R v Fernando
[2007] NZCA 485
•2 November 2007
PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA469/06 [2007] NZCA 485
THE QUEEN
v
THEOMAL HIRANTHA JOSEPH FERNANDO
Hearing: 24 and 25 July 2007
Court: Wilson, Panckhurst and Venning JJ Counsel: A H Waalkens QC for Appellant
C L Mander and J Marinovich for Crown
Judgment: 2 November 2007 at 12pm
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Wilson J)
R V THEOMAL HIRANTHA JOSEPH FERNANDO CA CA469/06 2 November 2007
Table of Contents
Para No
Introduction [1] Background [5] The allegations [9] Grounds of appeal [23] Application for stay [24] Submissions for appellant [25] Submissions for Crown [32] Discussion [37] Directions to the jury [40] Delay [41] Similar fact [46]
Lies [52] Perverse verdicts [59] Juror irregularity [67] Result [84]
Introduction
[1] On 12 October 2006 the appellant, a registered medical practitioner, was convicted in the High Court of New Plymouth of 26 counts of indecent assault, having been found guilty by a jury of these charges. The convictions encompassed the allegations of ten complainants. The offending spanned the period from
7 October 1981 to 25 July 2002. All of the convictions arose out of consultations by the complainants with Dr Fernando. In the course of deliberations, one of the jurors was discharged because of ill health.
[2] The appellant appeals against all 26 convictions.
[3] On 15 November 2006, the appellant was sentenced by Priestley J, the trial Judge, to three years and two months imprisonment and was ordered to pay to the complainants reparation totalling $29,000.
[4] Unsurprisingly, there is no appeal against that sentence.
Background
[5] Dr Fernando is a registered medical practitioner who had been practising as a General practitioner in New Plymouth since December 1980. He is said by his counsel to be an upstanding member of the community, closely involved with his church, with Rotary and, along with his wife and children, with school and music activities.
[6] On 30 July 1984 Ms H, then 16 years old, made a complaint to the Medical Council about Dr Fernando. It was dismissed without a hearing. Her allegations formed part of the charges against the appellant in the current proceedings.
[7] The appellant was indicted on 37 counts, comprising 34 counts of indecent assault and three counts of sexual violation. The 26 counts of indecent assault of which he was convicted comprised 14 counts of touching the victim’s breast or nipples with his hand (some of which also involved the appellant pressing his leg or body against that of the victim), three counts involving pressing his erect penis against the patient, and nine counts of digital penetration or rubbing genitalia. Dr Fernando was acquitted of the three charges of sexual violation.
[8] One of the jurors (referred to as Juror S) was discharged on 11 October 2006, the second day of the jury’s deliberations. The juror’s general practitioner had been consulted by court staff after issues arose about her health. He had advised that, in his considered opinion, the juror was not fit to continue because of a worrying health condition and had suggested that she be excused forthwith to seek medical attention.
The allegations
[9] At trial, the appellant faced the following allegations from 12 complainants. [10] Ms C was the subject of five counts of indecent assault alleged to have taken
place from about October 1981 through to mid-1983 (counts 1-5). The jury returned a guilty verdict on four counts. Three of the guilty verdicts related to the doctor rolling the complainant’s nipples between his fingers on each of three consultations
for depression and back pain. The remaining count involved his pressing his erect penis against Ms C’s stomach following an intimate examination. The not guilty verdict related to an allegation that the doctor rubbed his ear against her breast.
[11] Ms H was the subject of six counts of indecent assault alleged to have taken place in mid-1983 and mid-1984 (counts 6-11). The appellant was found not guilty on the first of these counts, a charge of indecent assault of a girl under 16. The Crown contends that this verdict was the result of the jury being unsure of Ms H’s age at the relevant time. Guilty verdicts were delivered on the remaining five counts.
[12] Ms H visited the appellant in relation to a possible pregnancy, and a foot complaint. The first two counts were in respect of a breast examination which was conducted improperly, with the doctor pressing his erect penis against the complainant’s arm. The remaining counts involved digital penetration and prolonged rubbing of the clitoris, at the same time as the appellant pressed his erect penis against the complainant’s body.
