R v H (CA8/03) [2003] NZCA 425 (22 September 2003)

Last Updated: 4 December 2019

ORDER PROHIBITING PUBLICATION OF NAMES ADDRESSES OR PARTICULARS IDENTIFYING APPELLANT OR COMPLAINANT

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA8/03

THE QUEEN

v

_H(CA8/03)

Hearing: 17 September 2003

Coram: Blanchard J Tipping J Glazebrook J

Appearances: G J King for Appellant

B J Horsley for Crown

Judgment: 22 September 2003

_{JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J}

[1] The appellant appeals against his conviction in the District Court at Palmerston North on a charge of sexual violation by unlawful sexual connection. The complainant was the appellant’s 11 year old stepdaughter who was staying with him during school holidays. The conviction relates to an incident in which she awoke one evening to find him touching her bottom (in respect of which there was no charge) and then he digitally penetrated her vagina for a period of about

_{20 minutes during which she feigned sleep.}

R V H(CA8/03) CA CA8/03 [22 September 2003]

[2] The stepdaughter also complained that, on what she ultimately thought was the next night, the appellant put her hand on his penis and touched her breasts. Those allegations formed the basis of counts of inducing an indecent act on a girl under the age of 12 years and indecent assault on a girl under the age of 12 years. The appellant was, however, found not guilty by the jury on those charges.

[3] The defence at trial was a total denial of all the allegations. In large measure the Crown case rested upon the respective credibility of the complainant and of the appellant, who gave evidence in his own defence.

[4] Two grounds of appeal have been pursued on the basis of which it is said that the guilty verdict is unsafe. The first ground, upon which Mr King placed greater emphasis, related to alleged irregularity in the jury deliberations. In brief, it is said that there is reason to suspect that undue pressure was brought to bear on two of the jurors by the foreman and that as a consequence the verdict was not truly unanimous. That assertion is made, first, on the basis of memoranda from the court attendant and the trial Judge. The court attendant says that at about 5.15pm during the jury retirement she answered a knock on the jury room door and was told by the foreman, who appeared to be somewhat agitated, that the jury could not reach a decision. The foreman had hardly got the words out when a woman juror, followed by two other jurors, rushed towards the court attendant saying that was incorrect and that they were having difficulty with the foreman. They requested to speak to the Judge.

[5] The court attendant says that she sensed that there was high tension in the jury room. She informed the jury that any communication with the Judge must be in writing and that she would ensure that a message in writing would be taken directly to the Judge. She then left the jury room.

[6] At 5.22pm she received two Jury Communication Forms from the jury which were taken to the Judge.

[7] At about 5.30pm there was a meeting in the Judge’s chambers. In the presence of both counsel, the court attendant spoke about what had occurred. After a

discussion with counsel the Judge asked for the jurors to be brought into the courtroom.

[8] The memorandum from the Judge confirms this position and says that one of the written communications from the jury, which he gathered to be in the handwriting of the foreman, suggested that the jury could proceed no further and that no agreement had been reached. The second, appearing to have been written in the hand of another juror, sought a legal direction on the definition of “proof beyond all reasonable doubt”.

[9] The Judge says that after the jury had been brought back into court he told them that he could not engage in any conversation with them but had received their communications and would give them two options. The first option was that he had the power to discharge them if they considered it unlikely that they could reach a unanimous decision. The second option was that he could answer their request for further legal direction and, further that he would give them a direction sometimes given to jurors who were unable to agree.

[10] The Judge then invited the jury to retire to the jury room and consider the two options and give him an answer as to which they would wish to take up. After some ten minutes he received a further written communication signed by the jury foreman indicating that the Judge should proceed with the second option.

[11] The Judge then gave the jury the requested direction and also gave them what is commonly called a Papadopoulos direction. No complaint is made about the form of those directions. The jury then retired again. At 6.30pm they were taken to a restaurant for dinner. They recommenced deliberations at approximately 7.30pm and verdicts were reached at 8.50pm, as the court attendant says, “without further incident”. It is evident that nothing unusual was noticed when the verdicts were taken.

[12] The other material put before the Court consists of two affidavits. One is from a man who served on a jury at the District Court at Palmerston North in the following week. He deposes as to a conversation with a workmate who had been on

the jury in the appellant’s case. He describes about what he was told of that person’s experience and, in particular, concerning what are said to have been bullying tactics by the foreman in the appellant’s case. The deponent reports the person who had been on the appellant’s jury as saying that he believed the appellant was not guilty but was placed under so much pressure that he had felt obliged to agree.

[13] There is a second affidavit from a woman who sat on what appears to have been the same jury in the subsequent week and was also told about the distress shown by a person who was a juror in the appellant’s case. She was told he had mentioned bullying by the foreman and had stated that he thought that the appellant was innocent of all charges.

[14] Quite apart from the fact that the narratives in the two affidavits are almost entirely hearsay, in the second instance double hearsay, they infringe the principle that, except perhaps in very rare circumstances, affidavits from jurors or others purporting to disclose jury deliberations will not be received. The rule and the exceptions to it are discussed in R v Papadopoulos [1979] 1 NZLR 621 at 626-627. As this Court said in Tuia v R (1994) 11 CRNZ 678 at 681, the rule is essential in the public interest for a number of reasons, including finality, candour of discussion, public confidence in the jury system and the protection of the jurors themselves.

[15] Mr King attempted to persuade us that the present was an exceptional situation in which what had occurred could be regarded as akin to a matter extrinsic to the jury deliberations. It was not, he said, the content of the deliberations which was of concern but, rather, the bullying attitude towards other jurors of the foreman and the pressure which had by that means possibly been brought to bear upon them. This would, however, be a difficult distinction to sustain since the foreman’s alleged attitude could hardly be separated from the subject matter of the discussions amongst jury members.

[16] It is of course unremarkable that jurors find difficulty in reaching a decision and may not feel comfortable with one another in the jury room. This Court remarked in R v Accused (CA303/96) (1996) 14 CRNZ 516 at 522:

Many people will experience feelings of stress and of having been pushed into accepting a position in situations where a group decision has to be made in unfamiliar circumstances with some urgency and when the participants are strangers to one another. Such feelings are not unnatural in a juror but do not call into question the result of a jury’s deliberations. It is well recognised that jury service is often not a pleasant nor an easy task.

[17] It is apparent that the situation of tension in the jury room came to the attention of the Judge who took what seemed to us to have been entirely appropriate steps in the circumstances and, it should be added, did so in a way which appears to have had the concurrence of both counsel. Certainly there was no complaint from an experienced trial counsel (not Mr King) at the time appearing for the accused, that the Judge should have handled matters differently. The jury members were given the opportunity of saying that they could not reach a unanimous decision and being discharged. They elected to receive further directions and to proceed with their deliberations. Nothing untoward seems to have been noticed when the verdicts were taken. There was no indication of dissent at that time. When a verdict is delivered in the sight and hearing of all the jury without protest their assent to it is conclusively inferred: Ellis v Deheer [1922] 2 KB 113, affirmed in Papadopoulos.

[18] The second ground of appeal was an alleged inconsistency in the verdicts but, in the event, Mr King felt unable to press it strongly and urged only that the possibility of inconsistency be taken into account, along with the alleged irregularity in the deliberations, in looking overall at whether the verdict should be regarded as unsafe. We are satisfied that there is nothing in the second ground. The acquittals in relation to the touching of the complainant’s breasts and the touching of the appellant’s penis are explicable on the basis that the evidence of the complainant under cross-examination left some uncertainty as to whether the touching of the breasts had occurred on the first night or the second night and as to whether the touching of the appellant’s penis on the second night may have been in some manner an accidental event. In contrast, the complainant was clear about the digital penetration on the first night.

[19] We are satisfied that there is no basis for disturbing the guilty verdict. The appeal against conviction is therefore dismissed.

Solicitors:

Crown Law Office