THE QUEEN v WAYNE FREDERICK MULLINS [2000] NZCA 62 (24 May 2000)

IN THE court of appeal of new zealand

ca513/99

THE QUEEN

v

WAYNE FREDERICK MULLINS

Hearing:	22 May 2000
Coram:	Henry J Robertson J Cartwright J
Appearances:	P Mabey for the Appellant S P France for the Crown
Judgment:	24 May 2000

judgment of the court delivered by henry j

1. On 20 October 1999 Wayne Frederick Mullins was found guilty at trial on one charge of supplying the class B controlled drug methamphetamine and one charge of possession of that drug for the purposes of supply.He was sentenced to concurrent terms of 13 months imprisonment on each charge.The jury were unable to agree on a third charge of possession of cocaine for the purposes of supply in respect of which he is awaiting a retrial.
2. The sole ground of appeal against conviction is that there has been a miscarriage of justice arising from the circumstances leading up to the delivery of the verdicts.It is therefore unnecessary to outline the facts of the offending, other than to note that the indictment contained three counts each requiring separate and distinct jury consideration.The indictment records the following relevant chronology:

18 October trial commences

19 October (late afternoon) evidence (including defence) concludes

20 October 10.00am co-accused seeks and is granted discharge

under s347 Crimes Act 1961

11.52am Crown address commences

12.20pm defence address commences

1.10pm luncheon adjournment

3.26pm Judge’s summing up commences

4.20pm jury retires

5.08pm jury question answered

6.30pm jury to dinner

8.15pm jury continue deliberations

8.55pm further jury questions answered, with directions from Judge as to desirability of reaching a verdict

11.00pm verdicts on counts 1 and 2 delivered, no verdict on count 3

11.10pm jury discharged;new trial ordered on count 3

3. The trial Judge issued a minute dated 20 October, which is relevant in its entirety.It reads:

[1]At 8.55pm, having answered questions two and three and given the modified Papadopolous direction in full, I asked the jury to retire to consider its verdicts further.

[2]At 10.20pm counsel saw me in Chambers.The Registrar was requested to ask the jury if it had reached a verdict on any count.If so, whether it was making real progress on verdicts on any other counts.If not, whether it was making real progress on a verdict on any count.

[3]At 10.35pm the Registrar advised the jury’s reply that it was close to a verdict on one count but there was no likelihood of a verdict on the other counts but it also commented that it was concentrating on the count it was working on at the moment from which I inferred that it was concentrating on the count on which it was close to a verdict.

[4]At 10.40pm I saw both counsel in Chambers and advised them of this response.Both counsel expressed concern at the time taken to reach a verdict on one count and, because of the relative simplicity of the case and the relative simplicity of the issues, they were both concerned about the quality of justice in a verdict and the likelihood of a compromise.

[5]At 10.42pm, while we were having this discussion, the Court attendant advised that the jury had given a message stating that it had a verdict on count one.I asked the Court attendant to enquire of the prospect of a unanimous verdict on any of the other counts.At 10.45pm the Court attendant advised that the Jury replied that there was one person in disagreement on another count and they were not near a verdict on the remaining count.After I discussed this message with counsel, Mr Mabey applied for discharge of the jury making the firm submission that they were likely to be in the area of compromise and that any verdict would be suspect as a compromise.Mr Hollister-Jones supported the view but did not apply for discharge.

[6]This is a matter of judgment.I am reluctant to discharge a jury while communications are that they are making some sort of progress.However, it is nearly 11.00pm.They have been out since 4.30pm, although approximately two hours of this has been for the evening meal.In the circumstances I consider that it would be inappropriate to require them to deliberate further into the evening as tiredness may be a consequent factor.I do not consider the line has been reached where they should be discharged on the two counts on which they do not have a verdict.We do not know, of course, whether it is a verdict of guilty or not guilty on the charge on which they have reached a verdict.In any event it would not matter.

[7]In exercise of my discretion I am not going to discharge the jury but send them to a hotel for overnight accommodation.I will come into Court now and explain to them that I consider it is inappropriate for them to continue deliberating tonight and I am going to send them off for overnight accommodation and they should not consider their verdicts further until they return to the jury room after a night’s rest and breakfast tomorrow morning which is likely to be in the vicinity of 9 o’clock.

[8]The application for discharge is declined.That is the course I will take.

4. The next development was the receipt by the Judge of a letter from one of the jurors, this reaching him on the following morning of 21 October.As a result the Judge issued a further minute:

[1]At 10.58pm just after I had finished giving my decision on the application for discharge of the jury and as counsel and I were about to leave my Chambers to go into Court, I received a message that the jury had a verdict on two counts but was not able to agree on the third.In the circumstances I decided to accept verdicts on two counts and to discharge the jury on the third count.

[2]I advised counsel of this and then went into Court where the jury returned verdicts of guilty on counts one and two and advised that they were not able to agree on count three.I accordingly discharged the jury without giving a verdict on count three and convicted Mr Mullins in accordance with the jury’s verdicts on counts one and two.

[3]Mr Hollister-Jones applied for a new trial on count three.Mr Mabey did not oppose.I ordered a new trial on count three.

[4]The following morning, Thursday 21 October 1999, when Mr Mabey and counsel for the Crown saw me in Chambers on a matter relating to that day’s trial, Mr Mabey said that he wished to tell me that when he was in the foyer of the Court that morning to meet his client he recognised a person who had been on the Mullins’ jury and as a matter of politeness said good morning to her.She, however, approached him and said that she was upset about last night and wanted to tell the Judge about it.She asked the Judge’s name.Mr Mabey said that he told her that she should not discuss the matter with him and that if she wanted to she could write direct to the Judge.He told her my name.

[5]I told Mr Mabey that I considered his conduct was proper and I thanked him for advising me of what had happened.I told counsel that if I received a letter from a juror I would then consider whether it was appropriate to give a copy of the letter to them.

[6]At morning adjournment that morning I received a letter in a sealed envelope.I attach a copy of this letter.

[7]On Friday afternoon 21 October 1999 the Registrar advised that she had received a message from a juror in the Mullins trial asking if I had received her letter and what was being done about it.

[8]I have decided that it is in the interests of justice to give a copy of the juror’s letter to counsel for the Crown and the defence.I am dictating this minute on Tuesday morning 26 October 1999 - yesterday Monday 25 October was Labour Day.I direct that a copy of my decision on Wednesday evening 20 October 1999, this second minute and the juror’s letter be given to counsel for the Crown and Mr Mullins.I have requested the Registrar to write to the juror as follows:

"Your letter of 21 October 1999 was given to His Honour

Justice Nicholson.He has directed that a copy of your

letter be sent to counsel for the Crown and Mr Mullins.I

am doing this accordingly."

5. As the result of the filing of the notice of appeal in this Court elaborating the grounds intended to be relied upon and an associated request from the appellant’s counsel, an independent barrister was appointed to report to the Court.This has now been received, and together with the letter from the juror featured in the appellant’s submissions.
6. We turn first to the letter sent by the juror to the trial Judge.Having given that careful consideration, we are satisfied that it does not contain any material or information which this Court could properly entertain on the appeal.It is essentially concerned with matters pertaining to deliberations in the jury room, an area which, as with attempts by jurors to revisit verdicts some time after delivery, the Court has steadfastly refused to investigate.This soundly based principle is firmly established, and was expressed recently by this Court in R v Beer [1999] NZCA 46; (1999) 16 CRNZ 390, 394 and again in R v Lo (CA357/99, 29 March 2000).On examination, the only matter which could possibly come within the description of being extrinsic to the jury’s deliberations was the fact of tiredness resulting from the lateness of the hour.There is however no suggestion that the juror was unable to deliberate or take part in jury discussions, and thereby somehow removed from participation in the process.The nature or quality of the juror’s deliberations cannot be the subject of investigation.As the letter contains nothing which would justify or assist to justify impugning the verdicts, it must be put to one side.
7. The report from the independent barrister traversed a number of matters resulting from his interview of three members of the jury.It covered aspects of jury deliberations, which also must be excluded from present consideration.This is not a criticism of the barrister, who has obviously been careful and conscientious in carrying out an assignment given him by this Court.But it must be said that, in retrospect, it does seem that the circumstances did not call for a report.No matters of a likely serious kind extrinsic to the process of deliberation and not closed to enquiry were properly identified.It is also important that if there are such areas requiring investigation, the lines of enquiry are clearly defined and confined to those properly within the Court’s established appellate functions.When the inadmissible material is excluded from the report, the relevant factors identified are concerns about the courthouse (including jury room) conditions, which are less than desirable on hot days, and tiredness experienced by one or more of the jurors.There is however nothing to indicate in either regard that the verdicts could be regarded in any way as unsafe.The suggested concerns do not add to the general picture which is available from the record and the Judge’s minutes we have earlier set out.The appeal therefore falls to be determined against that background.
8. The hearing of evidence occupied two days, and covered three discrete charges.The jury retired at 4.20pm on the third day although, because of the need for the Judge to rule on the application for discharge made by the co-accused, their participation in the trial on that day did not commence until 11.52am, .At 6.30pm they went to dinner, returning at 8.15pm.Two questions were asked at about 8.55pm, the content of which are of no present relevance other than they contained an indication of possible difficulty in reaching verdicts, presumably on all three counts.It would appear for this reason a direction as to the desirability of reaching a verdict was given in standard terms in line with R v Accused (CA87/88) [1988] 2 NZLR 46.At that time the jury had been deliberating for approximately 4½ hours, including the dinner break of a little under 2 hours.At 10.35pm the jury advised being close to a verdict on one count, which was then being concentrated on, but indicateda verdict on the others was unlikely.The inference was that no real progress had by then been made on the other two counts.At 10.42pm the availability of one verdict was confirmed.At 10.58pm, while the Judge was considering whether to send the jury to overnight accommodation, advice that a second verdict had been reached was received.Although distinct charges, counts 1 and 2 bore a reasonably close relationship.The two verdicts were then taken.
9. We can discern nothing untoward in that progression, even giving full weight to the lateness of the hour, the time which had elapsed, and the possible problems associated with the conditions under which the jury was undertaking its task.A trial Judge will of course always be conscious of the need to ensure a jury is not put under undue strain or pressure in its deliberations.Whether a stage has been reached when deliberations will cease will depend upon an assessment of the particular circumstances of the case, and no firm guidelines can be laid down.Deliberations lasting into the night are in general undesirable, but there are occasions where that can be appropriate - for example sometimes the jury will indicate that good progress is being made, and further time to reach agreement is desired.Here the Judge was conscious of the time factor and the length of the deliberations, and in his overalljudgment concluded at about 11pm that they should cease for the day.But by then, two verdicts had in fact been reached.The Judge proceeded to take these verdicts rather than exercising a discretionary jurisdiction to discharge them from giving any verdicts at all.In our view that was in the circumstances the appropriate course to adopt, and we are not persuaded there are grounds for interference.

Conclusion

10. We are satisfied that there is no cause for concern as to the safety of the verdicts.The process, viewed objectively and in its totality does not establish that there was or may have been a miscarriage of justice.We are reinforced in that conclusion by the failure of the jury to agree on the third count in the indictment.That too supports the absence of untoward compromise.The unanimous verdicts as given and affirmed in open Court on the evening of 20 October must stand.
11. The appeal against conviction is therefore dismissed.Although the notice of appeal contains an appeal against sentence, that was not pursued.It too will formally be dismissed.The appellant was released on bail pending the hearing of the appeal.That is a course which rarely should be adopted, particularly where as here the impeachment of all verdicts was an unlikely result.The appellantis required to surrender himself to the Registrar of the High Court at Napier, being the Court nearest to his place of residence, at 10am on 26 May 2000.The Crown Solicitor should give the necessary advice to that Registry.

Solicitors

Crown Law Office, Wellington, for Crown