R v Hookway [2007] NZCA 567 (11 December 2007)

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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

Introduction [1] Grounds of appeal [5] Factual background [7] Evidence on appeal [9] Counsel error – the test [11] Unfair trial and inability to present defence [13] Failure to follow instructions [35]

ACC discussion [38] Medical evidence [54] Guardianship [86] Evidence of sexual conduct involving the complainant [98]

Summary of conclusions re further evidence [110] “Rogue Juror” [111] Recent complaint evidence [138] Motive to lie [153] Polling the jury [161] Note from jury – Papadopoulos direction [169]

Events at trial [169] Competing submissions [181] Papadopoulos direction [188] Discussion and conclusions [211] Not taking instructions [218]

[1] Mr Hookway was convicted following trial by jury in the Hamilton District Court in September 2006 of 12 counts of sexual offending against the complainant who we shall call M. He now appeals the convictions.

(b) One charge of inducing a girl under the age of 12 years to do an indecent act (s 133(1)(c) of the Crimes Act 1961);

[3] The appellant was sentenced to 13 and a half years imprisonment with a minimum period of imprisonment of seven years. The appeal against sentence was abandoned at the hearing of the appeal.

[4] The notice of appeal was filed four days late. Leave to extend the time for filing the appeal was not opposed by the Crown and is granted.

[5] The appellant contends that there has been a miscarriage of justice in relation to his trial on the following grounds:

(a) Unfair trial and inability to present defence; (b) Failure by trial counsel to follow instructions:

(ii) Not making an application to cross-examine the complainant on a previous sexual assault by the complainant and in relation to past sexual experience;

(iii) Failing to take proper instructions in relation to an alleged rogue juror;

(iv) Not taking instructions in relation to a note from the jury and any action by the Court in relation to the jury “deadlock”;

(d) Inadmissible recent complaint evidence; (e) Motive to lie – shifting of onus;

[6] The Crown in opposing the appeal, submits that none of the points alone or in combination provides a basis for any concern that a miscarriage of justice has occurred. The Crown submits that the criticisms and alleged shortcomings of trial counsel are unfounded and that the appellant is trying to relitigate with the benefit of hindsight tactical decisions made at an earlier time.

1995 and January 2005 when the complainant M was aged between five and 14 years old.

[8] M with her younger brother E came to live with the appellant and his wife when M was five years old. In the initial period the appellant and his wife were foster parents to the children. In 2000 they were appointed legal guardians. M ran away from the home of the appellant and his wife in January 2005. In June 2005 she complained to the Police about ongoing sexual abuse by the appellant during the period she had lived in his care.

[9] The appellant sought leave to adduce evidence in support of his appeal in the form of affidavits by the appellant and his wife Tania Hookway sworn on 15 May

2007, and Arahia McRoy and Shian Evans, who are sisters and foster daughters of Mr and Mrs Hookway, sworn on 24 May 2007. None of this evidence is fresh, in the sense that it was not available at trial. It was available, but not used. The appellant contends that the interests of justice require the evidence to be admitted so the merits of the appeal can be properly considered. We received this evidence de bene esse and address it in this judgment. Having considered the evidence we are satisfied that the points raised by the appellant in support of the appeal could not be adequately addressed without admitting the evidence, and that it is therefore in the interests of justice to do so. We rule accordingly.

[10] The appellant gave oral evidence. Trial counsel Thomas Sutcliffe filed an affidavit sworn on 4 July 2007 and also gave oral evidence.

[11] Several of the grounds of appeal allege counsel error. The leading authority is R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730 (SC). In R v Kumar CA183/06 20 October

... the crucial question is whether there had been some irregularity in the trial which prejudiced the accused’s chance of an acquittal. The effect of Sungsuwan is to focus on the safety of the verdict rather than on the nature of the error by counsel.

[12] In R v Scurrah CA159/06 12 September 2006 this Court summarised the effect of Sungsuwan in this way:

[17] The approach seems to be ... to ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.

[18] On the other hand, where counsel has made a tactical or other decision which was reasonable in the context of the trial, an appeal will not ordinarily be allowed even though there is a possibility that the decision affected the outcome of the trial. This reflects the reality that trial counsel must make decisions before and during the trial, exercising their best judgment in the circumstances as they exist as the time. Simply because, with hindsight, such a decision is seen to have reduced the chance of the accused achieving a favourable outcome does not mean that there has been a miscarriage of justice. Nor will there have been a miscarriage of justice simply because some other decision is thought, with hindsight, to have offered a better prospect of an outcome favourable to the accused than the decision made.

[20] But there will be rare cases where, although there was no error on the part of counsel (in the sense that what counsel did, or did not, do was objectively reasonable at the time), an appeal will be allowed because there is a real risk that there has been a miscarriage of justice.

[13] The appellant contends that he did not know he had the final say in terms of the instructions he gave to his counsel Mr Sutcliffe. He maintains that because he was unaware of that right, he was unaware of his ability to insist that his instructions be followed and that this prejudiced his rights under the New Zealand Bill of Rights Act 1990 to a fair trial and to present a defence.

[14] Mr Hookway says in his affidavit sworn on 15 May 2007 that if he had known he had the right to instruct Mr Sutcliffe to do or not to do things during the course of the trial, he would have insisted that a number of things happened.

[15] Mr Sutcliffe in his affidavit sworn on 4 July 2007 accepts he never expressly said to Mr Hookway that he (Mr Sutcliffe) must follow whatever instructions Mr Hookway provided to him. He states:

All I can say is that I did everything I could to engage the appellant and his family in the process of preparing for trial ... The process of consultation continued throughout the trial. I met with the accused every morning of the trial and at times also in the evenings.

[16] But in answer to cross-examination, he rejected an analogy of being “captain of the ship” put to him by Mr Jones QC for the appellant He said:

... if you are suggesting that I simply took control and drove this without any input from my client or his family then that’s not right.

[17] Mr Hookway agreed with this. He agreed in answer to cross-examination by Ms Laracy that preparation for the trial was very much a family affair involving not only him but his wife, his brother (Mr Trevor Hookway) and sister (Mrs Lin East). He said they “just worked together as a team”.

[18] It is well established that counsel does not have the right to disregard instructions from his or her client: R v McLoughlin [1985] 1 NZLR 106 (CA); R v Walling CA355/05 20 March 2006; R v Wi [2007] NZCA 96.

[19] Counsel’s obligation to conduct the trial according to the accused’s instructions carries with it an obligation to take instructions where matters arise as to which counsel’s current instructions do not extend: R v Kerr CA504/99 11 April

2000; R v Kingsbeer [2007] NZCA 300. However, there is no authority that counsel must tell or advise the client that the client is able to insist on a particular course of action being taken.

[20] In R v Momo CA115/02 23 July 2002, the appellant complained that trial counsel did not advise him that two witnesses, who were not called, could have been called as defence witnesses. No instructions were given, nothing was said at all by the appellant. But he contended that trial counsel should have advised him of his entitlement, if he wished, to call the witnesses in question and should have interviewed those witnesses. He maintained that if he had been told of his entitlement he would have given the necessary instructions.

[21] This Court held in Momo that where there is alleged error through failure to call a witness at the request of the accused, it must be clear that the instructions were not simply an expression of the appellant’s views on a particular matter, but were intended to be directions to be observed and implemented by counsel so that they had to be followed irrespective of whether or not they might rebound to the client’s disadvantage.

[22] This Court was not willing to accept that a failure to tell a client of his entitlement to call a witness gave rise to a miscarriage of justice. Simply because the end result was adverse to the appellant did not provide support for his contention that a miscarriage of justice arose (at [18]). The evidence from the two witnesses in question could only have been a matter for speculation in the circumstances and it was highly probable that there could have been significant damage to the accused’s case from calling them.

[23] The right of the accused to instruct counsel (and to withdraw instructions) is inherent in the contractual relationship created when a client engages the services of counsel. While it is clear that counsel must act on instructions from his or her client (or alternatively, if counsel finds himself or herself unable to do so, to withdraw

from the case), there is no requirement of counsel to tell the accused that he has the right to issue instructions by which counsel must be bound. It is doubtful that advice to this effect would in reality have any impact on a functional orthodox counsel/client relationship. In such a relationship counsel carries out his or her obligations to explain to the client the options available in the conduct of the defence, and the risks and benefits associated with particular proposed courses of action. Counsel also provides sufficient information to enable the client to instruct counsel in relation to the conduct of the defence, or simply to advise counsel that he relies on counsel’s advice and judgment in the preparation for and conduct of the trial. In that respect, an accused who has acquiesced in his counsel’s advice, however reluctantly, will usually have great difficulty in showing a miscarriage of justice on that account: R v Pointon [1984] NZCA 72; [1985] 1 NZLR 109 at 114 (CA).

[24] In this case there is ample evidence of close consultation between Mr Sutcliffe and Mr Hookway, and also with Mrs Hookway and members of the Hookway family. It was, as Mr Hookway accepted in evidence, a shared enterprise in which there was considerable consultation during preparation for trial and during the trial.

[25] Although Mr Sutcliffe took a directional role, this was not a situation where Mr Hookway relied entirely on Mr Sutcliffe for the strategic and tactical decisions in the conduct of his defence. He was consulted and was involved. When he had a clear view he communicated it to Mr Sutcliffe and Mr Sutcliffe acted upon it.

[26] An example was the calling of character evidence. It was anticipated the Crown case would involve evidence from both M and a Ms Pou that the appellant and his wife treated M badly in a number of respects. It was therefore anticipated the defence would need to call character evidence to undermine this evidence and particularly the evidence of Ms Pou. Mr Sutcliffe laid the foundation for the character evidence in cross-examination of M. The defence having put character in issue, the Crown indicated it was looking to call rebuttal evidence. Mr Sutcliffe was concerned about this.

[27] In the event Ms Pou gave evidence which was in complete contrast to that which she gave in her deposition and quite favourable for the defence. Faced with the prospect of rebuttal evidence from the Crown, Mr Sutcliffe recorded in a file note dated 15 September 2006:

... and so we need to go ahead now and call this [character] evidence. At least that has been the decision which my client has made and that has been the sentiments of his brother and sister. Hence we will commence calling evidence today.

[28] Mr Sutcliffe said in his affidavit that his instructions were to proceed to call the character evidence. In answer to cross-examination by Mr Jones he said he neither advised for or against calling the character evidence. He said:

This is one part of the case which I remember very clearly and it was a part of the case where my client had to make a decision and I left that decision up to him and that is very clear in my mind because at the end of the day we were stuck with a situation where the Crown were threatening as it were to call rebuttal evidence ... so we needed to make a decision and that was a decision that was left up to them, that was not a decision that I made.

[29] Mr Sutcliffe said he provided advice as to the options and explained what the dangers were and then left it up to Mr Hookway to make the decision in the same way as on the matter of the appellant giving evidence. He said it was not a decision he made or pushed either way. He simply set out what the options were and what the possible consequences might be if the Crown succeeded in calling rebuttal evidence. The client made the decision and he received instructions to call the character evidence, which he implemented.

[30] Mr Hookway agreed in answer to cross-examination that the matter of character evidence was discussed -

But he said he could not recall advice concerning the dangers of calling good character evidence. He said he thought the danger was in having too many such witnesses.

[31] Mr Sutcliffe’s recollection about this matter is very clear and is confirmed by the file note he made at the time, i.e. on 15 September 2006. Mr Hookway’s

recollection was not clear but he accepted he would have agreed to having the character witnesses give evidence. We conclude that Mr Sutcliffe’s clear recollection of the events surrounding this issue, as confirmed by his file note of

15 September 2006, is to be preferred. On the basis of Mr Sutcliffe’s evidence, we accept that on the matter of calling character evidence, he gave advice as to the options, risks and benefits in calling the evidence; he received instructions from the appellant and he implemented those instructions.

[32] Another example relates to the polling of jurors. Mr Hookway states in his affidavit that he had done some research on this particular point at the library and had read in a book about polling the jury. He says he raised this matter with Mr Sutcliffe some time before the trial started. At some stage during the trial after an application to discharge a particular juror, whom he described as “the rogue juror”, was declined, he says he told Mr Sutcliffe clearly that if the verdict went against him he wanted the jury polled. The appellant claims Mr Sutcliffe did not act on that instruction. But on the basis of Mr Hookway’s own evidence he clearly anticipated that not only did he have the right to give instructions to Mr Sutcliffe but that Mr Sutcliffe would act upon those instructions.

[33] We conclude that there was a good lawyer/client relationship between Mr Sutcliffe and Mr Hookway. Mr Hookway and his family were encouraged to raise matters with Mr Sutcliffe, and did. Mr Sutcliffe provided advice and guidance, including advice about options available and risks and benefits of proposed courses of action, such as in the matter of the character evidence. Mr Sutcliffe, where the occasion required, made clear to the appellant that he had the final say and implemented the instructions he received.

[35] The appellant maintains his instructions were not followed in a number of respects, and that this error of counsel renders the jury verdicts unsafe.

[36] The appellant submits there was available evidence which was critical to his defence which was not called. In summary the evidence comprises:

(a) M’s knowledge of and interest in complainants in sexual abuse cases receiving significant financial compensation: ACC discussion;

(b) Medical evidence of the appellant’s period of incapacitation after he had a motor cycle accident on 13 July 2003;

(c) Events leading up to and surrounding the guardianship application by the appellant and his wife in relation to M and her brother E in 2000. It is alleged that important evidence by counsel for the child who had been acting for M and E since 1995 was not adduced;

(d) Evidence of a sexual assault by M on another girl in 1997 and an assault with sexual overtones by M’s brother E on her in 2000. It is alleged that evidence of these matters was not led nor was an application made for leave to cross-examine M on these issues.

[37] It is submitted for the appellant that in not adducing evidence on the above matters either by leading it or cross-examining M, trial counsel failed to follow instructions.

[38] The affidavits of Arahia McRoy, Shian Evans and Tania Hookway, refer to a discussion they say took place in the hearing of M at the Hookways’ home,

46 Storey Road, Hamilton, in the latter part of 2004. They say Tania Hookway told Arahia and Shian about a girl who made a claim to the Accident Compensation Corporation because she had been sexually abused when she was younger, and received a big pay-out. Tania Hookway says that M approached her later that day and asked about why the girl had received money or compensation, to which Mrs Hookway responded that it was a pay-out for a claim for sexual abuse.

[39] Mrs Hookway says she told Mr Sutcliffe about these discussions before the trial. All three witnesses say they expected or understood they would give evidence about this matter at trial but were not asked about it.

[40] Mr Hookway says that when his wife was giving evidence he passed a note to Mr Sutcliffe prompting him to ask her about the conversations with Arahia and Shian. The note is exhibited to his affidavit. It says that the conversation:

... was to do with ACC – sex abuse and pay outs for abuse. Is that worthwhile pointing out??

[41] Mr Sutcliffe accepts that Mr Hookway would have handed him the note during Mrs Hookway’s evidence. Mr and Mrs Hookway say they asked Mr Sutcliffe during the trial why he had not referred to this evidence and that he said he had forgotten.

[42] Mr Sutcliffe expressly denies this. At paragraph 33 of his affidavit he states:

Not raising the issue of ACC with the complainant was not a case of me forgetting to do so. It was a conscious decision not to. I do not accept as correct the assertion in Tania and Ross Hookway’s affidavit that at some point I “apologised” for not adducing evidence about the ACC conversation. In the circumstances I would not have done this. At the time I did not believe I was acting contrary to instructions ...

[43] In answer to cross-examination by Mr Jones, Mr Sutcliffe said this evidence was not something he saw as a significant factor, and going into trial it was not something he was going to traverse.

[44] The appellant submits this evidence was important in relation to the complainant’s motive to complain and to lie because:

• It showed the complainant’s interest in that topic at a time (August/September

2004 on Mrs Hookway’s evidence) proximate to her leaving the care of the appellant and his wife (January 2005);

[45] If this evidence was to have been adduced it had to be put by Mr Sutcliffe to the complainant. By the time Mr Hookway passed the note to Mr Sutcliffe, this opportunity had passed.

[46] There was no evidence available at the time of the trial that M had, or had not, made an application to ACC. Mr Sutcliffe refers in his affidavit to Lin East, Mr Hookway’s sister, having certain confidential information about this, but no detail was available. From an email sent by Mr Trevor Hookway, the brother of the appellant, to Mr Sutcliffe on 1 October 2006, i.e. after the trial, it is clear this aspect was still under investigation.

[47] If the discussion about ACC had been put to M and she had accepted she overheard it (which could not be predicted), but had not made a claim to ACC it would not have advanced the appellant’s case and could have backfired. It could have given rise to an inference that the prospect of ACC compensation did not provide a motive for M to lie or suggest she was motivated by malice and spite.

[48] On the other hand, if M had accepted that she overheard the ACC discussion and had made an ACC claim, that is at least as consistent with her having made a genuine complaint about sexual abuse as it is with M having made a false complaint.

[49] There is the further inference available from the evidence about the ACC discussion, that M’s interest in the topic as related by Mrs Hookway arose because she had in fact been sexually abused.

[50] In summary, this evidence had limited probative value and carried real risks for the defence. In those circumstances Mr Sutcliffe cannot be criticised for deciding not to raise this issue with the complainant.

[51] Further, there is no evidence that the appellant instructed Mr Sutcliffe to adduce the evidence of the ACC discussion. He and Mrs Hookway say they saw the evidence as “very important” and “understood” or “expected” counsel to put the evidence of the conversation before the Court. But Mr Hookway did not raise the matter with Mr Sutcliffe while the complainant was giving evidence over a period of two days, and Mr Hookway’s note to Mr Sutcliffe while Mrs Hookway was giving evidence does not raise more than a suggestion that the evidence might be adduced:

[52] The tenor of the note is quite inconsistent with the assertion the appellant and his wife now make that they made clear to Mr Sutcliffe that this evidence should be called but that he “forgot”, which Mr Sutcliffe of course denies.

[53] We conclude that the decision not to lead this evidence was a tactical judgment taken by trial counsel which in all the circumstances, competent counsel could properly have taken. There is no evidence that counsel was given clear instructions to adduce this evidence. Mr Sutcliffe did not believe he was acting contrary to instructions. It was a judgment call which Mr Hookway left to his counsel, as his note confirms.

[54] Mr Hookway had a motor bike accident on 13 July 2003, following which he had an operation and was incapacitated for a period. The extent and duration of the incapacitation was significantly in issue at the trial.

[55] During the period in question the Hookway family were residing at Raglan. (In a joint memorandum filed on 15 October 2007 at our request, counsel agreed that on the basis of the evidence adduced at trial, the family resided at Raglan from about late June 2003 until December 2003, or early January 2004.)

[56] Counts 4, 5, 6, 8 and 9 which are representative charges alleged sexual offending by the appellant against M over periods which include the Raglan period. These counts alleged sexual violation by unlawful sexual connection between M’s mouth or tongue and the accused’s genitalia (count 4); digital penetration of her genitalia (count 5); sexual violation by connection between the accused’s mouth or tongue and M’s genitalia (count 6); rape (count 8); indecent assault (count 9).

Medical records were available to show that I was severely disabled for many weeks after my accident which would have made it literally impossible for me to have acted in the way that M said I did. I had a cast on one arm and was on crutches. I had to be helped with basic toileting and cleanliness by my wife for several weeks.

[58] He says Mr Sutcliffe was made aware of this medical evidence well in advance of trial but the medical records were not obtained and no evidence was called from the doctors or hospital staff. However, Mr Hookway says no more in his affidavit than that Mr Sutcliffe was “made aware” of the medical evidence and that the medical records “were not obtained”. He does not claim that instructions were ever given to Mr Sutcliffe to obtain the medical evidence or to adduce it in evidence.

[59] The appellant claims that the challenges made by the Crown about the length of time he was incapacitated could have been dealt with by the medical evidence. The significance of the medical evidence is said by the appellant to be two-fold:

[60] As to (1), it is said that had the medical evidence been obtained it would have avoided Tania Hookway making inconsistent statements which were exploited by counsel for the Crown in cross-examination and in his closing address to the jury, to undermine Mrs Hookway’s credibility. Mrs Hookway told Police on 5 September

2005 that Mr Hookway spent a couple of weeks in hospital and a couple of weeks at home to get over his accident. In evidence she said he was incapacitated for about

four and a half months. Mr Hookway gave similar evidence. He said that it took him “... six, four to six months of recuperation”, following about ten days in hospital. (Four and a half months covered approximately the whole of the Raglan period after the appellant’s operation.)

[61] It is submitted the evidence at trial “overstated” and Tania Hookway’s statement to Police “understated” the period of incapacity, which could have been checked and confirmed had the medical evidence been obtained.

[62] Mr Sutcliffe agrees that the length of time the appellant was incapacitated and to what extent he was incapacitated became an issue in the trial. He notes that the fact of the accident was not in dispute and the appellant was not cross-examined about that. Further, that the medical notes themselves would be insufficient to establish incapacity to engage in sexual activity of the type complained of and that it would probably have been necessary to call the attending physician.

[63] He accepts he may have overlooked the prior inconsistent statement of Mrs Hookway to the Police, or at least did not appreciate its potential impact when used by the Crown to challenge Mrs Hookway’s credibility.

[64] The medical reports on which Mr Hookway relies are attached to his affidavit. They include operation reports dated 15 and 18 July 2003 in relation to his hip/pelvic injuries and the operation that followed, and his broken arm which required a cast for six weeks.

