THE QUEEN v STEVEN BRUCE ABSOLUM [2003] NZCA 197 (21 August 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA118/03

THE QUEEN

v

STEVEN BRUCE ABSOLUM

Hearing: 18 August 2003

Coram: Gault P

Rodney Hansen J

Salmon J

Appearances: R M Mansfield for Appellant

B J Horsley for Crown

Judgment: 21 August 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]	The appellant was convicted after trial by jury in the High Court at Auckland on 26 July 2002 of offences against two complainants.He was sentenced on 28 August 2002.A notice of appeal dated 18 March 2003 was filed in the Court on 28 March 2003 six months out of time.
[2]	A fixture was allocated for the hearing of the appeal on 18 August.On 4 August, the Court registry received a memorandum from counsel for the appellant requesting that the Court conduct an investigation into “allegations” that one or more members of the jury made enquiries of their own in the course of the trial.An adjournment of the appeal was sought.The memorandum was accompanied by an affidavit sworn on 25 July 2003 by counsel who represented the appellant at his trial.In that affidavit the deponent described a discussion he had with two jurors after the verdicts (almost exactly a year earlier).He deposed that he discussed the case with the jurors because he was interested in what had influenced their decision.He then stated what the two jurors told him of enquiries another or other jurors had made and recounted to the rest of the jury.
[3]	By memorandum in reply counsel for the Crown first expressed concern at the preparedness of trial counsel to discuss what obviously included jury deliberations.It was submitted that the affidavit should not be received and that no further steps should be taken.
[4]	No direction was given and the matter was left to be dealt with when the case was called on the date fixed for hearing the appeal.
[5]	Mr Mansfield persisted with his application for a direction that the Court order an enquiry into jury misconduct and was plainly unprepared to proceed with the appeal should that be declined.
[6]	He submitted that irrespective of how the information was obtained, once there is an indication of possible jury misconduct, his client is “entitled” to an investigation.He contended that there should be no examination of whether there might have been a miscarriage of justice until the results of such an investigation are before the Court.We do not accept that.
[7]	On appeal after trial the relevant enquiry is whether there has been a miscarriage of justice.Accordingly, without dwelling on the conduct of trial counsel and the confidentiality of jury deliberations (both of which we regard seriously), where it appears that even if the alleged conduct were substantiated, the safety of the verdicts would not be undermined, there can be no miscarriage of justice and further investigation is unnecessary.
[8]	It is not every instance of improper enquiries by jurors that will give rise to a miscarriage of justice.That is apparent from R v Norton-Bennett [1990] 1 NZLR 559 and the cases cited in that case.The judgment in that case also (p 566) draws the distinction between the content of jury deliberations and matters extrinsic to their deliberations.In the present case, although purporting to relate to conduct outside the jury room, the matters relayed to trial counsel by the two jurors plainly were ascertained by them as a result of jury discussions.
[9]	The enquiries said to have been made related to two matters arising out of the case against the appellant in respect of the first complainant.It appeared from the evidence that after her initial complaint to the police no steps were taken to interview the appellant for a considerable period.It is said a juror had called a police officer to discuss the reasons why the police would have taken so long to act on the complaint.It is not suggested that the police officer had any connection with the case.
[10]	The same complainant described in evidence the appellant pulling off her jersey and her sports bra over her head.It is said a juror had discussions with a clothing manufacturer about the nature of sports bras and whether they would tear.
[11]	Neither the time taken for the police to act on the complaint nor any question of whether the complainant's bra was damaged was in issue in the trial.In respect of this complainant the issue was whether the appellant’s actions were without the complainant’s consent or an honest belief that she was consenting.It was for the jury to assess the credibility of the complainant.We are not persuaded that if the enquiries said to have been made were made, they would have influenced the verdicts on the charges relating to that particular complainant.We do not find the threshold test laid down in R v Bates [1985] 1 NZLR 326, 328 of a suspicion on reasonable grounds, judged objectively that the misconduct may have influenced the verdict to be met.
[12]	The affidavit recounts other matters relating to the experience or conduct of jurors.Mr Mansfield did not rely on those in his oral argument.We take no different view in relation to them.
[13]	In expressing these views we are not to be taken as condoning independent enquiries by jurors.Nor are we to be taken as condoning discussions with jurors by trial counsel interested in ascertaining “what had influenced their decision”.Tendering a hearsay affidavit of what jurors have said is no different from tendering jurors’ affidavits.
[14]	Mr Mansfield expressed concern about the lack of guidance in circumstances such as arose here.We think it emerges from the authorities, and particularly R v Taka (1991) 7 CRNZ 544 that where there is evidence of juror misconduct, so long as the evidence is extrinsic to the jury deliberations, that evidence may be placed before the Court.The issue of misconduct in the course of jury deliberations is more difficult.Then the grounds for concern should be set out in a memorandum from counsel (and if possible a joint memorandum) and provided to the Court with a request for directions.Jurors should not be approached.If the Court is satisfied, on oral argument if necessary, that some enquiry is warranted (and that will be relatively uncommon) directions may be given for independent counsel to be instructed to investigate.That may involve approaching the foreman or another or other members of the jury.More commonly, if on extrinsic evidence it appears the verdict may be unsafe, the appeal should proceed and, where appropriate, a new trial will be ordered.
[15]	Before leaving the case we draw attention to the late filing of the appeal.Whether leave to appeal out of time will be granted will be for the Court hearing the substantive appeal.There seems to be an increasing trend for counsel to disregard the period for appealing and to rely on the Court granting leave to appeal out of time because the delay is not that of the appellant but of counsel.That is unacceptable.Appellants sentenced to imprisonment are entitled to have their appeals brought and dealt with promptly.
[16]	In the result the Court declines to direct any investigation.In case the conviction appeal is to be pursued, and there is the sentence appeal, the case is adjourned for a fixture to be arranged with the Registrar.

Solicitors:

Crown Law Office, Wellington