[13] Ms F was the subject of one count of indecent assault alleged to have taken place between early 1983 and early 1984 (count 12). Ms F visited the appellant regarding a suspected pregnancy. During the examination the doctor deliberately rubbed her clitoris. The appellant was found guilty on this count.
[14] Ms R was the subject of one count of indecent assault, alleged to have taken place between late 1983 and early 1985 (count 13). She visited the appellant for a suspected pregnancy, a lump in her groin, and a complaint regarding lack of orgasm. The appellant was found guilty of rubbing her genitalia with his fingers.
[15] Ms W was the subject of nine counts of indecent assault alleged to have taken place between December 1983 and April 1984 (counts 14-22). The appellant was found guilty on four of these counts. The complainant visited the appellant in relation to thrush and a urinary tract infection. The alleged conduct on each of the visits was the same, except on the first visit when Ms W said the appellant rolled her nipple between his fingers. There was a not guilty verdict on this charge. The jury returned guilty verdicts in relation to the appellant rubbing the complainant’s clitoris
without a glove at each of the examinations and not guilty verdicts in respect of pressing his erect penis against her thigh on each occasion.
[16] Ms P was the subject of four counts of indecent assault alleged to have taken place in January 1984 (counts 23-26). The jury returned guilty verdicts on three of these counts. The complainant gave evidence that when she visited the appellant for thrush he groped her breast and digitally penetrated her vagina. He was found guilty on these counts and of holding his body against hers while pushing her breast with his hand. He was found not guilty on one further count of touching her breast with his hand.
[17] Ms L was the subject of one count of unlawful sexual connection (digital penetration of the vagina) alleged to have taken place between 21 April 1986 and 30
September 1987 (count 27). The verdict was not guilty.
[18] Ms B was the subject of one count of unlawful sexual connection (digital penetration of the vagina) alleged to have taken place between 22 November 1986 and 26 February 1987 (count 28). The jury returned a verdict of not guilty.
[19] Ms M was the subject of one count of indecent assault alleged to have taken place between June and August 1990 (count 29). She was consulting the appellant about a hyadatid mole when he rolled her nipples with his fingers. A guilty verdict resulted.
[20] Ms J was the subject of one count of indecent assault (count 30). She gave evidence that, when visiting the appellant during her pregnancy, he twisted her left nipple in the context of assessing the suitability of her breasts for breastfeeding. The jury returned a guilty verdict on this count.
[21] Ms S was the subject of two counts of indecent assault alleged to have taken place in June 1999 (counts 31 and 32). Both counts arose during the course of acupuncture sessions with the appellant and involved the appellant rolling the complainant’s nipple between his fingers and touching her breast. Guilty verdicts resulted on both counts.
[22] Ms U was the subject of four counts of indecent assault and one count of sexual violation alleged to have taken place between 1995 and 1999 (counts 33 to
37). The jury returned guilty verdicts on the indecent assault charges and a not guilty verdict on the charge of unlawful sexual connection. The three guilty counts related to separate consultations during which the appellant locked his knees with the complainant’s knees and squeezed her breasts in a claw-like motion.
Grounds of appeal
[23] Dr Fernando appeals on six grounds, which can be grouped as follows: (1) Prior to the trial, the Court (Harrison J) had wrongly declined a
stay in respect of four complainants whose medical records were no longer available.
(2) The summing up was defective because:
• the direction did not adequately explain the significance of the substantial delays between the events in question and the trial;
• the directions on similar fact were inadequate;
• a “lies” direction should have been given.
(3) The guilty verdicts were perverse, having regard to the evidence. (4) The actions of the foreman and the retirement of Juror S
created a serious irregularity and as a result the verdicts are unsafe.
Application for stay
[24] The appellant applied to stay the counts in the indictment relating to the complainants Mss H, F, R and W on the ground that the medical records of their consultations were no longer available. Other grounds advanced in support of a stay, including unreasonable delay between the events in question and the commencement of the proceedings, were not pursued on appeal.
