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IN THE SUPREME COURT OF NEW ZEALAND
SC 53/2007
[2008] NZSC 29
ALEX KWONG WONG
v
THE QUEEN
Hearing: 14 April 2008
Court: Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ
Counsel: F C Deliu and E Orlov for Appellant
A Markham for Crown
Judgment: 18 April 2008
JUDGMENT OF THE COURT
A The appeal is allowed and the convictions are quashed.
B A re-trial is ordered.
REASONS
(Given by Blanchard )
At the end of the hearing the Court announced that the appeal would be
allowed and a re-trial ordered, with reasons to follow. These are the reasons of the Court.
The single issue on the appeal is whether at the trial of Mr Wong, who has
been found guilty by a jury on charges of drug dealing and money laundering, "exceptional circumstances" existed in terms of s 374(4A) of the Crimes Act 1961 entitling the Court to proceed with 10 jurors when the defence did not consent to that course.Mr Wong's appeal against his convictions was determined by the Court of
Appeal before this Court's decision in Rajamani v R1 was delivered. We held that whether exceptional circumstances exist is not a matter of discretion. It is, we said, a matter of fact requiring judicial assessment. The discretionary power vested in the trial Court to proceed with 10 jurors exists only if there are exceptional circumstances.2 This Court observed that subs (4A) was inserted into the Act in 1997 prompted by the expectation of a trial which was going to involve 40 mainly sexual counts with 27 complainants and which was likely to last five months. We noted that the explanatory note to the Bill spoke of the need to ensure that "lengthy or difficult trials" could be completed with 10 jurors and spoke of an ability to do so "in certain limited circumstances". The phrase "exceptional circumstances" was to be construed against that background.The reduction to 10 jurors in Rajamani occurred in the second week of a
murder trial where there were 37 witnesses for the Crown, one being from Australia. Most of the witnesses had already been heard.This Court said that at two weeks, the length of the trial, and hence of the
potential re-trial, could not possibly be regarded as exceptional. Nor could the number of witnesses. Finding those circumstances exceptional would set the standard significantly too low.3 There had been a miscarriage of justice because Mr Rajamani had been deprived of his right to be tried by not less than 11 jurors. That was a substantial miscarriage and the proviso to s 385 could not be invoked to save the murder conviction.At para [4].
At para [9].
Turning to the present case, the trial of Mr Wong and two others`` was
scheduled for two weeks but ran substantially over time, in large part because of a number of applications to the Judge by…
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CaseChat Overview and Summary
The Supreme Court noted that the insertion of s 374(4A) in 1997 was prompted by the expectation of lengthy or difficult trials, likely to last five months, involving numerous sexual counts and complainants. The Court observed that exceptional circumstances must be distinctly out of the ordinary and not regularly encountered. The Court found that the circumstances in Wong's case were not exceptional. The trial, which ran for four weeks instead of the scheduled two, was not out of the ordinary, as trials of such length are not uncommon. Additionally, the reasons for discharging the jurors were not exceptional, and the substantial overrun in the trial length was partly due to defence applications, not inherently exceptional circumstances.
The Supreme Court concluded that there were no exceptional circumstances justifying the reduction to 10 jurors. Consequently, the Court allowed the appeal, quashed the convictions, and ordered a re-trial. The Court emphasized the importance of the right to a jury trial and the need to ensure that the discretion to reduce the number of jurors is exercised only in truly exceptional cases.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Reasons for decision
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Ratio Decidendi
Legal Principle Established
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