The Queen v Jarden - [2008] NZCA 48

IN THE COURT OF APPEAL OF NEW ZEALAND
CA292/07
[2008] NZCA 48
THE QUEEN
v
JONATHAN NUKI LUMMIS JARDEN
Hearing:14 February 2008

Court:William Young P, Chambers and Robertson JJ
Counsel:R G Glover for Appellant

B M Stanaway for Crown

Judgment:5 March 2008 at 3.30 pm

JUDGMENT OF THE COURT

APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       Mr Jarden was convicted at trial of conspiring to supply methamphetamine.
[2]       He appeals against conviction because, on two occasions when applications were made, the trial Judge, Fogarty J, refused to discharge the entire jury. These decisions are alleged to have been erroneous, and to have given rise to a miscarriage of justice.
[3]       Mr Jarden also appeals against the sentence of three years’ imprisonment on the basis that it was manifestly excessive, and based on wrong principles.
The first application
[4]       Mr Jarden was involved in a joint trial along with nine co-accused for offences under the Misuse of Drugs Act 1975. Others had pleaded guilty to inter-related offending prior to trial.
[5]       On the seventh day of trial, the Judge discharged one juror.
[6]       This occurred after the Judge had met with the juror (apart from other jurors and in the absence of any counsel) and had learned that she was a nurse at a facility that dealt with outpatients suffering from psychosis. As a result, she knew who Mr Jarden was because she had treated his partner. The juror’s patient committed suicide prior to trial, and reference was made to her in the course of the trial.
[7]       In reporting to counsel on what had occurred, the Judge said:
The lady in question struck me as being a very reliable and professional person who was telling the truth when she said she had not discussed the matter with the jury. I am currently of the view that the trial can continue with 11 jurors but I wish to hear counsel on that and also if counsel want time to think about that that is fine because it looks as though we have got another argument to happen. …

[8]       At the time there was no complaint by any counsel that the Judge had seen the juror without counsel being present.
[9]       However, Mr Glover, on behalf of Mr Jarden, immediately initiated an application for the discharge of the balance of the jury without giving a verdict under s 374 of the Crimes Act 1961. This was supported by all other defence counsel but refused by Fogarty J.
[10]     Mr Glover also argued before us that it was unorthodox of the Judge to have spoken with the juror in the circumstances that he did.
(i)       The Judge’s approach
[11]     We endorse the Crown’s submission that it would not have been appropriate for the interview to have occurred in the presence of the other jurors. Normally counsel should be present unless they have all consented to an alternative course of action: R…

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.

Continue reading The Queen v Jarden

Details

AGLC: The Queen v Jarden [2008] NZCA 48
Case: [2008] NZCA 48
Decision Date: 5 March 2008

CaseChat Overview and Summary

Mr Jarden appealed against his conviction and sentence for conspiring to supply methamphetamine. He argued that the trial Judge, Fogarty J, should have discharged the entire jury when one juror was discharged and when an inaccurate spreadsheet was given to the jury. He also argued that his three-year sentence was excessive and based on wrong principles. The Court of Appeal considered these arguments and found that no miscarriage of justice occurred and that the sentence was within the Judge's discretion. The Court held that the Judge properly exercised his discretion in not discharging the jury and that the spreadsheet did not prejudice the jury. The Court also held that the sentence was appropriate given the commercial nature of the offending and the risk of re-offending.

The Court of Appeal dismissed the appeal against conviction and sentence. The Court found that the trial was conducted fairly and that the sentence was within the proper range. The Court noted that Mr Jarden had a troubled background but that personal circumstances could not mitigate the seriousness of the offending. The Court also held that the Judge properly considered the aggravating and mitigating factors and that there was no error of principle in the sentencing. The appeals against conviction and sentence were therefore dismissed.

Orders