The Queen v Juburi

[2008] NZCA 118

IN THE COURT OF APPEAL OF NEW ZEALAND

CA458/07
[2008] NZCA 118

THE QUEEN

v

MAZIN SATTAR JUBURI

Hearing:16 April 2008

Court:Hammond, Williams and MacKenzie JJ

Counsel:D S Niven for Appellant

M D Downs for Crown

Judgment:5 May 2008 at 3 pm

JUDGMENT OF THE COURT

A.THE APPEAL AGAINST CONVICTION IS DISMISSED.

B.The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Williams J)

Introduction

[1]       The appellant, Mr Juburi, was convicted by a District Court jury on 5 July 2007 on one count each of importing a Class B controlled drug, MDMA or ecstasy, into New Zealand on 17 November 2005 and of having the same drug in his possession for supply on that occasion.  He has appealed to this Court against conviction on two grounds:

a)Claimed impropriety in the discharge of a juror; and

b)Improper pressure on the jury by the Judge to return a verdict.

[2]       He initially also appealed against the sentence for five years imprisonment imposed on him on 22 August 2007, but abandoned that appeal just prior to the hearing.  It is formally dismissed.

Facts

[3]       In view of the restricted grounds of appeal, no more than a brief recital of the facts is appropriate. 

[4]       Mr Juburi arrived at Auckland International Airport on 17 November 2005 on a flight from Amsterdam via Hong Kong.  When told by Customs he was to be searched, he volunteered he was carrying concealed drugs.  Four packets were found taped to his person containing 2606 ecstasy tablets, worth in excess of $150,000.

[5]       Mr Juburi told Police that he had imported the drugs because his sister was held captive in Baghdad and would be killed if he had not agreed to import the drugs.  In fact, he said in evidence his sister had been killed by that stage.  He agreed to assist Police in apprehending the persons who were to uplift the drugs from him but, despite a controlled delivery being organised, no person was apprehended.  

[6]       The trial began on 2 July 2007 before Judge McAuslan.  By 4 July 2007, just before counsel were to present their final addresses, the Judge was alerted to the fact that a juror was ill.  In a report furnished to us under R 17 of the Court of Appeal (Criminal) Rules 2001, the Judge said that on enquiry, she found the juror was five months pregnant, very ill and had been “violently unwell in the jury room and very anxious to leave and go home”.  The Judge said that rather than delaying the juror’s departure whilst counsel were assembled and their views canvassed, she discharged the juror under s 374(3)(a) of the Crimes Act 1961, the Judge taking the view that the juror was “incapable of continuing to perform her duty”. 

[7]       The first ground of appeal is that the Judge should not have discharged the juror without giving counsel the opportunity to make submissions as to whether adjournment of the trial to enable the juror to recover would have been a preferable course, thus preserving for the appellant the opportunity to have 12 jurors consider the evidence.

[8]       On 5 July 2007 the Judge summed up and the jury retired at 11.18am. 

[9]       After questions at 12.33pm and 5.14pm and after dinner, the jury, at 9.19pm, asked the question:

“Is there provision in the law to commit such a crime, if under durrease (sic) and no penalty incurred?”

[10]     The meaning of the question being unclear, the Judge discussed the position with counsel between 9.19pm-9.29pm.  The transcript of that discussion shows it was principally directed to the question’s import, but included comments by the Judge to counsel expressing concern at the length of the jury’s retirement in what she saw as an uncomplicated case.  She told counsel that, after answering the question, she intended to add that “if they were of the view that they are not going to reach a verdict shortly, then I am going to discharge them”.  Shortly afterwards, she said she thought the retirement had “gone on long enough” and “either they go to a motel now or they are discharged”.  She said:

“I will deal with the question and then when they go back I will have them out again and ask them if they are making progress.  It has to be said that it would seem to me that they are not really making progress.”

[11]     She expressed concern as to whether she had jurisdiction to discharge a jury which had given no indication it was not making progress towards verdicts. 

[12]     Critically, however, none of that exchange was in the jury’s hearing.

[13]     At 9.26pm, the jury returned to the Court room.  Their question was answered in the negative.  The Judge added:

“[43]    Now we are all getting rather concerned about the time that you have been deliberating, because I am going to ask you now to retire again and I am going to ask the Court Attendant to come and see you shortly to ask if you are making progress.  I do not want you to think that we are going to keep you confined to that room the whole night.

