Privy Council Appeal No. 46 of 1998

Keith Douglas Ramstead Appellant

v.

The Queen Respondent

FROM

THE COURT OF APPEAL OF NEW ZEALAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the  2nd December 1998

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Present at the hearing:-

Lord Browne-Wilkinson

Lord Steyn

Lord Hoffmann

Lord Hobhouse of Woodborough

Lord Millett

  [Majority Judgment Delivered by Lord Steyn]

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1. The central question is whether a conviction ought to be quashed because a trial judge, contrary to established principle, failed to disclose to counsel a note in the form of a rider to proposed verdicts before the jury announced their verdicts.

The criminal trial.

2. Between 23rd September 1996 and 24th October 1996 the appellant, a cardiothoracic surgeon, was tried in the High Court at Wellington before a judge and a jury.  The trial related to the deaths of three patients who died during the course of surgery performed by the appellant. The indictment contained three counts of manslaughter and three statutory charges of making false statements as to the causes of the death of the three patients.  At the end of the prosecution case the judge discharged the appellant on one count of making a false statement.  On the manslaughter charges the issues before the jury were breach of duty and causation.

3. Shortly before 6.00 p.m. on 24th October, after the jury had deliberated for over 24 hours over three days, the jury sent two notes to the judge.  One note recorded the jury’s intended verdicts viz. not guilty verdicts on two manslaughter charges; guilty on one manslaughter charge (count 5, which involved the death of a Miss Muncie); not guilty on one charge making a false statement; and the note further recorded the failure of the jury to arrive at a verdict on the other charge of making a false statement.  In the second note the jury stated:-

“With respect, the Jury wish to make the following comment:

4. We have discussed the charges requested by your Honour, and even though we have come to decisions, we would respectfully ask that the following be considered.

5. In all cases, due care, skill and knowledge were breached but we were unable to establish these failures as an essential cause.”

6. For convenience their Lordships will call the second note “the rider”.

7. Without informing counsel the judge invited the foreman of the jury to see him in his chambers.  The judge subsequently recorded that he asked the foreman “if the verdicts he had given me were unanimous, notwithstanding the second note, and he confirmed they were”.  The judge then said that the foreman should read out the second note after delivering the verdicts.  The foreman said he wanted to consult the jury on this point.  The foreman left the judge’s chambers in order to consult the jury.  He returned and told the judge that the jury did not want the note read out, and “that it was for [the judge] to…