Wong v R - [2008] NZSC 29

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IN THE SUPREME COURT OF NEW ZEALAND

SC 53/2007

[2008] NZSC 29

ALEX KWONG WONG

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.
[2007] NZSC 68.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wong v R

Details

AGLC: Wong v R [2008] NZSC 29
Case: [2008] NZSC 29
Decision Date: 18 April 2008

CaseChat Overview and Summary

Alex Kwong Wong appeals against his convictions for drug dealing and money laundering, which were upheld by the Court of Appeal. The Supreme Court of New Zealand considered the single issue of whether exceptional circumstances existed to allow the trial to proceed with 10 jurors when the defence did not consent, as required by s 374(4A) of the Crimes Act 1961. The Court of Appeal had found that whether exceptional circumstances exist is a matter of fact requiring judicial assessment and that the discretionary power to proceed with 10 jurors only exists if such circumstances are present.

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