R v Ekeroma - [2020] NZHC 562

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-004-1413

[2020] NZHC 562

THE QUEEN

v

DON IOSEFA EKEROMA BENNY PENI FATU

Hearing: 17 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

JUDGMENT OF JAGOSE J

[Discharge of jury]

This judgment was delivered by me on 19 March 2020 at 8.45am.
Pursuant to Rule 11.5 of the High Court Rules

………………………… Registrar/Deputy Registrar

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 562 [19 March 2020]

[1] On 17 March 2020, Mr Ekeroma’s counsel, Lester Cordwell, made urgent oral application for the jury, about to hear counsel’s closing arguments after a week of prosecution evidence in this murder trial, to be discharged in the interests of justice.

Background

[2] The application was based in emergent COVID-19 issues, particularly official advice over the weekend for social distancing and seclusion, which were argued to risk jurors’ “rush to justice” to escape the confines of their close hearing and deliberation spaces. I briefly reserved my decision and, after consideration, dismissed the application with reasons to follow. These are those reasons.

[3] Unknown to Mr Cordwell at the time he foreshadowed his application, but as then I apprised him, a juror had approached the registry the previous day, to advise of symptoms as harbinger of an on-coming cold. The juror had not travelled overseas recently, or been in known close contact with either any suspected COVID-19 sufferer or their close contacts. My initial view was, without fever symptoms, the juror could and should sit. But the Director-General of Health’s COVID-19 guidelines changed later that day, from fever “and” other symptoms to fever “or” other symptoms. On that basis, having at least one of those other symptoms, the juror’s afflicted presence in the jury risked imposing undue pressure on the other jurors, and I stood the juror down.

[4] Before Mr Cordwell argued his application, I spoke shortly to the remaining jurors in the crier’s company – to advise them of their reduced number, and the reason for it (as explained above) – and asked them to consider and advise me through their foreperson if they were comfortable the developing COVID-19 situation was not such as dissuaded them from their oaths. The crier later advised me, and I advised counsel, the jury was content to continue.

Applicable law

[5] Although initially depicted as an application to abandon trial, it became common ground the jury’s discharge was sought under s 22 of the Juries Act 1981:

22 Discharge of juror or jury

(1) When this subsection applies, the court, having regard to the interests of justice, may either—
(a)discharge the jury without the jury giving a…

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 562
Case: [2020] NZHC 562
Decision Date: 19 March 2020

CaseChat Overview and Summary

In the case of R v Ekeroma, the Crown sought the discharge of the jury in a murder trial due to the evolving COVID-19 pandemic. The application was made by Mr. Ekeroma's counsel, Lester Cordwell, who argued that the jurors' health and safety, as well as the need for social distancing, made it unjust to proceed with the trial. The court was faced with the challenge of balancing the need for a fair trial with the imperative to protect public health.

The legal issue before the court was whether the discharge of the jury was warranted under the provisions of the Juries Act 1981, specifically section 22, which allows for the discharge of a jury in certain circumstances, including when a juror is incapable of performing their duties or when a casualty or emergency makes it highly expedient for the ends of justice to do so. The court considered whether the COVID-19 pandemic met the criteria for such a discharge.

The court dismissed the application, reasoning that while the COVID-19 situation was indeed an emergency, it did not meet the threshold for discharge under the act. The court found that the jurors were still capable of performing their duties and were willing to continue with the trial. The court also noted that discharging the jury would not necessarily alleviate the jurors' concerns about the pandemic, and it was unwilling to discharge the jury based solely on the potential for a "rush to justice." The court concluded that the interests of justice were best served by allowing the trial to proceed with the existing jury.

The final orders of the court were to dismiss the application for the discharge of the jury, allowing the trial to continue with the existing jurors.

Orders