The Queen v Walker [2002] NZCA 153; [2002] 3 NZLR 468; (2002) 19 CRNZ 476 (27 June 2002)

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 82/02 CA 97/02

THE QUEEN

V

BARRY WALKER
and
ANDRE TIPI-RANGI WAIKATO

Hearing:	17 June 2002
Coram:	Anderson J Williams J Paterson J
Appearances:	A J S Snell for Appellants R J Collins for Crown
Judgment:	27 June 2002

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

Issues

[1] On 19 February 2002 following a lengthy trial in Napier the appellants were convicted by a jury on four counts of sexual violation by rape of a particular complainant, all those having occurred on 16 February 2001, plus a count of assault on the same complainant on the same day. Mr Waikato was also convicted on four counts of sexual violation by rape of the same complainant on 2 March 2001 and a further count of assaulting her on the same day.
[2] During the jury’s retirement its members were observed by one of the defence counsel in an area outside the Napier courthouse to which the public can gain access. Two jurors were in discussion with the jury attendant for what counsel estimated was about ten minutes. When the jury returned to the jury-room, counsel immediately raised the matter with the trial Judge. He made the enquiries later detailed but declined to intervene further.
[3] One of the grounds on which these appeals are brought is that the Judge was wrong not to intervene at that stage, discharge the jury and order a new trial.
[4] On 1 March 2002 Mr Waikato was sentenced to 14 years imprisonment and Mr Walker to 9 years. Both accused appeal on the ground that those sentences were manifestly excessive.
[5] Other grounds of appeal raised in Notices of Appeal were not pursued at the hearing.

Facts

[6] Given the restricted grounds of appeal, it is necessary to do no more than outline the factual background.
[7] According to the complainant, she and a friend went to a Hastings bar in the evening of 16 February 2001 and there met the accused. Mr Waikato was well-known to her as a long-term friend of her husband from whom she had recently separated. Mr Walker was known to her on a passing basis.
[8] During the evening alcohol was consumed. The complainant left with the accused for them to drive her home. During the journey she became overcome with what she now believes were the effects of a stupefying drug administered in her drink. She was taken to a property to which the accused Mr Waikato had access and it was there she asserted that she was assaulted and then raped by both accused on a number of occasions during the night with Mr Walker assisting Mr Waikato on occasions.
[9] Before Mr Waikato dropped her at her address the following morning he, in the presence of Mr Walker, threatened that if she disclosed what had occurred he or one of his associates would uplift her daughter from her school and something would happen to her, and they would do violence to her estranged husband.
[10] On 2 March 2001 the complainant and the same friend returned, over the complainant’s protestations, to the same bar. Mr Waikato was there. The complainant drank water but her companion drank alcohol and soon began to exhibit the same symptoms as the complainant experienced a fortnight before. As they left the bar for the friend to taxi home Mr Waikato pulled the complainant’s handbag off her shoulder and retained it to ensure her return. When she did, he insisted she consume a drink he bought for her. Shortly afterwards she experienced the same sensations as previously. She left the bar but Mr Waikato followed her. After an altercation in a restaurant Mr Waikato drove the complainant to a park where she claimed he raped her both in the car and on the grass nearby. Mr Waikato then drove them to a residential address where she claimed that he assaulted her and twice raped her again. After leaving her at her home about 9:00am the next day Mr Waikato returned that evening and, when she refused him entry, again threatened her including threatening to uplift her daughter from school. She complained to the Police the following day.
[11] Throughout the case the defence, both in Police statements and in evidence, was that everything that occurred between the complainant and the accused was consensual.
[12] The jury – by then down to 11 members – retired late in the morning of 19 February 2002. Questions were asked at 2:00pm and 4:50pm and it delivered its verdict at about 5:00pm.
[13] Before the jury retired the jury escort was sworn, using the following form of oath :

Do you swear by Almighty God to take and keep this jury apart and that you will not permit any person to speak to them, neither will you speak to them yourself without the permission of His Honour the Judge except to ask whether they are agree upon their verdict.

[14] For reasons which will become apparent, it is pertinent to note that the wording of the oath is not mandated either by the Juries Act 1981 or the Jury Rules 1990 though its general form has existed for a very long time (2 Hales History of Pleas of the Crown (1800) cited in Archbold 2002 para 4-424 p 496). Its form appears to be derived from the ancient wording and reflects the requirement of the Crimes Act 1961 s 370 which reads :

370. Jury retiring to consider verdict

(1) If the jury retire to consider their verdict they shall be kept under the charge of an officer of the Court in some private place provided with sufficient heating and lighting, and shall be allowed to have reasonable refreshment:

Provided that for the purpose of having refreshment the jury may with the consent of the Court be taken under the charge of an officer of the Court or a constable to a place of public refreshment instead of remaining in a private place.

(2) No person other than the officer of the Court who has charge of them shall be permitted to speak or communicate in any way with any of the jury without the leave of the Court.

(3) Disobedience to the provisions of this section shall not affect the validity of the proceedings:

Provided that, if such disobedience is discovered before the verdict of the jury is returned, the Court, if of opinion that such disobedience has produced substantial mischief, may discharge the jury and direct a new jury to be sworn or empanelled during the sitting of the Court, or postpone the trial on such terms as justice requires.

[15] According to an affidavit by Mr Calver, then counsel for Mr Walker and filed at the hearing of the appeal without objection from the Crown, at about 4:00pm during the jury’s retirement he was in the Law Society Library on the ground floor of the Napier courthouse awaiting its return. Immediately outside is a courtyard, a thoroughfare to which the public has access and, on the other side and at the end buildings housing Government Departments and a café.
[16] Mr Calver noted the jury had been taken outside, presumably to enable those members who smoked to do so and for fresh air while having afternoon tea. Mr Calver said the jurors were spread around the courtyard. What particularly drew his attention was that two of the jurors were in what he described as “reasonably animated conversation” with the jury escort for about ten minutes. He did not observe any interchange between members of the public and jurors but said there was at least the potential for that to occur, particularly given that the trial was one which had excited a deal of public interest in Hawke’s Bay.
[17] Mr Calver waited until the jury returned to the jury-room and then raised the matter with the trial Judge :
[18] The Judge’s ruling on the matter was as follows :

[1] Mr Calver has raised his concern about events that he witnessed when the jury was outside in the company of [...] a Court official. Mr Calver observed [the official] to be in what he described as “animated” conversation with the foreman and another member of the jury. This discussion continued for some time.

[2] When the matter was brought to my attention I arranged for [the official] to be brought before us. I explained to her the concern that had been conveyed. Her response was that she had spoken to a juror in response to that juror’s question about how long the jury would be required to deliberate. She said she had spoken about “normal things” and indicated that nothing had transpired between her and any member of the jury concerning the issues before the jury and that she had informed them that they were not to discuss the issues before them when they went outside for a break.

[3] I indicated to counsel that I was not prepared to step in at this time.

The ruling is dated but not timed. It contains no detail as to what the jury escort said although Mr Calver’s affidavit said that the discussion was in the Judge’s Chambers in the presence of counsel. At this hearing, Mr Snell advised that the accused were not present but that the Judge’s record of what took place was accurate as far as it went. There was no affidavit from the jury escort nor was leave sought to file affidavits from the two jurors concerned (R v Taka [1992] 2 NZLR 129, 131).

Submissions

[19] For both appellants, Mr Snell submitted that, by her conduct, the jury escort, despite her description of the topics of conversation, may have influenced the verdict of the two jurors with whom she spoke and also exposed other jurors to contamination from those two and possible influence from members of the public in the vicinity. He submitted the test was whether there was potential for contamination and that the appellants were not obliged to prove actual contamination on the principle that justice must be seen to be done.
[20] It was submitted that the jury escort was in breach of her oath in not keeping jurors apart from others nor preventing them from possibly speaking to persons outside their number and speaking to jurors herself without permission from the Judge.
[21] Counsel also submitted that the trial Judge ought to have quizzed the escort more closely and was in error in not discharging the jury and ordering a retrial.
[22] For the Crown, Mr Collins submitted that the Judge was right not to discharge the jury as what had occurred did not come within the Crimes Act 1961 s 374 and directed the Court’s attention to a number of cases dealing with irregularities that have arisen during jury retirements. With respect to counsel most of the authorities cited bearing on this topic deal with juror misconduct during retirement and were thus not directly relevant to the issue that arises in this case.

Discussion

[23] Relevant authority, however, includes :

[a] In R v Coombs [1985] 1 NZLR 318, the foreman of a jury in retirement sent a note to the Judge that one juror said that information received might prevent her from impartially considering the verdict. The jury were recalled to Court and an enquiry made, the terms of which appear (at 323-324) in the reported case. The juror was discharged after the Judge enquired as to communications between the juror and the rest of the jury. On appeal a new trial was ordered on the basis that the Judge impermissibly inquired as to what took place during the jury retirement and because the inquiry failed to disclose what the juror knew about the accused.

[b] Though R v Bates [1985] 1 NZLR 326, 328 was a jury misconduct case it may be noted for the Court of Appeal’s view that “as a threshold requirement there must be a suspicion on reasonable grounds, by which we mean the existence of suspicion on an objective view, that the misconduct may have influenced the jury”.

[c] In Taunoa v R (CA170/97,22 September 1997) only ten jurors were initially brought to the Court following a jury’s overnight stay in a hotel during retirement. Within half an hour the eleventh walked alone to Court and about an hour later the twelfth juror was brought to the Court in the hotel’s courtesy vehicle. The Judge was advised about 11:25am that a verdict had been reached but then learned of what had happened with the two jurors. The verdict was taken at 11:55am following which the Judge in the presence of counsel but perhaps not in the presence of the accused, interviewed the jurors who explained away any possibility of contamination. This Court held that the Bates test of perceived risk of injustice tested objectively also applied to cases of procedural irregularity, noted that the coverage of s 370 is incomplete – for example it does not speak of quartering a jury in retirement in a hotel overnight – and in dismissing the appeal held (p 5) :

Concerning appearances which are, of course, of much significance in the administration of justice, we are of the opinion that objectively there can be no perception of a risk of injustice in the present case. As we have indicated earlier in this judgment, objective perception must envisage the fact of inquiry into the circumstances by the trial Judge in the presence of counsel with no finding of cause for concern that either juror may have been contaminated by unauthorised discussion about the case with anyone else or by subjection to illicit influence in relation to the jurors’ sworn duty. The irregularities were not such as to taint the administration of justice and there is no basis for any concern that prejudice has been occasioned to the appellant. Having regard to the nature of the irregularities, the way in which they were examined and dealt with by the learned and experienced trial Judge, and the absence of any indication of concern by the Judge as to the explanations which were given, we are satisfied that objectively there is no basis for the public’s confidence in the trial process to be affected.

[24] We consider it pertinent next in our consideration of this case to make some general observations.
[25] Although most if not all New Zealand courthouses where jury trials are held are either of modern construction or have been refurbished over recent years, the conditions in which juries are housed, particularly during retirement, are often unsatisfactory. It is not uncommon for jury rooms to have no external windows. Furnishings, though much better than in earlier years, remain relatively spartan. Air-conditioning systems do not always operate after hours and some cannot be reactivated. Practices vary in bringing meals – especially dinners – in to juries who are in retirement or taking them to restaurants or hotels for that purpose. It also needs to be recalled that statistics publicly available indicate that in excess of 20% of adult New Zealanders still smoke and accordingly any jury can be expected to include two or three smokers and most, if not all, courthouses in this country are “Smokefree”..
[26] In those circumstances, it is unsurprising that a practice appears to have grown up whereby juries are taken outside courthouses for meals, for smoking breaks or just for a breath of fresh air during retirement. This should not occur without the express leave of the trial Judge, either given globally in respect of the whole of the retirement or specifically when juries make a request to go outdoors. One would expect the Judge to consult with counsel before giving leave.
[27] Section 370 does not completely cover the position. As this Court pointed out in Taunoa, it does not provide for juries to be accommodated overnight in a hotel during their deliberations and does not provide for many other aspects of the jury retirement process (Robertson et al Adams on Criminal Law para CA370.04 p 10-210). What occurs outside the purview of s 370 is grounded in precedent and the Judge’s inherent supervisory powers.
[28] In light of the efforts to which Courts and Judges go in insulating jurors in retirement from contact and possible contamination from persons outside their number, there would certainly seem to be a case for Court Managers, to the extent they may not already have undertaken the task, settling on areas, either within the courthouse or immediately adjacent thereto, where jurors can get fresh air without significant possibility of contact with others outside their number. In courthouses where simultaneous trials are heard, more than one such place would need to be settled upon.
[29] Then, as far as jury escorts are concerned, as already noted the oath is not mandated by any statutory provision. Its utilisation serves to emphasise the necessity, in the interests of both the fact and the appearance of justice, of immunising the jury from contamination. However, we take the view that its form might, with advantage, be reconsidered and updated to reflect contemporary practice.
[30] Then there may be misunderstanding as to the respective roles of the jury escort and the Registrar. As this case demonstrates, apart from overnight deliberations when for practical purposes two jury escorts are sworn, juries in retirement are nowadays normally supervised by one jury escort. There may be a case for swearing in a second for courthouses where, as here, jury breaks outdoors must necessarily be in areas to which other persons have access. Contemporary practice suggests it may be appropriate to consider amendments to the Jury Escort Manual to take account of matters such as those under discussion.
[31] Finally, as authorities demonstrate, where matters such as arise in this case come to a Judge’s attention, prudence suggests that it would always be desirable for the contents of the necessary inquiry to be recorded in a manner akin to transcripts of evidence. Inquiries of a jury escort as to what he or she may have said to jurors would not appear to trespass on the very limited circumstances in which jurors can be asked about their communication between themselves or with outsiders. Such inquiries should also, other than in exceptional circumstances, take place in the presence of all counsel and the accused. The Judge’s reasons for the action decided upon, however brief, should also always be recorded, dated and, preferably, timed.
[32] We now turn from those more general matters to the issues directly arising in this appeal and to the test derived from Bates applied in Taunoa, namely whether there is a perceived risk of injustice arising out of what occurred on an objective test. We also bear in mind the provisions of s 370 (3). The Bates test is to be equated, at least in this case where the jury remained in retirement, with the “substantial mischief” test in the proviso to that subsection.
[33] Applying that test to this case, the difficulty facing the appellants is that, whilst the jury escort’s actions may be regarded as imprudent in proximity and duration, the Judge made an appropriate inquiry, concluded that the conversation between the jury escort and the jurors had not included matters relating to the trial and declined to intervene. In our view the Judge’s actions met the situation appropriately. There is therefore no basis for this Court to interfere as far as the conversation between the jury escort and the two jurors is concerned.
[34] Similarly, with respect, Mr Calver’s view as to the possibility of interference from members of the public with other jurors, including those out of his sight, must be regarded as speculative. He saw no approaches or conversations between jurors and members of the public. He did not check the position as to jurors whom he could not see. Without tangible evidence of actual interaction with those likely to have influenced jurors or the jury in their deliberations on issues in the case, speculation cannot, in our view, be a sufficient basis for this Court to infer that improper contact may have taken place.
[35] It follows that, viewed objectively, the concerns expressed were speculative and showed no perceived risk of injustice to the appellants. The appeals against conviction must accordingly be dismissed.

Appeals against sentence

[36] On 1 March 2002 the Judge, as far as Mr Walker was concerned, adopted a starting point of 11 years imprisonment but reduced it to 9 years for his good character. At this hearing, counsel felt unable to pursue an appeal against that sentence beyond what appeared in his submissions. We have read that material and take the view that the sentence imposed on Mr Walker was within range. His appeal against sentence must be dismissed.
[37] As far as Mr Waikato is concerned, the Judge noted his three earlier convictions for violence including gaol terms of 15 months in 1998 for male assaults female and five years in 1996 for wounding with intent to cause grievous bodily harm. He held that the “starting point” was 14 years imprisonment and, there being no mitigating factors, sentenced him to that term on all the charges of rape. He convicted and discharged him on the male assaults female charges.
[38] On appeal, it was submitted that a term of 14 years was manifestly excessive having regard to the fact that the violence visited on the complainant was accepted by the Judge as being towards the lower end of the scale commonly found in such offences, his family support, the Judge’s uncertainty as to whether it was Mr Waikato who drugged the complainant and that only one of the previous convictions for violence related to women. We have considered those submissions.
[39] The Judge’s use of the phrase “starting point” in the passage to which we have referred must be taken in the circumstances to be a reference to the starting point for the appropriate sentences for the rapes of which Mr Waikato had been convicted plus the effect of the aggravating factors to which the Judge had earlier referred but before making allowance for any mitigating factors. Seen in that light, in our view a sentence of 14 years was within range. We agree with the Judge that there were really no mitigating factors of any substance. On the complainant’s view of the matter, there was substantial violence necessarily part of the offences themselves coupled with the duration of the episodes, the assaults that were inflicted and the fact that rapes were committed on the complainant on the second occasion only about a fortnight after the first. There is, in our view, no basis for this Court to interfere with the sentence of 14 years imprisonment. Mr Waikato’s appeal against sentence also cannot succeed

Result

[40] For the above reasons each appeal against conviction and against sentence is dismissed.

Solicitors
Gresson Grayson & Calver, Hastings, for Appellants
Crown Solicitor, Napier, for Crown