[65] A report dated 22 July 2003 records Mr Hookway “mobilising slowly but well with crutches”. On 23 July 2003 a hospital report notes that he feels safe on crutches and was looking forward to going home that day; that he was safe to be discharged home and that crutches were issued for three months.

[66] On 5 September 2003 a report records that he is still on crutches but he is to wean himself off them over about a month. The cast was removed from his arm.

[67] On 15 October 2003 a report notes difficulties with the joint in his index finger following on the left wrist fracture.

Now three months down the line ... he is doing very well from his hip point of view ... most days he appears to have no problems. Some problems with his knee were present prior to the injury but appeared to have worsened with the injury. Mobilising full weight bearing now.

[69] On 3 November 2003 an operation report relates to the problem with his finger.

[70] The suggestion by the appellant seems to be that had these records been obtained Mrs Hookway in particular, but also Mr Hookway, would not have “overstated” the period of his rehabilitation as being about four and a half months. It is not a suggestion that reflects favourably on the appellant and Mrs Hookway. The fact of the accident was before the Court and not in dispute. Mrs Hookway can have been in no doubt that the period of Mr Hookway’s rehabilitation after the accident would have clearly been in issue. She had made a statement to the Police about the period of his recuperation and had also been briefed by Mr Sutcliffe. In evidence in chief she said:

I had to give Ross a lot [of care] ... he was on crutches, he also had a walker. He had a special seat for toileting. I had to shower Ross. I had to take him to the bathroom, I had, it’s not very dignified but I used to have to wipe him when he went to the toilet, umm, yeah.

[71] In answer to a question as to how long her husband was “in that sort of situation”, she answered categorically, “four and a half months”. Asked how long overall his convalescence was, she said:

After close to five months he started to get mobilised again and was able to do a lot more for himself.

[72] In response to cross-examination she agreed that Mr Hookway had a couple of weeks in hospital but insisted that she had cared for him for four and a half

months. When it was put to her by counsel for the Crown that she had completely overstated that period she said:

[73] When the statement she made to the Police was put to her she said it was incorrect and confirmed she was not overstating the period of incapacity at four and a half months.

[74] The availability of the hospital records was known to Mr and Mrs Hookway. They could have accessed them to corroborate the period of Mr Hookway’s incapacity. However, the records would not have confirmed the period of incapacity they claimed. The records would have shown that after nine or ten days following the accident Mr Hookway was mobile, albeit with crutches, and that after three months, i.e. by October 2003 he would have weaned himself off his crutches, was fully weight bearing and was discharged from the clinic.

[75] If recourse to the medical records would have confirmed that the period of incapacity was more accurately three months or some such lesser period than four and a half months, Mrs Hookway would still have faced the difficulty of the inconsistent period in her Police statement.

[76] Further, Mrs Hookway’s statement to the Police that after two weeks in hospital Mr Hookway needed looking after for a further fortnight at home tends to be confirmed by Mr Hookway’s statement in his affidavit filed on appeal sworn on

15 May 2007 that he had to be helped with basic toileting and cleanliness by his wife

[77] Mr Sutcliffe may have overlooked the discrepancy in the claimed period of Mr Hookway’s incapacity as stated by Mrs Hookway to the Police and in her brief of evidence, but we do not accept that the “overstatement” of the extent and period of incapacity given in evidence by both Mr and Mrs Hookway at trial can be blamed on an “error” by Mr Sutcliffe in not obtaining the medical records or adducing them in evidence. The information in the medical records was known to and accessible by

the appellant and he did not instruct Mr Sutcliffe to act in respect of them as he now says he wanted.

[78] As to (2), as a matter of commonsense and logic it cannot follow that there was no opportunity for the appellant to continue during the Raglan period with the type of offending which M said did continue during this period (perhaps with some limitations in relation to count 6 which alleged rape).

[79] In cross-examination of M by Mr Sutcliffe there was the following exchange:

Now you say that the sexual abuse, these acts of intercourse and the like, continued at Raglan? ... Yes

So, you say it wasn’t so frequent because you were sharing a room but did it occur though? ... Yes, it did.

Was it once every two weeks may be as opposed to once a week? ... I’m not sure ...

[80] M accepted that the appellant had an accident on 13 July 2003, that it was a very serious accident and he was on crutches, although she was not sure of the period he was on crutches. There then followed this exchange (Mr Sutcliffe cross- examining M):

You see, I put it to you that at least during that period of time, there was no sexual abuse at all, possible even, from Rossco towards you because of the condition he was in? ... You’re wrong.

So when he was on crutches, he was still doing it was he? ... Yes he was. Fractured pelvis and all, he was having sexual intercourse with you was he?

How would he do that then. How was he doing that, what about his arm that was in plaster, in a cast, seriously injured arm. What was he doing with

that? ... I don’t know but, I don’t even remember his arm being covered or whatever you call it. I remember his hip and him on crutches, that’s all I remember.

So you say this man on crutches with a fractured pelvis, who had to have his wife to give him a bath, was actually having sex with you? ... Yes he was.

You’re telling barefaced lies now aren’t you? ... No I’m not, and like I said I don’t know when it was when he did do it to me, the months and that, so I’m not lying.

[81] We do not see how the medical reports, had they been produced in evidence, would have contradicted the evidence given by M as to what happened to her during the Raglan period which extended through to the end of 2003 or the beginning of

2004. M did say the abuse was less frequent during this period, although the reason given was that she shared a room with another girl. A contributing factor may well have been the limited capacity of the appellant as a result of the accident during part of this period, but the evidence provided by the medical records would certainly not have contradicted or called into serious question the evidence given by M as to the continuation of offending during the period in question.

[82] We conclude that the fact the medical records were not obtained or adduced in evidence cannot be attributed to failure or error by Mr Sutcliffe. Further, that the medical records, had they been adduced, would not have had the significance claimed by the appellant in relation to the credibility of either Mr and Mrs Hookway or the complainant.

[83] We refer briefly to the evidence of Anne Currie who was called as a witness for the defence. She is a hepatitis specialist nurse who gave evidence as to the side effects suffered by the appellant from the drug Interferon which he took for a period between 2001 – 2002 after he was diagnosed with hepatitis C. Mr Hookway states in his affidavit that he did not think the evidence given went as far as it could have. Mr Sutcliffe says he had concerns about this witness who he considered was a reluctant witness. He had access to the records and treatment notes from Ms Currie concerning Mr Hookway’s treatment which showed that he had suffered quite severe side effects from the treatment including mental and physical fatigue, flu-like symptoms, aches, weight loss and mood disturbances. He says he led this evidence from Ms Currie and on the day felt that the evidence was better than he had

anticipated. In fact he was quite relieved cross-examination by the Crown did not seem to impact adversely. He says it is unclear to him what additional material or information he could have obtained from Ms Currie which would have assisted the defence case.

[84] Mr Hookway does not suggest in what respect the evidence did not go far enough. If he means that the evidence could have been pursued to rule out opportunity for the offending alleged against him, this was never going to be the case as the evidence given by Ms Currie was clearly that symptoms from Interferon “alternate” and come and go.

[86] The appellant contends that in relation to the appointment of Mr and Mrs Hookway as additional guardians of M and her brother E on 14 December 2000, important evidence was not adduced which would have impacted on M’s credibility by creating a question mark over her actions compared with her allegations against the appellant.

[87] The focus of the appellant’s contention is that Mr Lex de Jong, counsel for the children since 1995, was not called to give evidence, although he asked Mr Sutcliffe that Mr de Jong be spoken to and called as a witness. He claims Mr de Jong’s evidence would have added strength to the defence case.

The role of counsel for the child in that situation was not gone into. The Crown made it look like getting the children into our home was my idea so I could abuse M.

[89] Attached to Mr Hookway’s affidavit is a memorandum of Mr de Jong as counsel for the children dated 3 December 1999 filed in the District Court at Hamilton, in which he states that the proposal of the Department of Child, Youth and

Family Services that M and her brother remain in the long term care of the Salvation

Also attached is a letter dated 17 March 2000 in which Mr de Jong says that without reservation he would support the application of Mr and Mrs Hookway (to become joint guardians) in respect of the children. He states:

They have an extremely good relationship and bond with M and E and are marvellous parents.

[90] Mr Sutcliffe says in his affidavit that he considered the evidence in this respect was adequately covered during the trial by both Mr and Mrs Hookway, backed up by the evidence of a social worker, Kathy Glynn. His concern was to get direct evidence as to M’s attitude at the time the guardianship proposal was raised and from that perspective he considered Ms Glynn was a very good independent witness.

[91] Mr Sutcliffe says he did not follow up the possibility of calling Mr de Jong because he formed the view that discussions between M and Mr de Jong would have been privileged and he advised Mr Hookway to this effect. He also considered that the evidence of Ms Glynn, a very experienced social worker, adequately supported the defence position.

[92] Ms Glynn was at the relevant time foster care co-ordinator for the Salvation Army. She said she knew the Hookways well because from 1994 to 2000 she was closely associated with the two Salvation Army homes they ran, initially at Thackeray Street and subsequently “The Nest” at Ohaupo Road which was a new family home built by the Salvation Army. She knew the foster children in the care of Mr and Mrs Hookway including M and her brother. She would visit almost every day for between half an hour and two hours. She said in evidence:

... I can remember that M was very excited, she was very happy about that and I can remember when it did go through, when it all happened and they shifted from the main part of the Family Home into Ross and Tania’s quarters. They were very, um, yeah, very excited and M came, I was taken to her bedroom ... All I can remember is that M and E were very, very happy about it.

[93] This evidence was important for the defence case because M denied in evidence that she wanted to be part of the family in the context of the guardianship application in 2000.

[94] The Crown did not really dispute the evidence of Mr and Mrs Hookway that it was the children who instigated and wanted the guardianship arrangement, although evidence from Mr Hookway suggested it was the Department of Child Youth & Family Services who raised the matter. Rather, counsel for the Crown explored in cross-examination factors arising from the children’s background and potential privileges associated with a guardianship arrangement, e.g. they would move to the Hookways’ own house, which it was suggested, could explain M’s enthusiasm and excitement for the proposal, notwithstanding her allegations of sexual abuse over the preceding five years.

[95] So to the extent that Ms Glynn did not go so far in evidence as to say it was the children who instigated the proposal (as it was anticipated she would), there was the uncontested evidence of Mr and Mrs Hookway to that effect. Nor is there anything to suggest that Mr de Jong would have been able to take that aspect further.

[96] Mr Sutcliffe accepts that his view at the time that the communications between M and Mr de Jong were privileged, was not correct. However, if Mr de Jong were to have been called as a witness it would have involved an application under s 35 of the Evidence Amendment Act (No 2) 1980 and there can have been no guarantee that the evidence would have been admitted. In the circumstances, where evidence was available from the very experienced social worker Ms Glynn who had close associations with M and E and the Hookways throughout the relevant period, we consider a competent counsel in Mr Sutcliffe’s situation, even if he had not misinformed himself that the evidence would necessarily be privileged, may quite properly have concluded that the calling of Mr de Jong’s evidence should not be further pursued.

[97] No “would say” statement from Mr de Jong was provided, so what he might have said in evidence is speculation. On the material available, Mr de Jong could only have supported the evidence of Ms Glynn as to the children’s unreserved

support for the proposal conveyed through him. That being so, there cannot be a real risk that failure to call Mr de Jong’s evidence would have affected the outcome of the trial. This point has no merit.

[98] The appellant contends that there were two relevant incidents involving M of which evidence should have been adduced. The first is said to have occurred in 1997 when a complaint was made by K, another female resident at the home, of M committing a sexual act upon her. K complained and M was interviewed. The second relates to an alleged assault on M by her brother E which was recorded in the day book of the home in October 2000.

[99] It is said in relation to these matters that they would demonstrate M’s knowledge about the complaint process and of her readiness to complain when something of a sexual nature allegedly happened to her, and that the evidence would have been relevant to the jury’s assessment of the complainant’s credibility and her actions in relation to the appellant. The appellant submits that an application should have been made under s 23A(2) of the Evidence Act 1908 for leave for M to be cross-examined about these two matters.

[100] Mr Sutcliffe in his affidavit points out that he explained to the appellant that he could not ask questions on the subject of the prior sexual experience of M without the leave of the Court. He applied for leave and did not get it. He did not consider he could do more.

[101] Further, in relation to the matter involving E, he did not see the evidence of particular relevance. He saw it as “a spat between two siblings”. He never understood there was any expectation by the appellant that he would cross-examine on it. He did not during the trial and does not now, see any basis for pursuing a line of questioning on the issue.

[102] In his affidavit, Mr Hookway describes the incident concerning K as involving an accusation by K in late 1997 of sexual assault against her by M. He

says the complaint was referred to Social Welfare and that M was interviewed at Manawai, the child assessment unit, on 12 December 1997. He says he and Mrs Hookway were told the interview was inconclusive.

[103] Questioning of M about the incident with K was the subject of two rulings by Judge MacLean in the course of the trial, both on 12 September 2006. Mr Sutcliffe sought to question M about when she said K was present with her at the Hookways’ home because M had said that offending by the appellant first occurred when K was there which, if it was in late 1997 as evidenced by the complaint made by K, contradicted the evidence of M that the offending by the appellant was happening from the time she was aged five in 1995.

[104] The Judge initially permitted a limited line of questioning by Mr Sutcliffe to explore the timing issue which he said he did with “some slight unease”, noting that it might be necessary to revisit the issue depending on how the evidence developed. In his ruling he recorded concern that handled the wrong way the implication or inference might be drawn against the accused that K was referring to something untoward or to some allegation about conduct by Mr Hookway with K. The Judge recorded in his ruling that the accused had in the course of discussions over the last

[105] After Mr Sutcliffe had pursued the timing issue with M the Judge delivered a second ruling in which he expressed concern that the traps to which he had previously referred had been encountered; there was a risk that evidence from M might invite speculation “if not nipped in the bud”, with implications against the accused. Further, the Judge noted that the evidence might lead to references of past sexual conduct involving M with someone other than the accused. The Judge ruled that this was a collateral matter and that it was not appropriate to continue the line of questioning. After discussion with counsel, he determined he would direct the jury that the matter referred to involving K had nothing to do with the accused Mr Hookway, and that the topic would then be left.

[106] As Mr Sutcliffe says in his affidavit, he applied for leave under s 23A of the

Evidence Act and leave was not granted. Given the manner in which this issue was

dealt with at trial, we cannot see any basis for the appellant’s complaint that the evidence was not called. This was plainly a collateral issue and the Judge ultimately ruled against it being pursued but not until after he had allowed Mr Sutcliffe to address questions to M on the timing aspect of the incident with K, which was the only aspect that could have had any direct relevance in relation to M’s allegations against the appellant. The risks for the appellant of pursuing this line of questioning are apparent from the Judge’s reference in both his rulings on this issue, that it might lead to inferences or speculation adverse to the interests of the accused.

[107] Further, Mr Hookway only says that he “expected” Mr Sutcliffe to put this information in front of the jury. There is no evidence or allegation that he instructed Mr Sutcliffe to do so and that Mr Sutcliffe declined to follow his instructions.

[108] The second incident was also very much a collateral issue and could not have had direct relevance as Mr Hookway claims, in relation to the allegations by M against him. The appellant and E were in totally different relationships in respect of M. Nor is there any similarity or link in the level of the gravity, or nature of the conduct alleged, even if there were a basis for inferring that E’s conduct had sexual connotations. That M made a complaint to the Hookways about E’s conduct is not probative of anything in relation to the much more serious complaint she made five years later against the appellant.

[109] These points have no merit. This conclusion also disposes of ground (b)(ii)

[110] For the reasons given above, we conclude that none of the further evidence considered above could have affected the outcome of the trial, either separately or cumulatively. Accordingly its omission from the evidence adduced at trial cannot give rise to a miscarriage of justice. Consideration of whether there was error or irregularity on the part of counsel therefore becomes unnecessary: Sungsuwan at [70]. However, we would observe that although Mr Sutcliffe accepts he “dropped

the ball” in a couple of respects, in the circumstances, that did not amount to error which threatened the safety of the verdicts, giving rise to a miscarriage of justice.

[111] On the fifth day of trial, an application was made by Mr Sutcliffe for discharge of one of the jurors pursuant to s 374(3) of the Crimes Act 1961. In ruling No 7 Judge MacLean, having referred to the relevant tests, held that the threshold of concern had not been reached and refused the application.

[112] The appellant submits that there was not the necessary appearance of impartiality in respect of the juror in question and that accordingly there was a real risk to the fairness of the trial for the juror to continue and to be in a position to influence other jurors. This, it is submitted, resulted in or at least contributed to a miscarriage of justice and in those circumstances the matter may properly be addressed on appeal notwithstanding s 374(8), which provides that no Court may “review” the exercise of any discretion under s 374.

[113] The Crown submits that the appellant seeks to challenge the exercise of the Judge’s discretion and to ask this Court to form a contrary opinion, namely that the juror was not impartial, i.e. was biased. The Crown notes that the Judge reached his decision after hearing from witnesses and being a witness of sorts himself, that there was no evidence of bias and no reason to find that the juror was incapable of doing his duty. That, submits the Crown, is an exercise in which this Court cannot engage on appeal absent a miscarriage of justice which must arise as a consequence of the exercise of the Judge’s discretion under s 374, otherwise s 374(8) is rendered a nullity and the very purpose of the non-reviewability clause is defeated.

(1) Subject to the provisions of this section, the Court may in its discretion, in the case of any emergency or casualty rendering it, in the opinion of the Court, highly expedient for the ends of justice to do so, discharge the jury without their giving a verdict. ...

(3) Subsection (4) applies if, at any time before the verdict of the jury is taken, the Court is of the opinion that –

(c) The spouse, civil union partner, or de facto partner of a juror, or a family member of a juror, is ill or has died; or

(e) A juror is closely connected with one of the parties or with one of the witnesses or prospective witnesses.

(4) Where this subsection applies, the Court, having regard to the interests of justice, may, -

(b) Subject to subsection (4A), make an order to proceed with the remaining jurors and take their verdict.

[115] The Judge commenced his ruling by noting that the application for discharge was made pursuant to s 374 and that s 374(3) applies if the Court forms the opinion that a juror is incapable of continuing to perform his duty. He noted that defence concerns about the particular juror had been raised with him earlier in the day and that because he was “in effect, a sort of witness as well” he had kept a close watch on the particular juror during the rest of the day. He said it was pertinent to note that it had been a difficult trial to that point.

[116] In relation to his own observations of the particular juror he said at [7]:

It is clear to me that this particular juror is an animated, rather outspoken man. He is of somewhat striking appearance with what I would describe as rather piercing eyes, dark eyes and I just mention that because there is a perception here from defence counsel and others that he has been in effect glaring in the direction or directing venomous looks that have caused both defence counsel and the accused’s brother to feel uneasy and unsettled. I accept that when they tell me that, that is absolutely a true reflection of their

position. But it may be that it is partly simply in the way he looks. The way he acts.

[117] He observed that the cross-examination of M had been “fairly gruelling” and that her reaction had been “more vigorous than I have ever seen in this sort of trial before a jury”. He said he mentioned that because emotions had been running quite high and in that context (at [9]):

... one needs to be careful about being critical of emotions being visibly expressed by any particular juror or jurors.

[118] The Judge then summarised the perceptions of others who addressed him. He said Mr Sutcliffe had spoken about his real, and the Judge accepted, genuine sense of unease, that he had been singled out unfairly for scrutiny by this particular juror, that there had been disapproving looks which Mr Sutcliffe perceived was reaction only against him and the defence and not against the Crown. He recorded that Mr Sutcliffe had also referred to an unpleasant encounter he had some time in the past with this particular juror on a sporting occasion and that he thought this may be possibly linked to the conduct of the particular juror which he described.

[119] The Judge also referred to comments by Mr Sutcliffe’s junior Ms Walkington who also detected that the juror was glaring in the direction of defence counsel and/or the accused himself, leaning forward muttering and appearing to go quite red in the face when particular points were raised, usually according to her, in relation to the accused’s actions or non-actions.

[120] The Judge recorded that the Registrar said the frequency of the breaks had been causing visible frustration not just with this juror but with others of the jury, but aside from that he had not detected anything else of particular concern.

[121] Mr Crier had referred to the apparent flushing of the face of this particular juror which the Judge said in Mr Crier’s perception, occurred not just in the courtroom environment but also outside the courtroom. Mr Crier saw this man as a jovial, expressive man apparently popular with at least some of the other jurors. He had been seen to approach staff and to shake hands with one of the prison officers who was present, not on that day but at the beginning of the trial, and then drew to

the attention of staff that he did know one of the prison officers. He was told by staff that it was not a concern.

[122] The Judge then referred to the evidence of the appellant’s brother, Mr Trevor Hookway, who had been present through most of the trial but of course not during the period when M gave evidence. He referred to “visual intimidation” by this juror, glaring and focusing not on the proceedings or witnesses, but in the direction of defence counsel.

[123] Finally, the Judge referred to the evidence of the officer-in-charge Detective Sergeant Carr who had been present pretty well throughout the trial, including while M gave evidence. He agreed the particular juror seemed to be muttering and reacting from time to time, particularly during defence counsel’s cross-examination. He recalled it was this juror who at an early stage of M’s evidence drew attention to the fact that she could not be heard. The Judge said there could be no complaint about that; it was the situation and one would hope and expect that the juror would bring it to the Court’s attention.

[124] The Judge then considered the relevant authorities as to the application of s 374(3). He referred to R v M (1991) 7 CRNZ 439 at 442 (CA):

“Incapable” must therefore include the case of a juror whose continued presence on the jury would jeopardise the fairness of the trial to either side or make the verdict abortive or seriously vulnerable.

But if there is a real risk that a fair-minded and impartial observer aware of all the relevant circumstances might reasonably feel [that the accused has been unfairly convicted], grounds exist for this Court to intervene.

[126] The Judge observed that while the intervention in Morris was at the appeal level he considered the principle applied equally in the circumstances he confronted. He further referred to R v Billy-Joe Friend [2006] EWCA Crim 794; [1997] 2 Cr App R 231 at 246, a decision of the English Court of Appeal referred to the Judge by the Crown where the principle in Morris was articulated and it was said that the test is whether there is a

real danger of bias on the part of a relevant member of a tribunal and whether there was a real danger the bias had influenced the decision.

[127] In applying those tests to the facts the Judge accepted that the expressions of concern by the defence were genuinely held but it was, he said (at [25]):

... drawing far too long a bow to say that I could move to a situation where I could say that I am of the opinion that there is a real risk of the type that is referred to in the decisions, in this case a real risk of the particular juror approaching the matter in an inappropriate and/or biased way and that that then is going to have an influential effect on the rest of the jury.

[128] He noted the necessity to remember that the particular juror was one only of twelve and that while he might be a natural leader or even the “jury clown” there were eleven other jurors including a lady foreman who appeared to be a very capable person, who would be able to control the situation if necessary -

[129] The appellant submits that the application made by Mr Sutcliffe for discharge of the particular juror did not focus on the juror’s potential incapacity or lack of impartiality, but rather on defence counsel’s belief that he and the juror had been involved in a minor incident on the soccer field. It is submitted that this approach was misguided, diluted the force of the application and was not a basis upon which the appellant “wanted” the application to be advanced.

[130] We do not accept that submission. It is quite clear from the Judge’s ruling that while he appropriately considered the concern raised by Mr Sutcliffe about counsel’s previous encounter with the particular juror, he expressly considered the concerns stated about bias and prejudice and lack of objectivity by this particular juror, referring himself to passages from relevant judgments as to the appropriate test to be applied. At the end of his ruling he signalled to counsel that he might need to consider a “beefed up” direction to the jury on bias, prejudice and objectivity. There is no basis for any suggestion that the focus of the Judge in his ruling was diverted by a concentration on the minor incident involving counsel.

[131] Further, as Mr Sutcliffe points out in his affidavit, had the appellant wanted to give evidence on the matter and had he had something to say which would have assisted, he would have called him to give evidence because there was no particular prejudice to the defence case in his doing so, had there been any point. There is no substance in the appellant’s assertion (refer [5](b)(iii) above) that Mr Sutcliffe failed to take proper instructions on this issue.

[132] Since the above ruling was given in this case, this Court has given judgment in R v Rajamani CA140/06 20 December 2006 which was concerned with the application of s 374(4A) because the trial Judge decided that the trial should proceed and a verdict be taken from ten remaining jurors. This Court said at [17]:

It is clear that s 374(4A) gives the trial Judge a wide discretion. Subsection (8) does not allow a reconsideration by an appellate Court of the grounds upon which the Judge reached his or her decision (see R v Ross CA268/00

21 November 2000). To allow this would be to ignore the plain words of the section. However, subs (8) does not “trump” the power of this Court to

The appellant’s real complaint is that he is not satisfied with where the balance was struck by the Judge. This is, in our view, directly within the Judge’s discretion in subs (4A) and is an attempt to review the Judge’s decision in breach of subs (8). We are satisfied that what the appellant seeks to convince this Court to do is exactly what is prohibited by subs (8). The Judge took into account relevant factors in reaching his decision. He considered these circumstances constituted exceptional circumstances and that it was in the interests of justice to proceed. It was open to him to reach this conclusion. No miscarriage of justice has been identified. This ground of appeal therefore fails.

[133] On appeal to the Supreme Court (Rajamani v R [2007] NZSC 68) the Court determined that whether “exceptional circumstances” for the purposes of subs (4A) exist is not a matter of discretion and therefore is a matter which can be appealed. However, if exceptional circumstances do exist, no Court may review the exercise of the trial Judge’s discretionary decision whether it is in the interests of justice to proceed with ten jurors. In that case the Supreme Court held that exceptional circumstances had not been established and that therefore the decision was not within the discretion of the trial Judge.

[134] The Supreme Court did not deal directly with the finding of this Court in Rajamani that subs (8) does not “trump” the power of the Court to allow an appeal based on a substantial miscarriage of justice. However, in R v Marshall [2004] 1

Whether it is appropriate for a jury to be discharged under s 374(1), however, turns on whether it is “highly expedient for the ends of justice to do so”. That depends on whether there is a reasonable danger or reasonable apprehension of a miscarriage of justice in the circumstances: R v Pearson [1996] 3 NZLR 275. Section 374(8) provides that no Court may review the exercise of this discretion under the section. However, this does not prevent appellate scrutiny of a refusal to discharge.

[135] This was not a case as in Rajamani, where a factual basis of “exceptional circumstances” had to be established before the Judge could exercise his discretion. In this case the Judge acted under s 374(3) and (4) by which he had jurisdiction to discharge if he was of the opinion that the particular juror was incapable of continuing to perform his duty. He made a discretionary decision. Section 374(8) precludes review of the exercise of that discretion by the trial Judge.

[136] However, we are satisfied that here there was here no substantial miscarriage of justice that suggests this Court should intervene in its overall residual discretion to allow an appeal if the circumstances disclose a miscarriage of justice. The Judge approached the issue in an entirely appropriate manner. He heard evidence or statements from all persons the defence considered could contribute to the background to the issue. He heard submissions from both parties. He directed himself to the relevant statutory provisions and the tests that should be properly applied and he reached a decision in the exercise of the discretion conferred upon him by s 374(3) and (4). The decision he reached was open to him on the evidence. No miscarriage of justice has been identified.

[138] W was called by the Crown and gave evidence that she and M were very close friends. She said that in February 2005, “at around the beginning of the year”,

she had spent the day drinking at the home of one of M’s aunts. She was not going to school at the time. When M arrived at the house after school W could see she had been crying. She pulled M into a room and talked to her. M disclosed that she had been molested and raped by the appellant for a long time. M was crying as she disclosed these matters.

[139] M’s evidence was that she disclosed the offending by the appellant to W within a month or a couple of months of running away from the Hookways, which she did on 15 January 2005. She was 14 years old at the time and W was 16. She said she had not felt able to trust anyone and she had not told anyone about the offending including the professionals who had been involved in her care. She said she “could not handle” living with her uncle, with whom she had gone to stay in Fairfield when she left the Hookways. It was while she was staying with her uncle and his partner that she made the disclosures to W. (Evidence for the defence during the trial was to the effect that the uncle was a very unsuitable caregiver and the Hookways had expressed grave concerns in the past about the uncle having access to M and her brother. M had expressed concern in the past about staying there.)

[140] There was no s 344A application in respect of the evidence of W. Mr Sutcliffe said in his affidavit that while he had discussed the evidence of W with Mr Hookway it was not in the context of it being inadmissible evidence. Indeed, it was seen as evidence that could be relied upon to undermine M’s credibility. This arose because W had given evidence at depositions and in a statement to the Police, that M had also disclosed to her that when she returned to the Hookways’ home on

18 January 2005 to collect her belongings, the appellant had attempted to rape her. This evidence was quite inconsistent with M’s account to the Police in which she simply referred to being pushed to the ground by the appellant.

[141] W’s evidence at trial about the first disclosure was reasonably clear and succinct but she was very vague about the second disclosure. She said she could not remember. Mr Sutcliffe referred her to her statement to the Police to prompt her memory. She had to agree with Mr Sutcliffe that in her statement to the Police she said that a few days later M told her she had gone back to her old caregiver’s house and that the appellant had tried to hold her down and tried to rape her again. But she

said that when she wrote the statement she could not really remember, and while she was sure of what M had told her had happened when she was aged five to 12, everything else was “a bit blurry”. When pressed by the Judge to say what she could now remember about the second incident, she said she remembered M saying that when she went back to get clothes and stuff he (the appellant) tried to do something, but she did not really remember whether he tried to rape M or tried to hit her or something.

[142] The appellant submits that the evidence given by W of the disclosures to her did not qualify as recent complaint evidence and should not have been led. Mr Jones submitted that the admissibility of the disclosures in the first conversation should have been challenged on the basis that they did not qualify as recent complaint evidence, and W could then have been called by the defence to give evidence of the disclosure by M in the second conversation, which was inconsistent with the evidence that M gave in her interview with the Police.

[143] The Crown submits that had there been a pre-trial hearing the Judge would have allowed the evidence of recent complaint. The Crown noted that on the authorities “the first reasonable opportunity” includes consideration of the complainant’s age, nature, personality, relations with others and especially with the person to whom the complaint is made, the circumstances of the occasion of complaint and the reasons for delay in making the complaint: R v Nazif [1987] 2

[144] The Crown submits that the complaint was made very shortly after M left the Hookways, within a month or a couple of months. M was only a child. She had not been able to trust anyone; it was perfectly natural and reasonable that a child or teenager already upset by something might well “unbottle a secret” she had long kept to herself, to a close friend almost her own age. Further, it is unrealistic to suggest that a reasonable opportunity earlier arose for disclosure to the uncle and his partner, in the circumstances where she did not have a close relationship with those people and said in evidence “she could not handle” living with her uncle, and there was defence evidence to suggest the uncle was an unsuitable caregiver.

[145] Ms Laracy further emphasised the tactical decision available to the defence in having the Crown call W so the defence could then cross-examine and prove the inconsistent statement M had allegedly made to W, to the effect that when M returned to the Hookways’ home on 18 January 2005, the appellant had tried to rape her. Counsel noted that Mrs Hookway and M’s cousin gave evidence of a physical encounter between M and the appellant on 18 January 2005 but there was no evidence of an attempted rape. So if M did tell W that the appellant had tried to rape her on that occasion, it was either a lie or a gross exaggeration and would impact adversely on M’s credibility.

[146] We do not accept the appellant’s submission that the evidence of W as to the disclosures made to her by M in the first conversation did not satisfy the criteria for admission as recent complaint evidence. As this Court stated in Nazif, there are no hard and fast rules as to the time within which a complaint must be made in order to be admissible, and all relevant circumstances must be considered. In this case the circumstances of M’s departure from the Hookways’ home and her resorting to placing herself in the custody of her uncle and his partner against a background of mistrust and unsuitability as a caregiver of that uncle, do not suggest that a reasonable opportunity for earlier complaint realistically arose.

[147] This was not the situation of a spontaneous disclosure made after a specific event. It was a disclosure of prolonged sexual offending over a decade, made within about two months of M removing herself from the custody of the appellant about whom the disclosures were made. The disclosures were made to a close friend of about her own age who was not a person having legal or actual custody of her. In those circumstances we consider W’s evidence was properly admissible as evidence of recent complaint by M.

[148] There was also the tactical decision concerning the evidence of W. The recent complaint evidence clearly bolstered the credibility of M which was crucial in this case. But the evidence of W as to the disclosure in the second conversation about the appellant having tried to rape M when she returned to the Hookways’ home on 18 January 2005, which was either a lie or a gross exaggeration by M, clearly told against her credibility and was important evidence. Mr Sutcliffe had the

advantage of cross-examining W. While she was very vague as to what she recollected of the second conversation with M, by referring the witness to her statement to the Police counsel managed to draw out the inconsistency as best as he could in the circumstances.

[149] There was a final point taken by the appellant. The Judge asked W what she

I didn’t really remember if it was he tried to rape her or tried to hit or something, I can’t really remember.

[150] Mr Jones’ objection for the appellant was that what W remembered in Court was not the issue. The proof of the prior inconsistent statement by M to her, was.

[151] We do not consider this point has any significance. The response W gave to the Judge was consistent with her answers to questions put to her in cross- examination by Mr Sutcliffe when she said she could not remember what was said in the second conversation and further that she had told the Police she could not really remember. We do not consider the question as put by the Judge and the answer given, diluted the impact of the inconsistency between M’s account to the Police and the disclosure in the second conversation with W.

[153] The appellant submits Crown counsel latched on to a statement made by defence counsel in his opening remarks, that the complainant was motivated by “spite and malice”, and that by repeatedly referring to this factor in his closing address created a risk that the jury may have viewed the burden of proof as being shifted from the Crown.

[155] In the first place, the credibility of M was central in this case, as the appellant’s submissions emphasised throughout. Defence counsel in his opening address suggested to the jury a motive for M to lie, namely that M was motivated by spite and malice. Crown counsel in his closing address responded to that assertion by submitting to the jury there was no evidence that M was motivated by spite and malice.

[156] This was not a case where the Crown introduced the question, “why would she lie?” and addressed it repetitively, a situation addressed by this Court in cases such as: R v T [1998] 2 NZLR 257 and in R v Daleszak CA145/06 27 November

[157] The appellant’s submissions recorded that there were references to there being no evidence of spite and malice as a motive for the complainant to lie, at five points in Crown counsel’s closing address. However, this was in the course of a comprehensive closing address which was recorded over approximately eighteen pages of transcript, in which the references recorded by the appellant’s counsel appeared on five pages. The references were contextual and relevant, given the primacy of the credibility of the complainant to the Crown case.

[158] Secondly, the issue of the onus of proof was firmly and properly dealt with in the summing up of the trial Judge, which counsel for the appellant accepts. The Judge directed the jury:

The onus is on the Crown. It rests on the Crown from beginning to end. There is no onus on this accused at any stage to prove his innocence. He doesn’t need to call or give evidence. The Crown has to prove the essential ingredients beyond reasonable doubt before you can make your verdict of guilty.

[159] Later in his summing up the Judge returned to the issue of onus of proof in the context of raising the question, why would the complainant lie. He said:

But as you consider this, it’s important just to step back and remind yourself of that core principle that I talked about right at the beginning. The accused does not have to prove anything. The onus is on the Crown. So there is no onus therefore on an accused to provide or prove a credible answer to that question, why would she lie? Remember the central issue for you is have the Crown proved the charges?

[160] We therefore reject the submission for the appellant that while the Judge dealt with the matter properly in his summing up “the damage had already been done” during the course of the Crown closing. Even if there were unfair prejudice arising from the Crown closing, the Judge in his summing up clearly and firmly addressed the issue not only in general terms but in the context of motive to lie. There was thus no risk the jury might have viewed the burden of proof as having in some way or to some extent moved from the Crown.

[161] Mr Hookway says he raised this matter with Mr Sutcliffe some time before the trial started and that he raised the matter again after the application to discharge the “rogue juror” was unsuccessful. He states that he told Mr Sutcliffe clearly if the verdict went against him he wanted the jury polled.

[162] Mr Sutcliffe has no recollection of any instruction to poll the jury. He says he has a vague recollection of the matter being raised before the trial but no recollection of any decision to poll the jury in this particular case. He says that had he been instructed to seek a poll of the jury he would have done so, but he simply cannot remember the instruction being given to him. Further, that if the appellant had an expectation that a poll would be sought, then he did not understand this to be the case. Nor had the appellant complained to him that he wanted the jury polled, nor asked him why he did not request the Judge to do so, at any time after the trial, although he met with the appellant and members of his family on a number of occasions following the verdicts and after sentencing.

[163] We accept that had Mr Sutcliffe been given an instruction to poll the jury in the event of an unfavourable verdict, he would have acted upon it because he would have been obliged to do so. Wishes or expectations are not instructions.

[164] The Judge’s summing up and the Papadopoulos direction subsequently given made clear to the jury the requirement for unanimity. In summing up the Judge said to the jury:

Now, just before I conclude, I remind you that your verdict needs to be unanimous. When we ask you for your verdicts, if and when we get to that point, then Mr Registrar will ask you, “is that the unanimous verdict of you all?” Now we don’t expect you all to shout out, yes, yes, yes, etc. But it is the last opportunity if there is any dissent, for it to be seen. Now its very rare for that to happen, but Madam Foreman is speaking for you all, and we just have to make doubly sure, just want to reinforce that it must be the conclusion of you all. You must all agree on it.

[165] Subsequently when the Judge delivered a Papadopoulos direction to the jury he referred to the need for unanimous agreement, that no-one should be false to their oath, and that if in the end the jury could not honestly agree then the foreman was to so advise.

[166] Thus, the members of the jury were clearly directed by the Judge as to the need for unanimity before they could bring in verdicts and cannot have been in any doubt about that requirement.

[167] Further, given that Mr Hookway says his motivation to call for a poll was concern about “the rogue juror” improperly influencing the jury in the course of their deliberations, it is not clear that the Judge would have been persuaded on that ground to exercise his discretion to direct that the jury be polled. He had already in declining the application under s 374 of the Crimes Act to discharge the “rogue juror”, determined there was no real risk established that the juror would approach the trial in an inappropriate or biased way or exercise undue pressure or influence over other jurors.

[169] As indicated at the hearing of the appeal, following the hearing we sought a report from the trial Judge as to these matters by means of a question approved by counsel for the appellant and the Crown. We also invited further submissions. We

have received and considered further submissions filed by counsel for the appellant dated 5 and 15 November 2007 and by the Crown dated 8 November 2007.

[170] The full trial was digitally recorded. The Crown provided us with a disk of the relevant part of the trial proceedings and we have listened to that recording.

[171] Crown counsel at the trial, Mr Crayton and Ms Clark, also listened to the relevant part of the disk and in a letter dated 5 November 2007 to the Crown Law Office set out their summary of the relevant events as confirmed by the digital recording. Mr Jones has seen this letter and approved its being put before the Court.

[172] From those sources, we conclude that the following was the sequence of events:

Thursday 21 September 2006	3 p.m.	Jury retire to deliberate
	10:18 p.m.	Jury retire for the night to accommodation arranged by the Court
Friday 22 September 2006	10:10 a.m.	Judge receives a note from the jury. Judge gives a Papadopoulos direction.
	2.15 p.m.	Verdicts returned

[173] When the Judge returned to Court at 10:18 p.m. on 21 September 2006 he explained to counsel in the presence of the accused that there had been no communication at all from the jury except a communication to the Crier that the jury were ready to pack it in for the night. Mr Sutcliffe inquired whether bail could be granted to Mr Hookway overnight. The Judge remanded him in custody.

[174] At 10:10 a.m. the following morning, 22 September 2006, the Judge returned to Court. Counsel and the appellant were present. The Judge indicated that he had a message from the jury, that he could not share it with counsel in the circumstances and that counsel would understand that. He stated that the note indicated the jury were “stuck or deadlocked”. The Judge said he intended to give the jury a

Papadopoulos direction. He gave counsel an opportunity to indicate whether they agreed with that proposed course of action.

[175] Mr Sutcliffe responded by saying: “Sir” (indicating affirmation). Ms Clark who was then representing the Crown made no audible response. The Judge then asked whether the jury could be brought in.

[176] It is clear from the digital recording that Mr Sutcliffe did not oppose the giving of the Papadopoulos direction when the Judge proposed it. Mr Sutcliffe states in his affidavit that when the Judge raised the possibility of a Papadopoulos direction his response was to discuss the matter with the appellant briefly and he then advised the Judge that the appellant was opposed to the giving of a Papadopoulos direction. Mr Sutcliffe has confirmed subsequent to the digital recording being made available and the events being recorded in the letter from Mr Crayton and Ms Clark, that his recollection was incorrect.

[177] The appellant’s recollection that he did not know the jury had sent a note to the Judge, cannot be correct. He was in Court when the Judge advised counsel that he had received a note from the jury, though the Judge did not convey its precise contents, merely its tenor. Nor is it correct that the 50/50 split on the jury was made known to the appellant during trial. Mr Hookway was uncertain about this but Mrs Hookway stated that the split on the jury was made known during trial. This cannot be correct because the contents of the jury note were not conveyed by the Judge. Mr Sutcliffe says it was some weeks after the trial that he gave the appellant this advice, which must have been the case.

[178] When the jury were back in Court the Judge delivered a Papadopoulos direction. He prefaced the direction by observing that he understood the jury were effectively deadlocked and that what he was about to say was intended to help them. The Papadopoulos direction that followed was in standard terms and was delivered in a low-key manner and tone, consistent with the Judge’s indication when introducing the direction that he was trying to help the jury and intended no criticism of them. He concluded that he was asking the jury:

[180] The Judge did not provide the full contents of the note to counsel, simply advising that the jury were “stuck or deadlocked” and that he intended to give the jury a Papadopoulos direction. The Judge was correct not to disclose at trial the jury’s voting: Ramstead v R [1999] 1 NZLR 513 at 517 (PC). This was not information that should have been conveyed by the jury to the Judge, but given that it was, it would have been inappropriate for the Judge to further breach the confidentiality of the deliberation process by conveying the information to counsel.

[181] The fundamental issue is whether the Papadopoulos direction should have been given in the particular circumstances of this case.