Submissions for appellant
[25] Dr Fernando submits through his counsel that Harrison J erred in declining the application for a stay, and as a result the appellant was prejudiced in the conduct of the trial so that he did not receive a fair hearing, which has led to a miscarriage of justice.
[26] The appellant accepts that the Judge correctly set out the principles from R v The Queen [1996] 2 NZLR 111 (HC) and W v R (T2/98) (1998) 16 CRNZ 33 (HC), namely that a stay is appropriate where the accused is shown to suffer prejudice from the delay to the extent that a fair trial is impossible, or where general prejudice can be presumed from the length of the delay. However, he contends that Harrison J erred in concluding that the evidential value of the notes was limited to recording whether or not Dr Fernando had conducted a bodily examination of the particular complainant.
[27] The appellant says the medical records would have been useful to him for two reasons. First, they would have assisted him in recalling the relevant consultations so that he could respond to criticisms. Secondly, they would have aided in challenging the credibility of the complainants. Other complainants who were able to be questioned in relation to available medical records were found to be mistaken about some of their recollections.
[28] The charges involving Ms H related to the period 1 May 1983 to 30 July
1984. The medical records seemingly went missing around the time the appellant responded to Ms H’s complaint against him to the Medical Council. The appellant
says that Ms H’s recollection was unreliable, and her credibility could have been challenged had the records been available. Moreover, Dr Fernando could not recall the complainant and could not adequately respond to allegations about consultations other than that raised in the Medical Council complaint.
[29] The charges involving Ms F related to the period from 1 May 1983 to 27
October 1984. Some medical records for 1985 and 1986 were available but the records of the consultations in issue were lost. In evidence in chief, Ms F was unsure of many details.
[30] Ms R’s notes were apparently lost when she transferred to another doctor. The appellant argues that her credibility could have been tested because there was some confusion over the number of consultations involved. In addition, Dr Fernando could not recall examining her, and without the notes he could not adequately defend his actions by reference to the type of examination that would have been required.
[31] It is assumed that Ms W’s notes were lost when she transferred to another doctor. Dr Fernando could not recall Ms W and did not recognise her. It is contended that there was general prejudice because the consultations were more than
22 years ago. Hospital records that are available highlight the complainant’s lack of credibility because they show that she retained the appellant as her doctor for the birth of her child. The records would have shown the medical conditions reported by Ms W, and as it was her evidence “defied credibility”.
Submissions for Crown
[32] The Crown submits in reply that, when the issue of unavailable evidence arises on an appeal from a conviction, the ultimate question is whether the unavailability of that evidence to the defence appears to have given rise to a miscarriage of justice. In R v Harmer CA324/02 26 June 2003 (at [91]) this Court identified two relevant considerations, first whether the evidence has been lost because of bad faith on the part of the police (which is not suggested in this case) and, secondly, whether it is probable that the lost evidence would have been of real
assistance in the particular case because it would have contributed to creating a reasonable doubt.
[33] It is submitted that the appellant was not materially prejudiced in relation to establishing the purpose of any of the visits. In Ms H’s case, the appellant had the benefit of a detailed letter of complaint to the Medical Council and his response to it. In the cases of the other complainants, he was convicted for actions (in each case rubbing the clitoris) that could not be justified on the basis of any medical complaint.
[34] The Crown argues that Dr Fernando was not materially prejudiced in relation to establishing what happened during the consultations. The notes would have been brief, and in some places incomplete. Any record of the reason for consultation would have been insignificant, given there was no medical reason for clitoral contact of the nature alleged. Any record of the examinations performed would have been irrelevant because the complainants objected to the manner of the examination, rather than the fact of examination itself.
[35] It was also submitted that there was no material prejudice through the appellant being denied the opportunity to cross-examine the complainants on return visits. There was no dispute as to Ms H’s last visit. Ms F accepted that she did go back for return visits. The appellant accepted that Ms R changed doctors. Any prejudice suffered in relation to Ms W was extremely limited, because the appellant was able to cross-examine her by reference to the medical records of the hospital where her daughter was born.
