THE QUEEN v CEDRIC BILLY JACK NEPIA [2000] NZCA 226 (3 October 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca32/00

THE QUEEN

V

CEDRIC BILLY JACK NEPIA

Hearing:	18 September 2000
Coram:	Keith J Robertson J Baragwanath J
Appearances:	J G Rowan QC for the Appellant K B F Hastie for the Crown
Judgment:	3 October 2000

judgment of THE COURT DELIVERED BY KEITH J

[1] Mr Nepia has appealed against his conviction for aggravated burglary and aggravated robbery at the Cosmopolitan Club in Palmerston North.He applies to this Court under s389(a) of the Crimes Act 1961 for orders that the President and the Secretary of the Club attend this Court, be examined before it and produce such documents as the Court thinks fit.The application is made in support of the ground of appeal that there was a miscarriage of justice as two members of the jury were members of the Club.Such membership would, it is submitted, provide support for the proposition that the jury, the tribunal of fact, was biased.The purpose of the proposed orders would be facilitate a comparison of the names of the jurors (available from the Crown Book) against all membership records for the five years to the end of 1999 and the guest registers maintained by the Club for the 18 months up to that date.The offending was in June 1999. At trial there was no dispute that the robbery and burglary had occurred and from the perspective of the appellant the sole issue was whether he was actively and knowingly involved.In a police interview he denied any connection.

[2] Without objection, we received on behalf of the appellant two affidavits, one by him and the other by a co-accused, and, following a direction given by the Court, an affidavit prepared by a Palmerston North Barrister and Solicitor.

[3] The appellant, in his affidavit, deposes that in response to his trial counsel's request he had read through the jury list before the trial, did not recognise any of the names and had told his counsel that.He did not recognise any of the jurors when they were selected and went into the jury box.Further, he was told not to stare at the jury during the trial.If he had any inquiries he was to write them on a piece of paper and pass it to his lawyer.He did glance briefly at the jury during the trial but did not make eye contact with them and really only looked at the foreman.The critical passage in his affidavit is the following:

When the Jury came back in with their verdict at the end of the trial I looked at them.I saw two males on the Jury who I had previously seen in the Cosmopolitan Club.I had seen them close to six to eight months before the date of the robbery of the Club. I used to go to the Club to play on their poker machines.I saw the two male members of the Jury also playing on the machines when I was there.

He explained that he was not a member of the Club but he gained entry by using the names of people whom he knew were members.He had been given forms to become a member of the Club but he did not ever complete them.He did not tell his trial counsel about recognising the two members of the jury (although he did give counsel a note about another issue relating to another juror). Rather, about a month after the sentencing, he took the matter up with Mr Rowan QC when he became involved at the appeal stage.

[4] The appellant's co-accused deposed that he had been to the Club about three times before the date of the alleged offences.On none of those visits, he said, did he sign the guest register.On one occasion he went in as a guest to a function and on the other two he went into the club with a mate who used his brother's swipe card to enter the club.He said that during the trial he mentioned to the other defendants that

I could have seen the foreman at the Cosmopolitan Club before the trial.I knew I had seen him somewhere.It was on my third visit to the Club, about a month or two before the date of the offence, that I thought I saw the foreman in there.

[5] The co-accused also recalls in his affidavit that at the start of the trial the members of the jury were asked, he thought by the Registrar of the Court, if they knew any of the witnesses or anyone who worked for the Cosmopolitan Club.

[6] The affidavit by the Palmerston North barrister and solicitor was prepared in response to a request from this Court that he speak to the foreman only and make three enquiries:

1. Was he a member of the Palmerston North Cosmopolitan Club?

2. If not, has he ever been to it?

3. To his knowledge, was any other member of the jury either a member of or a visitor to the club?

[7] The lawyer deposes that he telephoned the foreman, advised him briefly of his involvement, faxed him a copy of the Court's letter setting out the three questions, asked him to think about those questions and made arrangements to meet him later that day.The foreman was not previously known to the lawyer but identified himself with his full name and gave him details of his date of birth (earlier provided to the lawyer by the Court's Registrar).The substantive part of the affidavit is as follows:

4. The answer[s] to the Court's questions are in the negative.

5. I was told by [the foreman] that he had never been, at any time, a member of the Palmerston North Cosmopolitan Club and that he is not now a member.

