R v Grey CA63/06

[2006] NZCA 421

NOTE:  PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA63/06

THE QUEEN

v

JOSHUA GREY

Hearing:         22 June 2006

Court:            Hammond, Chisholm and Cooper JJ Counsel:  H E Juran for Appellant

H D M Lawry for Crown

Judgment:      22 June 2006

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by Hammond J)

R V JOSHUA GREY CA CA63/06  22 June 2006

Introduction

[1]      After a three day trial before Judge Harvey and a jury in the District Court at Manukau, Mr Grey was convicted on one count of sexual violation by rape.  He was subsequently sentenced to seven years imprisonment.

The facts

[2]      The facts can be briefly stated, and for the purposes of this appeal, are not in contention.   The complainant  was a 14-year-old  girl who  lived with her  father. Mr Grey associated  with  her  neighbours,  but  he  did  not  know  the  complainant personally.    On  6 August  2004  Mr Grey  entered  the  complainant’s  house.    He engaged her in conversation, threatened her, and then forced himself upon her.

The appeal

[3]      The appeal against conviction is mounted on one short point only: the way in which the Judge dealt with a matter raised by a juror during the course of the jury deliberations.

The course of events

[4]      The context in which the concern is raised is as follows.

[5]      After retiring to consider its verdict on the morning of 2 November 2005 the jury subsequently raised several matters.

[6]      The first of these was a request received by the Court at 12.15pm.  The jury wanted a transcript relating to the complainant.   This was provided to the jury at

12.40pm.

[7]      At 1.40pm the Court was advised that “[o]n religious grounds we have one juror who wishes to abstain from voting” and further, that the “[j]urors need a fag”.

[8]      At approximately 2.30pm, with the agreement of counsel and in the absence of the rest of the jury, the juror in question was spoken to by the trial Judge.  The accused was present.  A transcript of what was said was taken.  It reads as follows:

[1]       THE COURT:  I understand you have a problem.  You do not want to be involved in the process, is that right?  You have some difficulty about voting in this matter do you?   You must not tell me what is happening in there but do you personally have difficulty voting?

[2]       JUROR:  Yes for religious reasons.

[3]       THE COURT: And what religion is that?  Is it a Christian religion is it?

[4]       JUROR:  Yes.

[5]       THE COURT:  What is about your faith that stops you from making a decision in this case?

[6]       JUROR:  (inaudible – no microphone)

[7]       THE COURT: It is not really a religious problem is it?  It is you just can’t make up your mind.  You have said you have religious grounds but I don’t really know if it is religious grounds.  It is not anything in your faith that says you cannot sit in judgment and remember you yourself have taken an oath on the Bible to judge the case haven’t you to the best of your ability.

[8]       I wonder if it might not be an idea if you would go back into the jury room, listen to what your other jurors say because it is a joint decision and see if you cannot come to a conclusion on the matter.  I am sure you can.  I mean there is nothing wrong at this stage in saying you just can’t be sure, you can’t make up your mind.  In discussion you can get to the point where you may be able to come to a conclusion.

[9]      At 2.50pm the Court received two further questions relating to records of the initial interview of the complainant, and also the transcripts relating to two other persons.   No complaint is made as to the manner in which those communications were dealt with.

[10]     At 3.40pm the jury returned to court with the advice “Jurors can not come to

100% agreement of final outcome.  Vote is 10 to 2”.  Although there are words at the end of the question “plus abstention (religious)” they were struck out and the word “10” appears to have been written over the figure “9”.

[11]     At  4.00pm the  trial Judge  gave the  jury what  is commonly known  as  a

Papadopoulos direction.  That is a reference to R v Accused [1988] 2 NZLR 46, and

no complaint is made about the terms of the direction, in the circumstances of this case.

[12]     At  some point  thereafter  – we were not told  when,  precisely  –  the  jury returned a verdict of guilty.