[182] The appellant submits that in the circumstances of this case a Papadopoulos

Indecision does not equate to deadlock. Deadlock is definite. Indecision shows a lack of unanimity or agreement at that point. Stating that the jury is at deadlock after many hours of deliberation and having been out over night when there is but one issue to consider, is not reporting difficulty in agreeing or asking for further guidance from the Judge ... a deadlock is an impasse. It reflects a situation which is incapable of legitimate resolution. It is the position the direction is designed to avoid ... as a matter of principle a Papadopoulos direction should not be given when the jury has advised they are deadlocked.

Indecision does not equate to deadlock. The term “deadlock” suggests that the jurors cannot agree, whereas expression of an inability to decide at a given time is suggestive of the need for further time to reflect. Communication of a state of indecision does not preclude the reasonable possibility of subsequent agreement.

[184] The Crown submits that nothing in the actual words of the jury note or the circumstances in which the Papadopoulos direction was given in this case, suggests

that the direction and the opportunity for further deliberation was likely to cause six jurors (at that point in favour of not guilty verdicts) to succumb under pressure to concur in guilty verdicts. The Crown accepts the jury were no doubt genuinely “deadlocked” at the point they sent the note (although that expression was not used in the jury note), but submits it is important that the particular words used in the jury note, while a relevant factor in assessing the safety of the deliberation process, are not determinative of the course of action that should be taken when a jury indicates to a Judge that they are having problems in reaching unanimity. Judicial experience shows that time and time again when encouraged to go away and try and work through some of the issues, those who previously believed they held intractable positions are able to find common ground. Accordingly too much weight should not be put on the particular words that any particular jury happens to use in their communication to the Judge.

[185] The Crown further submits that in Bradbury this Court was not purporting to establish a distinction between “indecision” and “deadlock” such that certain legal consequences follow from one state but not from the other. Rather, it was a case in which the terms of the jury communication, and all the circumstances of the case, suggested that the jury might still be able to make progress without being pressured. Ms Laracy pointed to the observation in Bradbury, that a great deal of latitude must be extended to the trial Judge in deciding what is the appropriate response.

On any view, it would be wrong in principle to require a trial Judge to take a particular course of action, at any stage of the deliberation process, once informed that a state of indecision exists. A Papadopoulos direction is but one of the tools available when a trial Judge is dealing with issues arising during the deliberation phase. We are aware, from our own trial experience, that such issues can raise difficult problems with which a Judge is required to deal quickly and with little time for reflection. The Judge has the advantage of understanding the atmosphere and trial dynamics at the relevant time. A good deal of latitude must be given to trial Judges when dealing with issues of this type.

[187] In the Crown’s submission, it is inappropriate to speculate as to the deliberation process undertaken by the jury, but in the circumstances of this case

there is no basis for finding that the jury may have been pressured to its verdict or that the verdict is in any way unsafe.

[188] The nature and purpose of a Papadopoulos direction was discussed in R v Accused (CA87/88) [1988] 2 NZLR 46. Cooke P identified “three cardinal points” on which such a direction should be based at 58:

First, jurors have a responsibility to accept their duty of endeavouring to give a verdict according to the evidence. The duty can be an unpleasant one and a natural human tendency of some jurors not to face it is a well-recognised risk. The Judge has a discretion under s 374(2) of the Crimes Act 1961 to discharge a jury without their giving a verdict, after they have remained in deliberation for such period as he thinks reasonable, being not less than four hours. The Court is then required by s 374(6) either to direct that a new jury be empanelled during the sitting of the Court or to postpone the trial on such terms as justice requires.

The legislation has been in this mandatory form since the enactment of s 13 of the Crimes Amendment Act (No 2) 1980. Previously ss 153 and 164 of the Juries Act 1908, which were repealed by the 1980 legislation, had used more discretionary language, although it had been held that the prosecution was entitled to a new trial as of right (R v Aves [1937] NZPoliceLawRp 3; [1937] NZLR 110). The statute now makes it clear that a new trial will normally follow as of course once a jury has been discharged for failure to agree, subject only to the Attorney-General’s right under s 378 of the Crimes Act to direct a stay of proceedings. We think that it will normally be advisable for a trial Judge to tell a jury, after they report difficulty in agreeing, that if he decides to discharge them a new trial will ordinarily follow. Otherwise they or some of them may be unsure or under the illusion that the proceedings against the accused will be at an end in a stalemate. The Judge could properly omit this intimation if there was special reason to think that the Attorney-General might enter a stay – for instance, after more than one disagreement.

The second cardinal point is that collective deliberation and exchange of views is of the essence of the jury system. It is right to remind members of a jury that they have a duty to listen to and weigh dispassionately one another’s views, and that an honestly held view can be honestly changed as a result.

The third cardinal point is that no juror should change his or her mind merely for the sake of conformity or out of submission to pressure by other jurors; in the end no juror should vote against his or her conscientious view based on the evidence. This is an elementary and essential bulwark of the jury system.

[189] Having regard to those three cardinal points, this Court approved a form of direction. It is unnecessary to repeat the approved form of direction here. Judge MacLean followed the approved form of direction in this case and the form of his direction is not criticised. The criticism here is essentially that the giving of the Papadopoulos direction in a situation where the jury were effectively deadlocked could well have put pressure on the jury to reach unanimity thereby rendering the verdicts unsafe.

[190] This Court has had occasion to consider the Papadopoulos direction in several cases over recent months. Bradbury is one such case. The accused faced cannabis related charges. The issue on appeal was whether the trial Judge was obliged to give a Papadopoulos direction after the jury had been deliberating for four hours. He had not done so, but had caused the jury to retire over night at about

[191] There had been two communications from the jury. The first communication was:

[192] This Court held that the two communications could not be fairly read as indicating deadlock. Rather, they indicated that as at a certain time the jury were unable to agree. The Court held that the course adopted by the trial Judge was open to him and indeed the preferred course in the circumstances. Thus, the decision in Bradbury followed communications from the jury which the Court found to indicate indecision rather than deadlock, and the Court was not required to determine what the appropriate course of action would have been had the jury in fact been deadlocked.

[193] In R v Te Maari [2007] NZCA 279 the appellant was found guilty of one charge of sexual violation by rape and one charge of digital penetration. He was

found not guilty on other counts involving the same complainant. In all, the jury were required to reach verdicts on five charges.

[194] The jury reached their verdict after deliberating for almost ten hours, having twice found themselves unable to agree. First, after almost four hours into their deliberations and again one hour and 20 minutes before they reached their verdicts. After the second note from the jury the Judge gave the standard Papadopoulos direction. The appellant contended that the direction should have been given on the first occasion and on the second occasion the jury should have been discharged.

We are unable to come to any agreement (on any counts). Jury members stated ‘won’t change mind ever’. Please advise.

[196] Following this note the Judge urged the jury to continue deliberating, incorrectly assuming that four hours had not passed (at which point he was able to discharge them under s 374), but clearly considering a discharge would be premature.

[197] The second note to the Judge was received at 8 p.m. after the jury had had an evening meal. It read:

[198] Crown counsel invited the Judge to give a Papadopoulos direction. This was opposed by defence counsel who submitted it could impose improper pressure on the jury. The Judge rejected that submission and gave a Papadopoulos direction at

8:13 p.m. He inquired through the Registrar at 8.48 p.m. whether the jury was making progress to which an affirmative answer was given. The verdicts were returned at 9.35 p.m.

[199] This Court concluded that the Judge was right not to take the jury’s first note literally and to respond as he did by inviting the jury to attempt to resolve any difference between them. The jury had to consider three separate incidents expressed in five counts following a trial that had extended into a fifth day. It was

too soon to assume that their inability to agree was irretrievable and the Judge did not impose any pressure on the jury, nor did he rebuke them.

[200] This Court accepted that following the second note at 8 p.m. the Judge could have discharged the jury but considered he was equally entitled to give the Papadopoulos direction and then to inquire a short time after whether the jury were making progress. The hour was not inordinately late although the jury had been deliberating for nearly nine hours. The verdict could not be described as a reflex response to pressure.

[201] The judgment in Te Maari is relevant in relation to the circumstances of this case. On its face the first note from the jury conveyed clearly that there was no agreement and that certain jurors would never change their minds. Thus, on its face the note indicated a deadlock, but all the circumstances were relevant. In response to an inquiry from the Judge made about one and a half hours later, the jury indicated they were making progress. So, clearly such entrenched positions as may have been adopted when the first note was sent had been resolved, at least to the point where the jury could continue deliberating until they sent their second note some hours later at 8 p.m.

[202] Even the second note advising there were no charges the jury could agree on, might have been interpreted to indicate deadlock. But again in the exercise of his discretion the Judge had to place the advice from the jury in context in determining how to proceed and whether at that point of the jury’s deliberations and in the light of their advice, a Papadopoulos direction might be helpful to them.

[203] In R v D(CA9/06) [2007] NZCA 313, this Court held in the circumstances of that case that a Papadopoulos direction should not have been given as it created the risk of an unsafe verdict. The accused was convicted on a single charge of sexual violation by rape. The sole issue was identity. The principal question on appeal was whether the jury was put under too much pressure in being asked to deliberate and return verdicts on the third day of the trial which was Friday 14 October 2005. It was submitted that the Judge erred in giving a Papadopoulos direction at 8.20 p.m. that night rather than discharging the jury.

[204] The background is important. The accused’s trial was scheduled to begin on Monday 10 October 2005. Two jurors had to be discharged during the course of the first two days. The appellant opposed a retrial commencing on the Wednesday and continuing for the balance of the week. The retrial began with the Crown opening at

11 a.m. on Wednesday 12 October 2005. At 4.40 p.m. on Thursday 13 October 2005 the Crown closed its case. The accused elected to call evidence. The Court reconvened at 9 a.m. on Friday 14 October 2005. The opening address of defence counsel which was brief, was followed by evidence from the appellant. From

10.26 a.m. until 12.25 p.m. there were consecutive closing addresses from counsel for the Crown and for the appellant, following which the luncheon adjournment was taken. The Judge commenced his summing up at 1.45 p.m, concluded at 2.50 p.m. and the jury was asked to retire to consider its verdict at 2.51 p.m. The jury were recalled for further direction following submissions by counsel for the appellant after the Judge concluded his summing up. There was no further activity until 8.10 p.m. although it appears that in the interim there was a meal break. At 8.10 p.m. the Judge received a note from the jury which stated:

It doesn’t appear imminent that any jurors will be able to change their strong convictions. Where do we go from here?

[205] The Judge saw counsel in Chambers at 8.12 p.m. Over the objections of the appellant’s counsel, the Judge gave a Papadopoulos direction to the jury. At 10 p.m. the appellant’s counsel asked to see the Judge in Chambers because he had concerns over a potential compromise verdict and the length of the deliberations on a Friday evening. However, at 10.10 p.m. counsel were advised that a verdict had been reached and the verdict of guilty was delivered at 10.12 p.m.

