury district and are registered as electors.
(4) A jury list must not contain the name of any person—
(a) who, according to the electoral roll, holds any office, or is engaged in any occupation, referred to in section 8:
(b) in respect of whom a direction is in force under section 115 of the Electoral Act 1993 that his or her name, residence, and occupation not be published.
10 Jury lists sent to chief executive
The Chief Registrar of Electors must, within the time specified by the chief executive, forward a jury list for each jury district to the chief executive in accordance with the jury rules.
11 Currency of jury lists
A jury list remains current until it is replaced by a new list provided by the
Chief Registrar of Electors under section 10.
12 Access to, and confidentiality of, jury lists
(1) The chief executive must give the Registrar of the Court to which a particular jury list relates a copy of, or access to, the jury list in a form that enables the Registrar to carry out his or her functions relating to the selection of juries.
(2) The Registrar of a Court to which a particular jury list relates must ensure that the jury list is kept confidential to—
(a) the Registrar; and
(b) the Registrar's staff.
(3) The chief executive must ensure that jury lists forwarded to him or her under section 10 are kept confidential to—
(a) the chief executive; and
(b) staff of the Ministry of Justice who are authorised by the chief executive to have access to the lists.
(4) A jury list may be disclosed by an order of the Court or a Judge for the purpose of any proceedings relating to the validity of the jury list or a jury panel or to the eligibility of any juror.
12A Registrar may amend jury list
(1) The Registrar may at any time amend a jury list relating to his or her
Court by deleting from it the name of any person who is—
(a) not qualified according to section 6; or
(b) disqualified according to section 7; or
(c) not to serve on any jury according to section 8; or
(d) otherwise prevented or excused from serving on a jury by this
Act or by order of a Judge; or
(e) dead.
(2) In exercising the power to amend the jury list, the Registrar may act on his or her own knowledge, or on such evidence as he or she considers satisfactory.
[8] I understand as a matter of practice a computer programme, run by Court staff, accesses the criminal database, in order to delete from the jury list those persons disqualified from serving on a jury by reason of the s 7 criteria imposed as a result of convictions.
[9] Five days before the commencement of the week for which the jurors on a panel are summoned, the final jury list is released to the Crown and to counsel for the defence. There was some suggestion in this case that the jury list may have been released to the Police earlier than five days, but it is of no moment in the sense that it is not necessary to consider whether that did happen, and if so the consequences, in order to decide the merits of this application.
[10] The practice of jury vetting by the Police and the Crown has received consideration in a number of cases in the United Kingdom, Canada, Australia and in New Zealand.
[11] The Crown in this case relied particularly on the judgment of Tipping J in R v Greening. In not dissimilar circumstances, Tipping J was faced with an application, just before the start of a trial, that the Crown should make available to
defence counsel the result of its enquiries that had been made through the Wanganui computer to ascertain whether any of the potential jurors had previous convictions. The application was made at the time when the whole jury panel was waiting. After hearing brief arguments in chambers that morning, the Judge decided not to direct the Crown to make the information available to the accused, and released his reasons in writing at a later date. As I read the judgment, the Judge considered that counsel for the Crown legitimately held the information by reason of the provisions of the Wanganui Computer Centre Act 1976 that enabled the Police to use the computer system to retrieve any information and by a finding that Crown counsel was an agent of the Police. The Judge said:
It was suggested at one stage that the police had no right to copy the information to the Crown Solicitor, but I am satisfied that Mr Garland is correct when he submitted that for present purposes the Crown Solicitor is to be regarded as the agent of the police and if the police are entitled to the information then it seems to me that it would be unreal to take the view that they are not entitled to pass a copy on to the Crown Solicitor who is in practical terms their legal representative for present purposes in spite of his independent status. Those are the reasons why I was unable to come to the view and indeed the point was not pressed, that the police had somehow acted unlawfully in obtaining the information in question about potential jurors and passing it on to Mr Garland as Crown Solicitor in Invercargill. [at
112]
[12] The Judge was not prepared to extend the distribution of that information further on the grounds of privacy. The Judge was not faced with an application that the Crown not use the information at all. Nor does it appear that the Judge had the benefit of an argument in support of that application of the sort presented to me in this case and considered by the High Court of Australia in Katsuno.
