R v King [2008] NZCA 79; [2008] 2 NZLR 460; (2008) 23 CRNZ 880 (10 April 2008)

Last Updated: 2 February 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA207/2007
[2008] NZCA 79

THE QUEEN



v



SHAUN ANTHONY KING
PETER BARRY STEVENS

Hearing: 14 February 2008

Court: William Young P, Chambers and Robertson JJ

Counsel: G J X McCoy and K H Cook for Mr King
J R Rapley for Mr Stevens
D B Collins QC and B M Stanaway for Crown

Judgment: 10 April 2008 at 3.30 pm

JUDGMENT OF THE COURT

A We answer the questions posed in the case stated as follows:

(i) May the police lawfully access the [criminal records] database to provide the Crown Solicitor with the non-disqualifying criminal histories of persons on the jury list to assist the Crown to decide whether to oppose a person on the list being a juror? Answer (unanimous): Yes

(ii) If the answer to the first question is “yes”, may the Crown challenge without cause a person on the basis that he or she has one or more non-disqualifying convictions and sentences? Answer (unanimous): Yes
(iii) If the answer to the first question is “yes”, should the accused’s counsel be given the non-disqualifying criminal history at the same time as the Crown receives it from the police? Answer (by a majority, Robertson J dissenting): In usual circumstances the Crown is not required or permitted to disclose to the defence non-disqualifying criminal history information about potential jurors, but is required to do so where a defendant can point to a likelihood that, in the context of the particular case, jurors with criminal histories (or particular types of criminal histories) may have an adverse predisposition towards the defendant or the defence which is to be advanced.

B We make no order for retrial.
____________________________________________________________________

REASONS

Robertson J (dissenting in part) [1]
William Young P and Chambers J [92]

ROBERTSON J

Table of Contents
Para No

Introduction [1]
New evidence [9]
The statutory scheme [15]
Subsequent legislative provisions which could affect the Juries Act 1981 [33]
The New Zealand Bill of Rights Act 1990 (“BORA”) [34]
The Privacy Act 1993 [37]
(i) Purpose and mechanisms [39]
(ii) Repeal of the Wanganui Computer Centre Act 1976 [43]
(iii) Principle 11 and the provision of criminal records data
to defence counsel and/or accused persons [49]
The Criminal Records (Clean Slate) Act [56]
The ruling in the Australian High Court [61]
The Victorian Juries Act 1967 [64]
The High Court’s statutory interpretation exercise [66]
Fogarty J’s application of Katsuno to the Juries Act 1981 [69]
Conclusions [75]
The questions posed [78]
(i) Use of peremptory challenge [78]
(ii) The Police provision of information [84]
(iii) Sharing information with the defence [87]
Result [91]

Introduction

[1] This is an appeal by way of case stated under s 380 of the Crimes Act 1961.
[2] The respondents and eight others were tried together before Fogarty J and a jury in the High Court at Christchurch on a variety of charges under the Misuse of Drugs Act 1975 over several weeks commencing on 12 February 2007. Both respondents were eventually acquitted on the charges they faced.
[3] On 8 February 2007, Mr Rapley, counsel for Mr Stevens, applied for an order either:

Prohibiting the Crown from using any data which lists whether a juror has a criminal conviction when considering whether to challenge a person selected by ballot to be on the jury; or

That the accused have access to the same information.

[4] On 9 February 2007 Fogarty J ruled that the Crown was not to rely on information obtained from the police as to criminal records of individuals on the jury list for the trial. Reasons were provided in a judgment delivered on 21 February 2007 (R v Boyce HC CHCH CRI-2005-009-13766 21 February 2007). No answer was required from the Judge on the second point.
[5] After the trial had concluded (and the acquittals of the two respondents) and as requested by the Crown, in accordance with normal procedure, Fogarty J stated the following questions for the opinion of this Court:

(i) May the police lawfully access the [criminal records] database to provide the Crown Solicitor with the non-disqualifying criminal histories of persons on the jury list to assist the Crown to decide whether to oppose a person on the list being a juror?

(ii) If the answer to the first question is “yes”, may the Crown challenge without cause a person on the basis that he or she has one or more non-disqualifying convictions and sentences?
(iii) If the answer to the first question is “yes”, should the accused’s counsel be given the non-disqualifying criminal history at the same time as the Crown receives it from the police?
[6] It is arguable whether these are in fact proper questions of law arising from the ruling of the High Court, but rather an endeavour to obtain advisory opinions in the absence of any evidential foundation. The ruling of Fogarty J has, however, had a marked influence on practice and procedure in the conduct of jury trials. Jury-vetting by reference to criminal history information about potential jurors which had formerly been common place throughout New Zealand (except in the Auckland area) stopped. In Auckland such jury-vetting (except in cases of particular importance) has not been carried routinely for many years; this for resource reasons. Given the practical significance of the issues raised it is essential that we address them.
[7] Fogarty J reviewed the Juries Act 1981 provisions, and noted the decision of Tipping J in R v Greening [1991] 1 NZLR 110 (HC). He noted the urgent circumstances in which that decision had been made and without the benefit of full argument. He referred to comments of Heron J in R v Watson (No 2) HC WN T2693/98 9 June 1999, and to comments of this Court in that case (R v Watson CA384/99 8 May 2000), and subsequently in R v Tukuafu & Others [2002] NZCA 325; [2003] 1 NZLR 659.
[8] Fogarty J held that there was not a concluded view on jury-vetting and said:

[28] Reading the Juries Act as a whole, its text and in light of its purpose, it does not seem to me to be a proper exercise of the Crown’s statutory discretion to be entitled to challenge without cause, to challenge on the basis that the person has a non-disqualifying conviction. The Juries Act has deliberately provided for persons to be jurors notwithstanding past convictions. Moreover, the Act has envisaged that past history of minor conviction is an issue of privacy to be protected by confidentiality.

New evidence

[9] The Crown made an application to introduce evidence before this Court. This was in the form of affidavits, sworn by various Crown solicitors and counsel, which were tendered “to assist the Court’s understanding of the way in which jury lists were vetted prior to Fogarty J’s decision, how those vetted lists were used and to provide examples of jury lists from different regions of New Zealand”.
[10] It was submitted that, because the issues raised by the appeal on a question of law were of general or public importance, even although these affidavits were not in the orthodox sense “fresh”, they were sufficiently cogent to merit admissibility in the interests of justice. It was submitted that none of the evidence related to the particular facts of this case, but was of general experience and practice.
[11] Mr McCoy vigorously opposed the application, arguing that s 382(2) of the Crimes Act 1961 provided no authority for the admission of evidence of fact and that what was proffered did not fall within any of the recognised exceptional situations. Mr Collins QC did not strongly pursue the application, noting that the Crown concern was merely to assist.
[12] I am sympathetic to the appellant’s desire to have the Court advised of current practice and procedure, but conclude that there is no proper basis upon which it can be received.
[13] These questions are not to be answered on the basis of practice or procedure, nor by an assessment of competing policy imperatives. There are unquestionably different approaches to jury-vetting which have been legitimately utilised in different jurisdictions, but the philosophical positions adopted are not for the Court to evaluate.
[14] This is a case of statutory interpretation with due regard to a clear historical development. In the absence of agreement between all counsel, I deal with the matter on the basis of the material that was available in the High Court. That having been said, I note that the High Court Judge had no evidence at all and reached his decision, which has had far reaching consequences for trial procedure, solely on the basis of submissions made by counsel.

The statutory scheme

[15] A determination of the legal position begins with an analysis of relevant legislation. Sections 23 – 27 of the Juries Act deals with challenges. There are three categories:

(a) under s 23, challenge for want of qualification can occur in terms of ss 6, 7 and 8 of the Act;

(b) under s 24, challenges without cause are permitted where, without condition, constraint or inhibition each party is entitled to challenge without cause, usually six jurors or where there are two or more accused persons the prosecutor is entitled to twelve challenges; and
(c) challenges for cause under s 25 are permitted in addition to those provided for under ss 23 and 24 on one of two grounds:

(i) a juror is not indifferent between the parties; and

(ii) a juror is not capable of acting effectively as a juror in the proceedings because of physical disability.
[16] Finally, under s 27, a Judge, with the consent of all parties, or if he or she determines justice requires it, can stand aside any person. Again there is no statutory direction as to how, why, or when that can occur.
[17] The Crown, in its submissions, provided an exhaustive history of challenges to juries under English, New Zealand and other Commonwealth law. It is not necessary to recite this in detail. Suffice to say that for at least 700 years the Crown has had the ability to challenge – without articulating reasons – a person who was about to join a jury panel. At times the right became intermingled with an ability to stand aside. However, in one way or another the Crown has always had this ability.
[18] In the first jury ordinance in this country, in 1841, each accused was entitled to six peremptory challenges. The Crown did not have peremptory challenges, but it retained the advantage of being able to stand aside any number of jurors.
[19] In the Juries Act of 1868, eligibility was defined as men “of good fame and character”, aged between 21 and 60 and non-Maori (s 4). Those convicted of treason or felony, or of any crime that was infamous, were excluded (s 5). There was an ability to challenge the lack of statutory qualification (s 40). The accused was granted 12 peremptory challenges (s 43) and the Crown could challenge for cause (s 42).
[20] This pattern was repeated in the Juries Act 1880 which provided, in s 123, that there would be no challenge on behalf of the Queen except for cause certain.
[21] However, s 397 of the Criminal Code Act 1893 provided that, besides the peremptory challenges provided for by the Juries Act, every prosecutor and every accused person was entitled to any number of challenges for cause. Under s 397(6) the prosecutor had “no power to challenge any juror peremptorily but he may direct any number of jurors not peremptorily challenged by the accused to stand by until all the jurors have been called who are available for the purpose of trying that indictment”.
[22] This Court in R v Bourke [1900] NZGazLawRp 131; (1900) 19 NZLR 335 noted that the new statutory provision was a codification of what the common law had been for nearly 600 years.
[23] In 1898 the Juries Act was amended. Sections 123 and 124 of the 1880 Act were repealed, and both the Crown and the accused were given six peremptory challenges. In Bourke this Court held that the Crown’s right to stand aside was not affected by the amendment (at 342, per Edwards J).
[24] This pattern was reiterated in the Juries Act 1908.
[25] Section 241 of the Crimes Act 1908 perpetuated the ability to challenge for cause as well as the Crown’s right to stand aside.
[26] Those provisions were repeated in s 363 of the Crimes Act 1961.
[27] Section 27 of the Juries Act 1981 removed the Crown’s right to require a prospective juror to stand aside, but vested that power in the Judge.
[28] The Juries Act also regulates the manner in which jury lists and panels are compiled. It sets out the criteria for juror eligibility (ss 6 – 8); the processes by which jury lists and panels are compiled and circulated (ss 9 – 14); the constitution of juries (ss 17 – 22); and the process and grounds for challenges to juror empanelment (ss 23 – 27).
[29] The starting point in the current Act is presumptive eligibility for jury service by all persons currently registered as electors (s 6). Section 7 qualifies that presumption, providing that persons who have (at any time) been sentenced to a term of imprisonment of three years or more, or persons who have (within the last five years) been sentenced to a term of imprisonment of three months or more, or to corrective training, are not qualified for jury service.
[30] Section 24 legislates for challenges without cause. In every jury trial, each party is entitled to six challenges without cause, and in cases involving two or more co-accused, the Crown is entitled to 12. Challenges without cause are an objection to a proposed juror, made without needing to give a reason. Whatever the motivation behind a particular challenge without cause, it need not be articulated.
[31] If the substance of a challenge without cause cannot be controlled, then perhaps the manner in which that substance is garnered can be. When the Juries Bill was before the Select Committee, the Labour opposition sought to amend the Bill to include a statutory prohibition on use of the Wanganui Computer (the national criminal records database) by the police for the purpose of informing without cause challenges. The amendment was rejected by the House, and the Juries Act was passed in 1981 without any statutory restriction.
[32] The Juries Act read on its own, therefore, does not expressly prohibit use of the Wanganui Computer by the police in determining how to advise on the use of challenges without cause, and the legislative history clearly indicates that use of the database by police and, derivatively, Crown Counsel, was considered and specifically sanctioned by the Parliament.

Subsequent legislative provisions which could affect the Juries Act 1981

[33] Subsequent to the Juries Act 1981, Parliament passed the New Zealand Bill of Rights Act 1990, the Privacy Act 1993 and the Criminal Records (Clean Slate) Act 2004. Each of these statutes can affect actions of public officials, and may therefore inhibit use of the Wanganui Computer for the purpose of checking prospective jurors’ criminal records.

The New Zealand Bill of Rights Act 1990 (‘BORA’)

[34] There are only two possible routes by which the BORA might be brought into this proceeding:

(i) via a right that attaches to an accused person, whose jury is being vetted, under s 25(a) (“the right to a fair and public hearing by an independent and impartial court”); or

(ii) via a right that attaches to a prospective juror under s 19 BORA, (“the right to freedom from discrimination”).