[206] This Court referred to an earlier judgment in R v McEldowney [2007] NZCA

92 where a Papadopoulos direction was delivered at about 10.20 p.m. after the jury had been deliberating since 12.42 p.m. and guilty verdicts were returned about

40 minutes later at 11.10 p.m. This Court on appeal dismissed a submission of “undue pressure” based on the length of time the jury had been deliberating where the sole issue was the identity of the offender. Ellen France J delivering the judgment of the Court said at [24]:

Absent the “clearest indications of improper pressure on a jury”, the appellant’s argument “simply invites the Court to speculate”: R (349/05) v R CA349/05 4 May 2006 at [35].

Ellen France J’s observation in [R v McEldowney] about speculation must be viewed in the light of the inability to secure juror evidence on the precise nature of the deliberations, before and after the direction is given. We agree that it would be wrong to speculate, on incomplete evidence, about whether a jury’s deliberations might have been undermined by the length of the retirement, the possibility of coercion by strong minded jurors, fatigue, exhaustion or jurors wanting to free themselves from their civic commitment on grounds of convenience or family demands. But, in the absence of any ability to obtain evidence of what occurred in the jury room, the safety (or otherwise) of a verdict will, necessarily, need to be determined by reference to inferences that can properly be drawn from the totality of the evidence. The question in each case will be whether such an inference is available.

[208] The Court then went on to consider the circumstances in R v D(CA9/06) that led to its conclusion that there was a real risk that the verdict of guilty was unsafe having been obtained by improper pressure and thereby giving rise to a miscarriage of justice. The Court took into account such matters as:

• There were always difficulties in completing the trial once it was necessary to begin afresh on the Wednesday;

• That meant by Friday morning in order for the jury to complete its duties by the Friday night the jury were required to listen attentively to opening address from counsel for the accused, evidence from the accused, closing addresses from both counsel for the Crown and the accused and the trial Judge’s summing up (the Judge had been advised there was the local A & P show and wine festival that weekend which would raise a distinct prospect that accommodation for jurors if required would not be available on the Friday night). There was a risk, this Court held, that some of the jurors at least may have been feeling some fatigue when their deliberations began;

• Allowing for a dinner break of an hour the jury were deliberating for just over four hours on what was effectively a one issue case when they passed their “deadlock” note to the Judge at 8.10 p.m;

Given the time the jury had been deliberating and the amount of emotional and intellectual energy that would have been required to focus on the evidence and addresses they had heard that day, the note ought to have conveyed to the Judge the clear impression that the jury were unlikely to be able to reach a safe verdict that night. The likelihood of fatigue and the possibility of coercion by one group of jurors to achieve a particular result should not have been overlooked.

[209] The Court found that in the circumstances where jurors had deliberated for some time on an identity case and had expressed a clear deadlock, a direction from the Judge at that hour of night asking them to return to the drawing board, created a further risk of an unsafe verdict.

[210] Further, the Court was concerned with an addition the Judge made to the standard Papadopoulos direction to the effect that the jurors should focus on the main issues in the case and not get too bogged down in the detail. While the trial was in one sense a single issue trial (identification), there were various evidential discrepancies which the jury would have needed to consider carefully. The Court also had concerns at the failure of the Judge to tailor his summing up to the real issues in the case and to leave the transcript of evidence with the jury for them to consider.

[211] On the basis of the authorities above referred to it is clear that in deciding whether to exercise the discretion to give a Papadopoulos direction to a jury who is having difficulty in reaching unanimity, the focus of the trial Judge must be much wider than the words of the jury note that conveys the advice of the difficulty. The focus must be whether in all the circumstances it is safe for the jury to continue deliberating. If there is a risk of an unsafe verdict in all the circumstances as they are known to exist at the time the decision must be taken, then it is inappropriate for a Papadopoulos direction to be given. On the other hand, if in the circumstances as the Judge knows them to be, he or she concludes that there is still a possibility that

[212] The actual words used by the jury will be an important, but certainly not the sole or even the primary indicator, which should guide the Judge in the exercise of the discretion. Words such as “deadlock”, “impasse”, “rock solid”, “unable to come to any agreement”, are not terms of art but words used by the jury to convey a situation which at the time they send the note to the Judge, expresses their view of the point they have reached. The purport of the message to the Judge may be to convey no more than was contemplated in R v Accused (CA87/88) at 59, that the jury are reporting difficulty in agreeing and in substance are asking for and are entitled to guidance from the Judge. All relevant circumstances as they are known need to be taken into account. The importance of this is demonstrated by Te Maari where after only about four hours the jury advised they were unable to come to any agreement on any counts and advised the Judge “Jury members stated won’t change mind ever”. As this Court held, it was clearly correct for the Judge to regard that advice, emphatic though it was, as premature in the circumstances, and not indicative of a deadlock.

[213] At the other end of the scale is R v D(CA9/06) where the language of the jury note did not include the words “deadlock” or “impasse”, but did state that it did not “appear imminent that any jurors will be able to change their strong convictions”. In reaching the conclusion that it was unsafe in all the circumstances of that case for the jury to continue deliberating, this Court considered the whole range of circumstances and factors that led up to the point when the jury gave the note to the Judge about their inability to reach unanimity. There were many factors in that case which caused this Court to conclude that a Papadopoulos direction carried the real risk that the verdict of guilty was unsafe, having been obtained by improper pressure in the circumstances of that case.

[214] In this case the following circumstances pertained when the Judge received the jury note advising him they were split 50/50 on the charges, “rock solid positions”, and asking how long they were to continue for:

• The jury had been in deliberation for approximately eight hours before they sent the note at 10.10 a.m. on Friday 22 October 2006 (from 3 p.m. to 10.18 p.m. on Thursday 21 October 2006 and about a further hour on the Friday morning). Within this period there was a meal break on the Thursday evening);

• The jury were required to deliver verdicts on 12 charges covering a period of approximately ten years, alleging sexual offending in a number of different places at different times;

• There was extensive evidence - the Crown called 12 witnesses and the defence

• While ultimately the central issue for determination was whether the jury believed the complainant, there were many conflicts of evidence and issues the jury needed to resolve in order to reach that ultimate determination;

• The note was passed to the Judge after the jury had returned fresh to their deliberations from a night’s rest;

• They had deliberated only for about an hour on the Friday morning and there had been no indications of previous problems;

• After the Papadopoulos direction was given the jury deliberated for about a further four hours (during which period they would have had a lunch break) before bringing in their verdict. There was nothing to suggest a reflex response by any of the jurors in order to achieve a unanimous verdict;

• No juror had given any indication of any pressure that might have arisen in his or her personal circumstances. There is nothing to indicate they did not return to their deliberations in the respectful considered manner which the Papadopoulos direction urged upon them. They did not seek any further assistance from the Judge prior to announcing that they had reached unanimous verdicts;

• The jury note indicated a 50/50 split. This was not a case where there was a real risk that a single member of the jury holding out against the unanimous view of the other 11, could have been placed under pressure to come into line. That six members of the jury changed their view indicates that the process of discussion, reflection and give and take recommended by the Papadopoulos direction, was undertaken; and

No-one should give in merely for the sake of agreement and to avoid inconvenience.

[215] In all those circumstances, while we accept that the Judge could have discharged the jury following receipt of the note, we consider he was entitled to conclude that there was still a possibility that consensus could fairly be reached, so that to give the Papadopoulos direction would not put undue pressure on the jury to reach a unanimous verdict.

[216] It was suggested by the appellant that it was required of the Judge to inquire of the jury whether they were making progress following a reasonable period after he gave the Papadopoulos direction and that this is “normal procedure”. Again we consider that whether such an inquiry is made is a judgment call which rests with the trial Judge, taking into account all the circumstances of the case. Here the jury had not been deliberating for an extremely lengthy period given the number and nature of the charges, it was not late at night, the jury had not indicated any difficulties or pressures other than their inability to reach unanimity and they made no request for further assistance from the Judge after the Papadopoulos direction was given. The Judge was entitled to conclude that an inquiry from him was unnecessary and would not have assisted. Indeed, he would have been entitled to reason that an inquiry could convey to the jury some sense of urgency or pressure which would have been undesirable and inappropriate.

[217] We conclude that the giving of a Papadopoulos direction in the circumstances of this case did not risk unsafe verdicts thus giving rise to a miscarriage of justice.

[218] Mr Hookway says in his affidavit that he did not know the jury had sent a note to the Judge and if he had he would have queried what was in the note. Further, he would definitely have wanted the jury to be discharged given the rogue juror. He says he was informed the Judge was going to give the jury a direction or redirection which he thought must be what happened in these situations.

[219] Although Mr Sutcliffe in his affidavit says he recollected that he had discussions with Mr Hookway and had opposed the giving of a Papadopoulos direction, following the disk of the relevant part of the proceeding becoming available he confirmed that his recollection must have been wrong. In answer to cross-examination Mr Sutcliffe recalled a discussion with Mr Hookway in which it was agreed that the best course was to “pull the plug on the trial” because of concerns about the rogue juror. But clearly that conversation did not take place after the Judge advised counsel a question had been received from the jury and the general tenor of that question, at 10.10 a.m. on Friday 22 September 2006. The recording confirms that the Judge briefly advised counsel and the accused of the tenor of the jury note, asked whether it was agreed that the Papadopoulos direction be given, to which Mr Sutcliffe is heard to assent, and the jury were then brought back into the Courtroom and the Papadopoulos direction delivered.

[220] We have concluded that the Judge acted entirely properly in not divulging the contents of the jury’s note to counsel and the accused, but instead of advising as to the tenor of the message. We have also concluded that the decision taken by the Judge to give the Papadopoulos direction was a conclusion he was entitled to reach in all the circumstances of the case.

[221] In advising counsel that he intended to give the jury a Papadopoulos direction, the Judge was indicating how he intended to exercise a discretion which was available to him. Mr Sutcliffe had no express instructions on the matter and indicating assent, made a judgment call (one of many) in the normal ebb and flow of the trial.

[222] For the reasons set out above in relation to polling the jury, we do not consider the Judge would or should have been persuaded from the decision he reached to give a Papadopoulos direction, by submissions in relation to the rogue juror about which he had previously ruled.

[223] We do not consider Mr Sutcliffe’s failure to take express instructions on this gave rise to a real risk of miscarriage of justice. This disposes of ground (b)(iv) (refer [5] above).

[224] Finally, although not expressed as a ground of appeal, Mr Hookway referred to the number of outbursts by M while she was giving evidence and that at one stage the Judge commented in front of the jury to the effect:

Mr Sutcliffe recollects such a comment, but there is no certainty as to when it was made other than when M was giving evidence.

[225] In the overall context of this case we do not consider that such a comment, even if it were overheard by the jury, could possibly lead to a risk of a miscarriage of justice.

Court of Appeal of New Zealand

R v Hookway [2007] NZCA 567 (11 December 2007)