6. He went on to say that although he knows where the Cosmopolitan Club is situated he has never visited it.[The foreman] said further, "I don't think I have any friends who are members there either ... I'm not a Club type."

7. I was then told that to [the foreman's] knowledge none of the other members of the jury were members of the Club, and none of them had admitted to having visited the Club at any time.[The foreman] said that the jury was a very cohesive one and that the atmosphere within the jury remained extremely good throughout the trial.He said that everyone was seemingly very open.He said that his assessment of the jury was such that he would have expected any of the jurors to have said something if any of them had connections of any sort with the Cosmopolitan Club.

8. The jury deliberations appeared to be very fresh in [the foreman's] mind. He wanted to discuss matters with me further.I declined to do so.

[8] The recorded answer of the foreman disposes of any suggestion based on the co-defendant's affidavit that the foreman might have been at the Cosmopolitan Club.Mr Rowan rightly accepted that.We are left with the general suggestions made by the appellant that six or eight months before the offence he had seen two male members of the jury playing on the poker machines at the Club.

[9] The New Zealand Bill of Rights Act 1990 (s25(a)) states as the first of the minimum standards of criminal procedure the right to a fair and public hearing by an independent and impartial court, in this case the jury.That right is reflected at the appeal stage by s385 of the Crimes Act under which this Court, subject to the proviso, must allow an appeal against conviction if it is of the opinion that on any ground there was a miscarriage of justice or that the trial was a nullity.Further, the requirement of impartiality extends beyond the facts to the appearance, to the proposition that justice must also be seen to be done.The requirements of course reflect long established principles and practices and protect the integrity of court process, especially in criminal trials.

[10] Mr Rowan's basic submission is that unless the claim, supported by the appellant's affidavit, that members of the Club which was burgled and an employee of which was robbed in a particularly nasty robbery were members of the jury is met beyond doubt, this Court cannot be satisfied that those essential requirements have been complied with.He stressed that all he was seeking was the matching of documents, the list of the names of the members of the jury against the records of the Club.There would be no invasion of the privacy of jurors or any examination of the jury deliberation process.As well he said, in answer to a question about how far any precedent might be seen as extending, applications of this kind were rare and were restrained by the responsibility of counsel.The Club would, he thought, cooperate and, following the comparison of the documents, all that could have been done to remove the doubt about the club membership would have been done.

[11] Miss Hastie, for the Crown, emphasised that the power conferred by s389 was exercisable only if the Court thought it necessary or expedient in the interests of justice.She called to our attention a judgment of this Court, delivered by Henry J,Queen v D (CA371/95, 17 April 1996), in which the court said this:

The discretion is not lightly to be exercised.It will normally require the establishment by an appellant of the likelihood of the existence of information which is cogent to the inquiry whether a miscarriage of justice has occurred. If the threshold is overcome it would in general be preferable for the documents to be inspected by the Crown with disclosure (subject to such matters as confidentiality) then being made to an appellant of those properly relevant to the appeal.There may be instances where the inspection should initially be undertaken by the Court, but these are likely to be rare.The jurisdiction is not part of an investigatory procedure, and clearly would not be assumed for that purpose other than in exceptional circumstances.

That cautious approach to evidence being introduced at the appeal stage relates directly to the important public interest in the finality of the outcome of criminal trials and to the requirements that evidence be adduced and challenges made at the appropriate point during the trial.

