The Queen v Wilson

[2004] NZCA 260

IN THE COURT OF APPEAL OF NEW ZEALAND

CA203/04

THE QUEEN

v

PAUL LEWIS WILSON

Hearing:27 October 2004

Coram:William Young J
Randerson J
Heath J

Appearances:  M P Ward-Johnson for Appellant

M A Woolford for Crown

Judgment:2 November 2004 

JUDGMENT OF THE COURT DELIVERED BY RANDERSON J

Introduction

[1]       On 12 March 2004, the appellant and his wife were convicted after jury trial in the District Court before Judge Rollo on one count of selling the class C controlled drug cannabis and one count of possession of cannabis for the purpose of sale. The appellant was subsequently sentenced to concurrent terms of two years three months and fifteen months imprisonment.

[2]       The appeal is against conviction only. The sole ground raised is that a miscarriage of justice occurred through the Judge’s decision to sum up to the jury on a Friday evening after difficulties arose about the availability of two members of the jury.

[3]       We accept that a verdict delivered in circumstances of time pressure on one or more jurors may well be vulnerable but, in the circumstances of the present case, we have concluded there was no appreciable risk of a miscarriage of justice.

Background

[4]       The Crown case commenced on Wednesday 10 March 2004 at approximately 2.30pm. The appellant and his wife were separately represented. The Crown case was that a search warrant was executed at an address in Tauranga on 20 December 2002. The appellant was located at the address and, when confronted by a police officer, was seen to be preparing a cannabis tinnie. Cut tinfoils were found at the address along with two one-ounce deal bags of cannabis and a set of electronic scales. The appellant admitted to the police that he had been purchasing one ounce bags of cannabis and had been selling tinnies over a six month period. The quantity of cannabis found exceeded the level at which possession for sale is presumed under the Misuse of Drugs Act.

[5]       The appellant’s defence was that the cannabis belonged to his wife. He admitted using cannabis but denied selling it. He explained his statement to the police by stating in evidence that he was threatened by a police officer taking part in the search and, in consequence, suffered a panic attack. When propositions were put to him by the officer, he simply agreed with what was put to him even though it was not true. The appellant called a psychologist who gave evidence that the appellant suffered from an anxiety disorder and that an anxiety or panic attack could be brought on by a threat of the kind the appellant alleged had been made. The officer said to have made the threat denied having done so.

[6]       The evidence concluded at approximately 3.15pm on the Friday afternoon after two days. The Judge then discussed timing issues with the jury. It emerged that the jury had discussed issues of timing during one of their breaks. The Judge discussed two options with the jury. One was to sit on the Saturday and the other was to adjourn the case until the Monday morning. The foreman advised the Judge that one juror had her daughter’s twenty-first birthday party on the Saturday and would not be available. Another juror indicated she had an engagement on the following Monday and it would be impossible for her to sit on that day. She did not disclose the nature of the engagement but her views were conveyed to the Court in forceful terms.

[7]       Following the afternoon adjournment, the Judge heard submissions from counsel about timing for addresses and his summing up. The Judge decided that closing addresses should proceed. These took from 3.50pm to 5.36pm – a period of one and three-quarter hours punctuated by a twenty-two minute break at around 4.30pm.

[8]       After closing addresses, the Court adjourned again and the appellant’s then counsel submitted that the Judge should not sum up that evening. He also expressed concerns that the jury might feel pressured into giving a rushed decision. On the other hand, counsel for the appellant’s wife submitted that the matter should be resolved that day.

[9]       After considering the issue, the Judge ruled that the trial would proceed. The summing up commenced just before 6.00pm and concluded one hour later, just before 7.00pm. At the conclusion of the summing up, the Judge stated:

A further matter in respect of the time, you will obviously want a tea break, I expect, at this time. That will be a matter which you can decide, and please keep the Registrar advised if you need refreshments or things of that nature.

[10]     Neither counsel was able to assist the Court as to whether any meal or other refreshments were provided to the jury but it is clear they had the opportunity to take refreshments if they had wished to do so. The jury retired to consider their verdicts shortly before 7.00pm and returned their verdicts of guilty at 9.l5pm.

The Judge’s ruling

[11]     The options available to the Judge were:

a)To conclude the case on the Friday evening;

b)To have the jury return on the Saturday either with or without discharging the juror unavailable that day;  or

c)To have the jury return on the Monday with or without discharging the juror unavailable on that day.

[12]     In his ruling the Judge said:

The circumstances as they present to me at this time, are that there seems little option but to proceed with the trial tonight, in accordance with the wishes of the jury. There are dangers in that course, but I perceive that equally there would be dangers in proceeding on Saturday, when one of the jurors has what is a significant occasion in any family’s life to deal with, and on Monday, when one of the jurors, from the indication I have received, may be unavailable for extremely strong reasons. I interpolate that those reasons have not been disclosed, but the matter was put in very forceful terms, both by the Foreman, and by the juror concerned, that she would be unavailable on Monday.

There are always pressures on a jury when they have to retire to consider a verdict at night. Those pressures might be heightened on a Friday, but in the circumstances that present in this trial, it seems to me that those pressures equally would apply if I were to give my summing-up tomorrow morning, and have the jury return, even at an earlier start time, as I suggested to them, or indeed, if I adopted a similar course on Monday. I am conscious that I have the ability to discharge the juror who might not be present then. I am reluctant to do that at this time.

[13]     The Judge went on to conclude that he was satisfied a just verdict could be delivered by the jury that evening, noting the difference of opinion between counsel for the appellant and for his wife as to when the matter should be resolved. In that respect, the Judge observed that there must be a fair trial to all and that it was necessary for a balance to be reached between the co-accused.

Conclusions

[14]     We can shortly state our reasons for concluding there was no real risk of a miscarriage of justice by the course adopted in this trial.

[15]     First, the trial was short, the Crown case was strong, and the appellant’s guilt or innocence turned essentially on the view the jury took about the appellant’s allegation of a police threat made to him with a consequent false confession.

[16]     Secondly, it is not uncommon for juries to sit late on a Friday evening, even after a trial of greater length than the present one. That was the course the jury preferred.

[17]     Thirdly, it may be inferred from the length of the jury’s retirement (approximately two hours) that they did not rush to reach a verdict.

[18]     Fourthly, it is doubtful whether the Judge would have had jurisdiction to discharge the two jurors who were concerned about their availability if the trial were adjourned. If the Judge had adjourned the trial without discharging one or other of them, that would likely have created some antagonism by the jurors concerned. If, on the other hand, the Judge had discharged one or other of them, that carried potential risk of a miscarriage of justice as well.

[19]     The Judge carefully weighed the options and we are not persuaded that he was wrong to have adopted the course that he did or that this led to any appreciable risk of a miscarriage of justice.

[20]     For these reasons the appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland