R v Ropotini CA164/04 [2004] NZCA 367 (7 October 2004)

Last Updated: 25 April 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA164/04

THE QUEEN

v

JAMES BOYCEE CALEB ROPOTINI

Hearing: 5 October 2004 Coram: Glazebrook J
Hammond J William Young J

Appearances: J S Jefferson for Appellant
B M Stanaway for Crown Judgment: 7 October 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

[1] We have before us an application for directions in the course of this criminal appeal.

[2] On 24 March 2004 Mr Ropotini was convicted in the District Court at Napier on one count of sexual violation by rape and two counts of indecent assault.

[3] Mr Ropotini has appealed against his conviction on the grounds that:

R V ROPOTINI CA CA164/04 [7 October 2004]

• the verdicts are unreasonable and are not supported by the evidence;

• the time that the jury was in deliberation rendered the verdicts unsafe by reason of fatigue and exhaustion “affecting the reasoning process of the jury”.

[4] It is this second ground which has brought about the present application.

The application

[5] On behalf of his client Mr Jefferson has filed an application for directions “that independent counsel be appointed to interview a juror (who contacted a court staff member after trial) and the court staff member, to report on matters of jury fatigue and contact with the jury”.

[6] The Court has jurisdiction under s 389(b) of the Crimes Act 1961 to make such an appointment.

[7] The issue presently before us is whether we should exercise that jurisdiction.

The background facts

[8] Mr Ropotini faced 11 counts in an indictment alleging sexual violation and indecent assault in respect of three complainants.

[9] The jury heard the evidence over four days (which were broken up by a weekend). At the conclusion of the evidence of one complainant the trial Judge, Judge Rea, discharged Mr Ropotini on two counts of sexual violation by rape and on two counts of indecent assault. There were thus seven counts to go to the jury.

[10] The jury heard counsel’s closing addresses and the Judge’s summing up on day five, from 10.30 am to 1.00 pm and 1.40 pm to 3.00 pm. In his closing address the Crown solicitor took what Mr Jefferson described as a “benevolent” approach to Count 9, which was a rape count, “suggestive of an invitation to the jury to acquit on
this count”. In his summing up, the trial Judge described the Crown solicitor’s approach to this count as “tepid”. He warned the jury to be particularly careful in considering this count.

[11] The jury retired to consider its verdicts at 3.00 pm. Around 8.00 pm the trial Judge saw counsel in chambers. During this discussion the trial Judge apparently told them that a juror had inquired the previous day as to the prospect of hotel accommodation. Mr Jefferson (who was trial counsel) said the trial Judge indicated that this would not happen.

[12] Apparently there were no questions or further directions sought by the jury. The jury returned its verdicts at 12.00 midnight. The Judge was sufficiently concerned about Count 9 that, after the relevant counts had been put to the foreman, and guilty verdicts returned on some counts but not on others, and the jury had been asked in the usual way whether it was all agreed, the Judge put a specific question to the foreman. He said:

17. Now, Mr Foreman, there’s only one thing I need to check with you and that’s Count 9 a verdict a guilty?

A. Yes, Your Honour.

[13] The Judge thereupon convicted Mr Ropotini on Counts 7, 9 and 10 and discharged him on Counts 2, 3, 8 and 11.

[14] At 9.30 am the following morning, Judy Woodill (an experienced court attendant) received a call from a juror in this trial. Very properly, she made a written note of this telephone call which was immediately conveyed to the Judge. The note reads as follows:

25^th March, 2004.

At 9.30a.m. I had a call from a juror in the James Ropotini trial.

She was very distraught and said she had hardly slept during the night because she felt she had made a mistake on Count 9 of the indictment and was it too late to change her mind?

I told her I would look into it for her, but in the meantime would she like me to arrange counselling for her.

She declined this saying she just needed to tell me as it had worried her all night and she was quite sure she wasn’t the only member of the jury that felt this way and this was why the jury had taken so long to reach their verdict on this charge.

I reported this immediately to Judge Rea. Judy Woodill (Court Attendant)

[15] It appears that the Judge took no steps with respect to that note. We rather think that the Judge - who was a very experienced Crown Solicitor before taking a judicial appointment, and who is a very experienced trial Judge - probably thought, wisely, that it was best to leave any matters arising to the appeal process.

The directions application

[16] The precise directions sought on Mr Ropotini’s behalf are as follows:

3.1 That independent counsel be requested to meet with the juror and obtain an affidavit from the juror as to matters extrinsic to the jury’s deliberations, in particular as to:

(a) the level of fatigue and any impact on the juror’s ability to deliberate or take part in jury discussions, and

(b) the juror’s observations of the levels of fatigue of the other jurors, and

(c) whether the trial Judge’s indication that accommodation would not be provided was made known to the jury and whether it affects when verdicts were returned.

3.2 That independent counsel be requested to meet with the court attendant Judy Woodill, and obtain an affidavit from her as to:

(a) the details of the inquiry made as to the provision of accommodation, and

(b) whether the trial Judge’s view that accommodation would not be available was advised to the jury, and

(c) the court attendant’s observations as to the levels of fatigue of the jurors, and

(d) the details of the discussion between the court attendant and the juror on the telephone on 25 March 2004.

[17] All of these directions were resisted by the Crown.

Discussion

[18] Undoubtedly the Court has jurisdiction under s 389(d) of the Crimes Act 1961 to appoint an independent assessor.

[19] The procedure to be followed was set out in R v Taka [1992] 2 NZLR 129.

[20] Some of the authorities in which this jurisdiction has been resorted to were placed before us: R v Ellis [1994] 12 CRNZ 172; R v Sangraksa CA503/96 3 July 1997; R v Mullins CA513/99 24 May 2000, and R v Yin Tat Lo CA357/99 29 March 2000. Reference was also made to the recent decision of the House of Lords in R v Mirza [2004] 2 CRAPPR8 113. In that case, the House of Lords confirmed the common law rule that a court will not investigate or receive evidence about anything said in the course of the jury’s deliberations while they are considering their verdict.

[21] At the hearing before us we indicated that the Court was not disposed to make the orders sought. In our view this would have required, on any view of the matter, an investigation of matters which were intrinsic to the jury’s deliberations.

The need for a report

[22] That, however, is not an end of the matter. Under r 17 of the Court of Appeal (Criminal) Rules 2001 this Court has power to request the Judge in the trial court to provide this Court with a report in writing “setting out his or her opinion about the case generally or about any particular point arising in the proceedings”.

[23] The procedure for bringing forward such a report is set out in r 17, and is essentially conducted through the Registrar of this Court.

[24] In this case we consider it appropriate to obtain a report from the trial Judge, on two matters.
[25] First, as to the events adverted to by Mr Jefferson, whether there had been a query the previous day from the jury as to accommodation and what, if any response was made thereto either by the Judge, or through the jury attendant, to the jury?

[26] Second, what, if any, observations the Judge is able to make as to the state of the jury on the evening of its retirement to which the Judge considers the attention of this Court should be drawn.

The manner of proceeding

[27] We were advised from the Bar that a fixture for the hearing of the merits of this appeal is on foot for 1 November 2004. This Court is concerned that, if at all possible, that fixture should stand.

[28] The Registrar of this Court is to transmit, as a matter of urgency, a copy of this judgment to the trial Judge. The Registrar should specifically draw the attention of the Judge to the matters on which this Court requests a report in paras [25] and [26].

[29] The trial Judge should report to the Registrar of this Court no later than 18 October 2004. The Registrar of this Court is to make a copy of the report available to Glazebrook J (the presiding Judge on this panel); to the presiding Judge on the panel for 1 November 2004; and to Mr Jefferson and Mr Stanaway, as soon as it is to hand.

[30] As a matter of caution, in case any other matters should arise prior to the 1 November fixture, leave generally is reserved to either counsel to apply for a telephone conference with Glazebrook J for any further directions.

Solicitors:

Crown Law Office, Wellington