The Queen v Jarden [2008] NZCA 48 (5 March 2008)

Last Updated: 14 March 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA292/07

[2008] NZCA 48

THE QUEEN

v

JONATHAN NUKI LUMMIS JARDEN

Hearing: 14 February 2008

Court: William Young P, Chambers and Robertson JJ

Counsel: R G Glover for Appellant
B M Stanaway for Crown

Judgment: 5 March 2008 at 3.30 pm

JUDGMENT OF THE COURT

Appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1] Mr Jarden was convicted at trial of conspiring to supply methamphetamine.
[2] He appeals against conviction because, on two occasions when applications were made, the trial Judge, Fogarty J, refused to discharge the entire jury. These decisions are alleged to have been erroneous, and to have given rise to a miscarriage of justice.
[3] Mr Jarden also appeals against the sentence of three years’ imprisonment on the basis that it was manifestly excessive, and based on wrong principles.

The first application

[4] Mr Jarden was involved in a joint trial along with nine co-accused for offences under the Misuse of Drugs Act 1975. Others had pleaded guilty to inter-related offending prior to trial.
[5] On the seventh day of trial, the Judge discharged one juror.
[6] This occurred after the Judge had met with the juror (apart from other jurors and in the absence of any counsel) and had learned that she was a nurse at a facility that dealt with outpatients suffering from psychosis. As a result, she knew who Mr Jarden was because she had treated his partner. The juror’s patient committed suicide prior to trial, and reference was made to her in the course of the trial.
[7] In reporting to counsel on what had occurred, the Judge said:

The lady in question struck me as being a very reliable and professional person who was telling the truth when she said she had not discussed the matter with the jury. I am currently of the view that the trial can continue with 11 jurors but I wish to hear counsel on that and also if counsel want time to think about that that is fine because it looks as though we have got another argument to happen. ...

[8] At the time there was no complaint by any counsel that the Judge had seen the juror without counsel being present.
[9] However, Mr Glover, on behalf of Mr Jarden, immediately initiated an application for the discharge of the balance of the jury without giving a verdict under s 374 of the Crimes Act 1961. This was supported by all other defence counsel but refused by Fogarty J.
[10] Mr Glover also argued before us that it was unorthodox of the Judge to have spoken with the juror in the circumstances that he did.

(i) The Judge’s approach

[11] We endorse the Crown’s submission that it would not have been appropriate for the interview to have occurred in the presence of the other jurors. Normally counsel should be present unless they have all consented to an alternative course of action: R v C (CA126/04) [2005] 3 NZLR 92 at 27, 28. It appears, at the time, that they did consent, although there may now be some resiling from that position.
[12] We are satisfied that no miscarriage of justice arose from what occurred in these unique circumstances, particularly in the absence of any objection from counsel, many of whom were seasoned and experienced criminal lawyers.

(ii) Possible contamination

[13] Next, Mr Glover submitted that there could have been, even unwittingly, contamination of the entire jury panel by this juror who had knowledge about Mr Jarden’s background and relationships. Upon analysis, this does not withstand scrutiny. It was at the very heart of his case that Mr Jarden had drug problems. The only knowledge of consequence that the discharged juror had about him and his circumstances was something which was not at issue in the trial.

(iii) The timing of the discharge

[14] It is important to remember that this occurred on 21 February 2007. The trial continued for another month. We accept the Crown’s submission that it is speculative (and so remote a possibility as to be inconsequential) that any comment by the juror (who was discharged at such an early stage in the trial) could have carried any weight in the jury’s subsequent deliberations.

(iv) Conclusion

[15] Everyone agreed that the first juror was properly discharged and, despite the detailed analysis undertaken by Mr Glover, we are satisfied that there is no sensible likelihood of a miscarriage of justice arising from the failure to discharge the entire jury at this juncture.
[16] This ground of appeal is rejected.

The second challenge

(i) Background

[17] This challenge was initially advanced by counsel for a co-accused as well as by Mr Glover. Again it was supported by all defence counsel.
[18] Prior to the trial, issues had been raised about the form, nature and tone of documentation which was to be made available to the jury. The Judge made rulings in response.
[19] Five days into the trial, it transpired that the jury had in their hands a spreadsheet which purported to index the Crown’s case and which, it is now contended, was “inaccurate, tendentious and contained material which was unsupported by the evidence” and was not in conformity with pre-trial rulings.
[20] There were 11 entries in the spreadsheet that contained commentary and had notes in the evidential text/conversations column, which were submissions and/or inferences on which the Crown invited the jury to draw in respect of taped conversations. There were some entries that had no evidential base.
[21] This had occurred because the Crown, in an endeavour to structure and focus its contentions against the various accused (including this appellant), and generally to assist the jury, had prepared the overall spreadsheet. In addition, what were described as “delivery books” were provided in respect of each of the separate incidents that were alleged to have occurred. There is no particular complaint about the delivery books and their contents. The complaint was that the spreadsheet contained material which was not covered by specific evidence. This material was text messages sent and received in between the various deliveries. Therefore, Mr Glover submitted, the jury had assertions which were both inadmissible and without probative value.
[22] Of particular relevance to Mr Jarden was the fact that, in the spreadsheet under the evidential text/conversations column, there remained editorial comment by the Crown, the nature of which had been objected to and which the Judge ordered was to be excluded pre-trial.
[23] It was accepted by Mr Stanaway that the text messages referred to as having been sent between the various deliveries were not the subject of evidence and should have been deleted from the spreadsheet. Apparently there had been some pruning of “delivery” material and there was an oversight in not reflecting this in the overview document. There was not a synchronisation in the pruning exercise. Similarly, it was accepted that there was, in the evidential text/conversations column of the spreadsheet, some contentions and commentary that should have been removed in accordance with the pre-trial ruling.

(ii) The setting

[24] In R v Menzies [1982] 1 NZLR 40 at 49, this Court said:

The use of time-saving schedules and charts to assist the jury in complicated cases can be very desirable and is not improper, provided that the contents are proved and that the Judge is satisfied that there is no unfairness: see Smith v R [1970] HCA 48; (1970) 44 ALJR 467, 469; R v Simmonds [1969] 1 QB 685, 690; [1967] 2 All ER 399,401. ...

[25] The starting point is that, properly prepared, material of this sort is unobjectionable. The provision of such data to assist a jury is non-contentious if it is kept within proper bounds.
[26] It has been recognised that human error will occur in this aspect of a trial as in others. In R v Marshall [2004] 1 NZLR 793, in considering the meaning of s 374 of the Crimes Act 1961, this Court held that accidental disclosure of prejudicial evidence to the jury can fall within the section’s ambit and said:

[15] Section 374(1) empowers the Court, in its discretion, to discharge the jury “in the case of any emergency or casualty rendering it ... highly expedient for the ends of justice to do so”. The phrase “emergency or casualty” was the subject of argument from Mr Lawry for the Crown. It is sufficient for us to say that on the ordinary meaning of “casualty”, in the context of s 374, an accidental disclosure of prejudicial evidence to a jury is plainly covered. In any event it is within the inherent discretion of a trial Judge to discharge a jury in such circumstances: R v Rongonui [2000] 2 NZLR 385 at p 397 per Elias CJ.

[16] 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. As is pointed out in Adams on Criminal Law, para 374.10, s 374(8) is not to be read as qualifying the duty of the Court of Appeal under s 385(1)(c) of the Act to allow an appeal if it is of the opinion that on any ground there was a miscarriage of justice.

[27] In light of this, Fogarty J concluded that any prejudice could be adequately dealt with, short of discharging the jury and aborting the trial.

(iii) What actually happened

[28] The offending material was in the jury’s hands from the commencement of the trial for five sitting days. Considering the extent to which these objected to entries are contended to be so egregiously in default, it is surprising that objection was not taken in a formal way from the moment they were distributed. It is unhelpful for counsel to be “muttering” and making veiled complaint in circumstances such as these. If there is a challenge, it should be plainly and unequivocally articulated and responded to by a definitive ruling as soon as the matter is in contention.
[29] The derelictions need be seen in perspective. The trial spreadsheet, which the jury had for five days, was 59 pages long and contained 2,734 individual lines. It is difficult to conceive that, at that early stage of the trial and when there had been no extensive reference to the offending entries, the entries could have had any appreciable effect on a juror who was merely browsing through it. There were a number of directions from the Judge that these materials were only an aid and that the case was to be determined on the basis of admissible evidence, which the jury had heard and accepted.
[30] When the challenge was properly mounted, the document was withdrawn. The opportunity for it having any influence thereafter can be ignored. When it came to the Crown closing, the jury was supplied with an amended trial spreadsheet which had been provided to defence counsel before being distributed to the jury. It was distributed without objection.
[31] In the circumstances, we do not consider the first spreadsheet could have had any long-term effect on the jury as it was withdrawn from the jury on 21 February and the jury did not retire to consider its verdict until 19 March.
[32] Importantly, Mr Glover took up an opportunity proffered by the Judge for counsel to provide the jury with his own spreadsheet which was entitled “Jarden Defence Spreadsheet”. It was two pages. It utilised part of the amended Crown trial spreadsheets, but had an additional column entitled “Defence submissions re Crown contentions”. This was an extraordinarily powerful aid in Mr Jarden’s defence, focussing as it did on the competing contentions.

(iv) Conclusion

[33] As this matter developed, the actual possibility of a miscarriage can be discounted. The mistakes should not have been made, but the response of both counsel and the Judge placed the matter in a sensible perspective, and averted the possibility of unfairness arising.
[34] Mr Glover speculated that, because the limited use of the material was mentioned more than once before the challenged spreadsheet was withdrawn, jurors may have highlighted passages and focussed upon the editorial columns and thereby “irreversible prejudice may have been created in the minds of some jurors”. This is speculation, which is quite unpersuasive in the totality of the trial dynamics.
[35] We are satisfied that no miscarriage of justice arose and that the replacement material expunged any risk which could have arisen.

Sentence appeal

[36] The Crown, in the High Court, submitted that a starting point of four to five years was appropriate having regard to the quantities of methamphetamine involved in the proposed deals and the alleged commerciality of what was occurring.
[37] The Judge did not adopt this submission, but said that he was satisfied that the Crown had proved beyond reasonable doubt that Mr Jarden had bought methamphetamine on more than one occasion and was more than just a user. He indicated there were difficulties in determining exactly what had occurred, but was satisfied that what was in issue did fit into a commercial drug dealing setting. He said the evidence was clearer in this regard in respect of cannabis, but applied to some degree in respect of methamphetamine, although it may have been quite minor inasmuch as a number of the purchases could have been for Mr Jarden’s own use.
[38] Fogarty J held that he should err on the cautious side, and therefore took his starting point at around three years. He said, “[y]ou are effectively right at the bottom of the chain of supply”, and that “it was not a case where the Crown could confidently identify any of [Mr Jarden’s] purchasers of methamphetamine.”
[39] The Judge then turned to Mr Jarden’s history and background and decided that there were no significant aggravating or mitigating factors to alter his initial assessment as to an appropriate sentence.
[40] Mr Glover submitted that, on the state of the evidence, it was inappropriate to have any regard to R v Fatu [2006] 2 NZLR 72 upon which the Crown and other defence counsel had asked the Judge to determine sentences. Mr Glover, however, contended that it was “logically and jurisprudentially unsound to assert that an agreement to supply where the amount is unspecified and it has not been proved can be subjected to a yardstick of criminality based on actual specified weights”. Counsel further submitted that it was “conceptually wrong to apply a concept of equivalents to mere agreements to supply an unspecified quantity as compared to actual supply or agreement to supply a specified quantity”.
[41] Accordingly, counsel argued that the Judge adopted a starting point which was manifestly excessive, and that he applied the wrong principles.
[42] The Crown argued from a different perspective. Since the sentencing, the decision of this Court in R v Te Rure [2007] NZCA 305 has indicated that distinctions may need to be drawn between conspiracy and actual offending. However, the Court noted that a “very small discount” would be appropriate where, as the Judge was entitled to find in this case, the conspiracy to supply methamphetamine had proceeded beyond the theoretical plan, the plan had been developed to the point of action, and actual supply on a commercial basis had occurred.
[43] The evidence of the conspiracy between this appellant and a co-accused indicated ongoing activity over a period of more than seven weeks. Five of the deliveries of methamphetamine to Christchurch had occurred in ways consistent with the text and telephone traffic between them. Mr Stanaway contended that there was no error of principle in the approach, and the outcome was within discretion.
[44] Fogarty J specifically did not apply Fatu to this exercise. As noted in [37] he treated Mr Jarden as a commercial drug dealer, at the very least in cannabis, and to some degree in methamphetamine.
[45] Applying the Judge’s approach, on the basis of R v Terewi [1999] 3 NZLR 62, Mr Jarden was a small scale cannabis dealer for a commercial purpose. He came within category 2, which generally requires a starting point of between two and four years. Three years is unexceptional as a starting point for the Judge’s assessment of the offending.
[46] We accept that this was a man with longstanding problems, exacerbated by the serious ill health of his partner who committed suicide when she was seven months pregnant with their child. He had good family support and was assessed as being at a low risk of re-offending. But, as is frequently said by this Court, personal circumstances (tragic though they may be) can have little effect in sentences aimed at stopping this pernicious activity.
[47] It has not been demonstrated that the effective sentence was outside the proper sentencing range for the Judge who had had substantial opportunity to assess all the players and their culpabilities.
[48] The appeal against sentence is unsustainable.

Result

[49] Appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington