R v A (CA96/04) [2004] NZCA 433 (23 September 2004)

Last Updated: 30 December 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA96/04

THE QUEEN

v

A (CA96/04)

Hearing: 23 August 2004


Coram: Chambers J Williams J Panckhurst J

Appearances: P A Williams QC and D C S Reid for Appellant K J Glubb for Crown

Judgment: 23 September 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

Issue on Appeal

[1] On 23 February 2004 the appellant, Mr A, was convicted on one representative count of indecent assault on a Mr G at Auckland between 1 March 1999 and 20 December 2001, a further representative charge of sexual

R V A (CA96/04) CA CA96/04 [23 September 2004]

violation on Mr G by connection between the appellant’s mouth and the complainant’s penis between 20 July 1999 and 20 December 2001 and a final count of attempted sexual violation by the penetration of Mr G’s anus with the appellant’s penis in March or April 2000. He was subsequently sentenced to four years imprisonment.

[2] Mr A appeals his convictions on the sole ground that the way in which the District Court Judge dealt with the jury towards the end of its retirement and just before its verdict placed improper pressure on it and was contrary to law. All other grounds in the notice of appeal were abandoned at hearing.

Facts

[3] In view of the restricted ground of appeal, it is unnecessary to deal with the facts of the case in detail.

[4] The Crown case was that Mr G arrived in New Zealand at the age of 19 from his native Pakistan. He went to board at an Auckland address with his father, his father’s partner and her children. The appellant also lived there. He was the partner’s brother. Mr G had little English. He enrolled for pilot training and took other employment.

[5] The Crown allege the appellant befriended Mr G and committed the offences over a period thereafter. They consisted of fondling Mr G’s penis and testicles, performing oral sex on Mr G and on one occasion attempting to have anal intercourse with him. Mr G’s explanation for failing to complain and remaining in the house was his culture’s respect for their elders, the appellant being approximately twice Mr G’s age.

[6] The defence was denial that anything untoward occurred. It was asserted there was animosity between the two and it was this which led to Mr G’s complaint. Not only did the appellant take that stance in an interview videotaped by Police, he also gave evidence to that effect and called character evidence.

Trial

[7] The trial began on Monday 23 February 2004 in the Auckland District Court. The jury initially retired on Friday 27 February at 10:42am. After corrections and additional directions had been made following counsel's representations the jury finally retired at 10:49am.

[8] At 3:02pm the Judge dealt with the jury’s first question. It has no present relevance.

[9] At 7:38pm after dinner, the Judge recalled the jurors to the courtroom. He said:

Madam Foreman, members of the Jury, you have now been out some eight hours deliberating and discussing this matter. Before you went for dinner I was advised you were making some progress. Are you making progress?

Yes we are.

You feel confident that you would be able to come with a verdict?

Yes we are.

All right, if you are making progress I cannot interfere with that. You must be all exhausted and I can appreciate that, but there is no pressure on you. I am not in any way forcing you to come with a verdict as quickly or anything like that. You just take your time. If there is anything we can do for you, let us know. But if you are making progress, well and good. I just want an assurance from you that you are truly making progress. All right

Yeah.

Thank you.

[10] Mr Peter Williams QC, senior counsel for the appellant but who was not trial counsel, took no objection to that passage.

[11] At 8:29pm the crucial exchange occurred. The original transcript for the appeal contained a number of inaudible passages – principally from the foreman – but trial counsel were able to agree on most of the content. However, the entire trial
was recorded on disk. We called for the disk and counsel had the opportunity of listening to it and making submissions. With counsel’s agreement, we played it ourselves. All of that enabled production of a fuller transcript of what occurred. Certain passages still being indistinct, after the hearing Mr Glubb, counsel for the Crown, with the agreement of counsel for the appellant, arranged for the disk to be sent to the Police Electronic Crime Laboratory for enhancement and for a further transcript to be prepared of precisely what occurred. That produced a full and accurate transcript of the exchanges. What was said follows :

JUDGE ENTERS COURTROOM AND ADDRESSES COUNSEL:

HIS HONOUR: Mr Niven [counsel for appellant] you and I have started making a bit of a habit of this.

MR NIVEN: Yes (laughs)

HIS HONOUR: Long nights with disagreement, okay, okay, look, I propose to call them in and I propose to ask them, counsel, if they have reached their verdict on any of the counts, and if they haven’t, I will discharge them.

MR PILDITCH: [Crown Counsel] Can’t, can’t disagree with that your Honour: oh absolutely, on a single issue trial.

HIS HONOUR: Nine and a half hours!

JURY SUMMONED

HIS HONOUR: Madam Foreman, you have been out now for some nine and a half hours. Have you reached a unanimous verdict on on any of the counts?

MADAM FOREMAN: Ah, we are very close to a decision and we just need a few more minutes, about 15 minutes.

HIS HONOUR: And you think you will come back in in a unanimous verdict?

MADAM FOREMAN: I can’t say that at this stage.

HIS HONOUR: Well look, I want an assurance from you. I am prepared to give you as much time as you need. I am only surprised that after nine and a half hours you haven’t yet reached a unanimous verdict on any one of the three counts. I told you to go through the counts one after another. Count one first, get rid of it. Count two, get rid of it. Then consider count three. I do not know how you people are working on this one.

MADAM FOREMAN: We have done that, but unfortunately the members of the jury feel that all, they are related.

HIS HONOUR: Sorry, they are ...

MADAM FOREMAN: That they are very related and generally if we agree on unanimously on one, then we would, it would follow that we would agree on all three.

HIS HONOUR: Okay. I have no problem with that. But for goodness sake. I am not trying to hurry you up. You have been nine and a half hours. That is a very long time for you to be able to go on discussing it in a rational basis when you obviously must be very tired and if you as a foreman can assure me that you are able – that you will be able to come to a unanimous verdict within 15 minutes, by all means I am prepared to give you even longer, but nine and a half hours, if you are still debating on this and what assurance you can give me that in 15 minutes time you will come to a unanimous verdict. You are just punishing yourselves. If there is a disagreement, tell me now and I will discharge you and order a new trial.

MADAM FOREMAN: You, we we need 15 minutes as of now.

HIS HONOUR: Okay, fine.

MADAM FOREMAN: As of now, at the end of which, we will give you your definite answer.

HIS HONOUR: All right, thank you, in which case, take your time.

The jury retired again at 8:32pm.

[12] At 8:40pm the jury returned and convicted the appellant on all three counts he faced.

Law

[13] Counsel were largely agreed on the law applicable.

[14] In R v George [1984] 1 NZLR 272, at about 9:00 p.m when the jury had been in retirement for about eight hours, an inquiry elicited the information the jury were not unanimous. The Judge asked the Registrar to inquire of the jury whether another 15 minutes would help. When the Registrar conveyed that news, several jurors asked what would happen if they failed to agree and the Registrar, without referring the matter back to the Judge, told them they would be discharged. The Registrar also told them they were under no pressure. The foreman then indicated another 15 minutes could be helpful. The jury reached its verdict about ten minutes after the Registrar’s last inquiry. On appeal the principal submission was that the manner in
which the retirement proceeded meant the jury were subject to a time limit and that was, in the circumstances, improper.

[15] After discussing R v McKenna [1960] 1 QB 411 and R v Rose [1982] 2 All ER 536, this Court decided to follow Rose, concluding (at 278) :

Provided that any suggestion that the jury are being hurried is carefully avoided, it is perfectly proper for the Judge to inquire of the jury, after they have been deliberating for such period as he thinks reasonable having regard to the issues and complexity of the particular case, whether there is any likelihood of their reaching a verdict before long, or whether he can be of any further help to them. But we think that such inquiries should always be coupled with plain statements to the effect that the Judge does not wish to hurry the jury and that they should not feel that they are under any pressure.

To intimate that a jury will or is likely to be discharged if they fail to reach a verdict within a stated time is obviously less objectionable than what occurred in McKenna. Nevertheless there is a reasonable possibility that for various reasons some jurors might be led, even by that type of intimation, to concur in a guilty verdict when otherwise they would not have done so. It is not necessarily improper for the Judge to indicate that a time may come when he will have to consider discharging the jury. But, in agreement with the judgment in Rose, we think that anything in the nature of a fixed time limit must be avoided.

[16] The Court then collected its views in the following passage (at 279) :

The principles may be collected as follows:

(i) Care should always be taken to avoid creating any impression that the jury are being hurried into a verdict.

(ii) If a jury are having difficulty in achieving unanimity, a direction in open Court on the lines approved in R v Papadopoulos [1979] 1 NZLR 621 may be given by the Judge if he sees fit. Reference should not be made to "consensus": R v Patterson [1980] NZCA 41; [1980] 2 NZLR 97.

(iii) Inquiries may be made through the Registrar on such matters as whether the jury are making progress or would like further assistance from the Judge or whether arrangements should be made for a meal. There is no inflexible rule that counsel should be consulted first; on each occasion the Judge should give consideration to whether or not it would be better to consult them.

(iv) The Registrar should confine himself strictly to passing on the Judge's inquiries. ...

(v) ...
(vi) Any communication from the Judge to the jury relating to the case being tried and going beyond inquiries of the kind mentioned in (iii) above should likewise be in open Court and recorded or sufficiently noted.

(vii) In no circumstances should anything in the nature of a time limit be imposed on the jury. If the Judge thinks it right to refer to the possibility of discharging them without a verdict, he may do so, provided that it is said in open Court and anything savouring of a definite time limit is avoided.

[17] The issue was revisited by this Court in R v Carter (CA319/97 3 December 1997) where, at 8:30pm, after it had been in retirement for four-and-a-half hours, the jury advised the Judge it was unable to agree. He gave them the standard direction from R v Accused CA87/88 [1988] NZCA 263; [1988] 2 NZLR 46, derived from Papadopoulos. When the jury returned to the courtroom at about 9:30pm the Judge inquired as to progress in its deliberation, commented on the length of retirement and then said something along the lines that the jury would be given another 15 minutes but in default of unanimous verdicts at the end of that time it would be discharged and a new trial ordered. As recorded in the judgment, no precise note was taken of exactly what occurred despite the provisions of the Crimes Act 1961 s353 and it is only fair to record the Judge took a different view saying his recollection was he told the jury that as it had been in deliberation for over four hours he proposed to discharge if it was making no progress and would give it a further 15 minutes to indicate if it could reach a verdict. The jury returned at 9:45pm with one guilty verdict and two acquittals. In allowing the appeal, this Court concluded, after referring to George :

When those passages are applied to the facts of this case, this Court takes the view that whilst precisely what was said by the learned District Court Judge to the jury and in what sequence cannot now be established, it is clear that comments were made, first, about the state of progress of the jury’s deliberations, secondly, the period of 15 minutes was mentioned, and, thirdly, the possibility of the jury being discharged was also mentioned. In the view we take of the matter it is highly probable that those remarks would have led the jury to feeling that they were under pressure to come to a verdict rapidly or be discharged. We think, too, that the mention of the 15 minute period may well have been taken by jurors as a time limit for the conclusion of their deliberations. In those circumstances, the way in which the matter proceeded was clearly contrary to appropriate practice as this Court held in George. The rapidity with which they reached their verdicts after the 9:30pm exchange may well confirm the effect of the Judge’s remarks on the jury.

[18] Mr Williams also relied on R v Mills [1939] 2 All ER 299, 301 to the effect that a misdirection may lead jurors, in defiance of their oath, to accept a view to which they have not previously adhered.

Submissions

[19] Mr Williams strongly submitted the Judge was required to give a Papadopoulos/Accused CA87/88 direction as part of the 8:29pm exchange. However, while some reference to jurors not conforming for the sake of conformity may have been appropriate, we are not prepared to lay down an invariable requirement that inquiries as to progress in lengthy retirements should be accompanied by such a direction.

[20] Overall, Mr Williams submitted the Judge was wrong repeatedly to seek assurances from the foreman that a verdict could be reached within 15 minutes. The Judge thereby, he said, effectively imposed a time limit of that duration on its further deliberations. Mr Williams submitted some jurors may have inferred they were under a duty to reach a verdict quickly, a submission borne out by the brief time which elapsed before verdicts were returned. That was particularly the case, he submitted, when the Judge obviously believed jurors were fatigued and were “punishing” themselves.

