The Queen v Kerisiano Lauti
[2001] NZCA 152
•16 May 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA24/01 |
THE QUEEN
V
KERISIANO LAUTI
| Hearing: | 16 May 2001 |
| Coram: | Blanchard J Doogue J Randerson J |
| Appearances: | T M Saseve for appellant S P France for the Crown |
| Judgment: | 16 May 2001 |
| JUDGMENT OF THE COURT DELIVERED BY DOOGUE J |
This is an appeal against conviction of the appellant Kerisiano Lauti by a jury in the High Court at Auckland for sexual violation by rape, sexual violation by unlawful sexual connection and attempted sexual violation. All offences were to a girl who was between the ages of eight and nine years at the time of the offending.
The appeal is based on narrow grounds relating to the risk of jury or witness contamination arising out of an incident during the course of the first day of the trial, 27 November 2000. It is alleged by the appellant that during lunchtime on that day there was improper contact between two jurors and Crown witnesses and between the child complainant and her mother and aunt, both of whom were to be Crown witnesses. At the time the cross-examination of the complainant had not been concluded.
There is no dispute that at about 1.35 p.m. the child complainant with another older girl was running to and from a group of people who included the complainant’s mother, the aunt of the complainant and at least one other member of their wider family. It is accepted that both the mother and the aunt were yet to be called as witnesses for the Crown, and were so called. It is accepted that sitting close to the group that included the complainant’s mother and aunt was a Samoan woman who was a member of the jury, who appeared to be talking with members of the group. A further Samoan woman, also a juror in the trial of the appellant, joined the group and also conversed with members of it including the complainant’s mother and aunt. Very shortly afterwards this was drawn to the attention of Crown counsel and the officer in charge. It is not clear for what length of period there may have been contact between the child complainant and her mother and aunt, or between the jurors and the group of which the mother and aunt were part. It is accepted that the period of time between the situation being observed and the Crown counsel and the officer in charge taking steps to resolve the situation was approximately 10 minutes or so.
Immediately the trial resumed after the luncheon adjournment counsel for the appellant advised the trial Judge of what had occurred and made an application for a new trial. Crown counsel advised the Judge of his observations and actions.
A Samoan court interpreter who was present informed the Judge that shortly after the luncheon adjournment began he saw the child complainant with her mother and aunt but that he had not seen any jurors among the family group.
The Judge had the jury brought into court and spoke to them. He made it clear to them that justice must not only be done but must manifestly be seen to be done. He said that if he was to continue with the trial he needed very real and clear assurance that any contact between the jurors and those associated in the trial was in no way related to anything that was going on in the courtroom and that there had been no discussions of any nature about anything which related to the matter presently before the Court. He asked the jury to retire and to discuss the matter and to come back and to advise him whether any of the discussions related to the trial or not. The jury retired and subsequently returned to the court, where the foreman announced, “There was no conversation involving anything to do with the trial”. The Judge recorded that and then recorded: “Both counsel then indicated in court in the presence of the jury that they had nothing further to say on the issue and the trial accordingly continued.”.
It is now submitted for the appellant that, because of the circumstances already outlined, the communications between the complainant and her mother and aunt and the communications between the two jurors, the mother and aunt result in there being “a perceived risk of injustice, testing the matter objectively”: R v Bates [1985] 1 NZLR 326, 328. There is agreement that this is the appropriate test for determining whether it was proper for the trial to continue.
It is submitted for the appellant that, unless the trial Judge questioned the individuals concerned as to the nature and extent of the contact and communication between the child complainant and her mother and aunt and the Samoan women jurors, and of the communications between the mother and aunt and the Samoan women jurors, and of the effect of any communications upon the Samoan women jurors, there must be a perceived risk of injustice, testing the matter objectively. It is submitted that the Judge did not take sufficient heed of the fact that the two women jurors were both Samoans, as was the child complainant and her mother and aunt. It is submitted that, having regard to that and the fact that there was a real likelihood that all the women were mothers and members of the relatively small Samoan community, there could have been some emotional impact upon the jurors. It is further submitted that the Court made no ruling on the contact between the child complainant and her mother and aunt, and that oversight also added to the risk of a miscarriage of justice having occurred.
This Court in R v Pearson [1996] 3 NZLR 275, 278 said:
Cases relating to bias, or the appearance of bias, on the part of jurors have been solved on the application of one of two tests; the first, that there was a real danger of bias on the part of the juror, the second, that the facts gave rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror has not discharged or will not discharge his or her task impartially. The former was adopted by the House of Lords in R v Gough [1993] AC 646; the latter was preferred by the High Court of Australia in Webb v R (1994) 68 ALJR 582. In New Zealand authorities can be found to support both propositions but in the latest reported case, Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142, 149 this Court stated that the approach adopted in this Court in recent years has been to emphasise there is little if any practical difference between the tests.
(Pearson has been followed by this Court in such cases as R v Jenner (CA 92/97, 1 October 1997).)
In Pearson there was discussion as to the appropriate process by which to deal with incidents of the kind that arose in that case, involving the knowledge of a juror of persons involved in the case, and cases like the present. Because of the infinite variety of circumstances, the Court declined to lay down absolutes, save that counsel had to be informed of the circumstances and to have an opportunity to be heard on the action to be taken. Sometimes there will be enquiry of a juror in the absence of other jurors and in the presence only of the Judge, counsel, court officials and the accused.
Here counsel drew the matter to the attention of the Judge and were heard. No particular course appears to have been urged upon the Judge. Nothing was drawn to his attention which resulted in his seeking to make further enquiry individually of the separate jurors. Instead the course already outlined was adopted. Properly all communication with the jury as a whole was in open court.
Another Judge may have sought to make individual enquiry of the jurors and witnesses. However, the Judge responded to the situation before him when there was no request of that sort and no suggestion of individual communications between a juror and a witness. We consider it was entirely open to the Judge to deal with the matter in the way he did.
Counsel were invited by the Judge to indicate whether they wished to say anything further on the issue and did not. The child complainant was under cross-examination at the time and it was open to counsel for the appellant to cross-examine the child complainant and her mother and aunt when in turn they were called as to the communications between them.
The risk of juror bias was answered directly by the enquiry of the jurors and the foreman’s answer on their behalf. It is clear that if there had been any communication of relevance to the two jurors, or by the two jurors to the other jurors, the Judge would have been advised.
So far as the prospect of communication between the child complainant and the mother and aunt is concerned affecting the trial, nothing has been put forward which shows even the slightest likelihood of a perceived risk of injustice. One way or another the child would have had contact with one or both of them over the months prior to the trial. The observation of the child running to and fro is quite inconsistent with any possibility that the child was being asked about her evidence and being coached in respect of the cross-examination. There is simply not the slightest suggestion that that is possible. In any event, as we have noted, there was the opportunity of cross-examination of the child complainant or the mother or the aunt as to what had passed between them.
The events which occurred during the particular lunch hour were ones which are not unusual in one way or another in the public areas of court buildings, whatever warning the trial Judge may have previously given to jurors and witnesses. When the events were brought to the attention of the Judge, after hearing counsel he dealt with them directly and appropriately in the presence of all with an interest. He gave counsel an opportunity to comment further. As already noted, counsel had the opportunity to cross-examine if there was any concern about what might have passed between the witnesses. No such course was adopted. There is nothing before this Court to indicate that the events which occurred gave rise to a “perceived risk of injustice, testing the matter objectively”.
No possible miscarriage of justice having been shown, the appeal is dismissed.
Solicitors
Tua M Saseve, Auckland, for appellant
Crown Law Office, Wellington, for the Crown
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