R v Te Maari
[2007] NZCA 279
•6 July 2007
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
CA4/07 [2007] NZCA 279
THE QUEEN
v
ALAN JOSEPH TE MAARI
Hearing: 12 June 2007
Court: Ellen France, Ronald Young and Keane JJ Counsel: J G Rowan QC and E C Killeen for Appellant
M F Laracy for Respondent
Judgment: 6 July 2007 at 10 am
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Keane J)
R V TE MAARI CA CA4/07 6 July 2007
[1] On Friday 13 October 2006 Alan Te Maari was found guilty of one count of sexual violation by rape of T, a young relative of his, and another of digitally penetrating her. He was found not guilty of three other counts: of sexually violating her by rape on an earlier occasion, of indecently assaulting her, a girl aged under 12, and of inducing an indecent act. He was sentenced to five and a half years imprisonment for the rape and concurrently to 18 months imprisonment for the lesser violation.
[2] The jury reached their verdict at 9.39 pm after deliberating for almost ten hours having twice found themselves unable to agree, first after almost four hours had elapsed and again one hour twenty minutes before they reached their verdict. Each time the Judge invited them to persevere, on the second giving to them the standard direction: R v Papadopoulos [1979] 1 NZLR 621(CA); R v Accused (CA87/88) [1988] 2 NZLR 46 (CA).
[3] On this appeal Mr Te Maari contends that the Judge should, when the jury first found themselves unable to agree, or shortly after, have given them a Papadopoulos direction and discharged them in the evening when they then confirmed that were still unable to agree. In withholding that direction until then, well into the Friday evening, Mr Te Maari contends, the Judge pressed the jury to an unsafe verdict.
Context
[4] The jury had to consider an indictment containing five counts, alleging three occasions on which Mr Te Maari had sexually abused T between 6 May 1984, when she was aged ten, and 8 May 1987, when she was aged 13.
[5] Between 6 May 1984 – 1986, when she was living with her mother, and aged under 12, he was alleged to have indecently assaulted her by kissing her, his tongue in her mouth (count one); also to having induced her to commit an indecent act on him, to touch his penis (count two). Between 4 April 1986 and 8 May 1987 in another town, Sanson, where he was then said to be living, he was alleged to have sexually violated her by raping her (count three). On or about 15 February 1987,
again at her mother’s house, he is said to have sexually violated her by penetrating her genitalia with his fingers (count four) and to have raped her (count five).
[6] The trial began on Monday 9 October 2006 and T’s evidence took until noon on the Wednesday. The remaining witnesses called by the Crown took until halfway through the Thursday morning: T’s cousin, a girl of her own age to whom she had complained on the first occasion, and the cousin’s mother; T’s own mother, to whom she had complained almost immediately on the last occasion and the medical practitioner to whom her mother had promptly taken her; the officer in charge of the case.
[7] Mr Te Maari elected to call four witnesses, each to throw into question aspects of T’s narrative, and they completed their evidence just before lunch on the Thursday: a legal executive and a Sanson neighbour, each to establish that Mr Te Maari and his wife had begun living at Sanson at least two years after T alleged she had been violated there; T’s grandmother; finally a social worker.
[8] On the Thursday afternoon the jury heard the Crown’s closing address and shortly after 9 am on the Friday morning the final address for the defence. At 10:15 am Judge began his directions to the jury, completing them at 11.22 am. Then the jury retired.
[9] At 3:12 p.m. the jury sent this note to the Judge, corrected as to spelling: “We are unable to come to any agreement (on any counts). Jury members stated won’t change mind ever. Please advise.” To this the Judge responded in open court at
3.28 p.m., by reading their note back to the jury, then saying this:
Mr Foreman and members of the Jury, I am able, once the Jury has been deliberating for a period of over four hours, to discharge you from further duties but that time has not quite been reached. It almost has, at this stage but, in any event, I would be reluctant to discharge you at such an early stage. I would therefore ask you please to return to the Jury Room and to continue your deliberations in the meantime.
In this the Judge was not strictly correct. Four hours had passed shortly before he began his direction and he then had the power to discharge the jury. Clearly, though, he considered that premature.