[12] Crown counsel submitted that in the instant case the appellant's evidence was very general.She emphasised that there had been a trial lasting for six days and the appellant had raised no issue about the jury members during the trial or indeed until a month after sentence was imposed.She pointed to the question directed by the Registrar to jurors about the Club and the lack of any response to that question, the oath taken by jurors and the strong direction given by the Judge to the jury that they were to decide the case solely on the basis of the evidence.She also disagreed with the submission based on the relative simplicity involved in the comparison between documents arising in this case.If there was a principle protecting, among other things, the sacrosanct character of jury processes, any further inquiry should not depend on the simplicity of the process, in the particular circumstances of a simple comparison.Nor should that simplicity factor be relevant to the exercise of the discretion under s389.

[13] That final point can be pursued further.As appears from the affidavits of the appellant and his co-accused, people did make use of the Club without their being members or their names being recorded by the Club.Their own evidence casts substantial doubt on the accuracy and completeness of the written records of the Club.Any inquiry into participation by jury members in the life of the Club could not, it seems, be sensibly limited to the written records of the club.That is to say, there appears to be no valid distinction in terms of the integrity of the trial process between an inquiry based simply on the documents emphasised by Mr Rowan and an inquiry into the participation in fact of individuals in the activities in the Club.While Mr Rowan stressed that the appellant was not expecting more than a comparison of the jurors' names with the records noted in para [1] above (which would include visitors signed into the Club), a majority of the Court considers that that limit means the inquiry would fall short of discovering facts that may appear to be required in this case by the proposed argument that the jury was not impartial. The third member considers that the acid test is what the membership records reveal.

[14] Miss Hastie also emphasised the strength of the evidence against the appellant.We do not pursue that matter.It is not obvious that it is relevant to an application for the production of evidence which might put in question the integrity of the trial process.

[15] Rather, we return to the approach stated by Henry J and especially to the very limited evidence from the appellant that we have before us.All that we are left with is the appellant's statement that he saw two of the jurors at the Club six or eight months before the burglary and robbery and with nothing further indicating that they are members.

[16] It is the case that the Crown did not seek to call the appellant for cross-examination on his affidavit nor is there any evidence to refute his sworn assertion that he had seen two members of the jury at the Club.The assertion may, like that of his co-accused, be baseless, or indeed concocted. But in the absence of cross-examination Crown counsel properly did not make that submission directly.Further, it is consistent with the appellant's evidence that those responsible for scrutinising entry did so by checking the name supplied against some list of persons entitled to admission;and that the two jury members were present at the Club, (1) as members, (2) not as members but as guests, or (3) having, like him, secured admission in some other fashion. Of these options, (2) and (3) may be disregarded as irrelevant to any reasonable apprehension of bias.But the possibility of (1) may be thought to remain.On that view, the list of members would be "cogent to the inquiry", raised by the appellant's evidence, whether the jurors were present as members.

[17] The majority is of the view that, as the appellant's own affidavit and that of his co-accused indicate, the Club records might well not provide any relevant information bearing on the appellant's statement.They also consider that, while the foreman's responses to the questions put at the Court's direction do not directly meet that statement, they do support the conclusion that the members of the jury, consistently with their oath, the Judge's direction and the results of recent research, carried out their important responsibilities independently and impartially.

[18] For the reasons given, especially in paras [13], [15] and [17], a majority of the Court does not think that in this case the appellant has established a sufficient evidentiary base on which the Court should exercise the power conferred by s389.As was said in D, the jurisdiction, exercisable on appeal, is not part of an investigatory procedure.It should not be used as part of a general fishing expedition.A realistic evidentiary foundation will in general have to be laid before it is used.The other view is that the applicant has established a real prospect of membership (para [16]) and that there must be a further inquiry.

[19] In accordance with the view of the majority, the application fails.It will now be for the appellant to determine whether in the circumstances he wishes to proceed with his substantive appeal.

Solicitors:

Crown Law Office, Wellington