The Queen v Hane Richard Eshaya

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 107/00

THE QUEEN

HANE RICHARD ESHAYA

Hearing:	28 June 2000
Coram:	Tipping J Heron J Williams J
Appearances:	D S G Deacon for Appellant N M Crutchley for Crown
Judgment:	5 July 2000

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

On 17 March 2000, the appellant, Mr Eshaya was convicted by a District Court jury on one count of sexual violation by rape.
When the jury had been in retirement for nearly nine hours, they sent the learned District Court Judge a note saying “We don’t all agree, have you any suggestions or tips”. In response, the Judge directed them in accordance with the well-known model direction to be given in such cases appearing in R v Accused (CA 87/88) [1988] 2 NZLR 46, 59, but with the following addition. The passage of which the appellant complains is italicised in what follows :
I am going to ask you then, as is usual in these cases, to be good enough to retire again and see whether you can reach a unanimous verdict in light of what I have just said. Can I add this, and I hope the parties would not mind me saying it, that it is important from both sides point of view that you do your absolute best to obtain a result in this case. It is a re-trial. The parties have gone through the better part of the case twice and it is, as I say, of paramount importance, if you possibly can, to reach a unanimous verdict. If there are any particular problems that are bothering you and you think that counsel and myself can assist, do not hesitate to put your particular problem in writing and we will do whatever we can to assist you.
So bearing all those matters in mind, please would you now be good enough to retire again and see what you can do, thank you.
The facts of the case were relatively straightforward. Mr Eshaya and the complainant, who were slightly known to each other before the events which gave rise to the charge, were members of a group of young people who regularly met with their cars at agreed locations around Wellington and then drove about the city.
On the evening of 6-7 June 1997, as part of this regular practice, the complainant got into Mr Eshaya’s car and the pair drove around Wellington. According to the complainant, they drove to Houghton Bay where they stopped and Mr Eshaya had intercourse with her in the car against her will and despite her protestations. She then persuaded him to allow her to drive the car and she drove to her workplace where she made a disclosure to the manager which could have been regarded as a complaint. She also made disclosures to other friends in the days following but made no formal complaint to the police for a number of months. There was then a further delay before the police investigated the complaint.
When Mr Eshaya was interviewed by the police on 10 April 1999 he effectively confirmed the complainant’s version of the events of the night of 6-7 June 1997, but denied stopping at Houghton Bay and denied having intercourse with the complainant let alone raping her. However, the Crown called evidence at the trial from a friend of Mr Eshaya’s to whom the appellant had spoken later on the morning of 7 June and to whom he admitted having intercourse with the complainant.
Mr Eshaya’s trial followed a somewhat unusual course. The first jury to hear the trial was empanelled on the morning of Monday 13 March 2000 but was discharged without being called upon to give a verdict about lunchtime the following day because of an inadvertent calling of evidence which might have rendered the jury’s verdict unsafe. By that stage most of the Crown’s evidence, including that of the complainant, had been completed.
After the second jury had been empanelled but before any evidence was called, the trial Judge informed them that the earlier jury had been discharged without being called upon to reach a verdict and directed them to draw no inference adverse to either party from the fact that they had now been empanelled as a second jury to try Mr Eshaya’s case. No point was taken on appeal on Mr Eshaya’s behalf in relation to that.
The second trial proceeded much as the first with the complainant and other Crown witnesses again giving evidence. Mr Eshaya gave evidence. The learned trial Judge summed up to the jury commencing at 10:00am on Friday 17 March 2000. The jury retired 52 minutes later.
During the day, the jury asked for some of the evidence of the complainant (12:28-1:04pm) and two other Crown witnesses (4:04-5:18pm) to be re-read.
After dinner and at a time which would appear to have been somewhere between 7:47-8:00pm, the jury sent the Judge the note earlier recounted. The reason for the imprecision in time is that while the Crown book shows the question being asked at 7:47pm, a notation on the note itself suggests it was received by the Judge at 7:50pm but it apparently took until 8:00pm for counsel and the accused to assemble. The Judge delivered the direction earlier set out and the jury retired again at either 8:03pm (as per the Crown book) or 8:08pm (as per the agreed chronology in the case on appeal).
At 9:10pm the same evening the jury returned with a guilty verdict.
In R v George [1984] 1 NZLR 272 the Registrar in conveying to a jury the Judge’s enquiry as to whether there was any possibility of their reaching a verdict also asked whether another 15 minutes may be of help and told jurors in response to questions that they would be discharged if they failed to agree. The jury convicted the accused 10 minutes later. After considering English authority, this Court summarised the relevant principles. Of relevance to Mr Eshaya’s case, the Court said (at 279):
(i)Care should always be taken to avoid creating any impression that the jury are being hurried into a verdict.
(ii)If a jury are having difficulty in achieving unanimity, a direction in open Court on the lines approved in R v Papadopoulos [1979] 1 NZLR 621 may be given by the Judge if he sees fit.
….
(vii) In no circumstances should anything in the nature of a time limit be imposed on the jury. If the Judge thinks it right to refer to the possibility of discharging them without a verdict, he may do so, provided that it is said in open Court and anything savouring of a definite time limit is avoided.
In R v Accused (CA 87/88) (supra) a seven member Court held that there were three cardinal points to be considered in deciding whether to give a direction to a jury having difficulty in agreeing, and set out the form of such direction. These points, the Court said (at 58) were:
First, jurors have a responsibility to accept their duty of endeavouring to give a verdict according to the evidence.
….
We think that it will normally be advisable for a trial Judge to tell a jury, after they report difficulty in agreeing, that if he decides to discharge them a new trial will ordinarily follow. Otherwise they or some of them may be unsure or under the illusion that the proceedings against the accused will be at an end in a stalemate.
….
The second cardinal point is that collective deliberation and exchange of views is of the essence of the jury system. It is right to remind members of a jury that they have a duty to listen to and weigh dispassionately one another's views, and that an honestly held view can be honestly changed as a result.
….
The third cardinal point is that no juror should change his or her mind merely for the sake of conformity or out of submission to pressure by other jurors; in the end no juror should vote against his or her conscientious view based on the evidence.
The Court then held that any reference to the ordeal of witnesses if there is to be a new trial should be omitted. After setting out the model direction the Court (at 59) noted that the “suggested wording is not hard and fast and the particular circumstances of a case may justify some modification”.
The desirability of not making any reference to public inconvenience and expense of a second trial was reiterated by this Court in both R v Tennant [1989] 2 NZLR 271, 277 and R v Gye [1990] 1 NZLR 528, 531. The desirability of not making any comment from which the jury might infer that their deliberations have a time limit was also repeated by this Court in R v Carter (3/12/97 CA 319/97).
The direction under consideration in this case is free of any indication of a time limit on the jury’s retirement (other than the power to discharge after four hours appearing in the model direction) and the first sentence of the passage recounted including the request for a further retirement to try to achieve unanimity is no more than what had passed before.
However, we take the view that for the Judge to have directed the jury to do their “absolute best” to obtain a result and that such was of “paramount importance”, when coupled with the comment about the parties having gone through the case twice, came undesirably close to the ordeal of witnesses comments discouraged in the cases earlier discussed. Although the Court in R v Accused (CA 87/88) did not direct that such phrases should never be used, and made it clear that the model direction should be varied if circumstances require, we think that cases must have some special features to warrant even oblique reference to the consequential difficulties for witnesses in the event of disagreement.
However, whilst the direction under consideration might have exerted additional pressure on the jury – that is, after all, the principal purpose of the direction as a whole – after careful reflection we conclude that, although the case may have reached the outer limits of what is acceptable, the direction was unlikely to have exerted such additional pressure on the jury as to lead to its verdict being unsafe.
We take that view for three reasons.
The first is that what might otherwise be seen as the strength of the direction in the passages just criticised is softened by the Judge going on to ask the jury to “see what you can do” and the further invitation to the jury to express any concerns to him which they might be having. In that regard, it is of note that, although the jury had earlier asked two questions, no member of the jury felt sufficient concern following the giving of the direction under consideration to raise any further matter with the Judge.
Secondly, it is also to be borne in mind, that, unlike some of the cases earlier discussed where verdicts were reached after a very short period, in this case slightly over an hour elapsed before the jury’s verdict was delivered.
Thirdly, sight should not be lost of the fact that the words used were in the context of the overall direction which emphasises that jurors must be true to their oaths and affirmations. They were not said independently of the direction overall.
This was a case which revolved around the credibility of competing versions of events. The jury had been diligently deliberating on that topic for about nine hours before they sought the Judge’s assistance because of their inability to agree. He then gave a direction in somewhat more forthright terms than those appearing in the model. The jury then deliberated for a further hour before delivering its verdict. There was no suggestion that the verdict was achieved by exhaustion or fatigue. Seen in its overall context, in our view the direction which forms the subject of this appeal, cannot therefore be seen as exerting such additional pressure on the jury as to render the verdict unsafe.

The appeal is accordingly dismissed.

Solicitors:

D S G Deacon, Wellington, for appellant
Crown Law Office, Wellington, for respondent

[2000] NZCA 112

5 July 2000