[13] In R v Watson (No 2) (High Court, Wellington, T2693/98, 9 June 1999), Heron J was faced with an application to prevent the vetting of the jury list by the Crown by reference to any criminal convictions of potential jurors as determined by the Wanganui computer. The application was made to him in June of 1999 before the decision of the High Court of Australia in Katsuno v R (1999) 73 ALJR 1458. The litigation referred to in that Australian case then extant does not appear to have been drawn to the attention of the Judge. Having considered some English authority and R v Greening (above) Heron J said:
These are matters largely of first impression. I am of the school of thought that believes that no convicted person should sit on a jury, if that can be avoided, except in the case of the most trivial of offending. The percentage of people who are convicted persons within the community is very small. By virtue of the pre-trial publication of the jury list, there is inevitably likely to be some form of enquiry as to the make-up of the jury panel on both sides. I do however think that both parties should start from the same basis and that the defence should be shown the results of the computer search . It may well be in the interests of the accused not to have a convicted person on the jury. It is of interest to note that the statement by the Attorney-General that follows R v Mason (supra) together with the recommendation of the Association of Chief Police Officers and the Attorney-General’s guideline on jury checks, is by and large facilitative of the use to be made of criminal records, not only to ensure compliance with the Juries Act, but also in the overall interests of justice as to the appropriate persons who should sit on juries.
Doing the best I can in the circumstances, it seems to me that the practice which is common-place in New Zealand should not be changed for the purposes of this case. It is in the overall interests of justice to have persons without convictions sitting as jurors and provided the relevant information is made available to the defence if they require it, prior to the empanelling of the jury I do not intend to intervene to stop the practice on this occasion.
[14] In the Court of Appeal the Court recorded the issue in [55] as follows:
The appellant applied for an order preventing the Crown from determining through use of the Wanganui Computer whether any of the jury panel summoned for the trial had criminal convictions. The Judge declined to make the order. Although listed as a ground of appeal, the refusal of the order was not pursued as a basis for setting aside the convictions. Counsel responsibly accepted that in the circumstances it was not realistic to contend that a miscarriage of justice had resulted. In that situation we have concluded that it would not be appropriate to make any definitive ruling on the lawfulness, or alternatively the desirability, of the practice, one which we understand is not uniform throughout the country. It is of course common practice for both Crown and defence to make some inquiry in respect of potential jurors, with a view to assisting in exercising the right to challenge, whether peremptory or for cause. The limits of those were not addressed in argument before us, the sole point being Crown use (through the police) of the Wanganui Computer for disclosure of criminal convictions. It is difficult to see how such a practice could infringe, as was suggested, either the Juries Act 1981 or the New Zealand Bill of Rights Act 1990. The Privacy Act 1993 could require consideration, although Mr Davison for the Crown submitted that s111 was sufficient authority. The issue must however be regarded as open, particularly as regards the policy issue of overall fairness. Consideration of the dicta of Tipping J in R v Greening [1991] 1 NZLR 110, and of the English authorities such as R v Mason (1980)
71 Cr App R 157 and R v McCann (1991) 92 Cr App R 239 can await another occasion.
[15] In R v Tukuafu the Court said at paragraph [118]:
The Crown pointed out that the practice of vetting was considered by this Court in R v Watson CA 384/99, 8 May 2000 at para [55] and this Court could not immediately discern anything to suggest that the practice might be unlawful although there was no concluded view on that issue.
[16] As is self-evident from paragraph [55] of Watson the Court of Appeal regards the issue as open. I do not read Watson as disturbing this view. That makes the decision of the High Court of Australia in Katsuno very relevant. The statutory scheme of the Victorian Juries Act 1967 is in its essentials the same as the New Zealand Juries Act 1981. Both Acts entrust to the Sheriff/Registrar, not the police, preparation of a jury list. Both Acts entrust to the Sheriff/Registrar identification of disqualification by reason of conviction. In the case of the Victorian Juries Act the Sheriff obtains the conviction information from the Commissioner of Police. In New Zealand the Registrar directly obtains the information from the criminal database. As already noted, in New Zealand the jury list is released to the parties five days before the trial. In Australia is it released on the day of the trial. Mrs Orchard relied on this difference. I will return to that point later in this reasoning.
[17] The High Court of Australia decided unanimously that the legislative policy of disqualifying persons for certain convictions and sentences includes by implication the corollary that non-disqualifying convictions and sentences remain confidential. In Katsuno the argument centred on two provisions of the Victorian Juries Act 1967 s 21(3) which provides:
A copy of every panel from which the jury is to be struck in every inquest shall be forwarded to the Chief Commissioner of Police not later than 12 days before the day appointed for the holding of the inquest, and the Chief Commissioner of Police shall make such inquiries as he sees fit as to whether any person disqualified under section 4 from serving as a juror is named on such panel and shall report the result of those inquiries to the sheriff.
[18] And s 67(b):
The Supreme Court may in a summary way impose such fine as is thought fit upon any person exercising any duty under this Act or performing any function under this Act who without lawful excuse the onus of proof of which shall lie upon him –
…
(b)subtracts destroys or permits any person to have access to any such record of jurors summons list panel or card;
…
[19] Taken in combination, the Chief Commissioner’s duty was to enquire as to whether any person was disqualified from serving as a juror (not to extend to identifying all persons who had criminal convictions and passing that information along), and prohibited any person otherwise to have access to such record of jurors.
[20] The judgment of Gaudron, Gummow and Callinan JJ concluded:
[25] It follows, in our opinion, that the practice of the Chief Commissioner of supplying details or information obtained as a result of inquiries made pursuant to s 21(3) of the Juries Act to a prosecutor (as happened in this case), or to anyone else other than the Sheriff in advance of the delivery of a copy of the panel in open court is unlawful and, if necessary, its continuance can be restrained by injunction.
[21] Read on its own that paragraph might suggest that the prohibition was simply in supplying details or information obtained as a result of enquiries of non-disqualifying convictions earlier than on the day on which the list was delivered. This point is relied upon by Mrs Orchard, to distinguish the case. But that is not reflected in the detail of the reasoning. The Court interpreted s 21(3) as impliedly providing that no-one else other than the Sheriff was to receive the report of the Chief Commissioner of Police as to convictions generally. This is made clear by paragraph [20]:
[20] The principle is applicable to this case. The structure of the Juries Act, with its emphasis upon confidentiality and the sole and express reference to the Sheriff as the recipient of the report, gives rise here to a negative implication that no one else is to receive the report.
[22] And also summarised by Gleeson CJ in Katsuno in para [2]:
[2] As to the first issue, I agree that the practice followed in the present case contravened an implied prohibition contained in s 21(3) of the Act, and was therefore unlawful. I am unable to accept that there was also a contravention of s 67(b). In that respect, I agree with Kirby J.
[23] The point is also captured by Kirby J in his judgment in paragraphs [108] and
[109]:
[108] Secondly, and critically, the appellant referred to the provisions of s
21(3). Read with the principle of statutory construction accepted in recent authority by this and other courts this subsection is fatal to the Chief Commissioner’s practice. The subsection is set out in the joint reasons. It appears in a statutory provision which, as has been said, obliges the Sheriff and his officers not to make known to any person the names in any jury panel. It appears in an Act which, following ancient procedure, contains many indications of protection of the privacy of jurors and of the anonymity that is necessary to permit and encourage them to perform their functions without fear and with complete integrity.
[109] In such a context, it is not difficult to infer that the purpose, and the sole purpose, of forwarding to the Chief commissioner the copy of the panel from which the jury is to be struck, is the performance by him of the duty specified in s 21(3). Nothing else. The subsection does not provide the chief Commissioner with a larger function. It imposes upon him a duty which is highly specific. His role is solely to make inquiries for the purpose of ascertaining the persons disqualified under s 4 of the Act and reporting “the result of those inquiries” to the Sheriff. In such a context, had Parliament’s purpose been to clothe the Chief Commissioner with more extensive powers, to use such sensitive information in other and different ways, express language authorising this would have been used.
[24] The statutory scheme in New Zealand has a similar emphasis on confidentiality. See above s 12. See also s 9(6) of the Juries Act as originally enacted:
(6) Except as may be ordered by the Court or a Judge for the purpose of any proceedings relating to the validity of the jury list or a panel of jurors or to the eligibility of any juror, the jury list shall be confidential to the Registrar and his staff.
[25] As noted, Mrs Orchard argued that Katsuno should not be followed as in Victoria the list was released only on the day of the trial, whereas in New Zealand that is five days before. Section 14 provides:
14 Inspection of jury panel
(1) If, at any time not earlier than 5 days before the commencement of the week for which the jurors on a panel are summoned to attend for jury service, any party to proceedings that are due to be heard during that week (or any other person acting on behalf of any such party) requests the Registrar to make available a copy of the panel for inspection and copying by or on behalf of that party, the Registrar shall comply with that request.
(2) The Court may allow any other person to inspect and copy a copy of the panel at any time during the period referred to in subsection (1) of this section.
(3) No copy of the panel that is made available to any person under this section shall disclose the date of birth of any of the persons whose names are on the panel.
(4) In this section the term days means days on which the office of the
Court is open for business.
[26] The availability of the jury panel five days before the commencement of the week for which they are summoned obviously reflects an intention that the parties can consider the suitability of persons on that panel for jury service in the particular case. This is both for the purposes of exercising the limited right of pre-emptory challenge, and also the unlimited right of challenge for cause. Section 24 and 25 of the Juries Act provides:
24 Challenges without cause
(1) Subject to the succeeding provisions of this section, in every case to be tried before a jury each of the parties shall be entitled to challenge without cause 6 jurors only.
(2) Where 2 or more accused persons in a criminal case are indicted together, the Crown or other prosecutor shall be entitled to challenge without cause 12 jurors only.
(3) Where a juror is discharged and is to be replaced with another under section 22 of this Act, each of the parties shall be entitled in the selection of the new juror to exercise such number of challenges without cause as he has not already exercised.
25 Challenges for cause
(1) In addition to the right to challenge under sections 23 and 24, each party to the proceedings is entitled to any number of challenges for cause on the ground that—
(a) a juror is not indifferent between the parties; or
(b) a juror is not capable of acting effectively as a juror in the proceedings because of physical disability.
(2) Except as provided in section 23 of this Act, no other ground of challenge for cause shall be allowed.
(3) The Judge shall determine every challenge for cause, in private, in such manner and on such evidence as he thinks fit.
[27] Plainly, the fact that a person on the jury panel has a non-disqualifying conviction and sentence does not of itself justify challenge for cause under s 25. The prior convictions may be a reason for the Crown or other prosecutor or any counsel for the parties to challenge simply without cause. Such challenges are not in fact challenges without cause. Because the parties are limited as to the challenges they can make, there is always a reason for them. In the case of the Crown, there is a special responsibility to have a proper reason. In the case of the Crown it cannot be a reason which undermines the purpose of the Juries Act.
[28] Reading the Juries Act as a whole, its text and in the light of its purpose, it does not seem to me to be a proper exercise of the Crown’s statutory discretion to be entitled to challenge without cause, to challenge on the basis that the person has a non-disqualifying conviction. The Juries Act has deliberately provided for persons to be jurors notwithstanding past convictions. Moreover, the Act has envisaged that past history of minor conviction is an issue of privacy to be protected by confidentiality.
[29] This is not to say there may be other reasons why a person with a prior conviction is regarded by the Crown as not being a desirable person to be on the jury of this particular case, even though the Crown cannot argue a challenge for cause in respect of that person, pursuant to s 25. There is nothing in the Juries Act that prevents the Crown from relying on local police knowledge of persons.
[30] I intend to follow the High Court of Australia in Katsuno to draw the same inference, by corollary, that the New Zealand Parliament intends the exercise of enquiry into criminal conviction from the database to be a confidential exercise, done only by the Registrar, and not by the police. There is no decision of a superior Court in New Zealand to the contrary.
[31] It is no answer to the application to say that it has come to late. It has come late, and that is regrettable. But the horse has not bolted. It is no answer to say the information should now be given to accused as that only compounds the breach of the Juries Act. The appropriate course is to order Crown counsel not to rely on the
information already obtained from the Police of criminal records of individuals on the jury panel.
Solicitors:
Raymond Donnelly & Co, Christchurch, for Crown
Clark Boyce, Christchurch FS Legal, Christchurch PHB Hall, Christchurch
D C Ruth, Christchurch
P J Doody, ChristchurchR G Glover, Christchurch
G R Lascelles, Christchurch
M I Sewell, Christchurch
J Rapley, Christchurch
M J Callaghan, Christchurch
0
2
0