[35] The first possibility is unsustainable. Even if some might argue that the impartiality of a court could be compromised by the availability of without cause challenges themselves, s 4 BORA ensures that the Juries Act prevails, even if Parliament’s retention of without cause challenges may infringe s 25(a) BORA. Even with the aid of s 6 BORA, it is not possible to read s 24 of the Juries Act so as to exclude peremptory challenges to prospective jurors. The fact that there could be irrationality and arbitrariness does not alter that conclusion as such possibilities are inherent in without cause challenges. The ‘natural and ordinary meaning of the words used by Parliament’ in s 24 of the Juries Act excludes the possibility of substantive constraints on the exercise of without cause challenges. Parliament has made a clear and unambiguous policy decision which the BORA provision cannot render otherwise.
[36] The second route is equally unpersuasive. An exhaustive list of the grounds of discrimination against which s 19 BORA affords protection is contained in s 21 of the Human Rights Act 1993, and discrimination on the basis of criminal history is not a listed ground. Section 19 of BORA is not engaged.

The Privacy Act 1993

[37] This legislation received particular prominence in the argument in this Court (although it was not prominent in the High Court decision), but with scant regard to the fundamental question of what privacy interest was in issue. The only relevant answer can be that of a person on the jury panel. It is not a mechanism upon which accused persons can piggyback.
[38] Caution needs to be exercised to ensure that the rights of an individual to privacy are not exploited by third parties for reasons quite unrelated to the right or the value which the community has decided requires protection. With that initial caution noted, but because of the prominence afforded to it in argument before us, I analyse the Privacy Act to determine whether, in any manner, it could inform the issue before us.

(i) Purpose and mechanisms

[39] There is no right to privacy in the BORA; the inclusion of such a right was expressly rejected when the BORA was drafted. The Privacy Act 1993 does not create any legally enforceable privacy rights (s 11(2)), although it preserves the existing rights of access that had been provided under the Official Information Act 1982 (s 11(1)).
[40] Rather than creating legal rights of privacy for individuals (and corresponding duties for information-holding bodies), the Privacy Act provides the means through which individuals can pursue their privacy concerns. The mechanistic lynchpin of the Privacy Act is the Office of the Privacy Commissioner, who receives and considers complaints from individuals who allege an infringement of their privacy.
[41] Part VIII of the Act provides for a complaints procedure which is treated within a comprehensive scheme:

(a) Interference with an individual’s privacy, for the purposes of the Act, requires the breach of one of the s 6 information privacy principles, or the breach of a code of practice issued pursuant to the Act (s 66);

(b) The individual then makes a complaint to the Privacy Commissioner, who can elect either to take no action (if she judges the complaint to lack substance) or to investigate the complaint;

(c) If the Commissioner elects to investigate, then the remedial route in the first instance is settlement between the aggrieved individual and the holder agency (ss 69 – 77);

(d) If conciliation and settlement is not successful, then the Commissioner can refer the complaint to the Complaints Review Tribunal, which has the power to issue remedies, including a declaration, damages, a restraining order or ‘such other relief as the Tribunal thinks fit’ (s 85(1));

(e) Decisions and orders of the Complaints Review Tribunal may then be appealed to the High Court, and the Tribunal can also state questions of law for determination by the High Court.

[42] An aggrieved individual’s remedial route commences, therefore, with the Privacy Commissioner, not with the Courts. This is the logical consequence of the Act’s emphasis on investigation, conciliation and settlement, rather than litigious dispute. It goes without saying that, if the Act has relevance to the jury system, the aggrieved individual in this context can only be a member of the jury panel.

(ii) Repeal of the Wanganui Computer Centre Act 1976

[43] Until 1993, the Wanganui Computer Centre Act 1976 (‘WCCA’) governed access to and management of the Ministry of Justice criminal records database. That Act stipulated the bodies by which, and circumstances in which, criminal records information could be accessed.
[44] Tipping J in Greening, working through the WCCA, held that nothing in the Act forbade police access to, and subsequent Crown Solicitor use of, Wanganui Computer records. Despite expressing reservations as to the desirability of the practice of jury-vetting on a philosophical level, the Judge concluded that the terms of the WCCA, taken together with the statutory provision of without cause challenges, sanctioned use of the Wanganui Computer for the purposes of without cause challenges.
[45] Section 111 of the Privacy Act 1993 repealed – and duplicated – the relevant provisions of the WCCA. It provides:

111. Access by accessing agencies to law enforcement information

An accessing agency may have access to law enforcement information held by a holder agency if such access is authorised by the provisions of the Fifth Schedule to this Act.

