R v Harris
[2008] NZCA 298
•13 August 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA553/2007
[2008] NZCA 298THE QUEEN
v
RODERICK SIDNEY HARRIS
Hearing:24 June 2008
Court:Baragwanath, Rodney Hansen and Harrison JJ
Counsel:C B Wilkinson-Smith and L M Wansbrough for Appellant
M D Downs and S P Symon for Crown
Judgment:13 August 2008 at 3pm
JUDGMENT OF THE COURT
THE APPEAL AGAINST CONVICTION IS DISMISSED.
____________________________________________________________________
REASONS
Harrison and Rodney Hansen JJ [1]
Baragwanath J [46]HARRISON AND RODNEY HANSEN JJ
(Delivered by Harrison J)
Introduction
[1] Mr Roderick Harris appeals against his conviction in the High Court at Auckland on counts of manufacturing, offering to supply and conspiring to supply methamphetamine. He does not appeal against his sentence of five-and-a-half years imprisonment.
[2] Mr Harris was one of ten people charged jointly and separately with a range of drug dealing offences in a trial before a jury which lasted about 20 weeks in early 2007. He appeals on the grounds that the trial Judge, Allan J, erred materially, first, in his summing up to the jury on one count; and, second, in directing the trial to proceed with ten jurors at the beginning of its seventh week.
(1) Misdirection
[3] The first ground of appeal advanced by Mr Christopher Wilkinson-Smith, who did not appear for Mr Harris at trial, is that the Judge misdirected the jury in fact on the count of manufacturing methamphetamine. The Crown accepts that the Judge erred. The question is whether a miscarriage of justice arose as a result.
[4] Before considering this argument, we should give the Judge’s error proper context. His summing-up directed on 20 charges, some joint and the others separate. Crown counsel had earlier addressed the jury for more than a week, as had defence counsel collectively. The summing-up was delivered over two days and exceeds 100 pages of transcript.
[5] The evidential basis for the Crown’s case against Mr Harris on the charge of manufacturing methamphetamine was primarily intercepted telephone and text communications to which he was a party on 31 October 2004, together with an admission that he had extracted pseudoephedrine about the time of the alleged manufacturing. The Crown’s original proposition was that Mr Harris manufactured methamphetamine by two possible methods: either by producing fresh methamphetamine from a new supply or supplies of pseudoephedrine; or by reworking or re-crystallising the remnants of previous manufacturing operations.
[6] The Crown’s evidence on the second hypothesis included three small hand-written pages of crude and cryptic notes. They appear to prescribe the process of manufacturing methamphetamine by re-crystallisation. The notes were inside a wallet belonging to Mr Harris which was found on a street in Whangarei on 24 March 2004. The wallet and its contents had remained continuously in the custody of the police at Whangarei from the time of discovery until after Mr Harris was arrested.
[7] Allan J discussed this evidence briefly in summarising the Crown’s case against Mr Harris as follows:
[170] When Mr Harris was apprehended he was in possession of three sheets of yellow paper, upon which certain chemical formulae were written. Mr Gattenby, the drug specialist, gave evidence to the effect that the yellow pages appeared to describe a process for recrystallisation which could be applied in methamphetamine production. The police searched 26 Kupe Street. Certain items were found there. I propose to discuss them when dealing with Mr Harris’s defence, because they fit tidily into my summing up at that point. Mr Gibson says they point away from methamphetamine manufacture. But the Crown case is that the evidence as a whole is sufficient to justify your concluding beyond reasonable doubt that Mr Harris’s activities at Kupe Street included the production of methamphetamine. Accordingly, the Crown asks you to convict him on count 3. Remember, you may draw logical inferences, but you may not speculate.
[Our emphasis.]
[8] The Judge’s error was in reciting that Mr Harris was in possession of the notes when he was apprehended on 11 December 2004 when in fact the police had had possession of them since 24 March 2004.
[9] In order to provide further context, it is appropriate to recite the preceding part of Allan J’s summary of Crown counsel’s closing address:
[166] I move now to count 3 which alleges the manufacture of methamphetamine against Messrs Harris, Morris, Mosley and Patten. I start with Mr Harris. You will remember that Mr Gibson acknowledged that Mr Harris accepted the attributions made by the police in the audio transcripts were accurate, and that he was based at 26 Kupe Street, Orakei for part of the relevant period. Further, he acknowledges that he was engaged in working with chemical substances there, but he says he was not manufacturing methamphetamine, he was working instead on the production of pseudoephedrine.
