The Queen v Campbell Arthur Ross

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 268/00

THE QUEEN

CAMPBELL ARTHUR ROSS

Hearing:	21 November 2000
Coram:	Richardson P Robertson J Goddard J
Appearances:	K Raftery for Crown R W Kee for Appellant
Judgment:	21 November 2000

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

Campbell Arthur Ross faced trial on an indictment which contained one count of wounding with intent to cause grievous bodily harm contrary to s 188 of the Crimes Act 1961.
After a four day trial the jury found the charge proved. Mr Ross now appeals against conviction on the sole ground that the trial process was contaminated by an incident which occurred shortly before the afternoon tea adjournment on the second day of the trial.
In the trial there was no dispute that the appellant had stabbed the complainant in the stomach with a knife at the complainant’s home where they were both living at the time.
The question was whether this was a deliberate attack or as the defence submitted that the appellant had been acting in self defence. It was contended that during an argument, as the appellant feared for his safety knowing about the presence of a gun, the stabbing was an accident when the complainant fell forward onto the knife while they were in a scuffle.
During the evidence of one, Mr A P Barnao, the only eye witness to the incident, there was an interruption which is recorded thus :
Mr Kee:Sorry Mr Barnao, can we just pause a minute.
MADAM REGISTRAR (whispers to His Honour) Sir, the Court Attendant has indicated the accused is staring at the Jurors and it is making them very uncomfortable.
HIS HONOUR: All right, we will take the afternoon break now. I will see counsel in chambers briefly.
We will take the afternoon break five minutes early, Mr Foreman and we will resume. I will just excuse you if I may and we will take the fifteen minute break starting now.
JURY PANEL RETIRE TO JURY ROOM
HIS HONOUR: Thank you Mr Barnao. We are just about to take the afternoon break. You are free to just wait outside the Court if you will and have a cup of tea if that (sic) are going to give you one out there.
In the absence of the jury (but in the presence of the accused and counsel) the Judge continued :
That message that was passed by Madam Court Attendant indicated that one or other of the Jurors are a bit concerned at the way your client is looking at them. Now I have not been conscious of Mr Ross and certainly I have not noticed anything untoward from where I have been sitting and of course Mr Kee, you would not have notice anything anyway, because he is behind you.
I just pass that on for what it is worth.
An application was made by counsel for the accused to discharge the jury on what the Judge described as the basis of his client looking at them in a way that they considered threatening. The Court then noted :
As I say I have not been particularly conscious of Mr Ross, I have been more focused on the witnesses and neither you or Mr Glubb of course have the opportunity of seeing him but the jury has and maybe some members of the jury feel uncomfortable about it. Now it is a disconcerting thing to hear from a jury halfway through a trial. Of course I am certainly not going to discharge the jury on that basis, I think the remedy, such as it is may be that Mr Ross as he has been inadvertently making eye contact with members of the jury, which he is perfectly entitled to do incidentally. If they feel uneasy about it well I think the simple answer is don’t. I am going to just indicate to the jury that I have heard a concern expressed by a number of them. This is a criminal trial. It is a serious matter of course. All of us here and them in particularly (sic) and the accused are no doubt under a good deal of stress as a trial of this kind is a very stressful experience, simply please would they concentrate on the evidence, that is what they have to take into account at the end of the day and invite them to focus on what is important in the trial, which is of course, the evidence. I am certainly not going to discharge him on that basis but Mr Kee do you have anything further that you would like me to relate to the jury that you think might be helpful?
Counsel indicated that they were happy to leave the matter to the wisdom of the Judge. The Court noted further :
It is probably a question of the least said the better, let us simply remind the jury that this is a stressful matter for all of us, the accused, no doubt the complainant, various witnesses and perhaps more so for them because they are the people who are going to make the decision in the trial. Before I do that I wonder, Mr Glubb do you have a view that you would like to express on?
Crown counsel indicated that what was being suggested was appropriate.
The Judge then said to the jury when they returned to the Court :
Mr Foreman Ladies and Gentlemen, I have just discussed briefly with counsel a feeling of unease that was conveyed to me through the Registrar concerning an aspect of the trial and the accused. Please remember that this is a stressful experience for all of us of course, you in particular, but also you and witnesses in the trial. Please do not take anything untoward from the accused or any other witness or participant in the trial. Make allowances please for the fact that this is a serious criminal trial, that the Court understands that it is stressful for all involved, particularly you members of the jury who are going to make the important decisions in this case. So I think the important thing to do is to focus entirely on the witnesses as they give their evidence to consider the material that has been placed before you in Court, be single minded about that and decide this case in a clinical and objective way. I recognise and acknowledge the concern that you had expressed but here, you are all professionals, you are all Judges of the facts in this case and I would invite you to consider the evidence and only the evidence on that basis.
It is now submitted that notwithstanding the actions taken by the Judge there was a real danger and a reasonable suspicion that the particular juror (and possibly the jury as a whole) were not able to consider their verdict impartially and therefore it would be appropriate to allow the appeal and order a new trial.
It is noted that the initial matter having come to attention via one juror, no inquiry was made as to other members of the jury as to whether they had been affected and the trial simply proceeded.
Reference is made to s 374 of the Crimes Act which provides as relevant :
[374 DISCHARGE OF JURY--
(1) Subject to the provisions of this section, the Court may in its discretion, in the case of any emergency or casualty rendering it, in the opinion of the Court, highly expedient for the ends of justice to do so, discharge the jury without their giving a verdict.
...
[(3) Subsection (4) applies if, at any time before the verdict of the jury is taken, the Court is of the opinion that--
(a) A juror is incapable of continuing to perform his or her duty; or
(b) A juror is disqualified; or
(c) A juror's spouse or family member, or a family member of a juror's spouse, is ill or has died; or
(d) A juror is personally concerned in the facts of the case; or
(e) A juror is closely connected with 1 of the parties or with 1 of the witnesses or prospective witnesses.
(4) Where this subsection applies, the Court, having regard to the interests of justice, may,--
(a) Make an order discharging the jury without their giving a verdict; or
(b) Subject to subsection (4A), make an order to proceed with the remaining jurors and take their verdict.
(4A) The Court must not proceed with fewer than 11 jurors except in the following cases:
(a) If the prosecutor and the accused consent:
(b) If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case--
(i) The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:
(ii) The Court may proceed with fewer than 10 jurors only if the prosecutor and the accused consent.
...
(8) No Court may review the exercise of any discretion under this section.]
Early last century in R v Binley (1912) 31 NZLR 949 Chapman J noted in relation to a similarly worded provision :
It is applicable only when the Court is practically convinced that the risk of a trial not being a fair and a proper one between the prisoner and the country exists ...
Although the exercise of discretion under ss (8) is not reviewable, as was noted by Somers J delivering the judgment of this Court in R v Coombs [1985] 1 NZLR 318 :
We do not consider that the inviolability of a discretion affects the obligation of the Court under s 385 to allow an appeal where it is satisfied that there was a substantial miscarriage of justice.
In delivering the judgment of this Court in R v Burney [1989] 1 NZLR 732, Richardson J (as he then was) observed :
There are many applications of that basic principle in the reported cases. In appeals under the Crimes Act 1961 they come within the description of a miscarriage of justice under s 385(1)(a) of the Act. A jury decision reached in circumstances where there has been a material breach of natural justice or other material circumstances reflecting on the integrity of the jury's verdict is likely to be unsafe and so to be seen as giving rise to the risk of a miscarriage of justice.
This case is concerned with the potential impact on a jury, and in that way on the administration of justice, of conduct in the courtroom. Whether the conduct complained of is that of the Judge, or of a Court officer, or counsel, or a witness or a spectator will of course be material in determining whether there has been a breach of the right to a fair hearing such as to vitiate the verdict. The answer must depend in the end on an assessment of the nature and significance of the irregularity and so involve considerations of fact and degree.
This is consistent with the approach in R v Accused (CA 89/88) (1989) 4 CRNZ 330 where Bisson J delivering the judgment of the Court said at 332 :
It is impossible to draw up a series of rules to cover all possible cases in which the jury might be prevented from impartially considering the verdict so as to satisfy the Court there had been a miscarriage of justice within the terms of s 385(c) requiring an appeal against conviction to be allowed.
He then went on to say :
The correct test as approved in the House of Lords was the one stated in R v Sawyer (1980) 71 Cr App R 283 at p 285 :
Upon those facts the learned Judge had to decide whether or not there was a real danger that the appellant’s position might have been compromised by what had happened. Was there a real danger that she was or might have been prejudiced by what had gone on? ...
There were no further incidents during the trial and as noted by the Crown in the eventual summing up, the Judge was sensitive to the incident. He said
You are invited and exhorted to put aside feelings of sympathy or prejudice and I have dealt with those matters and you were reminded correctly of the onus and burden of proof and the standard of proof. The accused has chosen to give evidence and you should be aware of the stress faced by an accused person in a courtroom situation giving an account of what happened to eleven people who are strangers to him. Again, I remind you to keep in mind the fact that a trial is a stressful situation to be in for the accused and also, of course, for the witnesses who have given evidence, and no doubt also for you, too, Mr Foreman and members of the jury.
We are unable to see how on any sensible or objective standard that what occurred here could have led reasonable members of the community knowing all the background to consider that Mr Ross had been denied a fair hearing on his trial and the appeal is accordingly dismissed.

Solicitors:

Crown Solicitor, Auckland
Nola Dangen, Auckland

[2000] NZCA 342

21 November 2000