R v Ekeroma - [2020] NZHC 565

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-004-1413

[2020] NZHC 565

THE QUEEN

v

DON IOSEFA EKEROMA BENNY PENI FATU

Hearing: 19 March 2020

Appearances:

B D Tantrum and S S McMullan for the Crown L B Cordwell for Mr Ekeroma

G J Newell and DMM Dickinson for Mr Fatu

Date of judgment:

19 March 2020

ORAL JUDGMENT (NO 2) OF JAGOSE J

[Discharge of jury]

Solicitors/Counsel:
Meredith Connell, Crown Solicitor, Auckland L B Cordwell Barrister, Auckland
E I Haronga Barrister, Auckland G J Newell Barrister, Auckland
D M Dickinson Barrister, Auckland

R v EKEROMA and FATU [2020] NZHC 565 [19 March 2020]

[1] Principally on the strength of the Chief Justice’s advice yesterday “all new jury trials will be suspended for two months” by reason of the COVID-19 pandemic, Mr Ekeroma’s counsel, Lester Cordwell, made urgent renewed oral application for the jury – presently in deliberation since about 10.30 yesterday morning, and from its question later yesterday afternoon observably making progress – to be discharged.

Background

[2] I dismissed a similar application on 17 March 2020, with reasons given in a judgment earlier today (which should be read in conjunction with this judgment).1 The renewed application focuses on the contended “new circumstances” of the Chief Justice’s advice as confirming the requisite “emergency” to engage my opinion if discharge was “highly expedient for the ends of justice” under s 22(3)(a) of the Juries Act 1981.

Discussion

[3] In the circumstances, I disregard if the Chief Justice’s advice truly is a ‘new’ circumstance permitting me to re-enter my earlier decision. A more conservative view is only it chooses “out of an abundance of caution” to suspend new jury trials, and expressly “does not affect jury trials already in progress”. Thus it would not qualify on its own to justify revisitation of the application I already have dismissed.

[4] Also, in these circumstances, I am prepared to accept uncritically the present environment may constitute an ‘emergency’ for the purposes of s 22(3)(a). Mr Cordwell drew my attention to the definition of ‘emergency’ in s 4 of the Civil Defence Emergency Management Act 2002, as relevantly meaning:

… the result of any happening … including, without limitation, any … plague, epidemic, failure of or disruption to an emergency service… [that] causes or may cause loss of life or injury or illness or distress or in any way endangers the safety of the public or property in New Zealand or any part of New Zealand”.2

1 R v Ekeroma & Fatu [2020] NZHC 562.
2 But the definition continues also to require the result “cannot be dealt with by emergency services, or otherwise requires a significant and co-ordinated response under this Act”, neither of which I presently understand to be the case.

[5] Mr Cordwell made every argument reasonably available I should be of the opinion the jury’s discharge is highly expedient for the ends of justice. He observed it was…

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 R v Ekeroma

Details

AGLC: R v Ekeroma [2020] NZHC 565
Case: [2020] NZHC 565
Decision Date: 19 March 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of R v Ekeroma involved the defendants Don Iosefa Ekeroma and Benny Peni Fatu. The nature of the dispute was an application for the jury to be discharged in light of the COVID-19 pandemic. The court was required to determine whether the circumstances of the pandemic qualified as an emergency that warranted the discharge of the jury already in deliberation.

The legal issues at hand were whether the Chief Justice's advice to suspend all new jury trials for two months due to the COVID-19 pandemic constituted a 'new circumstance' and an 'emergency' under s 22(3)(a) of the Juries Act 1981. The court also had to consider whether discharging the jury was highly expedient for the ends of justice. The court acknowledged the definition of 'emergency' in the Civil Defence Emergency Management Act 2002 but found that the current situation did not necessitate a significant and coordinated response, nor was it beyond the capacity of emergency services to handle.

The court reasoned that while the Chief Justice's advice and the resulting publicity may have been a topic of discussion among the jurors, there was no evidence of an immediate emergency that would justify discharging the jury. The court was also mindful of the need to interfere as little as possible with the jury's deliberations and the risk of a 'rush to justice'. Given the lack of evidence of community spread and the preference for minimal interference, the court dismissed the application to discharge the jury.

The final orders of the court were that the application to discharge the jury was dismissed. The jury was instructed to continue its deliberations.

Orders