Wong v R

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.