[21] For the Crown, Mr Glubb submitted the procedure adopted and the Judge’s comments were appropriate in the circumstances and could not be seen as imposing pressure or a time limit on the jury. He pointed to the Judge’s comment at the end of the initial summing-up that “there is no time limit, there is no pressure on you” and that, “after some reasonable time I will be making some inquiry as to whether you are making any progress", those comments being made in the context of advising the jury it could seek further assistance from him if it wished. Viewing the matter overall, Mr Glubb submitted that no undue pressure was exerted on the jury and certainly nothing in the way of a time limit was imposed on its further deliberations. He submitted George and Carter could be distinguished in that, in those cases, the time limit was imposed by the Judge whereas here it was the jury through the foreman who spoke of needing “a few more minutes, about 15 minutes” after which
verdicts might be expected. It was not, he submitted, the Judge who imposed any temporal limit. To the contrary, he told them he would give them “even longer” and to “take your time”.

Discussion

[22] In our view the salient features of this case are, first, prior to the Judge summoning the jury back to the courtroom at 8:29pm, despite the length of its deliberations, no indication had been given that it was having any difficulty or needed the Judge’s assistance. Indeed, only some 50 minutes beforehand, the jury had told the Judge that it was making progress and was confident of reaching verdicts.

[23] It is clear, both from the Judge’s remarks to counsel immediately before the jury’s return and from what he said to the jury, that he had in mind only one course, namely discharge, if no verdicts had by then been reached. While the Judge was plainly concerned about possible jury fatigue, no consideration, it seems, was given to available options other than discharge such as offering further assistance or overnight sequestration in a hotel.

[24] While there is force in Mr Glubb’s submission that it was the foreman who first indicated that the jury needed “a few more minutes, about 15 minutes” and the Judge picked up on that remark, the foreman’s intimation must be seen in the context that, immediately after mention of the time limit, the foreman was unsure whether unanimity would emerge. It is therefore clear that at 8:29pm the jury was not unanimous on any of the three counts. Yet, after the further exchanges, it returned with its verdicts on all counts only eight minutes after further retirement. That clearly indicates the jury felt under pressure as a result of the 8:29pm exchange.

[25] That view is also supported by the fact that despite the foreman’s uncertainty as to unanimity on any count at the beginning of the exchange, at the end she spoke of giving the Judge “your definite answer”.
[26] We also consider it a possibility that the jury may have taken the view the Judge was exasperated or critical of them when he spoke of discharging them if there was disagreement without explaining to the jury what “discharge” meant in context. It would have been preferable for the Judge to have given the jury a full direction from R v Accused (CA87/88)/Papadopoulos with its measured description of what should be the jury’s approach to such matters or omitted all reference to discharge.

[27] There is also the point that in the Judge’s remarks to counsel before the jury’s return he (and they) found incomprehensible the length of the jury’s retirement in a case essentially revolving around the single issue of credibility. Something of that incredulity came through on the disk and appears in the transcript. An example is the Judge’s repeated seeking of an “assurance” of unanimity. Another is his repetition of his recommended approach to the three counts. Assurances of unanimity should not be sought from juries in deliberation.

[28] It is correct, as Mr Glubb submitted, that matters of that sort may be simply the individual Judge’s choice of words since he had also sought an “assurance” in the 7:38pm exchange and, in fairness, it would be wrong to overlook that during the 8:29pm exchange the he said on several occasions that the jury could have “as much time as you need” and that he was “not trying to hurry you up” and to “take your time”.

[29] But finally, standing back and looking at the 8:29pm exchange overall with the added advantages of the disk and the accurate transcript, we take the view that although the repeated references to “15 minutes” may have initially stemmed from the foreman’s remark, the Judge, by picking up on it and referring back to it on a number of occasions in the context of seeking an assurance from the jury, was understood by the foreman as requiring the jury to reach unanimity or signal its disagreement within that period.
[30] Seen in that light the 8:29pm exchange infringed principles (i) and (vii) from George. The case has strong similarities with Carter. In those circumstances, the appropriate course is to allow the appeal and order a retrial.

Solicitors:

Chris Reid, Auckland for Appellant Crown Solicitor, Auckland