[36] Nor, the Crown contends, was the appellant materially prejudiced by being denied the opportunity to challenge recollection. The suggestion that the notes could have been used to undermine the credibility of the witnesses is speculative and overstates the effectiveness of this tactic in relation to the other complainants. The jury verdicts were based on an assessment of the evidence of each examination, rather than a general assessment of the complainant’s credibility.
[37] We accept that the appellant was disadvantage by the unavailability of the medical records of the four complainants, but are not persuaded that that disadvantage translated into trial prejudice. The cross-examination of these complainants whose records were available shows their value, but on collateral issues only.
[38] In Harmer at [91] this Court said:
The emphasis, we consider, should be upon the need for a showing by the accused or convicted person that it is more probable than not that the lost evidence would have been of real benefit to the defence because it would have created or contributed to creating a reasonable doubt.
[39] We do not think that the appellant in this case has shown that it is more probable than not that the missing records would have affected the jury’s assessment of reasonable doubt. To the contrary, it is in our view unlikely that this would have occurred. The pattern of verdicts in relation to Mss H, F, R and W confirms that Harrison J was correct to refuse a stay.
Directions to the jury
[40] In relation to the grounds of delay, similar fact and lies, the Crown submits that the starting point must be that none of these points was raised at trial by experienced counsel for the appellant. This is we think an important point, given Dr Fernando had the advantage of being represented at trial by two senior counsel, a Queen’s Counsel (Mr Waalkens) and another counsel (Ms Hughes) who was to attain that rank within a few months. When given the opportunity by the Judge to seek further or amended directions immediately after the jury returned to consider its verdict, these two very experienced counsel did not do so. That is in itself a compelling indication that the directions were appropriate.
[41] The appellant submits that the trial Judge’s directions in relation to delay were inadequate, given the issues and complexities arising out of the context of medical consultations. He contends that the Judge ought to have particularly emphasised the need for scrutinising the complainants’ evidence with care due to the delay, but that instead the Judge gave the impression that there were understandable reasons for the delay which detracted from any need to scrutinise the evidence with care.
[42] The appellant also contends that the Judge should have given a more careful direction about the significance of the missing records.
[43] The Crown submits in reply that the trial Judge’s directions were all that was required. It points out that s 23AC of the Evidence Act 1908 (which was in force at the time) permitted a trial Judge to explain to a jury that there may be “good reasons” for a complainant to refrain from, or delay in complaining in sexual cases, and refers to R v M CA187/95 13 November 1995 and R v M [2007] NZCA 217. The issue of delay was adequately addressed, both specifically and in the Judge’s discussion of
the Crown and defence cases.
[44] The specific direction was that:
[61] In this trial there has been comment on and indeed evidence about the
delay which has occurred between the relevant medical examinations which
took place in the 1980s and 1990s and complaints actually being made to the police. Some of the complainants have been asked questions about that issue
and they have given you their various explanations. What you make of that
delay is entirely a matter for you. There may be good reasons why a complainant may refrain from or delay in making a complaint about it. So too, the delay may cause difficulties with accuracy and maters of detail. Delay must be considered by you, complainant by complainant, and in some cases alongside evidence of many return visits to the accused’s surgery. So think about the delay, what it may mean, its implications the explanations given to you, and the fact that there are sometimes good reasons why a complainant may delay making a complaint.
[45]
This direction appears to us to be conventional and unobjectionable.
The
submission based on delay fails.
[46] The appellant submits that the trial Judge’s direction was inadequate. Given the unusual factual matrix, the Judge should have gone beyond the conventional direction in relation to similar fact. In particular, His Honour failed to adequately summarise the submissions made by the defence about the common features of intimate medical examinations, and the fact that a number of defence witnesses had had comparable examinations without complaint. A clear direction on similar fact was particularly important because of the number of complainants and the similarity of the complaints.
[47] The appellant also submits that the Judge’s direction on collusion was deficient, and did not do justice to the defence submission that a number of complaints were contaminated by “Chinese whispers”.
[48] The Crown responds that the Judge’s directions conformed with the model approach in R v Sanders [2001] 1 NZLR 257. The jury were directed to consider each charge separately and that the evidence of each complainant could only be relevant to the counts relating to that complainant. Evidence from patients where offending did not occur is not similar fact evidence and reference to it in the context of a direction on similar fact evidence would be inappropriate and confusing.