[167] The relevant material is to be found in the transcripts, starting at p 697 where on 31 October 2004, Mr Harris tells an unknown male that he was doing something with that job himself, rather than swapping it. He expected to be finished that same evening. At p 703 he speaks of being in St Johns and looking for a quiet place in which to carry out his work. The Crown does not suggest it has evidence beyond this single episode.
[168] The Crown case is Mr Harris is working on two projects at once. The first is the recrystallisation of leftovers in the hope of extracting a little more from them, but the second project was the production of fresh methamphetamine from a new supply of pseudoephedrine. So the Crown says the second job, referred to at p 714 of the transcript, is the task of producing methamphetamine, not pseudoephedrine. At p 707 he refers to ‘doing a main one’, which plainly refers to the new project.
[169] At 717, still on 31 October, he says that ‘they got to soak for a day’, that being, the Crown says, you may think, a reference to the need to soak pills containing pseudoephedrine in order to extract the usable material from them. At 719 he speaks of having run out of PH papers, apparently in the context of his work on the leftovers not having gone very well. At p 731, he confirms that a day’s soaking was needed before he could get the ‘E’ out of ‘that stuff you gave me’ before he could start brewing it. Ultimately, it seems, the reworking of the residue did not succeed (733), and at 736 he says he is still soaking the pills – all still on 31 October 2004. But there is little to indicate what finally happens following the soaking operation. At 834 he appears to confirm to Leanne that he had been distracted, although there is a suggestion at pp 834-5 that eventually he was successful in what he was endeavouring to achieve. The question of course, is what that was. At 844 he confirms the success of his activities to Mr Mosley, but the extent of those activities is not plain.
[Our emphasis.]
[10] The irrelevance of Allan J’s factual error becomes apparent once it is seen in context. Mr Harris had admitted extracting pseudoephedrine, a critical step in the manufacturing process, on about 31 October 2004. The Crown’s case in closing had contracted to reliance on the first alternative that Mr Harris had produced fresh methamphetamine on that date. The second or reworking alternative, to which the handwritten notes were relevant, was abandoned. As the Judge himself noted, ‘ultimately, it seems, the reworking of the residue did not succeed’.
[11] Mr Mathew Downs appears for the Crown in opposition to Mr Harris’ appeal but did not appear at trial. He advises following inquiry that Crown counsel referred to this issue only once, and briefly, in his closing address at trial. He observed in passing that the wallet and notes were found in Whangarei. Trial counsel for the Crown recalls making a brief submission to the effect that the document demonstrated an interest by Mr Harris in manufacturing methamphetamine.
[12] Moreover, when summarising defence counsel’s address, Allan J said this:
[260] Returning to Mr Harris’s alleged manufacturing activities, Mr Gibson [trial counsel] invited you to infer that two separate activities were being undertaken by Mr Harris at Kupe Street, and that is not really in dispute. On the one hand he seems to have been undertaking a reworking of an earlier operation, and on the other he is soaking what Mr Gibson says must be pills, preparatory to extracting pseudoephedrine. Ultimately, Mr Gibson suggested to you, the reworking exercise came to nothing, despite earlier optimistic messages emanating from Mr Harris. That is consistent with the fact that no traces of methamphetamine were found at Kupe Street, he told you.
[13] It was thus common ground that Mr Harris had undertaken a reworking of an earlier operation. It was not in dispute that Mr Harris knew how to re-crystallise methamphetamine remnants. He was plainly following a prescription, whether according to the notes or by some other method. What was relevant was defence counsel’s suggestion, earlier endorsed by the Judge, that the re-crystallising approach was unsuccessful. It was thus immaterial whether Mr Harris had possession of the notes when apprehended or at any other time.
[14] Allan J’s error occurred in one short sentence. Mr Harris was represented at trial by an experienced and competent counsel. No doubt Mr Gibson would have drawn the Judge’s attention to the error during or after completion of the summing-up if he considered the mistake was material.
[15] The Judge’s error, in what was an otherwise impeccable and unchallenged summing-up, came to nothing. We have no hesitation in concluding that his mistake did not lead to a miscarriage of justice. We invoke the proviso and dismiss this ground of appeal accordingly: s 385(1) Crimes Act 1961.
(2)Ten Jurors
[16] The second and more significant ground of appeal arises from Mr Harris’ challenge to the Judge’s decision to proceed with ten jurors.
(a) Background
[17] The trial had commenced on 12 February 2007. Empanelling the jury occupied most of the first day. On the second day the Court learned of the nature of the forewoman’s employment. Allan J passed on this information to counsel and upheld a submission from counsel for the defence, in the face of opposition from the Crown, that the juror should be discharged. The Judge exercised his power on the basis that the juror was closely connected with the prosecution, given the allegations of importing illegal drugs: s 374(3)(e).
[18] There were further jury difficulties. On one occasion the Crown applied unsuccessfully to discharge another juror. The Judge dismissed the Crown’s application in a fully reasoned decision delivered on 9 March 2007.
(b) High Court Decision
[19] The trial continued with 11 jurors from 13 February 2007 until Allan J discharged an eleventh juror on 29 March for the reasons that:
[4] On Monday 26 March, the Court was advised that a juror would be unable to attend Court. She has been admitted to hospital with a kidney condition. It is not currently known how long she will be absent but the Court understands that she will be unavailable for a period of days, at the very least. The same juror underwent an emergency operation on a knee a few weeks ago. That entailed the loss of a complete sitting week.
[5] I advised counsel in chambers, in the presence of the accused but without the jury, of the unavailability of the juror concerned. Counsel took time to consider the position and to obtain instructions from their clients. I then heard submissions from counsel for all accused and for the Crown. All counsel agreed that the juror concerned was incapable of continuing to perform her duty as a juror and that it was appropriate to discharge the juror, pursuant to s 374(3)(a) of the Crimes Act 1961. I accordingly made an order discharging the juror from further service.
[20] The Judge then considered the more difficult question of whether to continue the trial with ten jurors. Counsel were not agreed on this issue. The Crown submitted in the affirmative, as did one accused. Three other accused were opposed. The remaining six accused were content to abide the Court’s decision.
[21] Allan J recited s 374(4A), to which we shall return, as follows:
(4A) The Court must not proceed with fewer than 11 jurors except in the following cases:
(a) If the prosecutor and the accused consent:
(b)If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case—
(i)The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:
(ii) The Court may proceed with fewer than 10 jurors only if the prosecutor and the accused consent.
[22] Allan J found the existence of exceptional circumstances and exercised his statutory discretion to continue on the following grounds:
[15] I concluded, having heard from counsel, that there were exceptional circumstances in this case and that it was in the interests of justice that the trial proceed with 10 jurors. In reaching that conclusion, I was influenced by several factors. First, the trial is now in its seventh week. The jury has already heard about four weeks of evidence. Although a great deal remains to be done, the parties, their counsel and the jury have already made a very significant investment of time and effort in the trial, which ought not to be wasted if that can be avoided. That sort of consideration is expressly referred to as a relevant factor in s 374(4A)(b).
[16] The Court is expressly required to have regard to the interests of justice. That requires consideration of the interests of the Crown and of the accused, as well as the public interest in the prompt resolution of criminal trials. On this latter point, these accused were apprehended more than two years ago. The interests of the community lie in the completion of this trial if other considerations do not dictate a different outcome.
[17] The interests of the accused and the Crown are not dissimilar. Of itself, delay suits no one. The likelihood is that if a decision was taken now to discharge the jury, a re-trial would not commence before the last quarter of 2007, at the very earliest. That circumstance supports the continuation of the trial. Moreover, no counsel was able to identify any prejudicial consequence arising from a decision to proceed with the trial.
[18] In my view, the only factor that might be thought to support the discharge of the jury is the increased risk to the trial if a further juror later becomes incapable for the purposes of s 374. That would reduce the jury to 9 and for all practical purposes there would be no alternative but to discharge the jury. If that occurred, then everything done up to that point would have been wasted. It is a case of weighing the advantages of proceeding against the increased risk of later discharge. I concluded that exceptional circumstances existed for the purposes of s 374(4A)(b) because the advantages of proceeding outweighed that heightened risk.
(c) Appeal
[23] In reliance on two recent Supreme Court decisions, R v Rajamani [2008] 1 NZLR 723 and R v Wong [2008] NZSC 29, Mr Wilkinson-Smith submits that the Judge erred in concluding that there were exceptional circumstances which justified continuing with ten jurors. Mr Wilkinson-Smith accepts, though, that, if the necessary factual preconditions were established, Mr Harris cannot challenge the discretionary element of the Judge’s decision.
(d) Section 374 Crimes Act 1961
[24] The relevant statutory provision is as follows:
374 Discharge of jury
(1) Subject to the provisions of this section, the Court may in its discretion, in the case of any emergency or casualty rendering it, in the opinion of the Court, highly expedient for the ends of justice to do so, discharge the jury without their giving a verdict.
(2) Without limiting subsection (1) of this section, where a jury has remained in deliberation for such period as the Judge thinks reasonable, being not less than 4 hours, and does not agree on the verdict to be given, the Judge may discharge the jury without their giving a verdict.
(3) Subsection (4) applies if, at any time before the verdict of the jury is taken, the Court is of the opinion that—
(a)A juror is incapable of continuing to perform his or her duty; or
(b) A juror is disqualified; or
(c)the spouse, civil union partner, or de facto partner of a juror, or a family member of a juror, is ill or has died; or
(ca)a family member of a juror's spouse, civil union partner, or de facto partner is ill or has died; or
(d) A juror is personally concerned in the facts of the case; or
(e)A juror is closely connected with 1 of the parties or with 1 of the witnesses or prospective witnesses.
(4) Where this subsection applies, the Court, having regard to the interests of justice, may,—
(a)Make an order discharging the jury without their giving a verdict; or
(b)Subject to subsection (4A), make an order to proceed with the remaining jurors and take their verdict.
(4A) The Court must not proceed with fewer than 11 jurors except in the following cases:
(a) If the prosecutor and the accused consent:
(b)If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case—
(i)The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:
(ii)The Court may proceed with fewer than 10 jurors only if the prosecutor and the accused consent.
(5) If the Court proceeds with fewer than 12 jurors, their verdict has the same effect as the verdict of 12 jurors.
(6) Where the Court discharges a jury under this section, it shall either direct that a new jury be empanelled during the sitting of the Court, or postpone the trial on such terms as justice requires.
(7) If the presiding Judge becomes incapable of trying the case or directing that the jury be discharged, the Registrar shall discharge the jury.
(8) No Court may review the exercise of any discretion under this section.
(e) Legal Principles
[25] It is apparent that the first two subsections of s 374 empower a Judge to discharge a properly constituted jury of 12 members without giving a verdict. The third and fourth subsections extend that power where in the Judge’s opinion an individual juror is subject to any one of six disqualifying factors. Those provisions also authorise the Judge to proceed with the remaining jurors, that is less than 12, and take their verdict, having ‘regard to the interests of justice’. The power to proceed with 11 jurors is unfettered.
[26] However, the Judge is prohibited from proceeding with ten jurors unless either the prosecutor and the accused consent or the Judge considers the trial should proceed nevertheless. This latter discretionary power is subject to two jurisdictional preconditions: one is the existence of ‘exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial)’; the other is the interests of justice. The two are linked by the conjunctive ‘and’. The Judge’s decision on whether to proceed with ten jurors is, as Mr Wilkinson-Smith submits, a two-stage exercise.
[27] The highly discretionary nature of these powers reflects Parliament’s acknowledgement that the trial Judge is uniquely placed to determine issues of juror disqualification or whether to proceed with ten jurors or start again. The prohibition on another Court reviewing the trial Judge’s exercise of that discretion is consistent with this recognition: s 374(8). However, the prohibition does not extend to whether the factual pre-condition of exceptional circumstances is satisfied: Rajamani at [4] – [5]; Wong at [3].
[28] An accused person’s constitutional right to trial by jury where the penalty on conviction exceeds three months imprisonment is entrenched by s 24(e) New Zealand Bill of Rights Act 1990: Wong at [8]. The right, but not the number of jurors, is immutable. It was historically thought, without an empirical foundation, that a jury of 12 members provided the best safeguard against the risk of injustice. But the right to a trial before and the unanimous verdict of 12 jurors has been steadily modified throughout the British commonwealth. In New South Wales, for example, the Supreme Court may continue a trial with ten members where jurors are discharged and may in some circumstances proceed with eight: s 22 Jury Act 1977 (NSW).
[29] The High Court of Australia considered s 22 in R v Brownlee (2001) 207 CLR 278. Gleeson CJ and McHugh J acknowledged the constantly evolving nature of trial by jury as a mode of criminal procedure over the centuries (at [6]) and noted:
[21] The function of jury trial is not such as to make it essential that the common law rule be preserved in its full rigour. Adopting a functional approach to questions of the validity of state legislation permitting juries of a lesser number than 12, the Supreme Court of the United States held that such a reduction in numbers was consistent with the corresponding constitutional guarantee. In Williams v Florida [399 US 78 (1970) at 100] White J, delivering the opinion of the court, said:
The purpose of the jury trial … is to prevent oppression by the Government … Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12 — particularly if the requirement of unanimity is retained.
[22] Those observations apply with even greater force to a system which requires 12 jurors to begin with, but permits the trial to continue with 10 of the original 12 where two have been discharged, and requires a unanimous verdict of the remaining 10. Such a system is not inconsistent with the purposes of trial by jury. In particular, it is not inconsistent with the objectives of independence, representativeness and randomness of selection, or with the need to maintain the prosecution's obligation to prove its case beyond reasonable doubt.
[30] In the context of a constitutional challenge to s 22 in Brownlee, Gaudron, Gummow and Hayne JJ were satisfied that a reduction in the numbers of jurors from 12 to ten did not destroy an essential feature or fundamental characteristic of the conduct of trial by jury: at [68] – [70]. Kirby J was of the same view, noting that such legislative changes were consistent with Parliament’s satisfaction that a jury of ten will still be of a size sufficient to promote group deliberation, ensure that a cross-section of community opinion will be expressed and shared by the jurors, reflect the variety of opinions existing in the community, and guard against undue influence by force of personality and to retain a bulwark against prejudice: at [147]. Callinan J agreed with the other members of the Court: at [185].
[31] It can be assumed that Parliament was seeking to achieve the same objectives when enacting s 374(4A). That provision is a legislative recognition of the increasing reality that, the longer a trial continues, the greater the risk that jurors will have to be discharged and s 374(4A) need not be construed narrowly by reference to the extreme facts of the case which generated the 1997 amendment: Wong at [9]. As Mr Wilkinson-Smith observes, the closer a trial is to completion, the stronger the case is for continuing with ten jurors. The absolute power to continue with 11 jurors, and the qualified power to continue with ten, imply legislative acceptance of the view unanimously expressed in Brownlee that an accused person is still able to secure his or her constitutional right to a fair trial with a jury numbering less than 12. Section 374(4A) must be interpreted in that context.
[32] Parliament has recently enacted further important changes to the right of trial by a jury. Unanimity is no longer required – a majority verdict of all except one member of the jury is allowed: s 29C Juries Amendment Act 2008. Thus, a Judge will be able to accept a majority verdict of ten jurors where the jury numbers are reduced to 11. Also a Judge alone has jurisdiction to hear long (more than four weeks sitting time) and complex trials, providing the maximum penalty upon conviction does not exceed 14 years imprisonment. These changes are part of the constantly evolving legislative process of balancing competing interests while striving to maintain the essential characteristics of trial by jury.
(f) Exceptional Circumstances
[33] The threshold factor in determining this appeal is the existence or otherwise of exceptional circumstances ‘relating to the trial’. It is wrong to restrict the inquiry to whether the circumstances in a vacuum are exceptional; it is instead of a composite nature – are there exceptional circumstances ‘relating to the trial’, sufficient to justify continuing with ten jurors rather than starting again before another jury: Wong at [9]?
[34] The threshold of exceptional circumstances is satisfied if they are ‘in combination … distinctly out of the ordinary’: Wong at [9]. Mr Wilkinson-Smith’s argument in support of this ground of appeal relies upon a close comparison between this case and the factual evaluation undertaken in Wong at [11]. But, while both Rajamani and Wong provide guidance on the approach to be adopted, they illustrate that the question is one of fact and degree, which is why the conclusion of the trial Judge, reached with the benefit of the knowledge of the trial, must be accorded appropriate weight.
[35] Allan J identified two exceptional circumstances. First, the trial of ten people was in its seventh week out of an estimated duration of 12. The jury had heard four weeks of evidence. The parties, their counsel and the jurors had already invested a significant amount of time and effort; and that investment ought not to be wasted if possible.
[36] Long, multi-accused trials (of four weeks or more) are not uncommon in the sense that there are at least ten a year in the High Court at Auckland. But they certainly do not represent the norm in a registry where trial numbers have increased annually from 117 to 30 June 2006 to 144 to 30 June 2008. A long trial is thus of itself distinctly out of the ordinary. We are in no doubt that the legislature had in mind this type of case when identifying without limitation ‘the length or expected length of the trial’ as a specific factor to be taken into account when determining exceptional circumstances. When introducing s 374(4) in its Bill form to Parliament, the then Minister of Justice spoke of the ‘significant financial and opportunity costs’ for the justice system in starting a five month trial again: Rajamani at [6]. While originally scheduled to last for three months, this trial actually extended to five months.
[37] By way of confirmation of Parliament’s purpose in enacting s 374(4) in 1997, we observe that the prospect of completing a long multi-accused trial with the original complement of 12 jurors is becoming increasingly problematic. Jurors are discharged for many reasons, as the history of this trial shows. A juror is often released at an early stage because he or she belatedly realises that he or she knows a witness. The risk of attrition grows with the length of the trial. Illness, delays, overrunning time estimates and juror interference present frequent problems.
[38] Jury management is thus a critical judicial function in long trials. Judges are constantly striving to balance various interests. Their primary objective is to keep the jury intact. While understanding the burdens which a long trial imposes on jurors and the compounding prospect of an untoward event justifying discharge, Judges are reluctant to release a juror unless there is no choice. Judges are anxious, as Parliament intended in 1997, to spare the community, jurors and the parties the needless waste and inconvenience of termination and re-litigation of a jury trial: see Brownlee per Kirby J at [147]. They also appreciate the importance of maintaining public confidence in the system.
[39] There is a real risk, if the bar of exceptional circumstances is set too high, that Judges, conscious of the prospect of numbers falling to ten, will be driven to retain a juror notwithstanding disability or incapacity. This case provides an example of the difficulties faced. Allan J refused to discharge one juror on 9 March 2007 in the face of strong challenge from the Crown. His carefully reasoned decision reflects his concern to retain jury numbers. The Judge encountered the same dilemma, but with a different juror, a little later. A week was lost while she underwent an emergency knee operation. Later in March she was hospitalised with a kidney condition. Allan J eventually and, we infer, reluctantly discharged the juror rather than expose the participants to further delays which raised a different set of difficulties for the future of the trial. He was left with no alternative.
[40] In our judgment Allan J was factually correct to find, against this background, that preservation of the resources and costs already committed by the parties, their counsel and the state over seven weeks out of a projected 12 weeks of trial was of itself an exceptional circumstance which justified the trial proceeding rather than starting again at a later date.
[41] Second, Allan J identified as an exceptional circumstance the likelihood that a retrial would not commence before late 2007 at the very earliest. With the benefit of hindsight, and with knowledge that the trial lasted for five sitting months, the registry could in fact not have accommodated a retrial until well into 2008. Only one courtroom is physically suitable for a multi-accused drug trial in the High Court at Auckland. Its use is currently committed until mid to late 2010.
[42] This factor is a relevant circumstance, although it overlaps the interests of justice illustrating the close nexus between the two elements of the threshold inquiry. Delay is not merely an administrative question but has implications for the availability of judicial resources, the interests of the Crown and the accused and the rights of access to justice of others. As Gleeson CJ and Hayne J observed in Wu v R (1999) 199 CLR 99 at 106 (cited with approval by Gaudron, Gummow and Hayne JJ in Brownlee at [70]):
Delay in a trial can work hardship to an accused as well as to witnesses and to jurors. No doubt some persons accused of crime will gladly put off the day of judgment, but delay in the trial of any accused leaves the accused uncertain of his or her fate. That has long been recognised to be a considerable burden upon an accused. And the courts cannot and must not shut their eyes to the consequences of delay upon others — not only to witnesses and jurors but also to all others who seek access to the courts and cannot have their cases tried because of what is happening in cases that are being tried.
[43] The accused had been arrested and charged in late 2004. Their trial commenced in early February 2007. A retrial would not have occurred until 2008 at the earliest. Questions of delay and breaches of the New Zealand Bill of Rights Act would compound if the trial was deferred again. Their effect is exemplified by the history of the Williams trial where a number of accused facing joint charges were discharged following two aborted trials: see R v Williams & Ors HC AK CRI 2007-404-0006 10 August 2007, Asher J. Furthermore, others would inevitably be deprived their rights of prompt access to justice if the trial was terminated and started again at a later date including in particular the majority of the accused who did not oppose the Judge’s decision to proceed with ten jurors. Delay in the availability of a new trial date was directly relevant to the trial itself within this threshold inquiry. Allan J was correct to regard its likely duration as an exceptional circumstance.
