The Queen v Alex Stacey John Kimura
[2001] NZCA 257
•29 August 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 214/01 |
THE QUEEN
V
ALEX STACEY JOHN KIMURA
| Hearing: | 28 August 2001 |
| Coram: | Richardson P Heron J Chambers J |
| Appearances: | T M Petherick for Appellant J C Pike for Crown |
| Judgment: | 29 August 2001 |
| JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J |
Taking the verdict
Alex Kimura, a 20 year old man from Hastings, was charged with, with intent to injure Malaki Muliipu, wounding Malaki Muliipu. He pleaded not guilty. The trial took place before a judge and jury in the District Court at Napier on 2 and 3 April this year. The judge summed up the case on the morning of the second day of the trial. It is common ground that the judge in his summing up gave the standard direction about the need for the verdict to be unanimous. The jury retired to consider its verdict at 10.19 a.m.
At around 2.30 p.m. that day the jury indicated that it had reached a verdict. At that point Mr Kimura’s counsel, Mr Petherick, was in another court. For some unexplained reason, no attempt was made to get Mr Petherick, even though he had responsibly made arrangements with the judge before whom he was appearing to slip out for the taking of the verdict should the jury return while he was still engaged in the other case. Instead the Kimura trial judge asked David Madsen, a Hastings solicitor who was appearing as defence counsel in a criminal trial which the judge had started as soon as the Kimura jury went out, to stand in as defence counsel for the taking of the verdict. Mr Madsen agreed to do that. The jury then returned to court.
The standard practice on the return of a jury, as contained in the trial judges’ bench book and in the departmental court-taking manual, is that, as soon as the accused has returned to the dock, the registrar asks the foreman of the jury to stand and puts to him or her the following question: “Members of the jury, have you unanimously agreed upon your verdict?” To that the foreman traditionally answers “We have” or words to that effect. The affidavits we have as to what happened that day are silent as to whether that step was taken. It is such a time-honoured ritual that we think it inconceivable that such a question was not put. Certainly if it was not put we would have expected Mr Madsen, a solicitor who has completed approximately 20 criminal jury trials on his own, to have commented on the omission in his affidavit.
The next step is that the registrar asks whether the jury finds the accused guilty or not guilty. We know that step was taken because Mr Madsen in his affidavit refers to the verdict being given and his recording the verdict on the copy of the indictment he had been given.
The next step, as detailed in the trial judges’ bench book and in the departmental manual, is that the registrar asks: “Are you all agreed, members of the jury?” Traditionally at that point the foreman answers “Yes” and other members of the jury generally nod or signify their consent. In this particular case we cannot be certain that the registrar did ask that particular question. Mr Madsen recalls the judge asking the foreman if the jury were unanimous in their verdict. It is possible that the registrar asked the question and that it was then repeated by the judge. Another possibility is that the judge effectively took over the registrar’s job and asked the question himself. It does not matter which way it happened. The crucial point is that the further check was done either by the registrar and the judge or by the judge alone. Mr Madsen’s recollection is that the foreman of the jury answered “Yes”.
What has led to the present appeal is the observation of a newspaper reporter who was reporting the case for the Hawke’s Bay Today newspaper. She has sworn an affidavit in which she has deposed to being present when the verdict was taken and to observing a young female juror who had what the reporter described “as a face like thunder”. The reporter says that the juror “appeared pale and upset when the verdict was given”. She remembers her staring resolutely at the back of the courtroom.
Issues on the appeal
The primary issue on the appeal is as to the safety of the verdict. Mr Petherick, for Mr Kimura, has argued that the verdict is unsafe because one cannot be certain the jury was unanimous. He further complains that the judge acted improperly in asking Mr Madsen to stand in as defence counsel. Mr Madsen did not have, Mr Petherick says, his detailed knowledge of the trial and of this jury. Because he (Mr Petherick) was not present, there was no opportunity for him to ask the judge to poll the jury. Mr Petherick accepted that this second complaint will be relevant only if we are satisfied that there is some doubt about the unanimity of the jury. If there is no doubt on that topic, then the fact that Mr Petherick was not present for the taking of the verdict would be inconsequential.
Was the verdict unanimous?
We are clearly of the view that Mr Kimura has not established any doubt about the unanimity of the jury’s verdict. The trial judge gave the standard direction about the need for the jury to be unanimous. It is not lightly to be assumed that the jury would fail to understand or would ignore such a direction. The fact that juries in New Zealand must be unanimous is, in any event, a fact reasonably well known to the general public. There is no reason to suppose that the registrar did not ask the jury whether they had “unanimously” agreed upon their verdict before taking it. The judge concerned was an experienced trial judge. There were experienced prosecution and defence counsel present. It would surely have been remarked upon had that step in the ritual been omitted. It is common ground that after taking the verdict there was a further check on the topic of unanimity either by the judge alone or possibly by both registrar and judge. The foreman answered “Yes”. It is common ground that there was no oral dissent by any member of the jury.
All one is left with is the observation of a newspaper reporter as to the demeanour of one of the jurors. There is no evidence that that juror’s demeanour caused any unease to the judge, prosecution counsel or Mr Madsen. It is noteworthy that Mr Madsen makes no mention of this matter in his affidavit. There are a number of possible explanations for the appearance of the juror in question. Many jurors, even though satisfied beyond reasonable doubt as to the guilt of an accused, nonetheless feel great tension and stress at the time when a verdict is given. It is by no means uncommon for some jurors to look pale and worried at the time a verdict is given. They are conscious that all eyes in the court are upon them and that they are determining in a significant way the future course of not only the accused’s life but also the lives of others associated with him or the victim. It is not uncommon for jurors to weep after the verdict is given. The juror in question had a number of opportunities to indicate her dissent from the verdict if she wished to dissent. She did not take those opportunities. We are not prepared to infer dissent from an ambiguous facial expression observed solely by a reporter with limited court experience.
It follows from our view of the facts that the judge’s action in asking Mr Madsen to stand in for Mr Petherick is inconsequential. There was nothing further Mr Petherick could have done had he been present. At the same time we would observe that we consider the judge’s action in asking Mr Madsen to stand in unwise. It should not have been assumed that Mr Petherick had not made arrangements to be present for the taking of the verdict. As it happens, Mr Petherick had made arrangements. Court staff should have contacted him to advise him that the jury was ready to return.
We have considered the cases to which Mr Petherick in particular referred us. They are all concerned with a different factual situation from that with which we are concerned. The only cases where retrials have been ordered are Ellis v Deheer [1922] 2 KB 113 (CA) and R v Barnard (1970) 2 CCC (2d) 564 (Ontario CA). In the former a new trial was ordered because some of the jury, owing to the structural condition of the court, could not all stand together when the verdict was announced by the foreman. Some of the jurors were out of sight of the judge. They could not hear what passed between the judge and the foreman. That situation is, of course, quite different from what occurred here. The Court of Appeal did observe in that case that when a verdict is delivered in the sight and hearing of all the jury, without any protest on their part, the inference is irresistible that they assented to it. In Barnard a new trial was ordered but essentially on the ground that the trial judge had not instructed the jury in the course of his summing up that they must be unanimous in any verdict they returned. Again that is not the situation here.
Result
We dismiss the appeal.
Solicitors
Gresson Grayson & Calver, Hastings, for the Appellant
Crown Law Office, Wellington, for the Crown
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