[46] Under s 110 and the Fifth Schedule, the Police are an ‘accessing agency’, and under the Fifth Schedule, ‘law enforcement information’ includes details of convictions. Under the current statutory framework, therefore – just as under the WCCA when Tipping J decided Greening – the police have statutory authority to access the criminal records database.
[47] In Greening, Tipping J held that the Crown Solicitor is in an agency relationship with the police (at 112). In the present case, the Crown did not advance the agency concept, but argued that it is an essential part of the role of the police to assist in the prosecution of crime, and that the provision of criminal records data to the Crown Solicitor is thereby legitimate. On this view, once the police have access to the information, they are able to use it in any manner that is properly part of their policing.
[48] This contention is conceptually coherent. To require that the police not give such information to the Crown Solicitor would be to create an artificial chasm between the role of the police and the role of the Crown in the prosecution of crime, which must be a unity.

(iii) Principle 11 and the provision of criminal records data to defence counsel and/or accused persons

[49] The Juries Act and the Privacy Act, together, do not prohibit the Crown’s use of the criminal records data.
[50] However, the provision of this same information to the defence, is less straight-forward. Unlike s 111 and the Fifth Schedule of the Privacy Act, which names the police as an ‘accessing agency’, there is no express provision for use by defence counsel of the information in question, and privacy principle 11 could be seen as preventing its disclosure to the defence.
[51] In essence, privacy principle 11 guides the disclosure of information, and provides that, subject to certain identified exceptions, information about a named individual ‘shall not be disclosed.’
[52] The pertinent exceptions are where disclosure is ‘necessary to avoid prejudice to the maintenance of the law by any public sector agency including the ... prosecution of offences’ (principle 11(e)(ii)), and where disclosure is necessary ‘for the conduct of proceedings before any court ... (being proceedings that have commenced or are reasonably in contemplation)’ (principle 11(e)(iv)).
[53] In terms of principle 11(e)(ii) and (iv), in submissions the Crown suggested that it was desirable for the defence to have access to the criminal records database for its without cause challenges, to ensure that there is no appearance – or actual risk – of unfairness and disparity between the working knowledge of the defence and that of the prosecution. Notwithstanding the normative merit of this proposition, ‘necessity’ is a strong threshold, but I am persuaded that it is not too high as to prevent sharing of information which was collected from a public activity when the conviction was entered in the first place.
[54] I consider the use of the Wanganui Computer as the source of the information need not offend the principles of the Privacy Act, since the information that the defence received would be no different to that which it could garner from elsewhere, even if in practical terms that would be extraordinarily difficult. However, it is material that, at the time that conviction was entered, it would have been in the public arena so has no genesis of confidentiality.
[55] In my view, the Privacy Act is not an impediment to putting into practice what Parliament specifically determined about jury-vetting in the Juries Act.

The Criminal Records (Clean Slate) Act 2004

[56] The Clean Slate Act provides that specified persons, with identified qualifying criminal records (s 7), are ‘deemed not to have a criminal record for the purposes of any questions asked of him or her about his or her criminal record’ (s 14). Section 16 is the corollary of this deeming provision, and provides:

16. Effect of clean slate scheme on government departments, law enforcement agencies, employees and contractors

...

(2) A government department or law enforcement agency, or an employee or contractor of a government department or agency, that holds or has access to the criminal records of eligible individuals may not use those criminal records other than for a purpose authorised under this Act.
[57] Section 19 provides the authorised exceptions to the Clean Slate Act’s general directive that eligible individuals’ criminal records not be disclosed:

19. Exceptions to general effect of clean slate scheme

...

(2) A government department or law enforcement agency, or an employee or contractor of a government department or law enforcement agency, that holds or has access to criminal records may disclose the criminal record of an eligible individual if subsection (3) applies.
(3) This subsection applies if –

(a) the eligible individual’s criminal record or information about the eligible individual’s criminal record is necessary for any of the following purposes:

(i) the exercise of the prevention, detection, investigation or prosecution functions of a law enforcement agency or an overseas agency or body whose functions correspond to those of a law enforcement agency, ...