[44] In our judgment the two factors identified by Allan J, separately and together, were of an exceptional nature which in the interests of justice were sufficient to justify proceeding with ten jurors.
Result
[45] Mr Wilkinson-Smith accepts that this Court cannot review the Judge’s discretion if his findings on the threshold requirements of s 374(4A) are upheld. Our conclusion on that issue is decisive and Mr Harris’ appeal against conviction is dismissed.
BARAGWANATH J
[46] I agree with the judgment prepared by Harrison J to which Rodney Hansen J has contributed and to which this is an appendix. The repeal as from 26 June 2008 of s 398(1) of the Crimes Act 1961 has removed the former impediment to writing separate judgments. The practical and constitutional importance of determining when the number of jurors may be reduced to ten is such as to warrant that course here.
[47] Section 374 is reproduced in full at [24] of the judgment of Harrison J. Parts of it material to this appeal are reproduced below; those of particular importance are emphasised; the three references to the interests (or ends) of justice are underlined:
374Discharge of jury
(1) Subject to the provisions of this section, the Court may in its discretion, in the case of any emergency or casualty rendering it, in the opinion of the Court, highly expedient for the ends of justice to do so, discharge the jury without their giving a verdict.
…
(3) Subsection (4) applies if, at any time before the verdict of the jury is taken, the Court is of the opinion that—
(a) A juror is incapable of continuing to perform his or her duty; or
(b) A juror is disqualified; or
(c)the spouse, civil union partner, or de facto partner of a juror, or a family member of a juror, is ill or has died; or
(ca)a family member of a juror's spouse, civil union partner, or de facto partner is ill or has died; or
(d) A juror is personally concerned in the facts of the case; or
(e)A juror is closely connected with 1 of the parties or with 1 of the witnesses or prospective witnesses.
(4) Where this subsection applies, the Court, having regard to the interests of justice, may,—
(a)Make an order discharging the jury without their giving a verdict; or
(b)Subject to subsection (4A), make an order to proceed with the remaining jurors and take their verdict.
(4A) The Court must not proceed with fewer than 11 jurors except in the following cases:
(a) If the prosecutor and the accused consent:
(b)If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case—
(i)The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:
(ii)The Court may proceed with fewer than 10 jurors only if the prosecutor and the accused consent.
(5) If the Court proceeds with fewer than 12 jurors, their verdict has the same effect as the verdict of 12 jurors.
…
[48] In R v Wong [2008] NZSC 29 the Supreme Court at [8] emphasised the need to prevent confidence in the jury system from being undermined by premature reduction to ten jurors. That case, like R v Rajamani [2008] 1 NZLR 723 (SC), concerned the construction and application of what was held to be a condition precedent to the operation of s 374(4A)(b)(i) and may be called its first element: that reduction to ten jurors is permissible only where the circumstances relating to the trial are exceptional. In neither case was it necessary to discuss the second element of s 374(4A)(b)(i) – “having regard to the interests of justice”, mentioned at [2] of Rajamani and [8] of Wong. In this case it is.
[49] The facts of this case and the meticulous consideration of the present issue by the trial judge recounted by Harrison J illustrate the opposite risk from that identified in Wong: of damage to confidence in the jury system and to the second element of s 374(4A)(b)(i) - the interests of justice - if the first element, the condition for permitting reduction to ten jurors in “exceptional circumstances”, were applied unreasonably far beyond the requirements of that case and Rajamani.
[50] The three references to that second element appear in subss (1), (4) and (4A)(b). The interests (or ends) of justice include those of the community as well as those of the accused. As the reference in subs (4A)(b) to trial length indicates, and as s 25(b) of the New Zealand Bill of Rights Act 1990 requires (echoing Ch 29 of Magna Carta), among them is the interest that criminal justice be delivered without delay. The consequences of delay, which may entail discharge of a number of accused without regard to the merits of the case against them, are discussed at [43] of Harrison J’s judgment.
