R v Dwyer
[2016] NZHC 2746
•31 October 2016
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-063-731 [2016] NZHC 2746
THE QUEEN
v
BENJAMIN PAUL DWYER BRENT ANTHONY GUNNING MATTHEW JOHN MCDONNELL JORDAN ALEXANDER CHRISTIAN DAVID PETER CLARK
STEPHEN WILLIAM DALY LIAM JOHN KANE
SAM WIREMU ROLLESTON STACY WALTON DENNIS PAORA
Hearing: 25 October and 31 October 2016 Counsel:
C H Macklin, N Tahana and S P Casey for Crown
A F Rickard-Simms and M B Hoebergen for Dwyer
W Lawson and K A Wilson for Gunning
M A Simpkins and G K C Oudyn for Christian
J A G Moroney and A H Fisher for Clark
M N Pecotic for Daly
R E Webby and N M Dutch for Kane
W T Nabney and R E Nabney for Rolleston
S N B Wimsett and S T L Teppett for PaoraJudgment:
31 October 2016
Reasons:
16 November 2016
R v DWYER & ORS [2016] NZHC 2746 [31 October 2016]
JUDGMENT OF BREWER J
This judgment was delivered by me on 16 November 2016 at 3:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Introduction
[1] I empanelled the jury in this trial on 25 October 2016. After the defendants had been given in charge of the jury, and before the Crown opening, I adjourned the trial to the following Monday, 31 October 2016, so as to deal with matters on which I was obliged to rule and to enable the Crown to try to find delinquent witnesses.
[2] Later that day, Mr Macklin for the Crown told me that he had advice from the Police that one of the jurors was convicted in Australia in 2013 on a charge of indecent treatment of children. He was sentenced to 12 months’ imprisonment, with that sentence to be suspended for three years after four months were served. I was shown the computer record which confirms these details.
[3] The current practice in Rotorua is for the Police to vet the jury list and to put lines through the names of prospective jurors who the Police think should not be allowed to serve. The Police give the vetted jury list to the Crown Solicitor but do not give reasons for their crossings-out. Prosecutors then exercise their discretion to challenge without cause without knowing why the Police think a person should not be on the jury. In this case, the prosecutor had exhausted his challenges without cause before the juror in question was balloted.1
[4] I told counsel I would ponder the situation and raise it again on 31 October
2016 before the trial resumed.
1 In my Minutes recording the situation, I have made it clear that I do not consider this practice to be a good one.
[5] On 31 October 2016, Mr Wimsett, on behalf of Mr Paora, made formal application for the juror to be discharged. I refused the application and said I would give reasons in due course. This Judgment gives my reasons.
Issues
[6] There are two issues:
(a) Do the disqualification criteria in the Juries Act 1981 (the Act) relating to sentences of imprisonment apply to overseas convictions?
(b)Are there other grounds for discharge within the Act which apply to the juror?
Discussion
The applicability of overseas criminal convictions
[7] Section 7 of the Act provides:
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 home detention for a period that is, or is more than, 3 months.
[8] There is no doubt that if the juror had received his sentence in New Zealand (or, its equivalent sentence) he would be disqualified from serving on the jury by s 7(b). If he was on the jury because his disqualification had not been identified until now, I should discharge him.2
[9] However, it is clear to me that the Act applies to New Zealand sentences and not to overseas sentences.
2 Juries Act 1981, s 22(2)(b).
[10] First, the prerequisite qualification for service as a juror is that a person be registered as an elector in accordance with the Electoral Act 1993.3 This is subject to
ss 7 (criminal record) and 8 (disqualification of people holding certain offices, having particular employment, or having an intellectual disability).
[11] Jury lists are compiled at random from the electoral roll. This is the point from which disqualified people begin to be identified and removed from consideration for jury service. Section 9(4) provides that a jury list must not contain the name of any person who, according to the electoral roll, holds any office or is engaged in any occupation, referred to in s 8.
[12] Once a jury list has been compiled, it is given to the Registrar of the Court to which it relates. The Registrar may amend the list by deleting from it the name of any person who should not be considered for selection for a jury, including those disqualified according to s 7. The Registrar may act on his or her own knowledge, or on such evidence as he or she considers satisfactory.4
[13] Having received the jury list, and having deleted any names of people recognised as being ineligible to serve, the Registrar must compile a panel containing a sufficient number of jurors for the purposes of upcoming trials. Those are the jurors who will be summoned for jury service. However:5
The Registrar shall, before issuing any such summons, take all reasonable steps to ensure that the name of any person referred to in section 7 or section
8 is struck off the panel.
[14] The Registrar has no ability to make inquiry as to whether a juror has served a sentence of imprisonment overseas. The Registrar relies, I understand, on a computer database that ensures individuals with disqualifying New Zealand convictions do not make it onto the jury panel.
[15] Second, the Act does not refer to overseas sentences. I would expect it to do so if s 7 was expected to extend to them, and I would expect the Registrar to be directed
3 Juries Act 1981, s 6.
4 Juries Act 1981, s 12A.
5 Juries Act 1981, s 13(2).
to take reasonable steps to identify them. I have looked at equivalent legislation in England and Wales, Ireland, Australia and Canada. In England and Wales, the legislation is specific to convictions within the United Kingdom, the Channel Islands or the Isle of Man.6 Similarly, in the Republic of Ireland, the legislation is specific to convictions within Ireland or corresponding convictions in Northern Ireland.7 In Canada, the legislation of some Provinces is silent on the issue8 while the legislation of others is specific to convictions within Canada.9 In contrast, the Australian States seem to exclude a person from jury service if convicted of certain offences “wherever committed”.10 Our legislation is silent.
[16] The Law Commission’s 2001 Report on Jury Service is also silent on the
point.11 The purpose of s 7 was identified as follows:12
This exclusion is based on the assumption that a person who has a conviction will have a bias against the criminal justice system and in favour of the defendant. It is also arguable that those who have broken the law should not sit in judgment upon others. Although this may be seen as stern, it must also be pointed out that a juror known to have a criminal record is likely to be perceived as biased, and therefore exposed to criticism for the verdict. The need for the appearance of justice is probably the strongest argument in favour of the retention of this exclusion.
[17] It is arguable that the danger of bias against the criminal justice system is not as great where it was a different criminal justice system with which the juror was involved. But, the point is moot.
[18] In summary, there is nothing in the Act which indicates that it has any applicability to sentences of imprisonment served overseas. The whole structure of
the Act is that it is a statute of domestic application.
6 Juries Act 1974 (UK), Schedule 1, Part 2.
7 Juries Act 1976 (Republic of Ireland), s 8(a)
8 See for example s 4(e) of the Juries Act 1998 (Nova Scotia).
9 See for example s 3(1)(p) of the Jury Act 1996 (British Colombia).
10 Jury Act 1977 (NSW), Schedule 1, Clause 1(1). The legislation of other Australian states is to similar effect: Juries Act 2000 (Vic); Jury Act 1995 (Qld), s 4(3)(n).
11 Law Commission Juries in Criminal Trials (NZLC R61, 2001).
12 At 73.
Are there other grounds for discharge?
[19] Section 22 of the Act permits the discharge of a juror at any time before the jury’s verdict is taken if, and only if, the Court considers that:
(2) …
(a) a juror is incapable of performing, or continuing to perform, the juror’s duty as a juror in the case; or
(b) a juror is disqualified; or
(c) a juror’s spouse, civil union partner, or de facto partner, member of the juror’s family, or member of the family of the juror’s spouse, civil union partner, or de facto partner, is ill or has died; or
(d) a juror is personally concerned in the facts of the case; or
(e) a juror is closely connected with a party or witness or prospective witness.
[20] There can be situations where, because of a juror’s personal history, he or she is incapable of performing, or continuing to perform, their duty as a juror. I recall a case where it was reported that, in a trial alleging the sexual abuse of children, a juror became emotionally incapable of continuing to perform her duty because of being overwhelmed by flashbacks from a personal experience of abuse. This case, however, is a trial of nine adult males charged with kidnapping and associated acts of violence and robbery. It could not be further from the subject-matter of the juror’s Australian conviction. In any event, I have no reason to suspect any incapacity.
[21] The other grounds simply do not apply.
Decision
[22] For the reasons given above, I concluded that I have no jurisdiction to discharge the juror concerned from service on the jury.
Brewer J
Solicitors/Counsel:
Gordon Pilditch, Rotorua, for Crown
Pacific Coast Law, Papamoa, for DwyerLance Lawson, Rotorua, for Gunning and Christian
Bruce Hesketh, Tauranga, for McDonnell Thode Utting & Co, Albany, for Clark Maria Pecotic, Auckland, for Daly
Nick Dutch, Tauranga, for Kane
Bill Nabney, Tauranga, for RollestonRon Mansfield, Auckland, for Paora
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