[44]     Thank you, if you just retire.”

[14]      With the jury back in the jury room, the Judge continued her discussion with counsel, principally concerning what interval should be allowed to pass before the enquiry as to progress was made and whether the jury should be discharged.  Counsel disagreed.  At 9.31pm, the Judge observed:

“… if I’ve the jurisdiction to discharge them if they say they are still making progress.  Well in any event they cannot stay here much longer.  They either go to a motel or they are discharged.  That is quite clear.  So you can go and look up my jurisdiction and if you could just enquire if they are making progress, and if they say no, I suppose you have to ask them given more time do they think they would, to keep the Crown happy.  And then take it from there.”

[15]     It is clear the first section of that passage was directed to counsel but the latter remarks to the Registrar. 

[16]     At 9.51pm, with the record not disclosing any enquiry of the jury, it returned with its verdicts. 

[17]     The second ground of appeal is based on what occurred in the period 9.19pm-9.51pm.

Submissions

[18]     On the first ground of appeal, Mr Niven, counsel for the appellant, relied on the observations in R v N (CA373/04) (2005) 21 CRNZ 621 (CA) at [19] where this Court observed:

“[19]    In summary therefore, the procedure that should generally be followed upon receiving a communication from the jury (other than a communication of an administrative kind, raising something unconnected with the trial) is as follows:

(1)The communication should be copied and made available to counsel. If that communication contains advice as to the stage that the jury’s voting has reached, that information should not be advised to counsel as it ought not to have been revealed by the jury:  Ramstead at p 517; pp 702-703. [Ramstead v R [1999] 1 NZLR 513; [1999] 2 WLR 698 (PC)].

(2)Once counsel have had an opportunity to consider the note, the hearing should be resumed in open Court with counsel and the accused present but in the absence of the jury, so that counsel may make submissions to the Judge on the appropriate response to the note.

(3)Where, as in this case, the concern goes to the possible disqualification of a juror, it will normally be appropriate for the Judge to question the juror. This will usually be done in Chambers but again with counsel and the accused present, subject to the possible exception referred to above. It would not normally be appropriate to have any member of the jury in Court other than the juror in question. In the present case, for example, it is our view that the foreman should not have been present during the interview with the juror. It would not be appropriate during such an interview for counsel to ask questions of the juror although counsel may raise matters which they would wish the Judge to deal with.

(4)At the conclusion of the interview, the juror should not immediately return to the jury room but should wait with a Court officer in some other room while counsel are given the opportunity to make submissions to the Judge as to the action that should be taken on the information given by the juror. What then follows will depend upon the decision reached by the Judge after hearing those submissions.

(5)The Judge should, in the presence of counsel, make a record of what has transpired, including, where a juror is interviewed, full details of that interview, its date and timing:  R v Pearson [1996] 3 NZLR 275; (1996) 14 CRNZ 282 (CA) at p 278; p 28, R v Walker [2002] 3 NZLR 468; (2002) 19 CRNZ 476 (CA) at para [31].”

[19]     As mentioned, Mr Niven pointed to departures in this instance from the propositions set out in N, particularly the lack of consultation with counsel over the possibility of adjournment to retain a 12 member jury.  He submitted there was the possibility of a miscarriage of justice.

[20]     On the second ground, Mr Niven submitted that what occurred would have been understood by the jury as the Judge effectively setting a time limit on its further deliberations, thus rendering suspect the jury’s verdicts shortly afterwards.

[21]     For the Crown, Mr Downs submitted that the discharge of the juror in the particular circumstances obtaining was well within the Judge’s discretion under s 374. 

[22]     In relation to the second ground of appeal, Mr Downs made the point that whatever passed between the Judge and counsel was of little relevance.  The critical issues were what the Judge said to the jury in the cited passages and those, Mr Downs submitted, would not have been construed by the jury as the Judge setting a time limit on its further consideration of the issues.

Discussion and decision

Discharge of jury

[23]     We have reached the view, despite Mr Niven’s submissions, that there is nothing of assistance to the appellant in this point.