[51] Unduly stringent application of the first element can have adverse consequences to the second element that extend beyond delay. They can include the anguish of complainants required to relive yet again the ordeal of sexual or violent offending. And they can extend to the jury and the wider public.
[52] When the Law Commission responded to the request by the Minister of Justice to review procedure in criminal cases, its discussion paper, Juries in Criminal Trials Part One (NZLC PP 32 1998) stated:
1The jury is a popular and resilient institution of criminal justice. Its role has changed significantly over the years, being shaped just as much by contingency as logic and principle. Yet throughout its long and varied history it has retained its essential feature as a forum for community participation in the resolution of disputes.
…
3…The question can be asked why the preservation of the jury is regarded as important. In the Law Commission’s view the fundamental value underlying all functions and expectations of modern juries is their democratic nature. While juries are not democratic or representative in the parliamentary sense, they allow members of the community direct participation in the criminal justice system. In this sense, it is the political and symbolic importance of the jury in the criminal justice system which is worth preserving. We also believe that there is popular public support for juries in criminal trials, in spite of the recent difficulties with long and complex trials. Those difficulties are being addressed and are not insurmountable.
4To some extent the idea that juries should be preserved is an act of faith. At present we know very little about how juries operate in New Zealand. Jury deliberations are secret and no reasons are given for verdicts. There has been some overseas empirical research, some of which may apply to New Zealand conditions, in particular research conducted in Australia and England. The Law Commission is very pleased that the Victoria University of Wellington Faculty of Law and Institute of Criminology (through Victoria Link Ltd), in collaboration with us, are undertaking a major research project examining the decision-making process of New Zealand juries. …
[53] The results of the research are published in two volumes in Juries in Criminal Trials Part Two (NZLC PP 32 1999). The first volume recorded:
1The research conducted on behalf of the Commission is of considerable importance. It is unique in New Zealand and in the Commonwealth. For the first time, researchers have been able to systematically investigate how real jurors go about their task. They have opened a window into the jury room which has never been opened before.
[54] In its analysis Report 69 Juries in Criminal Trials (NZLC R69 2001), the Commission reported:
474In Juries II we noted that the overwhelming majority of jurors in the Research felt positive about their experience, that they had gained a greater understanding of the criminal justice system and felt satisfaction at having done their civic duty. The role of jury service as a cohesive force in society is clear. However, the Research also highlighted a number of serious practical problems which made jury service more difficult and less rewarding than it should be.
[55] The research has led to reform of the legislation. The fact that a majority verdict of ten members of a jury of 11 will soon be acceptable (Juries Amendment Act 2008 inserting new s 29C) and that for trials of more than four weeks sitting time a judge will be able to order trial without a jury (Crimes Amendment Act (No 2) 2008 s 361D) now requires consideration in the present context of s 6 of the Interpretation Act 1999:
An enactment applies to circumstances as they arise.
Each is a pointer to a somewhat altered concept of “the interests of justice” at the heart of s 374(4A)(b)(i). In each case Parliament has modified the absolute nature of an 11 member jury as essential to a fair trial.
[56] The jury trial brings members of the community into the trial process. The essential message of the juries research was that, given decent conditions and adequate help, the ordinary New Zealander is well capable of discharging the judicial function inherent in the juror’s role. By permitting trial by ten jurors in the circumstances of s 374(4A)(b)(i), Parliament has directed, as subs (5) spells out, that the verdict of ten jurors will have the same effect as that of 12. Indeed with the consent of the parties a verdict of fewer than ten will have the same effect.
[57] But confidence in the justice system on the part of jurors and those to whom they speak will be affected by their experience of how it is conducted. It requires that they feel they have received the same respect as the professional judge with whom they share the task of delivering justice; and not least that their contribution is valued. There is obvious risk of frustration of conscientious jurors who, when a trial is aborted by an unnecessarily rigid application of s 374(4A)(b)(i), see no result from the effort they have put into the case even though Parliament has recognised the acceptability of a ten juror verdict. That frustration may disturb other decent members of the community, whose judgment ultimately determines whether the work of the courts commands public support.
[58] While the condition of exceptionality must first be faithfully applied, when the element of the interests of justice comes then to be considered the consequences of not seeing the trial through to conclusion may well be dominant.
[59] In this case, for the reasons given by Harrison J, in my opinion the condition was faithfully applied and the interests of justice were properly appraised by the trial judge.
Solicitors:
Crown Law Office, Wellington
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