[49] The relevant part of the summing-up read:
[53] Now, members of the jury, as you were listening to the Crown evidence unfold during the first two weeks of the trial it might have occurred to you there were some similarities in the evidence given by some of the complainants. Complainants on some of the counts relating to sexual violation (digital penetration) referred to the accused’s fingers going in and out at a regular speed; or referred to the accused touching or stimulating their clitoris; or made some reference to the expression on his face. Some of the complainants when giving evidence about breast examinations, referred to the accused holding and rotating both their nipples between the thumbs and forefingers of both hands.
[54] You need to treat those counts where the evidence has similarities to other counts with great care. You must of course consider, as I have already told you, each one of the 37 counts separately and bring in a separate verdict, count by count, for all 37. That verdict must be based on the evidence relevant to the count. If you conclude that the accused is guilty of one or more of the counts, it is unsafe and improper, - wrong, - to continue your
deliberations along the lines that he must therefore be guilty of the other counts. A person may have done something criminal in relation to one occasion but that does not mean he has done something criminal on other occasions with different people.
[55] However, common-sense and experience tells us that if various complainants give sufficiently similar accounts of what an accused has done to them, and that they have not colluded, that is got their heads together to compare notes or organise their stories to be similar, the evidence of one complainant can be used to support the other. Ms Clarke for the Crown submitted to you yesterday that many of the complainants have significant similarities and that the evidence of those complainants support one another on the relevant counts.
[56] As I have already said to you, and I say it again you must be very cautious before adopting that line of reasoning. You have to be satisfied that there is a discernible pattern in what the relevant complainants say happened, which amounts to a distinctive similarity between their counts, which is so distinctive that each account logically supports and re-inforces the other. You must also be satisfied that the complainants have not got together or been influenced by one another or others to concoct false but matching stories.
[57] The problem as Ms Hughes said to you yesterday with treating similarities in this trial in that way is that, as you have heard, there are huge similarities in the way doctors generally and Dr Fernando in particular carry out vaginal examinations and breast examinations. The fingers do have to be inserted into the vagina. The clitoris may be accidentally touched. The breasts are visually inspected and palpated. Nipples and the surrounding area can legitimately be touched. You must view those similarities in medical procedures against the background of some 145,000 consultations carried out by the accused involving large numbers of women over a period of 20 odd years.
[58] Remember again, you must guard against any tendency to think along the lines of “well if the accused had a tendency to behave badly or not follow the highest medical standards he must be guilty”. That would be false logic, and totally unfair. So you must not do that. Be very careful when you are thinking about the similarities which exist between some of the accounts. Because intimate examinations of all women patients obviously have similarities.
(original emphasis)
[50] We cannot accept the appellant’s submission that these directions were inadequate or defective. They were clear, and emphasised that the jury needed to exercise caution in the use of similar fact evidence. The directions satisfied all the criteria set out in Sanders at [17] – [23]. The problem of misinterpreting medical examinations was thoroughly addressed in para [57].
[51] As with the direction on delay, we see nothing wrong with these directions. To the contrary, they were comprehensive, balanced and appropriate.
Lies
[52] The appellant submits that a “lies” direction ought to have been given because the Crown took a position requiring the jury to evaluate the truth of the appellant’s evidence, with emphasis being placed on his alleged lies. Where an allegation that an accused has lied has become a significant issue, a “lies” direction will usually be necessary: R v Marshall [2004] 1 NZLR 793 (CA).
[53] The Judge asked counsel prior to final addresses whether a “lies” direction ought to be given, and both parties advised this was not necessary. There was no change to this position after the addresses.
[54] The Crown submits that the starting point is the statement in R v Worden
CA111/99 8 July 1999 (at [22]) that:
If no request is made by the defence for a lies direction at trial this Court will not generally be sympathetic to an ex post facto suggestion that a miscarriage of justice has occurred through its absence.
[55] The Crown draws an analogy with R v Atkinson CA546/99 19 April 2000, contending that it did not rely on lies, but rather asserted that the appellant was not giving truthful evidence. Inconsistencies in the appellant’s evidence, rather than lies, were in issue. Referring to the inconsistencies as “lies” would have risked giving them more importance than they warranted.
[56] The appellant relies on R v Sungsuwan [2006] 1 NZLR 730 (SC) in support of the contention that it is not relevant whether the failure to give a “lies” direction was the consequence of an irregularity or error on the part of counsel. But the position taken by the defence in this trial cannot be characterised as an irregularity or error. To the contrary, it may well have been to the advantage of the defence to avoid unwelcome attention on matters such as Dr Fernando’s reluctant acknowledgment in cross-examination that, in his formal response to the Medical
Council over Ms H’s complaint, he had falsely claimed that his only physical contact with her was taking her blood pressure, when he had conducted a vaginal examination.
[57] There is nothing in this ground of appeal. Indeed, if the Judge had given a “lies” direction after being advised by defence counsel that one was not required, this would in all probability have been advanced as a ground of appeal.
[58] The Evidence Act 2006 was not in force at the time of the trial of the appellant. If it had been, s 124 would have required the trial Judge to give a “lies” direction only if the jury might have placed undue weight on the evidence of a lie or if the defence so requested. Neither criterion would have been satisfied.
Perverse verdicts
[59] The appellant submits that the guilty verdicts are unreasonable or cannot be supported having regard to the evidence. Both parties accept that R v Ramage [1985] 1 NZLR 392 (CA) does, as the law stands at present, set out the relevant test. This Court there said (at 393):
A verdict will be of such a character if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict of the jury.
[60] The appellant’s submissions primarily rely on the fact that many of the complainants had difficulty recalling the events and made some inconsistent statements. In addition, he emphasises that the legitimate medical examinations are open to misinterpretation, and points out that some complainants only came forward following media reports about the matter.
[61] The appropriate test for determining the perversity or otherwise of the verdicts, be it the Ramage test or a lower threshold such as whether a jury acting reasonably “ought” rather than “must” have entertained a reasonable doubt, is currently before the Full Court in R v Munro CA 33/07. Whatever the test, it is not satisfied on the present facts.
[62] Although subjected to full and rigorous (albeit appropriate) cross-examination, the complainants were not shifted on their evidence, which formed the basis of all those charges where guilty verdicts were returned.
[63] There was a high measure of consensus between the Crown and defence expert medical witnesses that, if what the complainants alleged had indeed happened, there could be no medical justification for these actions. The real issue was whether what occurred were medical examinations to which the complainants consented (the defence case), or sexual assaults to which they had not consented (the Crown’s position). The events in question took place in private, with no-one but the complainant and the appellant present.
[64] It was open to the jury to prefer the evidence of the complainants to that of the appellant.
[65] In summary, this was a classic jury case. It was for the jury, having been correctly directed by Priestley J as to the onus and standard of proof, to decide whether all or some of the alleged offending had been proved to the requisite standard. There was evidence which, if they accepted it, entitled them to conclude that it had.
[66] Dr Fernando cannot therefore now say that the verdict was perverse insofar as he was found guilty on some of the charges which he faced.
Juror irregularity
[67] The appellant seeks a new trial on the basis that the foreman was biased, and that she put pressure on Juror S, leading to her ill health and subsequent discharge. He asks for this application to be considered in the context of the other grounds raised in the appeal. In the alternative, the appellant seeks the appointment of an independent lawyer, under s 389(d) of the Crimes Act 1961, to inquire into and report on what occurred.
[68] Dr Fernando relies on an affidavit from Juror S’s general practitioner, which we received provisionally, to provide hearsay evidence that the alleged misconduct of the foreman, including a strong expression of bias against the appellant, affected Juror S’s health so that she had to be discharged.
[69] The appellant says that, had the information in the affidavit been known prior to the verdict, an application to discharge the foreman would have been made on the ground that there was a real risk of miscarriage of justice. If both the foreman and Juror S had been discharged, the Court would have been bound to discharge the entire jury.
[70] Both parties agree that, in general, there can be no enquiry into the jury’s deliberations; R v Beer (1999) 16 CRNZ 390 (CA) is cited in support of this proposition by the Crown. The appellant submits that the Court retains a residual ability to enquire into jury irregularities. The Crown submits that the Court will accept evidence which reveals misconduct or bias by a juror provided that evidence does not touch upon confidential communications as between jurors: R v Tinker [1985] 1 NZLR 330 (CA) and Tuia v R [1994] 3 NZLR 553 (CA).
[71] The appellant’s position is that the issue is not one of jury deliberations, but rather of misconduct capable of influencing the jury’s deliberations. Alternatively, if this Court considers that the concerns are about the jury deliberations, this is one of those rare cases where the Court should intervene.
[72] In R v Bates [1985] 1 NZLR 326 at 328, this Court said that the threshold for appellate intervention in such circumstances was “the existence of suspicion on an objective view that the misconduct may have influenced the verdict.”
[73] Relying on the affidavit from Juror S’s general practitioner as to what that juror allegedly told him, the appellant points to the following alleged misconduct:
• statement(s) from the foreman early in the trial that she “would leash” the accused;
• a complaint to the Judge by the foreman about alleged comments by Juror
S about ACC claims by the victims of sexual assaults;
• bullying in the jury room such as to adversely affect the health of Juror S;
• ensuring that Juror S was not seen by the Judge without the foreman present.
[74] The Crown submits that there is no basis to suggest that any misconduct on the part of the foreman compromised the jury’s deliberations. The allegations of bias and prejudgement on the part of the foreman are an “interpretation” of the affidavit from the general practitioner of Juror S and cannot be reconciled with the jury’s verdicts, which were entirely reasonable. There is no evidence of bullying and Juror S was clearly removed due to the state of her health. It is not tenable that the ten other jurors were under pressure from the foreman to reach a guilty verdict.
[75] The Crown also notes that the trial Judge, in refusing an application to him to order an investigation by an independent lawyer, commented that he “entertain[ed] no doubts at all about the safeness of the jury’s verdict.”
[76] We can resolve this ground of appeal on the facts, without the need for any further independent inquiries as suggested by the appellant.
[77] Priestley J, the trial Judge, acted entirely appropriately. When concerns were raised about the health of Juror S during the jury’s deliberations, he arranged for inquiries to be made of her general practitioner and, when that doctor advised that his patient should be released from further participation, took that course.
[78] There was no reason why the remaining jurors should not be left to complete their deliberations, as permitted by s 374 of the Crimes Act.
[79] In reality, the appellant is asking this Court to intervene in the discussions of the jury, which encompass not only the formal deliberations at the end of the trial but also informal discussions during the trial.
[80] The authorities make clear that an appellate court should intervene in the internal workings of a jury only in exceptional circumstances.
[81] The length of the deliberations (two days) and the discrimination in the verdict between guilty and not guilty findings point to a conscientious discharge by the jury of its responsibilities. The observation of Priestley J, noted at para [75] above, is also instructive in this respect. In Bates terms, we have no reason to suspect that the alleged misconduct influenced the outcome, even if such misconduct did occur.
[82] As against this, the hearsay evidence post-trial of what are said to be the concerns of Juror S cannot be sufficient to discharge the very heavy onus on any party seeking to persuade a court to go behind a jury’s verdict into the internal dynamics of the jury.
[83] If the Evidence Act 2006 had been in force at the time of the trial, s 76 would have prevented any evidence being given about the deliberations of the jury unless it were determined, after weighing both “the public interest in protecting the confidentiality of jury deliberations generally” and “the public interest in ensuring that justice is done in these proceedings”, that “the particular circumstances are so exceptional that there is a sufficiently compelling reason to allow that evidence to be given”. On the facts, that stringent test could not have been satisfied; the concerns of one apparently disaffected juror would not be sufficient to do so.
Result
[84] The appellant has not made out any of the grounds advanced in support of the appeal.
[85] The appeal is therefore dismissed.
Solicitors:
Govett Quilliam, New Plymouth for appellant
Crown Law, Wellington for respondent