[24]     The Judge was confronted with what she justifiably saw as an emergency.  She had a very unwell juror, vomiting in the jury room.  She discharged her.  It was within the Judge’s discretion under s 374(3)(a) so to do.  Whilst, had time allowed, compliance with appropriate sections of the procedure set out in N may have been preferable, there can be no suggestion she would not have complied with that procedure had she not seen the juror’s situation as she did.  Further, we take the view that, given the situation facing the Judge, she was unlikely to have been persuaded by counsel’s submissions concerning an adjournment.

[25]     There was no possibility of a miscarriage of justice arising out of the way the Judge acted in the circumstances confronting her.

[26]     We accordingly dismiss that aspect of the appeal.

Remarks to jury

[27]     There are now a number of decisions of this Court concerning the limits on what trial judges should say to juries when concerned about lengthy retirements, especially those continuing well into the evening.  The leading decision remains R v George [1984] 1 NZLR 272 (CA) where this Court first observed (at 278):

“Provided that any suggestion that the jury are being hurried is carefully avoided, it is perfectly proper for the Judge to inquire of the jury, after they have been deliberating for such period as he thinks reasonable having regard to the issues and complexity of the particular case, whether there is any likelihood of their reaching a verdict before long, or whether he can be of any further help to them.  But we think that such inquiries should always be coupled with plain statements to the effect that the Judge does not wish to hurry the jury and that they should not feel that they are under any pressure.

To intimate that a jury will or is likely to be discharged if they fail to reach a verdict within a stated time is obviously less objectionable than what occurred in [R v] McKenna [[1960] 1 QB 411]. Nevertheless there is a reasonable possibility that for various reasons some jurors might be led, even by that type of intimation, to concur in a guilty verdict when otherwise they would not have done so. It is not necessarily improper for the Judge to indicate that a time may come when he will have to consider discharging the jury. But, in agreement with the judgment in [R v] Rose [[1982] 2 All ER 536], we think that anything in the nature of a fixed time limit must be avoided. That is to say, it will usually be in order to inquire whether the jury are making progress - and even to indicate (in open Court) that at some stage the Judge may have to consider whether or not to discharge them, according to the foreman's report of the prospects of unanimity. A Judge who goes further, by saying anything that could be construed as imposing a definite time limit, risks vitiating any verdict.

Before any inquiry is made of the jury through the Registrar it will often be safer to consult counsel and consider their wishes. But an inflexible rule to that effect need not be laid down. “

and then summarised the applicable principles as follows (at 279):

“The principles may be collected as follows:

(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. Reference should not be made to "consensus": R v Patterson [1980] 2 NZLR 97.

(iii)Inquiries may be made through the Registrar on such matters as whether the jury are making progress or would like further assistance from the Judge or whether arrangements should be made for a meal. There is no inflexible rule that counsel should be consulted first; on each occasion the Judge should give consideration to whether or not it would be better to consult them.

(iv)The Registrar should confine himself strictly to passing on the Judge's inquiries. If any questions bearing on the case are asked by members of the jury, the questions should be put in writing and referred by the Registrar to the Judge.

(v)Normally the Judge should deal with any such questions in open Court. A record or sufficient note of what is said should be made.

(vi)Any communication from the Judge to the jury relating to the case being tried and going beyond inquiries of the kind mentioned in (iii) above should likewise be in open Court and recorded or sufficiently noted.

(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.”

(See also R v Carter CA319/97, 3 December 1997; R v P (CA15 and 16/02), 21 March 2002; R v A (CA96/04) 23 September 2004).

[28]     Reduced to its essence, what happened in this case was that, to the jury, the Judge expressed concern for the jury’s welfare because of the time it had been in deliberation and having regard to her direction to continue with that process.  She coupled that with advice that the Registrar would shortly enquire as to progress.  She concluded by advising that the jury was not going to be confined to the jury room for the whole night. 

[29]     In light of the decisions referred to, the remark concerning the length of the jury’s deliberations, the fact it was continuing and inquiries as to progress would shortly be made is unobjectionable.  The Judge’s advice concerning the possible continuing length of the jury’s deliberations in the jury room is also not open to criticism given this Court in George sanctioned advice of the possibility of discharge.

[30]     In the result, although the Judge was plainly concerned in her discussions with counsel at the length of the jury’s deliberation and its nature as indicated by the questions, in her remarks to the jury there was nothing which infringed acceptable practice.

[31]     This ground of appeal accordingly also fails.

Result

[32]     In the result, the appeal against conviction is dismissed.  

Solicitors:
Crown Law Office, Wellington