The Queen v Butler

[2007] NZCA 127

IN THE COURT OF APPEAL OF NEW ZEALAND

CA284/06
[2007] NZCA 127

THE QUEEN

v

PHILLIP JAMES BUTLER

Hearing:13 March 2007

Court:Wilson, Baragwanath and Venning JJ

Counsel:S J Lance for Appellant

K Raftery for Crown

Judgment:16 April 2007 at 12.30 pm

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]       Following trial in the High Court at Auckland the appellant was found guilty of wounding with intent to cause grievous bodily harm and sentenced to five years’ imprisonment.  He appeals against conviction and sentence.

Background

[2]       The appellant, together with Eddie Wayne Harris and Joanne Paul, was charged with attempting to murder Mark Scott and, in the alternative, with wounding Mark Scott with intent to cause him grievous bodily harm. 

[3]       Ms Paul is the appellant’s partner.  She is also Mr Harris’ sister.  Mr Scott is known to the appellant.  On 9 February they were all at Ms Paul’s home.  During the course of the evening there was an altercation between Mr Scott and the appellant.  The others joined in.

[4]       As a result of the assault Mr Scott suffered a collapsed left lung, and head and facial injuries.  He was hospitalised for four days. 

[5]       The trial began on the morning of Tuesday 21 March 2006. Heath J did not sit on Thursday and Friday 23 and 24 March.  A jury member was ill on Monday 27 March.  The Judge summed up to the jury and the jury went out to deliberate at 11.00 a.m. on Thursday 30 March.  The jury deliberated until 9.30 p.m. on 30 March, when they went to a hotel.  Their deliberations continued in to the evening on Friday 31 March. 

[6]       At 10.22 p.m. on Friday 31 March the jury returned to the Court with verdicts, having earlier advised (at 9.55 p.m.) that they had decisions on five counts but were hung/unresolved on one count. 

[7]       Before taking the verdicts the Judge polled each juror.  Each juror confirmed the agreement on the verdicts had been freely reached.

[8]       The appellant was found not guilty of attempted murder but guilty of the alternative count of wounding with intent to cause grievous bodily harm.  Ms Paul was found not guilty on both counts.  Mr Harris was found not guilty of attempted murder but the jury were unable to agree whether he was guilty of wounding with intent. 

[9]       Earlier in the evening, at 8.30 p.m. the jury had advised they were hung/had no result on one charge.  The Judge then clarified with the jury at 8.45 p.m. that they had unanimous verdicts in relation to one accused.  In light of that and the length of time they had been deliberating the Judge invited them to consider whether by going out overnight and coming back fresh in the morning they would be likely to give unanimous verdicts on the remaining two or at least one of the accused.  He also asked them to give some thought to whether there was a legal question or an evaluation of the evidence that he might have been able to help them with.

[10]     The jury retired again but did not respond to further requests to return to the courtroom (at 9.05 p.m., 9.45 p.m. and 10.01 p.m.) other than at one stage to open the door to the jury room to communicate a request for a further 10 minutes.

[11]     After receipt of a note (with the time noted at 9.55 p.m.) the Judge had the jury return at 10.04 p.m.  He then conducted the poll before taking the verdicts at 10.22 p.m.

[12]     For sentencing purposes Heath J considered the evidence he had heard and the jury’s verdicts led to the conclusion that:

(a)the appellant had initially acted to defend himself and the others present in response to aggression on the part of Mr Scott;

(b)in defending himself the appellant used force beyond that which the jury deemed reasonable and formed the intention to cause grievous bodily harm to Mr Scott and did so. 

(c)The excessive use of force was inflicted on Mr Scott by the appellant when Mr Scott was in a prone position and possibly after he had been bound and gagged. 

Grounds of appeal

[13]     The appellant submits that there were errors and irregularities in the trial leading to a miscarriage of justice for the following reasons:

(a)the length of the deliberation, given the nature of the issues in the trial;

(b)the behaviour of the jury was a sign they were in a state of disarray and dysfunctional; and

(c)the resulting verdicts were inconsistent with the Crown case and defence case. 

Crown submissions

[14]     The Crown submit that in the circumstances the trial Judge was in the best position to exercise his informed discretion as to whether to allow the jury to continue deliberating or not and that the verdicts could be supported having regard to the evidence. 

Further materials

[15]     An affidavit was filed by one of the other counsel involved in the trial, Mr Cordwell.  Mr Cordwell deposes:

7.… On the evening of the 31^st March I thought the jury’s behaviour was irrational.  When the jury came back into the Court room on occasion some jurors had clearly been crying and I remember raised voices emanating from the jury room.  At one stage the jury refused to come out of the jury room when asked to by the Judge.  I considered their behaviour highly unusual. 

8.I believed at the time that the jury were acting in a dysfunctional way.  I recall feeling concerned as to the safety of any verdicts given in those circumstances, especially given the time and the length of the deliberations to that point.  I have never previously seen a jury behave in such a manner.

9.The jury had earlier indicated they had only one unanimous verdict (in relation to one accused).  Defence counsel discussed this and thought that it probably related to my client Ms Paul, who was in a slightly different position to the other two accused.  I accept that this conclusion is speculative.  However, the issues for the jury to consider, were in my opinion, relatively straightforward.

10.At approximately 10:00p.m. after we (the Judge and all counsel) had observed the jury’s ongoing, dysfunctional behaviour there was a discussion between us.  It was decided by Justice Heath, in consultation with counsel, that it would be unsafe to take any further verdicts.

11.Shortly afterwards, the jury indicated they had another unanimous verdict.  The Judge asked counsel whether the further verdict should be taken.  Defence counsel were neutral. 

12.The Judge elected to take the further verdict and poll the jury.

[16]     Mr Lance accepted that Mr Cordwell was wrong with his sequence of events and accepted that the Judge polled the jury before asking counsel whether the further verdict should be taken. 

[17]     The trial Judge prepared a report for the Court in which he confirmed:

[2]       Mr Lance indicates that counsel who appeared at trial recall that, prior to the jury returning at 10.04pm to indicate agreement had been reached on one of two outstanding issues, both counsel and myself had agreed no further verdicts would be taken.

[3]       I do not have any notes from which to refresh my memory about the events that occurred prior to the jury returning at 10.04pm.

[4]       My recollection is that I did discuss with counsel the possibility that it would be unsafe to take any further verdicts.  That discussion took place prior to the time at which the jury returned to Court at 10.04pm.  While I do not recall giving any unequivocal assurance to counsel that further verdicts would not be taken, I accept that I may have said that I did not intend to take additional verdicts.

[5]       I would not discount the possibility that counsel may have formed the view that no further verdicts would be taken from the tenor of our discussions and the jury’s conduct in failing to respond to efforts to have them return to Court.

[6]       When the jury returned and advised me they had reached agreement on one of the remaining issues I determined, without hearing from counsel, to poll each juror to ascertain whether the additional decision had been freely reached  … I was satisfied that the additional verdict had been freely reached and could be acted upon.

The length of the deliberations

[18]     It will be appropriate for a judge to exercise his or her discretion to discharge a jury under s 374(2) of the Crimes Act 1961 when there is a real risk of prejudice to the accused in allowing the jury to continue deliberating:  R v Spencer [1986] All ER 928 (HL).

[19]     Mr Lance emphasised that in this case the jury had been deliberating for twentythree and a half hours (excluding breaks) by the time the verdicts were delivered.  However, the length of the deliberation is not determinative nor can it be taken in isolation.  It must be considered in the context of the trial as a whole and particularly the course of the jury’s deliberations.  In the present case the jury had been out from 11 o’clock in the morning on Thursday but then retired to a hotel room at the relatively early time of 9.30 on Thursday evening.  They commenced deliberating again at 9.00 a.m. on the Friday after the Judge had redirected them on the issue of onus of proof and standard of proof.  They then deliberated without seeking further assistance from the Judge until 7.26 p.m. when the Judge asked them to return to the Court to inquire as to progress.  They indicated they were making very good progress.  Mr Lance accepted that no issue was taken by counsel at the length of time the jury had been out at that review.

[20]     Shortly after, the jury indicated they needed about an hour to resolve the outstanding issues.  At 8.30 they indicated they were hung/no result on one charge and asked for direction as to the effect of that.  But significantly they advised that one other charge was in discussion and was progressing well.  They again sought further time. 

[21]     Later, at 9.55 p.m. the jury advised they had reached verdicts.  The verdicts were not taken until 10.22 p.m. because the Judge polled the jury and dictated a minute in counsels’ presence before taking the verdicts.  This was not a case of the jury deliberating for an excessive time in one stretch or well into the early hours of the morning as was the case in R v Samson [1989] 2 NZLR 288, 291. In Samson’s case this Court stated the principle that:

Cases vary enormously in complexity, and juries can also vary in their ability to comprehend them and sustain constructive discussion.  In determining whether a verdict should be regarded as unsafe or unsatisfactory, we think it necessary to take an overall view of the trial, the summing up, the record of the jury's deliberations and the character of the verdict, bearing in mind that the trial Judge is often in the best position to exercise an informed discretion about whether or not to discharge the jury from his "feel" of the case which may develop over some days' association with them.

[22]     In the context of this case, and particularly given the communications between the jury and the Court, we do not consider the length of the deliberations to be a cause for undue concern.  The Judge was in the best position to assess the situation.

Was the jury dysfunctional or in disarray?

[23]     This submission arises from Mr Cordwell’s observations and particularly, the jury’s behaviour after the Judge spoke to them at 8.45 p.m. and before 9.55 p.m. when they advised they had verdicts.

[24]     Mr Cordwell’s statement that he thought the jury’s behaviour was irrational is conclusionary.  It is based in part on his observation that certain jurors had been crying and he had heard raised voices.  Neither of those features necessarily support a conclusion of irrationality.  Such experiences are not unusual in the context of jury deliberations.  The important issue is whether the jury was going about its job in a proper fashion without unreasonable pressure. Mr Cordwell then referred to the jury’s refusal to come out of the jury room.  That is unusual behaviour but we do not accept it is dysfunctional behaviour when seen in the context of the developing communications between the jury and the Judge.  It is, however, necessary to examine those communications in more detail.  The start point is the communication at 8.30 p.m.  The jury advised: 

We are hung decision/no result on one charge.  Jury have discussed this charge in detail and we/I see no change.  (How does this affect the overall result?) 

Also one item (in another charge) is in discussion, progressing well, give us time please.

[25]     In the course of responding to that query, the Judge observed:

We are in a very tricky situation. 

Mr Lance suggested that was a reference to the Judge’s concern they were unable to agree given the length of time the jury had been deliberating, however, in context it is apparent from the Judge’s minute that he was referring to the discussion he was about to engage in with the foreman as to the progress.  The Judge advised the foreman that he was not entitled to ask anything about the deliberations and did not want to know what the jury were talking about but that he had to identify the issues to see if he could help on them.

[26]     After discussing the position with the foreman the Judge then directed the jury again:

… I will now go through where we are from a legal point of view.  I have a discretion to discharge you without giving verdicts on charges on which you are unable to agree and to take from you verdicts on those that you can agree.  That is a discretion I am able to exercise at this stage if I think it appropriate.  For reasons we have gone into earlier, it is obviously more desirable that everything get resolved at one time and I am sure you understand the reasons for that.  So I need your guidance as to whether you think with more time and, at this stage, I would strongly suggest with overnight rest, you can reach decisions in respect of the matters on which you are presently disagreeing.  I say that because we are now at a time where you have been deliberating for long periods yesterday and today.  Tiredness comes into the equation as does the possibility of compromise decisions.  They affect the quality of justice and I do not want to do anything that might affect the quality of the justice that your decisions may dispense.  So what I would like you to do now is to retire, consider briefly whether you think that by going out overnight and coming back fresh tomorrow you are likely to be able to give unanimous verdicts on the remaining two or at least one of the accused and I would also like you to give thought to whether, on the issues that you are currently discussing, it is possible to identify a legal question or something to do with an evaluation of evidence with which I may be able to assist you.

[27]     The jury then retired again and continued their deliberation.  Following that retirement requests were made at 9.05 p.m., 9.42 p.m. and 10.01 p.m. that they return to Court.  The jury declined to respond to the requests but, as noted, during the course of that time passed a communication indicating they required a further ten minutes.  Between 9.00 p.m. and 10.00 p.m. the Judge met with counsel and the situation described in the trial Judge’s report and Mr Cordwell’s affidavit arose.  In the report for this Court Heath J accepted that he may have said that he did not intend to take additional verdicts in the discussion he had with counsel prior to the jury returning to Court at 10.04 p.m.  However, that changed because the jury communicated again with the Court in their last note (timed at 9.55 p.m.) that:

We are feeling alert and all 12 have had good discussion on all topics. 

We have come to end of the process and have agree on our decisions. 

We have decisions on 5 counts. 

We have hung/unresolved decisions on 1 count. 

[28]     It is accepted that the five replaced a four which was crossed out and the one replaced a two which was also crossed out.  It can be inferred that at some stage, late in the course of the deliberations agreement was reached on the fifth count before the jury came back.  It must have been at about the time the foreman started to write the note for the Court, but whether it was before 9.55 or after that time is speculative.  Given what had taken place between 9.00 p.m. and 10.00 p.m. and in light of the communication the Judge of his own volition polled each juror individually. 

[29]     Again the Judge recorded the position in a minute at 10.15 p.m. 

[5]       At 10.04pm the jury returned to Court indicating that they had reached agreement on one of the two outstanding issues leaving only one count on which they disagreed.  I indicated I would discharge them formally shortly in respect of the count on which they disagreed.

[6]       Of my own volition, I polled each juror to ascertain whether the agreement reached within the last half hour or so had been freely reached.  Each juror responded affirmatively to that query.

[7]       Mr Burns, for the Crown, indicates that the Crown is prepared to accept that verdict.  Counsel for all three accused, understandably given the hour, reserved their client’s respective positions and abide the decision of the Court.

[8]       I rule that the additional verdict will be taken.  While I did have some concerns about the possible safety of any such verdict before polling the jurors, from my observation of the way in which they each answered the question, I am satisfied that the additional verdict has been freely reached. 

[9]       On that basis the jury will now be asked to return to Court so that verdicts may be formally taken.  So far as the count on which they disagree is concerned, the jury will be discharged from giving a verdict in due course.

(emphasis added)

[30]     While the jury did refuse to return to the Court between 9.05 p.m. and 10.01 p.m., they carried on with the deliberative process during that time.  They also communicated with the Court and, significantly, asked to be given further time.  As Mr Raftery submitted they may well have declined to come back to Court to talk about progress because they were simply getting on with their task and did not want the interruption.  It can be inferred that they considered that they were still making progress.  That is confirmed by the foreman’s note at 9.55 when he said the jury were feeling alert and that all 12 had had good discussion on all topics but that they had then come to the end of the process. 

[31]     So while one can understand the Judge and counsel may have discussed their concerns at the jury’s refusal to return to the Court before they were aware of the last communication the jury were effectively engaged in the process which they were empanelled for.  Any residual concern as to the process is answered by the results of the Judge’s poll of the jurors.  We also note that counsel for all accused, including the appellant, abided the decision of the Court on taking verdicts.

Was there undue pressure on the jury?

[32]     We have also considered the separate but related issue whether it could be said the jury were under unreasonable or improper pressure to reach verdicts.

[33]     At 7.26 p.m. the Judge advised the jury that from an administrative point of view if there was any realistic prospect they might need to retire overnight they would need to make provisional arrangements.  He invited the jury to consider that matter and to indicate whether they thought that should be done or not at that stage.  Importantly the Judge went on to tell the jury:

Before you do that let me just emphasise a few things.  It is obviously important to any criminal trial for unanimous verdicts to be reached.  But that does not mean you should try to be hasty or to force people to reach a conclusion.  What I don’t want after all the time and effort that you have put into this deliberation is for someone to feel that they are going into a result tonight simply to get a decision tonight. 

What is much better is to have a good rest and finish the deliberations properly so that you all, in good conscience next week, know that you have made the right decision whichever way that goes.  …

[34]     Reference to the later jury communications and the Judge’s minutes disclose that throughout the course of the evening on Friday 31 March the jury were continuing to make progress.  While they were clear they were not able to agree on one charge (at 8.30 p.m.) they considered they were progressing well on the other charge.  At that time the Judge made it clear that they were not to consider themselves to be under any pressure.  We do not accept Mr Lance’s criticism of the Judge for failing to give a more complete Papadopoulos direction by telling the jury that if they were unable to reach verdicts there was likely to be another trial.  A full Papadopoulos direction would have been more likely to place the jury under pressure than the actual direction given.  A full Papadopoulos direction was not required because at no stage did the jury indicate they were at a complete stalemate and unable to agree, (except in relation to one count) indeed they continually indicated they were making progress and sought further time. 

Were the verdicts inconsistent with the evidence?

[35]     Mr Lance’s final point was that the verdicts were inconsistent with the way both the Crown and Defence presented their cases.  We agree with Mr Raftery that the verdicts reflect an acceptance by the jury of some but not all Crown evidence and some but not all Defence evidence.  There is nothing inconsistent or unreliable about that.  The appellant was the only one of the three accused to give evidence.  There was a clear contest between his evidence in which he admitted assaulting the complainant Mr Scott in self-defence and Mr Scott’s evidence as to the extent and duration of the assault.  There was also the independent evidence of the injuries sustained by the complainant Mr Scott.  The jury might well have concluded, as Heath J analysed the verdicts, that while the accused was not guilty of attempted murder, in defending himself the appellant had used more than reasonable force and had formed an intention to cause grievous bodily harm to Mr Scott.  The verdicts are explicable on the basis of the evidence and were open to the jury. 

[36]     The appeal against conviction must be dismissed.

The appeal against sentence

[37]     Mr Lance submitted that the Judge erred in assessing the offending as falling towards the upper end of the first but at the lower of the second bands in R v Taueki [2005] 3 NZLR 372. He submitted that the offending lay towards the bottom of the first band.

[38]     There was evidence before the Court that:

(a)       the assault lasted up to approximately half an hour;

(b)       there was at least a two on one situation;

(c)the appellant was punching the complainant Mr Scott’s head whilst Mr Scott was on the ground; and

(d)that (on the appellant’s own evidence) others involved in the assault used weapons against this complainant.

[39]     Given those factors, the Judge was entitled to put the offending at the upper end of band one or the lower end of band two. 

[40]     The Judge also properly directed himself to the passage in Taueki where the Court accepted that excessive self-defence might be seen as reducing the seriousness of the offending. Indeed, he accepted that was the case at [6] and [7] of his sentencing notes. The starting point of five and a half years’ imprisonment was within the range open to the sentencing Judge. Although Heath J did not specifically refer to the fact, it is also relevant as a personal aggravating factor that the appellant had four previous convictions for common assault.

[41]     The credit of six months for remorse was perhaps generous in the circumstances.  The end sentence of five years cannot be described as manifestly excessive. 

Result

[42]     The appeals against conviction and sentence are dismissed.

Solicitors:           
Crown Law Office, Wellington