The way the appeal is framed

[13]     Mr Juran put the basis of the appeal this way.

4.While it is accepted that in the summing-up the trial Judge correctly directed the jury on the onus and standard of proof, it is submitted this direction must have at the least confused this juror, and through her, the jury.   It is submitted that the trial Judge has directed the juror  that the jury should have been so convinced  by  either  the prosecution case or defence case, they should find one way or the other, therefore contradicting earlier directions as to the onus and standard of proof, (see pages 83 and 84 case book).  (It is submitted that the trial Judge should have added to the juror that if she were unsure whether or not the accused was guilty, the prosecution had not discharged its onus of proof to the requisite standard.)

5.This was not a strong case for the prosecution.  It is submitted that at least some members of the jury had problems making a decision as to whether the prosecution had proved their case.  This is submitted as later that afternoon the jury advised the Court that they could not come to an agreement and were divided by 10 to 2.  After this the Court gave the jury a Papadopoulos direction.  It was only after this the jury returned with their verdict.

6.It is submitted that in this situation, where the jury is divided, and the trial Judge has contradicted his earlier directions, it cannot be said no “… substantial wrong or miscarriage of justice was thereby occasioned [to] the trial”.  (Crimes Act 1961, subsection 382(2).)  It is submitted that if the juror had been also advised that if she could not come to a decision to the requisite standard she could not convict the appellant, the jury would have come to a different decision.

The Crown submissions

[14]     Mr  Lawry submitted  that  the  verdict  is  safe.    He  said  the  trial  Judge’s response to the juror was appropriate.  No additional directions on issues such as the onus and standard of proof, or of the need for a unanimous verdict were required. Those matters had already been adequately addressed in the Judge’s summing-up.

Mr Lawry submitted that no substantial wrong or miscarriage of justice could be seen as arising from the direction given to the juror in question.

Discussion

[15]     The juror took an oath or affirmation to decide the case, when the jury was empanelled, in accordance with the requirements of our law.

[16]     It is the invariable practice of New Zealand criminal jury trial courts to ask the jury, after the foreman has delivered a verdict  of guilty, whether that is the verdict  of all  jurors.    There  is  no  suggestion,  let  alone  any evidence,  that this requirement was not followed in this instance.

[17]     It follows that the formalities required of a jury verdict were complied with: a jury of 12 had taken the appropriate oath at the outset of the trial; and had returned a unanimous verdict.

[18]     It can only ever be speculation as to what happens in a jury room, and it is impermissible for this Court to speculate.  That said, this Court has determined that a Papadopoulos direction, in the approved form, is in the discretion of a trial Judge, and can be given.   And if given, undoubtedly it can have the effect of helping to bring a jury to a decision.

[19]     It is unfortunate that the juror’s actual response to the critical question posed by the Court was apparently inaudible, but the thrust of what transpired is clear enough.

[20]     On the specific merits of what the Judge said to the juror, the direction was not coercive: the juror was told that what she ought to do was go back into the jury room and listen to and engage her colleagues.   The juror might “get to the point where you may be able to  come to  a conclusion”.    On the evidence,  the  juror returned to the jury room and apparently something like two hours later, she felt able to lend her name to a conviction.  There is nothing coercive about what transpired. Counsel did not see fit to express concern at the time, as to what the Judge had done.

[21]     We do not consider that further directions on the onus and standard of proof were required.  It has been said on a number of occasions by this Court, and in the Court of Criminal Appeal in England, that a Judge is not required to unnecessarily repeat directions, absent special circumstances, which do  not  appear to us to be present here.

[22]     Whether the juror had momentary religious scruples, or was simply unsure as to a conviction on the evidence in the case (as the Judge seems to have thought might have been the case at that point of time) is in the end not of critical moment.  The jury in fact retired and continued deliberating, and after a Papadopoulos direction was given, felt able to return a unanimous verdict.

[23]     The conviction must stand and the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington