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IN THE SUPREME COURT OF NEW ZEALAND
SC 32/2008
[2008] NZSC 56
DEBORAH GORDON-SMITH
v
THE QUEEN
SC 18/2008
SHAUN ANTONY KING
v
THE QUEEN
Hearing:10 July 2008
Court:Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ
Counsel:K H Cook for Applicants
C L Mander for Crown
Judgment:25 July 2008
JUDGMENT OF THE COURT
AThe application for leave to appeal by Ms Gordon-Smith is granted.
BThe approved grounds of appeal are:
(i)Can the police supply so-called “vetted jury lists” to the Crown to assist the Crown in deciding whether or not to challenge a prospective juror? If yes:
(ii)Should a vetted jury list that is supplied to the Crown also be made available to the accused?
(iii)Can the Crown peremptorily challenge a prospective juror on the basis of information obtained from a vetted jury list?
CThe application for leave to appeal by Mr King is dismissed.
REASONS
(Given by McGrath J)
[1] This is an application by Ms Gordon-Smith and Mr King for leave to appeal against a judgment of the Court of Appeal which upheld as lawful the administrative practice of jury vetting by the police. The purpose of jury vetting is to enable prosecutors of criminal trials to have information concerning criminal histories which may be used to challenge potential jurors.
[2] The applicants, together with eight others, were tried in the High Court on charges under the Misuse of Drugs Act 1975. Prior to the trial, counsel for one of the accused applied to the trial Judge for an order prohibiting the Crown, when deciding whether to challenge a juror, from using information concerning whether a person on the jury list had a criminal conviction. In the alternative, counsel sought an order requiring that the accused be given access to the information concerned that was available to the Crown. After hearing argument, Fogarty J granted the application on the former basis, holding that jury vetting by the Crown, involving the exercise of peremptory challenges by reference to non-disqualifying criminal histories of potential jurors, was inconsistent with the Juries Act 1981.
[3] At the subsequent trial, five of the accused, one being Ms Gordon-Smith, were found guilty of charges including conspiracy to supply a class A controlled drug. Two accused were found not guilty by the jury. Three others, including Mr King, were discharged by the Judge during the trial under s 347 of the Crimes Act 1961 on the basis that they had no case to answer.
[4] The Crown proceeded with an appeal against the pre-trial ruling. As requested by the Crown, Fogarty J stated questions of law for the opinion of the Court of Appeal on the jury vetting issue under s 380 of the Crimes Act. The Court of Appeal understood the Crown to be seeking to obtain rulings in the nature of advisory opinions because it was highly unlikely that any respondent would face a re-trial as a result of the Court of…
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.
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AGLC
R v Gordon-Smith [2008] NZSC 56
Case
[2008] NZSC 56
Decision Date
CaseChat Overview and Summary
This case involved an application for leave to appeal against a judgment of the Court of Appeal concerning the legality of jury vetting by the police. The applicants, Deborah Gordon-Smith and Shaun Antony King, sought to challenge the administrative practice of providing the Crown with "vetted jury lists" to assist in deciding whether to challenge a prospective juror. The legal issues were whether the police could supply such lists to the Crown, whether the accused should also be given access to this information, and whether the Crown could peremptorily challenge a prospective juror based on information from a vetted jury list. The applicants argued that the Court of Appeal's decision allowing jury vetting was inconsistent with the Juries Act 1981 and violated their right to a fair trial.
The Court considered the jurisdictional issues and the merits of granting leave to appeal. It noted that Mr King's application was dismissed due to jurisdictional difficulties, as he had been discharged during the trial and the pre-trial ruling had no practical relevance to his case. Ms Gordon-Smith's application, however, was granted leave to appeal as she was a convicted person and a party to the Court of Appeal's determination. The Court acknowledged the general policy of not hearing moot appeals but exercised its discretion to hear this appeal due to the general and public importance of the issue, the absence of live issues, and the potential for disruption if the issue was not resolved promptly.
The Court granted leave to appeal to Ms Gordon-Smith and set out the approved grounds of appeal. The appeal will address the lawfulness of jury vetting and the use of information obtained from vetted jury lists by the Crown. The Court of Appeal's decision allowing jury vetting will be reviewed despite having no practical effect on Ms Gordon-Smith's conviction and sentence.