T (SC 62/2019) v The Queen - [2019] NZSC 106

NOTE: PUBLICATION ANY INFORMATION THAT IDENTIFIES, OR THAT MAY LEAD TO THE INDENTIFICATION OF JUROR PROHIBITED BY S 32B OF THE JURIES ACT 1981

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 62/2019
[2019] NZSC 106

BETWEEN	T (SC 62/2019) Applicant
AND	THE QUEEN Respondent

Court:	Winkelmann CJ, Glazebrook and O’Regan JJ
Counsel:	S L McColgan for Applicant K S Grau for Respondent
Judgment:	7 October 2019

JUDGMENT OF THE COURT

A The application for an extension of time is granted.
B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr T was convicted of 31 offences committed against his step‑daughters. His appeal against his conviction was dismissed by the Court of Appeal.[1] The appeal against sentence was allowed in part. He now seeks leave to appeal to this Court. His application is over a month out of time but, as the delay is relatively short and the Crown does not object, an extension of time is granted.
[1]T (CA742/2017) v R [2019] NZCA 150 (Miller, Simon France and Peters JJ) [CA judgment] at [75].
The leave application is made on the ground that the foreperson of the jury was a retired police officer. The appellant submits this could have affected the independence or impartiality of the jury or could have given the appearance of having done so. As such, it is submitted that this “undermines the fundamental right to a fair trial and therefore public confidence in the justice system”.

Background

The juror in question, when her name was drawn in the balloting process, told the Judge she was a former police officer and that, although she knew the officer in charge, she did not knew her well. She said that their relationship was purely professional. The Judge asked the juror whether her former profession or association with the officer in charge would affect the way she would assess the evidence and she said it would not. She was then allowed to take her place on the jury and was subsequently elected foreperson. Counsel were not consulted. Nor were they informed of the discussion with the juror.
Mr T’s trial counsel (Mr Fairley) recognised the juror in question as a former police officer after the jury had been empanelled. He consulted with his client about this during the lunch adjournment and, after this discussion, Mr T agreed that she should be left to serve as a juror and he signed a note to this effect.
It is worth noting that the evidence before the Court of Appeal was that the officer in charge and the juror would have seldom encountered each other, despite both…

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.

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Details

Case: [2019] NZSC 106
Decision Date: 7 October 2019

CaseChat Overview and Summary

Mr T sought leave to appeal against his conviction and sentence to the Supreme Court. The Court of Appeal had previously dismissed his appeal against conviction and allowed his appeal against sentence in part. The current application for leave to appeal is over a month out of time, but the delay is relatively short and the Crown does not object. The application for leave to appeal is based on the contention that the foreperson of the jury, who was a retired police officer, could have affected the independence or impartiality of the jury, thus undermining Mr T's right to a fair trial. The Court of Appeal had considered that the juror was not disqualified from serving on a jury as disqualification only applies while the person is a serving police officer. The Court of Appeal also considered whether a fair-minded and informed member of the public would have a reasonable apprehension or suspicion that the juror would not have discharged her task impartially. The Court of Appeal concluded that such a member of the public would know that the juror had resigned from the Police some three years before the trial, that she had no past or present connection with the case or with the officer in charge, and that she had given the Judge an assurance she was capable of performing her obligations. The Court of Appeal also considered that the critical issue for the jury was whether it accepted the complainants’ evidence. The Court of Appeal considered that this meant that a member of the public was even less likely to apprehend any possibility of bias on the part of the juror. The Court of Appeal also considered that the defendant, by proceeding with knowledge of the position and without objecting to it, effectively waived any right to contend later that the jury’s verdict was unjust on that basis.

The Supreme Court held that the Court of Appeal applied the established test to the particular facts of the case and no point of general or public importance arises. The Supreme Court also noted that this was a case where the decision of the Court of Appeal was that there was no apparent bias and the issue of waiver did not arise. The application for leave to appeal is dismissed. The application for an extension of time is granted.

Orders