R v Te Pou - [2022] NZHC 605

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-090-001650

[2022] NZHC 605

THE QUEEN

v

MANAWANUI TE POU EDWARD THOMAS

Hearing: 28 February, 1, 2 and 3 March 2022

Appearances:

S McMullan for Crown B Meyer for Mr Te Pou

S Wimsett for Mr Thomas

Judgment:

29 March 2022

JUDGMENT OF WYLIE J

[Irregularity with juror balloting]

This judgment was delivered by Justice Wylie On 29 March 2022 at 3.00 pm
Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:
Meredith Connell, Auckland
High Street Law Barristers, Auckland S Wimsett, Auckland

R v TE POU [2022] NZHC 605 [29 March 2022]

Introduction

[1] The defendants, Manawanui Te Pou and Edward Thomas, were jointly charged with sexual violation by rape and sexual violation by unlawful sexual connection. Their trial before a jury commenced on 28 February 2022. The jury returned not guilty verdicts on 3 March 2022.

[2] On 7 March 2022, Registry staff detected a problem with the composition of the jury. It appeared that a member of the jury panel had sat on the jury, notwithstanding that his name had not been drawn in the ballot.

Relevant facts

[3] Members of the public were summoned for jury service for the week commencing 28 February 2022. Two of them, A and B, had identical surnames, save for one letter.

[4] The jury was pre-balloted on the afternoon of Friday 25 February 2022. A was pre-balloted for the trial; B was not. Nevertheless, B attended Court on Monday 28 February 2022 as summoned and his name was added to the names of those who had been pre-balloted and had attended. The jury panel was inducted, given all of the usual instructions and shown the standard informational video. The jury panel was then escorted to the courtroom. Because of the physical distancing requirements in place as a result of the COVID-19 pandemic, and as permitted by recent amendments to the Jury Rules 1990,1 some panel members were brought into the courtroom; others remained outside. I checked with all panel members and those outside confirmed that they could hear what was being said in the courtroom.

[5] In the course of empanelling the jury, the Registrar drew B’s name out of the courtroom ballot box. She called out B’s name, reading the surname first, followed by the first name. After a short delay, A came forward. Nobody else had responded. A queried the name that had been read out by the Registrar. The Registrar advised him that the surname had been read first followed by the first name. She read out B’s name

1 Jury Rules 1990, r 18, as amended by the Jury Amendment Rules 2020.

again and then spelt it out. A appeared to be satisfied. He took a seat in the jury box. He was not challenged.

[6] Before being sworn in, the balloted panel was taken for rapid antigen tests. When the panel returned to Court, the jurors were sworn in. Each juror was…

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 Te Pou

Details

AGLC: R v Te Pou [2022] NZHC 605
Case: [2022] NZHC 605
Decision Date: 29 March 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the defendants, Manawanui Te Pou and Edward Thomas, were jointly charged with sexual violation by rape and sexual violation by unlawful sexual connection. Their trial before a jury commenced on 28 February 2022, with the jury returning not guilty verdicts on 3 March 2022. Following the trial, it was discovered that a member of the jury panel had sat on the jury despite not being drawn in the ballot. The court had to determine whether the irregularity in the jury's composition vitiated the trial and affected the verdicts. The legal issues involved interpreting the common law and statutory provisions concerning the right to challenge a juror, the distinction between misnomer and impersonation, and the impact of such irregularities on the trial's outcome.

Justice Wylie examined the cases of R v Mellor, R v Wakefield, R v Kelly, and R v Greening, along with statutory provisions from the Juries Act 1981 and the Criminal Procedure Act 2011. The court concluded that while deliberate impersonation of a juror would lead to the verdict being set aside, the situation in this case was an innocent mistake rather than deliberate impersonation. The court found that there was no miscarriage of justice as the presence of the juror who was not properly balloted did not cause any prejudice to the defendants. The unanimous not guilty verdicts indicated that the Crown had not convinced the jury of the defendants' guilt, making it highly unlikely that the presence of a different juror would have changed the outcome. Therefore, the court held that the irregularity did not vitiate the trial or affect the verdicts.

The court's final order was that the fact that the juror, A, sat on the jury without being properly balloted did not vitiate the trial or affect the not guilty verdicts returned by the jury. The defendants' convictions were upheld as there was no miscarriage of justice due to the irregularity in the jury's composition.

Orders