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 called by name. When the Registrar called out B’s name, A responded and took the oath.

[7]    After the trial, when the Registry was collating the claim forms for jurors’ expenses, it was discovered that A had sat on the jury rather than B. The matter was brought to my attention and I in turn advised counsel. Counsel indicated that, in their view, what had occurred was a mistake and not deliberate impersonation. Nevertheless, with counsels’ agreement, I interviewed A. I did so in counsels’ absence because none of them wished to be present. My discussion with A was recorded. The recording has been transcribed and made available to counsel.

[8]    A confirmed to me that his name is Chinese. B’s name is also Chinese. He pronounced both his surname and B’s surname in Chinese. It was very obvious to me that there was a marked difference between the Registrar’s pronunciation of B’s surname  in  the  courtroom  and  A’s  pronunciation  of  B’s  surname  in  Chinese.  A explained that, when the Registrar called out B’s surname in the courtroom, he was not sure whether his surname had been called out. He waited to see if anybody else responded. When nobody else did so, he came forward and queried the surname that had been called out by the Registrar. After she responded, he thought that he had been balloted. As he put it:

… because ah no-one came up to the Court … so I thought maybe it was me, so I was asking … and … the Court people they said ah yes it’s juror [B’s] surname so I thought it was me.

[9]    Given the very close similarity between A’s and B’s surnames, the difficulty the Registrar had with pronouncing B’s surname correctly and, no doubt, the fact that A was in a courtroom, I am satisfied that what occurred was entirely innocent and that there was no deliberate impersonation of B by A.

Analysis

[10]   Every party to proceedings before a jury has the right to challenge a person selected as a juror. The right to challenge a potential juror has been described as a right of “fundamental constitutional importance to a defendant”.2

[11]   As a result of what occurred in this case, Messrs Te Pou and Thomas were deprived of the right to challenge A. Given the not guilty verdicts returned, understandably neither of them complained that he had been denied the right to challenge A.

[12]   Notwithstanding the absence of complaint, in my view it is important to consider whether or not the jury’s verdicts had been vitiated by what occurred. The underlying principles should be the same, regardless of the verdicts.

[13]   Cases of juror impersonation or mistake, while unusual, are not unheard of. I deal with the position at common law first and then consider relevant statutory provisions.

[14]   In R v Mellor, a Court of 14 Judges considered the situation that arises where there has been a mistake.3 In that case, JHT and WT were both members of the jury panel. Both had similar surnames. JHT was called to serve on the jury and it was presumed that he went into the jury box. He was duly sworn in as a juror without challenge. The defendant was convicted. The following day, it was discovered that WT had, by mistake, answered to the name of JHT, and that WT had served on the jury. Five Judges held that there had been a mistrial and that the Court had jurisdiction to set aside the verdict; six held that there had been a mistake but no mistrial. A combination of eight Judges favoured affirming the conviction; six were of a contrary view. As a result, the conviction was affirmed.

[15]   In R v Wakefield, the Court of Criminal Appeal in the United Kingdom was faced with the situation that arises where a summoned juror did not appear, but was impersonated by another person, who served on the jury, although he was not a panel

2      Liu v R [2017] NZCA 573, [2018] 2 NZLR 697 at [37].

3      R v Mellor (1858) Dears & B 468 (QB).

member and was not qualified to act as a juror.4 The defendant appealed the guilty verdict. The Court concluded that there had been a mistrial. It observed as follows:5

A defendant is entitled to be tried before a duly authorized judge and twelve men qualified to be jurors to try him. Many cases have decided that mere irregularity in calling together the jury—mere misnomer of a juryman—is not sufficient to avoid the proceedings. But this case is not of that character, for it is admitted by the Crown that Clark, who presented himself when Toley, a qualified juror, was called, and who served in his place, was not upon the panel and was not qualified to serve as a juror. Our judgment is limited to this case, where all these circumstances apply. But here Toley, a man duly summoned and also qualified to serve, was personated by a man who was in neither case, and so the accused was deprived of his legal right of peremptory challenge and of trial by twelve qualified persons.

[16]   In R v Kelly, the Court of Criminal Appeal, in declining to set aside a guilty verdict, commented that the principle that the Court will order a new trial where information comes to light after a trial which would have enabled the defendant (had he or she had such information) to have challenged one of the jurors, has only been applied in cases where there has been an impersonation or mistake as to the identity of a juror.6

[17]   In R v Greening, the Court of Appeal in this country, when discussing limitations on the right of challenge, discussed the above cases and noted as follows:7

And, too, there are limitations upon taking an objection even when the circumstances which it is alleged vitiate the verdict are only discovered subsequent to the trial. The Court of Criminal Appeal appears in [R v Kelly] to have approved the principle that the Court of Criminal Appeal will order a new trial where information comes to light after a trial which would have enabled the accused, had he had it, to have challenged one of the jurors only in cases where there has been personation or mistake as to the identity of a juror; …

An example of personation is to be found in [R v Wakefield], where one impersonated another who had been summoned, came forward when the name of that other was called, and served on the jury. It was held a mistrial. Personation is, however, difficult to distinguish from misnomer and in Mellor’s case …, fourteen Judges heard an application for a new trial. Joseph Henry Thorn, having been called from the panel, William Thorniley entered the box by mistake. Six of the fourteen Judges held that this was a mere misnomer and seven of the fourteen held that in any event the Court had no

4      R v Wakefield [1918] 1 KB 216 (Crim App).

5      At 217.

6      R v Kelly [1950] 2 KB 164 (Crim App) at 173–175.

7      R v Greening [1957] NZLR 906 (CA) at 912.

jurisdiction to order a new trial. There was a combination of eight in favour of dismissing the appeal, and it was dismissed accordingly.

These observations are obiter and I am not aware of any other New Zealand case dealing with juror impersonation or mistaken identity.

[18]   The distinction between impersonation and misnomer is not altogether clear from either Kelly or Greening but it was clearly articulated in a relatively recent Privy Council decision – Director of Public Prosecutions v Penn.8 The Court was there dealing with an appeal from the British Virgin Islands. It turned on various provisions in the British Virgin Islands Jury Act 1914. However, Lord Mance for the Court summarised the position at common law as follows:

[5]     At common law challenges to jurors for cause are either to the array  or to the polls (ie to an individual member called from the array to be empanelled as a juror). Peremptory challenges were, within certain limits, recognised. The Jury Act 1914 reproduces all these possibilities (ss 24, 27– 28). But there is a potentially important distinction between a challenge made at the time of the array or empanelling of jurors and an appeal on the basis of information acquired after conviction. The authorities draw this distinction, and make clear that merely to establish after conviction some reason why a juror should not have sat will not suffice to have a jury’s verdict set aside. Thus the presence on the jury of someone disqualified by conviction for felony from sitting (R v Kelly …) or of someone who mistakenly answered to the wrong name when the jury was being empanelled (R v Mellor … by a narrow majority) will not suffice in the absence of any injustice, unfairness or real prejudice (R v Mellor … cf also R v Comerford [1998] 1 All ER 823 at 830– 831). Deliberate impersonation of a juror by another person will in contrast lead to the verdict being set aside (R v Kelly and R v Wakefield …).

(citations omitted)

[19]   The position at common law summarised in Penn is consistent with s 33 of the Juries Act 1981 in this country. That section provides as follows:

33 Verdicts not affected by informalities

No verdict shall be in any way affected merely because—

(a)any juror has been erroneously summoned from a greater distance or from a different district or otherwise than is required by this Act or the jury rules; or

(b)any person who was not qualified and liable for jury service, or who was disqualified from jury service or was not

8      Director of Public Prosecutions v Penn [2008] UKPC 29, [2009] 2 LRC 90..

according to section 8 to serve on a jury, nevertheless served on the jury; or

(c)of any error, omission, or informality in any jury list, panel, or other document.

[20]   Section 33 does not apply directly in the circumstances which have arisen in this case. However, the rationale underlying s 33 is in point. That rationale is twofold.9 Section 33 is intended:

(a)to prevent defendants escaping conviction on a technicality; and

(b)to avoid the inconvenience of more than one trial “when there is no real reason for believing the results of the first [trial] to have been wrong”.10

[21]   The position at common law is also implicitly recognised by s 379 of the Criminal Procedure Act 2011. It provides as follows:

Proceedings not to be questioned for want of form

No charging document, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding may be dismissed, set aside, or held invalid by any court by reason only of any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice.

[22]   The section does not protect defects that are so serious that the process concerned must be treated as a nullity.11 The deliberate impersonation of a juror by another person is an interference with justice and a serious contempt of Court.12        I doubt that it can be described as a defect, irregularity, omission or want of form. However, there was no deliberate impersonation in this case. Rather, there was an innocent mistake. What occurred can, in my view, be described as an irregularity for the purposes of s 379.

9      R v Cornelius [1994] 2 NZLR 74 (CA) at 81.

10     At 81.

11     Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 at [115]; Hall v Ministry of Transport [1991] 2 NZLR 53 (CA) at 58; and Police v Thomas [1977] 1 NZLR 109 (CA) at 121.

12     R v Levy (1916) 32 TLR 238 as cited in Laws of New Zealand Juries: Protection and Liability of Jurors (online ed) at [69]; and see Halsbury’s Laws of England (5th ed, 2019, online ed) vol 24 Contempt of Court at [41].

[23]   The next question is whether there has been a miscarriage of justice as a result of the irregularity. In Dotcom v Attorney-General the Supreme Court affirmed that, for the purposes of s 204 of the Summary Proceedings Act 1957 (the predecessor to  s 379), whether there has been a miscarriage of justice depends on “whether or not the particular defect has caused significant prejudice to the person affected”.13 The Court indicated that this approach also applies to s 379, which is in very similar terms.14

[24]    In my judgment, there is nothing to suggest that A’s presence on the jury, notwithstanding that he was not balloted, caused any prejudice to the defendants. As the Crown responsibly conceded, even if A’s name had been balloted and called by the Registrar, it is highly unlikely that he would have been challenged by the Crown. Moreover, the Crown had to convince all 12 jurors of the defendants’ guilt. The jury’s verdicts were unanimous. Clearly, the Crown did not convince any of the jurors of the defendants’ guilt and there is no reason to suppose that the presence of a different juror would have made a difference. It is, in my judgment, clear that there has been no miscarriage of justice in this case.

[25]   Accordingly, I hold that the fact that A sat on the jury, when his name had not been balloted or called, did not vitiate the trial and that it did not affect the not guilty verdicts that were returned.

Wylie J

13     Dotcom v Attorney-General, above n 11, at [129].

14     At [128]; and see Simon France (ed) Adams on Criminal Law – Criminal Procedure (online looseleaf ed, Thomson Reuters) at [CPA379.01].