The Queen v Taito
[2005] NZCA 22
•1 March 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA4/96
THE QUEEN
v
FA'AFETE TAITO
Hearing:3 and 4 February 2005
Court:Anderson P, Hammond and William Young JJ
Counsel:T Ellis for Appellant
D J Boldt for Crown
Judgment:1 March 2005
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
(Given by William Young J)
Table of Contents
Para No
Introduction [1]
Grounds of appeal [5]
Background [6]
The approach on appeal [27]
The absence of a transcript of the summing up [29]ALLEGED INCOMPETENCE AND FAILURE TO COMPLY WITH [40]
INSTRUCTIONS ON THE PART OF THE APPELLANT’S TRIAL
COUNSEL, MS MARIE DYHRBERGThe size of the jury panel and the manner in which the [57]
jury was empanelled
Undue appellate delay [74]
Result [87]Introduction
[1] In June 1995 the appellant was tried in the High Court in Auckland on two charges of aggravated robbery, one committed at Greenlane and the other at the St Lukes Shopping Centre (“St Lukes”). He was acquitted on the charge associated with the Greenlane robbery and the jury was unable to agree on the charge relating to the St Lukes robbery. He was retried on that charge in December 1995 before Cartwright J. On this occasion he was found guilty and subsequently sentenced to seven years imprisonment.
[2] The appellant appealed against both conviction and sentence, and sought legal aid. Following the procedure then adopted in relation to criminal appeals, legal aid was declined and this Court subsequently dismissed the appeals against conviction and sentence: CA 4/96, 25 July 1996.
[3] The appellant successfully appealed to the Privy Council, which directed a rehearing of his appeal: R v Taito [2003] 3 NZLR 577.
[4] We have now reheard his appeal.
Grounds of appeal
[5] At the hearing before us, the appellant challenged only his conviction. His counsel, Mr Ellis, addressed arguments to four aspects of the case:
(a) The absence of a transcript of the Judge’s summing up;
(b)Alleged incompetence and failure to comply with instructions on the part of the appellant’s trial counsel, Ms Marie Dyhrberg;
(c)The size of the jury panel and the manner in which the jury was empanelled; and
(d) The delay in determining the appellant’s appeal.
Background
[6] Just before 2.00pm on 29 July 1994, two men, one of whom was armed with a loaded pistol, robbed employees of a security firm at St Lukes in Auckland. They stole two cash boxes. In the immediate aftermath of the robbery, the two cash boxes were placed in a white Falcon station wagon of which a third person was the driver. The white Falcon station wagon then left the scene. The other two men involved in the robbery also left the scene, one on foot and the other in a second car which had been stolen.
[7] On the Crown case, the two men directly involved in the robbery were Michael Anthony Luamanu and Lei Tauvaga Letele and the man who drove the white Falcon station wagon was the appellant.
[8] The white Falcon was a rental car which, on 27 July 1995, had been hired out to Letele.
[9] Luamanu, Letele and the appellant were all charged with aggravated robbery.
[10] Luamanu pleaded guilty before trial. Letele initially denied the charge and went to trial with the appellant in June 1995. The jury at that trial, although able to decide on charges associated with the Greenlane robbery, was unable to reach verdicts in respect of either Letele or the appellant in relation to the St Lukes charge. Letele, however, subsequently pleaded guilty to that charge. So, at the second trial in December 1995 the appellant was the only defendant.
[11] The evidence against the appellant was as follows:
(a)Eye-witness descriptions of the person who had driven the white Falcon station wagon were consistent with that person being the appellant. Indeed, at the second trial, there was a dock identification of the appellant as the driver by one of the eye-witnesses albeit that she conceded in cross‑examination that the best she could say was that the driver “was someone like” the appellant.
(b)At around 2.20pm on 29 July (ie within approximately 30 minutes of the robbery) the appellant was stopped at the intersection of Wellesley Street and Mayoral Drive driving the white Falcon.
(c)After the police had secured the Falcon, a cell-phone which had been left in the vehicle rang. The detective who was examining the car was not able to answer it immediately but did answer a second call which was made shortly afterwards. The evidence as a whole pointed to the caller being Luamanu. The caller wanted to speak to “Fikie”, which, on the Crown case, is the appellant’s nickname. The caller also wanted to know where a person called “Ray” was. The caller told the detective to tell “Fikie” “to get his black arse around here”. A third call was made shortly afterwards, by the same caller who was apparently still after “Fikie”.
(d)When interviewed at the police station on the same day, the appellant claimed that the cell phone in the car was his and he knew its number. The cell phone in fact belonged to Luamanu’s girlfriend.
[12] The appellant claimed to have had an alibi for the robbery. He said that he been working on the morning of 29 July and that around 1.00pm he went to his mother’s house. Later, while he was there, his sister gave him some car keys telling him that Luamanu had been around and wanted him (ie the appellant) to drop off a rental car at the rental company (which operated from Beach Road). He told the jury that Luamanu had previously requested him to drop rental cars back with the rental company and that this was because Luamanu did not have a licence. The car in question was the white Falcon and as he was driving it to the rental car company’s premises in Beach Road he was stopped by the police at the intersection of Wellesley Street and Mayoral Drive.
[13] His evidence as to where he had been up to about 1.00pm that day was supported by a co-worker and his general account of events as to the alleged request by Luamanu to return the rental car was supported by the evidence of his sister.
[14] The defence case depended on reasonably tight (although not impossible) timings. The robbery occurred just before 2.00pm and the appellant was picked up by the police at around 2.20pm. That left approximately 30 minutes for the following sequence of events: Luamanu to have left the scene of the robbery and to have arrived at the appellant’s mother’s house with the white Falcon, interaction between Luamanu and the appellant’s sister, interaction between the appellant’s sister and the appellant, the appellant leaving the house and the appellant getting to the intersection of Wellesley St and Mayoral Drive.
[15] Mr Wade, the prosecutor, focused on timing when he cross-examined the appellant’s sister:
Q Do you remember what time you told the policeman your brother left?
A Yes.
Q What time?
AGoing on to three-ish. [A time which could not be correct as the appellant and the White Falcon were already in police custody by then]
Q. Why did you tell the policeman that?
AWell, originally when I went to see Marie Dyhrberg to give her my statement I tried to be too precise, I am such a soap opera person I was trying to compare it with the times, I gave my statement to Marie Dyhrberg and after that she said the times I had given were incorrect, I didn’t want to lie about it. I could have said to the police other times, but I didn’t want to make myself into a liar.
Q So you went to see Ms Dyhrberg?
A Yes.
Q You gave her the times?
A Yes.
Q She said they are all wrong and go away and try again?
A No. She didn’t.
QTell us in your own words then, you made a statement to Ms Dyhrberg?
A Yes.
Q What did she say after you made it?
AThat is when we had finished our statements and everything and then she said the time I had given were incorrect and that is when she said she would let me know if I was going to be a witness in the first trial.
QThe times you gave Ms Dyhrberg are different from the times you have given today?
A Yes.
[16] As we have noted, the jury found the appellant guilty of aggravated robbery and he was later sentenced to seven years’ imprisonment.
[17] On 22 December 1995, the appellant lodged his own appeal. His notice of appeal did not identify any grounds of appeal.
[18] In January 1996 the appellant wrote to Ms Dyhrberg. He noted that he had lodged an appeal and he mentioned in the letter possible grounds of appeal. One related to the composition of the jury. After mentioning other matters (which are of no materiality in the present context) the letter concluded:
These are just but a few issues I’d like to discuss with you so if you would like to ring my secretary anytime I can be reached 24 hrs a day make an appointment and I hope to see you again in the very near future. Take care! Your favourite convict.
Fete Taito
[19] On 16 February 1996 the appellant wrote to Ms Dyhrberg again noting that he not received a response to his letter dated 8 January. In this letter the appellant indicated that he wished to uplift his file. The letter, however, was in polite terms and in it the appellant expressed his “sincere gratitude” for the assistance which he had received from Ms Dyhrberg.
[20] On 11 March 1996 Ms Dyhrberg wrote to the Registrar of the Court of Appeal identifying possible grounds of appeal. She noted:
I have not discussed fully with Mr Taito the grounds for his appeal nor have I properly considered other points on appeal however but I feel initially the following points are arguable.
1.On the day the jury was selected insufficient numbers had been summonsed. Accordingly all other trials were pre-balloted and completed with the Appellant’s trial being the last one. The available jurors therefore were in effect what was left over with only a couple of jurors spare with the result that it was not a jury that would be representative of the community.
2.During the course of the trial, contrary to agreement the Crown advised the jury that a former co-accused Letele had pleaded guilty to the charge which left the inference that by doing so he at least had accepted the guilt of the Appellant as a party to the aggravated robbery was the Appellant [sic].
3.During the course of the trial the Crown prosecutor when cross examining the Appellant’s sister as to alibi, suggested that she had concocted her story with Counsel being party to that lie. Objection was made at the time but Her Honour indicated it was part of the cross examination and could be dealt with in re examination. This was not the case as the only person who could effectively deal with such scandalous cross examination, of course, was Counsel.
I would appreciate the opportunity of properly considering the grounds of this appeal after consultation with the Appellant and re-appraisal of the trial evidence.
[21] On 19 March the appellant wrote again to Ms Dyhrberg noting that he had received a copy from the Court of Appeal of her letter of 11 March 1996. He reiterated a wish to see Ms Dyhrberg as soon as possible.
[22] At some stage, we think over Easter 1996, Ms Dyhrberg saw the appellant in prison.
[23] On 10 May 1996, three judges in this Court, after consultation, decided that legal aid should be refused.
[24] On 13 June 1996 the appellant requested, from this Court, a copy of Cartwright J’s summing up. On the same day, the Registry replied by letter indicating that because the summing up was not attacked in the grounds of appeal it had not been transcribed. The letter concluded:
Any further inquiries you have should be taken up with the High Court at Auckland.
[25] The appellant made lengthy written submissions to the Court to which we will later refer. But on 25 July 1996, his appeal against conviction and sentence was dismissed.
[26] In the period of time which has elapsed since the trial (and probably since 25 July 1996, ie when the appellant’s appeal was first dismissed), the records associated with the trial Judge’s summing up, Ms Dyhrberg’s trial file and the prosecutor’s trial file have become unavailable.
The approach on appeal
[27] Section 385 of the Crimes Act 1961 relevantly provides:
385Determination of appeals in ordinary cases
(1AA) This subsection applies to –
(a) an appeal to the Supreme Court or the Court of Appeal against conviction;
…
(1)On any appeal to which subsection (1AA) applies, the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion –
(a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c)That on any ground there was a miscarriage of justice; or
(d) That the trial was a nullity –
and in any other case shall dismiss the appeal
Provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
[28] As this Court observed in R v Eide (unreported, CA 77/04, 8 September 2004) at [76] the approach on appeal is dictated by s 385. Unless the Court is satisfied that one of those grounds is made out the appeal must be dismissed. The only statutory ground to which the appellant’s argument were addressed is that provided for by s 385(1)(c). So we can only allow the appeal “if [we are] of opinion … [t]hat … there was a miscarriage of justice”.
The absence of a transcript of the summing up
[29] As apparent from what we have said, the appellant did seek a transcript of the summing up before his appeal was initially determined by this Court in 1996. But because the grounds of appeal signalled in Ms Dyhrberg’s letter on 11 March 1996 did not impugn the summing up, this Court did not require the Judge’s summing up to be transcribed.
[30] By the time the summing up came to be requested after the decision of the Privy Council allowing the appellant’s appeal, Cartwright J was no longer a Judge of the High Court. It appears that the records which must have been taken of the summing up (presumably in the form of a shorthand note by the Judge’s Associate and a tape recording) have not been able to be located.
[31] At the hearing of the appeal we indicated a willingness to direct further enquiries as to the whereabouts of the shorthand note and tape recording. Mr Ellis, however, did not wish us to do so and invited us to deal with the appeal on the basis that a transcript of the summing up was not available. We are content to do so.
[32] It is no doubt the case, as Mr Ellis suggested, that a transcript of the summing up may have provided “more fertile ground” on which to base “additional challenges” to the trial. But this consideration does not in itself warrant the allowing of the appeal, see for instance R v Amosa CA 328/98, 15 December 1998 at 7 where Henry J, delivering the judgment of this Court observed:
The mere inability at this time to examine the summing up critically in the hope of finding an arguable point is insufficient, and cannot possibly in our view constitute a denial or infringement of the applicant’s right of appeal.
[33] On the other hand, in R v Hooker [1998] 3 NZLR 562 an appeal was allowed in the absence of a transcript of the summing up. In that case, counsel for the appellant had expressed concerns about the summing up after the jury had retired. Moreover, counsel was able to confirm that those concerns related to the Judge’s treatment of the concept of possession for sale. Further, the jury returned after an hour of deliberations with a question specifically related to that concept. In those circumstances, being unable to examine the summing up, this Court considered that the conviction was unsafe.
[34] Mr Ellis argued that there were two respects in which Cartwright J may have fallen into error:
(a)The dock identification of the appellant as the driver of the white Falcon (along with other general identification evidence) may not have been the subject of appropriate directions to the jury;
(b)The cross-examination of the appellant’s sister, the transcript of which we have already set out, may not have been the subject of an appropriate comment by the Judge.
[35] The dock identification was distinctly unsatisfactory (given that the eye‑witness in question had not previously identified the appellant as the driver of the Falcon). It came as a surprise to both the appellant and Ms Dyhrberg. It is clear on the evidence which we heard that Ms Dyhrberg told the appellant at the time that the Judge would give the jury directions addressed to that identification. There is no reason to suppose that she did not do so or direct upon identification evidence generally in an appropriate way. The need for a special direction was obvious. If appropriate directions had not been given, Ms Dyhrberg (and probably Mr Wade) would have drawn this to the attention of the Judge at the conclusion of her summing up. When Ms Dyhrberg notified this Court of possible grounds of appeal in March 1996, she did not mention the absence of appropriate identification directions. The appellant, who was aware of the need for the Judge to give special directions as to the dock identification, did not mention the absence of such directions in his written submissions.
[36] The appellant complained about the cross-examination of his sister in the written submissions which he made in 1996 and in particular about the failure of the Judge to intervene. He complained that his sister was cross-examined on the basis that she had concocted her story with the help of defence counsel.
[37] We, of course, were not present at the trial, and it is accordingly difficult for us to say whether that proposition really was implicit in the prosecutor’s questions. It was the appellant’s sister who first mentioned what she had been told by Ms Dyhrberg and thus the questions, to which particular exception is taken, did no more than tease out in a little more detail an assertion which the sister had already volunteered.
[38] We accept that if the prosecutor intended to imply that there had been an attempt at concoction involving defence counsel, this would have been inappropriate and would have warranted (although not required) comment from the Judge in summing up. The reason why comment would not have been required is that such comment can carry the risk of giving unnecessary prominence to what may have been merely a peripheral issue in the context of the trial as a whole.
[39] On a point such as this, which depends so much on matters of nuance (including the tone of voice adopted by the prosecutor and the atmosphere of the trial as a whole), an appellate Court is necessarily loath to second guess the way a trial Judge has directed (or not directed) a jury. So there is no reason to suppose that the Judge’s treatment (or non-treatment) of this issue in her summing up could warrant allowing the appeal.
Alleged incompetence and failure to comply with instructions on the part of the appellant’s trial counsel, Ms Marie Dyhrberg
[40] There are two aspects to the appellant’s submission that Ms Dyhrberg’s alleged incompetence and/or failure to comply with instructions gave rise to a miscarriage of justice. The first relates to the amount of preparation time, and the second to a complaint that she over-rode the appellant’s instructions by not calling two witnesses.
[41] The orthodox practice of this Court in relation to such a ground of appeal appears in the judgment delivered in R v S [1998] 3 NZLR 392 at 394-395:
The Court must guard against any tendency on the part of accused persons who have been properly and deservedly convicted to attribute the result to the perceived incompetence of their counsel. See R v Pointon [1985] 1 NZLR 109 at p 114. Two principal ways in which an appeal based on counsel’s conduct at the trial can succeed, however, have been recognised; one is where counsel fails to follow instructions, and the other is where counsel has made a radical mistake.
A counsel does not have the right to disregard instructions from his or her client. See R v McLoughlin [1985] 1 NZLR 106 at p 107. If appropriate advice has been given to the client, counsel’s proper course is either to act on his or her instructions or to withdraw from the case. But the duty of counsel to follow a client’s instructions must necessarily depend upon the way in which those instructions are expressed and conveyed. See R v Lavery (Court of Appeal, Wellington, CA 342/95, 14 February 1996) at p 5. It must be clear that the instructions were not simply an expression of the client’s views on a particular matter but were intended to be directions to be observed and implemented by counsel. They are then to be followed irrespective whether they would or might rebound to the client’s disadvantage. It is not enough, for example, for an accused to tell trial counsel that he or she “wants” or “wishes” a particular witness to be called. See Byford v R (Court of Appeal, Wellington, CA 74/93, 25 June 1993) at pp 3 – 4. Moreover, once it has been established that counsel failed to follow the client’s instructions, the appellant must show that the failure led to a miscarriage of justice. See R v Reti (Court of Appeal, Wellington, CA 396/91, 22 November 1991) at p 9 et seq.
The other respect in which an appeal based on counsel’s conduct can succeed arises in those rare cases where the mistake in the conduct of the defence is so radical that a miscarriage of justice under s 385(1)(c) of the Crimes Act 1961 is made out. See R v Pointon (supra) at p 114. In order to establish a miscarriage of justice an appellant must show that the mistake could well have had a significant prejudicial effect on the outcome of the trial. See R v Horsfall [1981] 1 NZLR 116 at p 123.
[42] On the basis of that approach, the appellant’s appeal can only succeed on this ground if he establishes:
(a) Either:
(i)counsel failed to comply with clear instructions as to the conduct of the trial; or
(ii)there were radical errors (including lack of preparation) in counsel’s conduct of the case; and
(b) Counsel’s errors in either respect led to a miscarriage of justice.
[43] In the course of his argument Mr Ellis suggested that this test did not conform to the requirements of the New Zealand Bill of Rights Act 1990, a proposition which he indicated was supported by an article which he later made available to us, Ekins “Defence Counsel Incompetence and Post-Conviction Relief: An Analysis of How Adversarial Systems of Justice Assess Claims of Ineffective Assistance of Counsel” (2001) 9 Auckland UL Rev 529. The author recognises that there are systemic considerations which appellate courts are required to take into account when addressing arguments of the sort involved here. But he argues that the right under s 24(f) of the New Zealand Bill of Rights Act for those who can not afford to pay for legal representation “to receive legal assistance without cost” should be construed as requiring “effective legal assistance” and that effective legal assistance is itself a necessary component in the “fair …. hearing” guaranteed by s 25(a). He considers that the expression “miscarriage of justice” should be regarded as applying in cases where “a defendant has been convicted in denial of his right to effective assistance of counsel.”
[44] Perhaps the primary point of difference between what is suggested and current practice relates to the “radical mistake” test which the author regards as imposing too high a threshold from the point of view of an appellant.
[45] The points made in the article are of interest. But we are left with the view that the differences - at least those which are material to this case - between the approach recommended by the author and the actual practice of this Court are more apparent than real. Given the systemic considerations which this Court must allow for, rules of thumb are appropriate and the radical mistake approach is just such a rule of thumb. But the ultimate issue in any case will always come back to whether a miscarriage of justice has been demonstrated. Where something untoward has happened at trial which leaves this Court with real concern as to the fairness of the verdict, the situation is within the broad concept of miscarriage of justice which we apply. This point is recognised by the author at 542.
[46] We note that whilst the statutory test applied by the Criminal Division of the English Court of Appeal is expressed differently, that Court takes a broadly similar approach, see R v Day [2003] EWCA 1060 at [15].
[47] The appellant’s evidence was that he only met with Ms Dyhrberg for approximately 40 minutes on the day before the second trial began. Ms Dyhrberg accepted in her evidence that there was a meeting which probably occurred the day before the trial which may have lasted for approximately 40 minutes. But she noted that this was a second trial and that she had fully prepared for the first trial. She claims that she had also discussed the case with the appellant sometime after the first trial and, although she and the appellant disagreed as to whether this was immediately following the jury disagreement at the first trial, it was common ground that such a discussion occurred.
[48] We are satisfied that there is nothing in this aspect of the complaint against Ms Dyhrberg.
[49] More significantly, the appellant complains that Ms Dyhrberg did not call a number of witnesses whom he had instructed her to call. The focus of this complaint was that the appellant had instructed Ms Dyhrberg that Luamanu and Letele were to be called as witnesses and that this instruction was not complied with. At the hearing of the appeal, the primary challenge to Ms Dyhrberg was in relation to Luamanu.
[50] Ms Dyhrberg admits that the appellant wanted her to call Luamanu as a witness and that she was adamantly opposed to this course of action. Her position is that the appellant accepted her advice although she accepted that in substance she made the decision. At trial the appellant was cross-examined as to whether Luamanu was going to give evidence and, in re-examination, in response to a question from Ms Dyhrberg as to who made the decision that Luamanu not be called, he said that she had.
[51] There were good reasons not to call Luamanu as a defence witness. The appellant is an articulate and reasonably engaging man. His sister was a presentable and strong witness, at least according to Ms Dyhrberg who was not challenged on this assessment in cross-examination. Calling Luamanu was likely to detract from the defence. He had pleaded guilty to the aggravated robbery. He had made a statement to the police which, at least by implication, suggested that the appellant was involved in the robbery and, in any event, was inconsistent with the evidence given at trial by the appellant. On the defence theory of the case, Luamanu had managed to get the appellant into a good deal of trouble. Yet he had not come forward to assist the appellant with exculpatory evidence at the appellant’s first trial. All of this would have provided ample scope for effective, and in all probability devastating, cross examination by the prosecutor.
[52] Given the instructions which were given to her, Ms Dyhrberg should ideally have either interviewed Luamanu or arranged for him to be interviewed (assuming of course that he was prepared to co-operate). This, of course, is something of a counsel of perfection given the limited preparation allowed for under the legal aid system. But if we were persuaded that there was a real prospect that Luamanu could have assisted the appellant at his trial, we would allow the appeal.
[53] There was no affidavit from Luamanu. The appellant’s position is that in accordance with the criminal ethos by which he lives, it is not acceptable for one criminal to ask another to give evidence. For this reason, according to the appellant, he has not, to this day, asked Luamanu for his account of the events of the day of the robbery or even if he is prepared to give evidence. That is all very well, at least from the appellant’s particular perspective, but it is not particularly helpful to him in a context where he is required to demonstrate that there was a miscarriage of justice.
[54] The position is broadly the same in relation to Letele. We have no affidavit from him. Ms Dyhrberg had the opportunity to form an assessment of Letele (who had stood trial with the appellant in relation to both the Greenlane robbery and the St Luke’s robbery in June 1995). In any event, on the defence which was run (which involved the contention that Luamanu had left the white Falcon at the appellant’s mother’s house after the robbery) the issue whether Luamanu should have given evidence was rather more critical than the corresponding issue in relation to Letele.
[55] The appellant has not produced any substantial basis upon which we could fairly conclude that there was a real likelihood that the evidence of either Luamanu or Letele would have been of material assistance to him at trial. That being the case, we can not say that there was a miscarriage of justice even if we were to accept that there was a failure to follow instructions on the part of Ms Dyhrberg in not investigating in more detail the evidence which Luamanu and indeed Letele could give.
[56] Given this conclusion there is no need for us to reach a final decision on the question whether there was a failure to follow instructions. There was, in truth, comparatively little difference between the evidence given by the appellant and Ms Dyhrberg. It is not therefore so much a matter of us accepting or rejecting the evidence which we heard but rather assessing, in an evaluative way, whether the appellant’s instructions were overridden. On the evidence we heard we are inclined to the view that in the end the appellant acquiesced in the course which Ms Dyhrberg urged on him. If it were truly the case that Ms Dyhrberg had overridden and/or ignored his instructions as to the calling of Luamanu and Letele, we would have expected to see some trace of resentment associated with this in the post-conviction letters which the appellant wrote to Ms Dyhrberg. Yet no such resentment is apparent in the correspondence. It is fair to say, however, that our determination of this issue has been made more difficult by the time which has elapsed since the appeal was first filed and associated loss of contemporary documentation.
The size of the jury panel and the manner in which the jury was empanelled
[57] The prosecutor did not open the case to the jury until nearly lunch-time on the first day of the trial. The reason is that a number of trials were starting in the High Court that day and after jurors had been pre-balloted for those trials there were insufficient jurors to empanel a jury for the appellant’s trial. Empanelling was therefore deferred until the juries in the other trials had been empanelled and the surplus panel members were available for the empanelling of the appellant’s jury.
[58] In her letter of 11 March 1996, Ms Dyhrberg told the Registrar of the Court of Appeal that once the jury for the trial had been empanelled there were “only a couple of jurors to spare.” On that basis, the first point on appeal in the 1996 appeal was that “the available jurors therefore were in effect what was left over with only a couple of jurors spare with the result that it was not a jury that would be representative of the community.”
[59] In her affidavit of 31 January 2005, Ms Dyhrberg states:
… I believe the number of jurors on the jury panel would have been 26, and that when I mentioned “a couple of jurors spare”, I meant that this was the number left over if both sides had used all their challenges. The trial could not have commenced if either the Crown of defence was compromised in their ability to exercise their right to challenge fully.
[60] On the rehearing of the appeal, Mr Ellis made a number of points.
[61] First, he submitted that the jury was not selected in accordance with rr 15 and 18 of the Jury Rules 1990. They provide:
15 Preliminary balloting of jurors
(1) Subject to rule 18 of these rules, where a jury is required for a particular trial, the Registrar shall, in the presence of the available jurors and of any party who wishes to be present, draw out of the principal ballot box, in such a manner as to ensure random selection, a sufficient number of jury cards.
(2) The cards drawn out of the principal ballot box in accordance with subclause (1) of this rule shall, at the place where they are so drawn out, be placed by the Registrar in the courtroom ballot box.
18 Judge may dispense with preliminary balloting
(1) The trial Judge may in respect of any particular trial direct that the provisions of rule 15 of these rules shall not apply, in which case the provisions of subclause (2) of this rule shall apply.
(2) Where the trial Judge directs, in respect of any particular trial, that the provisions of rule 15 of these rules shall not apply, the Registrar shall in open Court, and in the presence of the available jurors and of the parties draw out of the principal ballot box, in such a manner as to ensure random selection, the number of jury cards sufficient to constitute the jury.
Mr Ellis said that there was no evidence that the trial Judge had given a direction under r 18(1).
[62] Secondly, he submitted that “the absence of a sufficient number of jurors must affect the ability to properly consider the exercise of one’s peremptory challenges.”
[63] Thirdly, he contended that the jury pool “may have been prejudiced to Samoans.” In his written submissions he argued that “the real issue is a racial one as to ID – Do Samoans look alike.” Counsel’s submission relies on the following exchange which occurred when the appellant was cross-examined at trial:
Q.Do you agree Mr Taito that you have a very distinctive appearance?
R.I have no opinion one way or another on that one.
Q.How tall are you?
R.About 6ft 1 I suppose.
Q.How heavy are you?
R.22 stones.
Q.Do you know lots of people of your height and build?
R.Hundreds, my whole village is like this.
[64] In the course of argument the first two points were emphasised although both the appellant in his evidence and Mr Ellis in his submissions noted that there were comparatively few people of Polynesian ethnicity amongst the potential jurors and only two obvious non-Europeans (one Asian and the other Tongan) amongst those who were selected for the jury.
[65] We accept that there is no evidence (in the form of a record) that the Judge made a formal direction under r 18 to dispense with pre-balloting. It is clear, however, that the question whether to proceed with the empanelling of a jury was raised with the Judge and she elected to proceed. The fact that no record has been found of a formal direction does not mean that such a direction was not made. Indeed, such a direction might be thought to have been implicit in the decision by the Judge to proceed with empanelling with the jurors who were present in Court.
[66] Section 33 of the Juries Act 1981 provides:
33 Verdicts not affected by informalities
No verdict shall be in any way affected merely because—
(a) Any juror has been erroneously summoned from a greater distance or from a different district or otherwise than is required by this Act or the jury rules; or
(b) Any person who was not qualified and liable for jury service, or who was disqualified from jury service or was not according to section 8 of this Act to serve on a jury, nevertheless served on the jury; or
(c) Of any error, omission, or informality in any jury list, panel, or other document.
[67] Assuming that there was an irregularity in the empanelling of the jury of the kind alleged by Mr Ellis, it would not fit literally within the savings provisions of s 33. That section, however, must be seen as representing a somewhat broader principle discussed at some length by Cooke P in R v Cornelius [1994] 2 NZLR 74 which focuses on substance. If there was an irregularity of the sort contended for by Mr Ellis, it would only be relevant to whether there was a miscarriage of justice (as we do not think it could seriously be contended that such an error made the trial “a nullity”). In any event, any such irregularity would be susceptible to being saved under the proviso (providing there was no substantial miscarriage of justice).
[68] At the hearing of the appeal there was much, in the end, inconclusive debate as to the extent to which the number of potential jurors available for selection affects the exercise or value of peremptory challenges and thus the ability of an accused to influence the composition of a jury. There was also debate whether a body of potential jurors which consists substantially or significantly of those who have been challenged in the course of previous jury selections will be appreciably different from the norm. It was also suggested that the absence of pre-balloting made it more difficult for counsel to exercise challenges given that she would have been working from the full jury list rather than a list of 30 or so jurors who had been pre-balloted.
[69] We think that rights of an accused are adequately protected providing there are sufficient potential jurors available to enable a jury to be selected despite the exercise of all peremptory challenges (with perhaps some allowance for the possibility of a few jurors being stood aside by the Judge). Given Ms Dyhrberg’s evidence, and the inherent probabilities of the situation, we think it most unlikely that the Judge would have embarked on the selection of a jury without there being enough jurors to permit this to happen.
[70] We are also left with the view that it is neither practicable nor in accord with the principles associated with jury trials for us to speculate as to the significance of a jury being selected from those who, in earlier jury selections on the same day, had been challenged.
[71] It is important to recognise that jury selection is to be random and by chance but particular juries are not necessarily representative of the community as a whole or any particular ethnic sub-groups within it. Although this case is not on all fours with Cornelius (as s 33 is not directly applicable) the drift of the judgment in that case is very much against the appellant’s arguments.
[72] We are sure that if Ms Dyhrberg (or Mr Wade for that matter) were finding it difficult to identify on the jury list the names of jurors as they were called, they would have indicated this to the Judge who would no doubt have slowed the process down sufficiently to meet the reasonable requirements of counsel in terms of checking the names of jurors called against their jury lists.
[73] In short we see nothing of merit in the arguments about the jury panel or the selection process. We are not persuaded that was any irregularity. If there was, it did not lead to a miscarriage of justice (substantial or otherwise).
Undue appellate delay
[74] The appellant submits that undue delay in the hearing of his appeal constitutes a breach of s 25(b) of the New Zealand Bill of Rights Act 1990 and that this undue delay warrants the allowing of his conviction appeal.
[75] When this case was before the Privy Council, it rejected the submission that the delay was now so extreme that the only proper remedy was the quashing of the appellant’s conviction. It noted at 601 that:
… This argument must be rejected and Their Lordships are satisfied that the Court of Appeal should not be troubled with it on a rehearing … .
Given that this was said by the Privy Council in the context of the very appeal which we are now rehearing and recognising, as we do, that the passage which we have cited was part of a longer passage which was referred to with approval by the Privy Council in Mills v Her Majesty’s Advocate [2002] UKPC 2 at [19] and [49], we consider that arguments about delay, standing alone, are not available to the appellant.
[76] In the present case, however, there is more than mere delay because the way in which the appeal has been argued and our ability to assess the arguments have been affected by consequences of the delay – consequences which were not known when the Privy Council delivered its judgment which has led to this rehearing. So we are required to address this head of the appellant’s arguments.
[77] There is scope for doubt whether s 25(b) of the New Zealand Bill of Rights Act extends to appeals.
[78] Section 25(b) explicitly confers only a “right to be tried without undue delay.” On the ordinary meaning of the language used, the section provides only for the right to a trial without delay and does not extend to confer a right to have any subsequent appeal heard without undue delay. In Canada and the United States, corresponding rights have been held not to extend to post-trial appeals, a point discussed in Rishworth and others, The New Zealand Bill of Rights Act (2003) at 740-741.
[79] We think, however, that the preponderance of authority is the other way and supports a broad approach to the s 25(b) right. This is consistent with opinions which have previously been expressed in this Court on the point, see the remarks of Cooke P in Martin v Tauranga District Court [1995] 2 NZLR 419 at 420 and Eichelbaum CJ in Nichols v Registrar of the Court of Appeal [1998] 2 NZLR 385 at 404. As well, the United Nations Human Rights Committee in Sextus v Trinidad and Tobago (CCPR/C/72/D/818/1998 1 August 2001) concluded that Article 14(c) of the International Covenant on Civil and Political Rights (which refers to the right “to be tried without delay”) confers a right to a review of a decision at trial without delay. Further, the judgment under appeal in Mills v Her Majesty’s Advocate proceeded on the basis that the corresponding right under the European Convention on Human Rights (an entitlement to “determination of … any criminal charge … within a reasonable time”) extends to the appellate process.
[80] We are therefore prepared to accept that the s 25(b) right extends to prompt determination of appeals from decisions in criminal cases.
[81] We are prepared to assume, without deciding, that there has been undue delay in the determination of the appellant’s appeal.
[82] There still remains a question as to what relief should be provided where an appellant has been denied the right to prompt consideration of an appeal. Our jurisdiction in relation to this appeal is statutory. We have noted that the appellant’s contentions are addressed to the underlying argument that there was a miscarriage of justice. The most natural reading of s 385 of the Crimes Act suggests that a miscarriage of justice, for present purposes, is referable to something which happened at the trial (including of course the verdict). Further, the relevant human rights jurisprudence shows that the quashing of a conviction for appellate delay is exceptional, see for instance Mills v Her Majesty’s Advocate.
[83] At least in the circumstances of the present case, we think that justice can be done by approaching the appellant’s case within the confines of s 385, providing we make appropriate allowance for forensic prejudice affecting the appellant which is associated with the delay which has occurred. We think that this is consistent with the directions which we have received from the Privy Council in relation to the hearing of this appeal and with the reasons why we are nonetheless entertaining the argument (which is because of the possibility of prejudice associated with delay not allowed for by the Privy Council).
[84] It is not satisfactory that we should have to determine the appeal in the absence of a transcript of the summing up. The inability of the High Court to produce a transcript is almost certainly a function of the delay which has occurred since the filing of the first appeal. It is also unfortunate that Ms Dyhrberg’s trial file is no longer available. She and the appellant would each appear to blame the other for its loss. But the underlying reality is that this aspect of the case also can be seen as being a function of the delay which has occurred. The absence of the trial file has detracted from our ability to evaluate the competing contentions of the appellant and Ms Dyhrberg as to whether there was a failure by Ms Dyhrberg to comply with instructions or alternatively a perhaps reluctant acquiescence on the part of the appellant to the course of action urged on him by Ms Dyhrberg. The length of time which has elapsed since the conclusion of the trial has also meant that it is no longer possible to be certain as to the precise course of events surrounding the empanelling of the jury.
[85] We note that the Crown’s position has also been affected as the prosecutor’s file appears no longer to be available. But the party most likely to have been prejudiced by the unavailability of material, which would normally be available on an appeal, is the appellant; this because his appeal must be dismissed unless he can persuade us that there was a miscarriage of justice.
[86] In light of these considerations, we have re-examined the appellant’s complaints and our evaluation of them. If we thought that there was a real likelihood of a procedural error of significance or anything else which could fairly be seen as giving rise to a miscarriage of justice we would have no hesitation in allowing the appeal. But, giving the matter the best consideration we can, we are not persuaded that there is such a real likelihood.
Result
[87] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington.
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