[10] At 4:50 p.m., having consulted with counsel, who did not then dissent, the
Judge sent into the jury a typed note that said this:
Mr Foreman and members of the jury, it is not my intention to hurry you or place you under any pressure in considering your verdicts. I simply inquire whether you are making any progress, or if you would like any further assistance from me on any matter? If you think it is likely that you will require an evening meal, please indicate and arrangements will be made.
Within three minutes the jury replied “Yes we are making progress, evening meal
RQD.”
[11] The jury, after breaking for the evening meal, continued until 8:00 p.m. when they sent out this note “No counts (charges) can we agree on.” The Judge asked counsel to consider whether he should give the jury a Papadopoulos direction. Crown counsel invited him to do so, but to allow the jury only a short time within which to reach a verdict. Defence counsel was opposed. The Judge had, he said, when the jury first disagreed, once already invited them to persevere. A full direction could impose improper pressure.
[12] The Judge accepted the submission for the Crown. The jury had, he said, allowing for the dinner break, only been deliberating for six and a half hours. He proposed to give the direction and to allow the jury until 9 pm, without telling them that that was to be the horizon. Defence counsel confirmed he could not consent. The meal break was often pivotal, he said. That had occurred sometime before. The jury remained as unable to agree as they had been in the mid-afternoon.
[13] At 8:13 pm the Judge gave to the jury a Papadopoulos direction and they retired at 8:17 pm. At 8:48 pm, having spoken to counsel, the Judge had the Registrar inquire whether the jury were making progress. When the Registrar returned to say that they were, the Judge indicated to counsel that he would allow the jury perhaps another ten minutes. If they had not then reached a verdict, he would discharge them.
[14] Crown counsel endorsed that. Defence counsel said that he remained concerned. Crown counsel proposed that the Judge reassure the jury that they need only continue if they were making progress; that they would not be expected to go
on forever. Defence counsel considered that might be misinterpreted; that even that might subject the jury to undue pressure. They were left to deliberate.
[15] At 9.39 pm the jury returned the verdict now under appeal. They found Mr Te Maari not guilty of the first three counts: counts one and two, alleging the offending at the mother’s house between May 1984 – 1986, and count three alleging the offending at Sanson between April 1986 - May 1987. They found him guilty of counts four and five: the offending alleged at the mother’s house on or about
15 February 1987.
Appellant’s submissions
[16] When the jury first said at 3.12 pm, after almost four hours had passed, that they were unable to agree, it is submitted for Mr Te Maari, that is when the Judge should have given them a Papadopoulos direction. Or if not then at 4.50 pm when the Judge inquired whether they were making progress. In the direction the Judge gave to the jury at 3.28 pm he conveyed to them his reluctance to discharge them. He left them to infer that they had not yet done their job.
[17] The jury’s response after the 4.50 pm inquiry proved misleading. Though they said that they were making progress, they were no further advanced at 8 pm, after nearly nine hours deliberating. They remained in a state of disagreement. When, at 8.13 pm, the Judge did give them a Papadopoulos direction they might have seen this as a further rebuke. What then is to made of their verdict one hour twenty minutes later, at 9.39 pm, as 10 pm approached?
[18] The Judge had not told the jury that they could return verdicts on some counts and not others and the absence of any questions suggests that they were in two camps. Their verdict could only have been a compromise and one inconsistent with their duty. They did not acquit Mr Te Maari of the more serious offences and convict him of the lesser. By their verdict each camp gained something. The Judge had pressed them to a verdict that was unsafe.
Principles
[19] Where a jury is in difficulty, and the trial judge needs to assist, the principles that apply have been settled at least since R v Papadopoulos [1979] 1 NZLR 621 (CA). They are well expressed in R v P (15/02 & 16/02) CA15/02 CA16/02 21
March 2002:
[19]… Under s374 of the Crimes Act 1961, where a jury has been deliberating without agreement on a verdict for what the Judge thinks is a reasonable period, and which is not less than 4 hours, the Judge may discharge the jury. What is a reasonable period in this context is to be determined in the light of the issues and complexity of the particular case.
[20]Instead of discharging the jury after that elapse of time the trial Judge may inquire of the jury, in open Court, whether there is any likelihood of them reaching a verdict. To avoid the risk that the effect of that inquiry itself may put pressure on the jury to reach a verdict, which it would not otherwise reach, the inquiry as to the likelihood of reaching a verdict must be accompanied by a statement that the Judge does not wish to hurry the jury and that they should not feel under pressure: R v George (at p278).
[21] The authorities recognise that there is a particular sensitivity in any intimation by the Judge that if the jury are unable to reach a verdict by a stated time, they may be discharged. The Court’s approach does allow a trial Judge, having indicated there is no wish to hurry them, to inform the jury that a time may come when it is necessary to consider discharging them, depending on their progress. …
[20] The Court added, in para [21], that where, as here, an indictment contains more than one count:
[I]t will generally also be desirable to inform them [the jury] that before being discharged they would have the opportunity to deliver verdicts on such counts as they are agreed on. Such a signal removes one potential element of pressure. This is as far as the Judge may go.
Due exercise of discretion
[21] The jury’s first note at 3.12 pm, on its face we accept, stated that the jury were then unable to agree. The Judge was right, nevertheless, we consider, not to take the note literally and to respond as he did by inviting the jury to attempt to resolve any difference between them. It was mid afternoon. The jury had in the
preceding four hours begun to consider three separate incidents, expressed in five counts, after a trial that had extended into a fifth day. They might have become discouraged. It was too soon to assume that their inability to agree was irretrievable or that a Papadopoulos direction was essential.
[22] In the direction the Judge gave he imposed no pressure on the jury. Nor did he rebuke them. He had, he reassured them, the power after four hours to discharge them. He said he was reluctant to do so. He invited them to persist in the meantime. The only thing he might have done was to offer to assist them if they wished. That his direction had the effect he intended, however, he elicited by his note at 4.50 pm. The jury confirmed that they did not need any assistance. They were making progress and they foresaw continuing at least until the evening meal.
[23] When the jury sent out its second note at 8 pm confirming once more that they were then unable to agree, the Judge was understandably more concerned. The jury had been deliberating for almost nine hours and, as he knew, had already experienced difficulty. We accept that the Judge could have discharged the jury at that time. The Judge was equally entitled, we consider, to respond as he had in the mid afternoon: to invite the jury to persevere, this time giving them a Papadopoulos direction; and then to inquire, this time soon after, whether they were making progress.
[24] The Papadopoulos direction that the Judge gave to the jury is not criticised on this appeal and cannot be. It was in standard form. As is usual the Judge invited the jury to try one further time to see whether they could agree. He reminded them that this must not be at the expense of their oath. He confirmed to them that he had the ability to discharge them if they could not agree. He imposed no time limit. What is in issue on this appeal is whether that direction should have been given at all.
[25] The hour was not inordinately late. The jury had been deliberating, however, for nearly nine hours. They could, we accept, have been dismayed at the prospect of having to deliberate further. The Judge answered that by his inquiry soon after. Had the jury replied that they were still unable to agree, he would have discharged them. As it was, once again, the jury’s response was reassuring. They confirmed that they
were making progress as indeed they were. They continued deliberating for a further one hour twenty minutes. They proved able to agree.
[26] The jury’s verdict cannot, then, be described as a reflex response to pressure. Nor can any adverse inference be taken from the fact that they asked no questions. Nor was their verdict a cobbled together compromise. Against the evidence as to the three incidents comprehended by the five counts in the indictment, it is readily intelligible.
[27] The jury were able to be sure as to the offending alleged at the mother’s house on 15 December 1987, the subject of counts four and five. Then T complained immediately to her mother who took her promptly to their general practitioner. The jury were entitled to conclude as they did, that those counts were well supported by cogent evidence. The evidence as to counts the other three counts was, by contrast, less cogent.
[28] T’s complaint that Mr Te Maari had abused her her mother’s house between May 1984 – 1987 did not rest on such credible evidence of recent complaint. Nor did the complaint T made as to offending at Sanson, founding count three. Mr Te Maari, moreover, did not own that property between April 1986 – May 1987. He acquired it in March – May 1989. That was when, the jury were invited eventually to accept, the offence must have occurred. That the jury were unconvinced as to these counts is scarcely surprising.
Result
[29] We see no error on the Judge’s part in the directions that he gave to the jury, or any reason to consider the jury’s verdict unsafe as a result of those directions. The appeal will be dismissed.
Solicitors:
Crown Law Office, Wellington
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