R v King

Case [2008] NZCA 79 10 April 2008

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA207/2007
[2008] NZCA 79
THE QUEEN
v
SHAUN ANTHONY KING
PETER BARRY STEVENS
Hearing:14 February 2008

Court:William Young P, Chambers and Robertson JJ
Counsel:G J X McCoy and K H Cook for Mr King

J R Rapley for Mr Stevens
D B Collins QC and B M Stanaway for Crown

Judgment:10 April 2008 at 3.30 pm

JUDGMENT OF THE COURT

A We answer the questions posed in the case stated as follows:
(i)May the police lawfully access the [criminal records] database to provide the Crown Solicitor with the non-disqualifying criminal histories of persons on the jury list to assist the Crown to decide whether to oppose a person on the list being a juror? Answer (unanimous): Yes
(ii)If the answer to the first question is “yes”, may the Crown challenge without cause a person on the basis that he or she has one or more non-disqualifying convictions and sentences? Answer (unanimous): Yes
(iii)If the answer to the first question is “yes”, should the accused’s counsel be given the non-disqualifying criminal history at the same time as the Crown receives it from the police? Answer (by a majority, Robertson J dissenting): In usual circumstances the Crown is not required or permitted to disclose to the defence non-disqualifying criminal history information about potential jurors, but is required to do so where a defendant can point to a likelihood that, in the context of the particular case, jurors with criminal histories (or particular types of criminal histories) may have an adverse predisposition towards the defendant or the defence which is to be advanced.

B        We make no order for retrial.
____________________________________________________________________
REASONS
Robertson J (dissenting in part)  [1]
William Young P and Chambers J  [92]
ROBERTSON J
Table of Contents

Para No

INTRODUCTION  [1]
NEW EVIDENCE  [9]
THE STATUTORY SCHEME  [15]
SUBSEQUENT LEGISLATIVE PROVISIONS WHICH COULD AFFECT THE JURIES ACT 1981 [33]
         THE NEW ZEALAND BILL OF RIGHTS ACT 1990 (“BORA”)  [34]
         THE PRIVACY ACT 1993  [37]
         (I)     PURPOSE AND MECHANISMS  [39]
         (II)     REPEAL OF THE WANGANUI COMPUTER CENTRE ACT 1976  [43]
         (III)    PRINCIPLE 11 AND THE PROVISION OF CRIMINAL RECORDS DATA
                  TO DEFENCE COUNSEL AND/OR ACCUSED PERSONS  [49]
         THE CRIMINAL RECORDS (CLEAN SLATE) ACT  [56]
THE RULING IN THE AUSTRALIAN HIGH COURT  [61]
         THE VICTORIAN JURIES ACT 1967  [64]
         THE HIGH COURT’S STATUTORY INTERPRETATION EXERCISE  [66]
FOGARTY J’S APPLICATION OF KATSUNO TO THE JURIES ACT 1981  [69]
         CONCLUSIONS  [75]
THE QUESTIONS POSED  [78]
         (I)     USE OF PEREMPTORY CHALLENGE  [78]
         (II)     THE POLICE PROVISION OF INFORMATION  [84]
         (III)    SHARING INFORMATION WITH THE DEFENCE  [87]
RESULT  [91]
Introduction
[1]       This is an appeal by way of case stated under s 380 of the Crimes Act 1961.
[2]       The respondents and eight others were tried together before Fogarty J and a jury in the High Court at Christchurch on a variety of charges under the Misuse of Drugs Act 1975 over several weeks commencing on 12…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v King

Details

AGLC: R v King [2008] NZCA 79
Case: [2008] NZCA 79
Decision Date: 10 April 2008

CaseChat Overview and Summary

This appeal by way of case stated concerns the legality of jury-vetting by reference to the criminal histories of potential jurors. The case arose following a ruling by Fogarty J that Crown counsel could not use information obtained from police about the criminal records of prospective jurors. The Crown was thus unable to use the information to inform peremptory challenges and the practice of jury-vetting by reference to criminal history ceased in New Zealand. The Crown appealed to the Court of Appeal and the Court of Appeal posed three questions to the Supreme Court: (i) may the police lawfully access the criminal records database to provide the Crown Solicitor with the non-disqualifying criminal histories of persons on the jury list to assist the Crown to decide whether to oppose a person on the list being a juror? (ii) if the answer to the first question is “yes”, may the Crown challenge without cause a person on the basis that he or she has one or more non-disqualifying convictions and sentences? (iii) if the answer to the first question is “yes”, should the accused’s counsel be given the non-disqualifying criminal history at the same time as the Crown receives it from the police? The Court answered all three questions in the affirmative. The Court held that the Juries Act permitted jury-vetting by reference to criminal history. The Court further held that the Privacy Act did not prohibit the police accessing criminal history information for the purpose of jury-vetting or the police making this information available to the Crown. The Court also held that the Crown could lawfully make this information available to the defence where there was a likelihood that jurors with criminal histories may have an adverse predisposition towards the defendant or the defence which is to be advanced.

Orders