[58] The Crown did not refer to the Clean Slate Act in its written submissions. In submissions for the respondent Mr King, Mr McCoy contended that the Clean Slate Act is premised on the removal of criminal records for eligible persons, and therefore that the use of criminal records to inform without cause challenges is contrary to the purpose of the Clean Slate legislative scheme. Counsel argued that s 19(3)(a)(i) could not provide an exception to the non-disclosure/use rule in s 16, because a prosecutor is not an ‘agency’ for the purposes of the Act. This is a further argument where a regime created for a class of persons is being subverted for an unrelated purpose.
[59] However, the police are within the Act’s definition of ‘agency’, and, as I have previously noted, the prosecution of criminal matters must be viewed as a unity, for which the functions of the police and the Crown prosecutors are synthesised, not artificially cleaved off from one another. Thus, the extraction of the criminal records in question by the police from the Wanganui Computer, and their provision to the Crown comes within the exception in s 19(3)(a)(i). The Clean Slate Act is not an impediment to the provision of criminal records data to inform peremptory challenge decisions. Section 20 of the Clean Slate Act limits disclosure of criminal records information by persons or bodies who have accessed that information via s 19. Sections 20(a) and (b) provide that information disclosed under s 19 carries with it an injunction that the information is only to be used for the purpose for which it was disclosed. In the circumstances under consideration in this case, use of the information would therefore be limited to jury panel vetting in the case immediately before the Court, and the information could not be kept or stockpiled for future purposes.
[60] I am satisfied that none of these subsequent enactments alter the position under the Juries Act.

The ruling in the Australian High Court

[61] Fogarty J, in ruling that Crown counsel could not use information obtained from police about the criminal records of prospective jurors, relied almost exclusively on the Australian High Court case R v Katsuno [1999] HCA 50; (1999) 199 CLR 40. In that case the Court had found that the Victorian Juries Act 1967 (now repealed), by its language and structure, impliedly prohibited the provision of listed jurors’ criminal records to the Director of Public Prosecutions (“DPP”) by the Chief Commissioner of Police (“CCP”). Accordingly, the High Court found that the use by the DPP of such records in the making of peremptory challenges was unlawful.
[62] There were two issues before the High Court in Katsuno:

(a) whether the provision of the criminal records information of listed jurors by the CCP to the DPP contravened the Victorian Juries Act; and

(b) whether, if it did contravene the Act, the subsequent use of the information by the DPP for his peremptory challenges was so egregious an affront to the fundamental requirements of the criminal process as to require that the conviction entered in the Victorian Court be quashed.
[63] All members of the Court held that the provision of the information to the DPP contravened an implied confidentiality requirement in the Act. Five of the seven members of the Court held that, despite the contravention in the case before them, it did not warrant quashing the conviction entered in the lower Court.

The Victorian Juries Act 1967

[64] The relevant provisions of the Victorian Juries Act are as follows:

21 Copies of panel to be made

...

(2) Subject to this Act the sheriff shall not make known to any person the names in any panel from which the jury is to be struck in any inquest.

(3) A copy of every panel from which the jury is to be struck in every inquest shall be forwarded to the Chief Commissioner of Police not later than 12 days before the day appointed for the holding of the inquest, and the Chief Commissioner of Police shall make such inquiries as he sees fit as to whether any person disqualified under section 4 from serving as a juror is named on such panel and shall report the result of those inquiries to the sheriff.

...

31 Sheriff to deliver panel with cards

(1) On the day named in the summonses for the attendance of jurors, the sheriff must in open court –

(a) deliver the copy of the panel; and

(b) subject to subsection (2), furnish the names and occupations of the jurors written on separate cards –

to the proper officer who must put the cards in a box.

67 Wilful offences by persons under this Act

The Supreme Court may in a summary way impose such fine as is thought fit upon any person exercising any duty under this Act or performing any function under this Act who without lawful excuse the onus of proof of which shall lie upon him –

...

(b) Subtracts, destroys or permits any person to have access to any such record of jurors summons list panel or card.

[65] The facts that preceded the challenge in Katsuno were unremarkable. In accordance with practice, the sheriff had obtained a list of names randomly compiled from the Electoral Roll. That list had been divided into smaller lists, from which random names were drawn, and those people were sent a questionnaire asking them if they were disqualified in any manner described on the form. On receipt of returned questionnaires, the sheriff deleted names of disqualified persons, and prepared jury panels by (randomly) selecting from the now-modified lists. These panels were then sent to the CCP for him to check against his records. The CCP’s task was to alert the sheriff of any people on the list with prior convictions, and the sheriff would then remove those people. The resulting list was the ‘panel’ from which prospective jurors are summonsed.

The High Court’s statutory interpretation exercise

[66] For the majority, Gaudron, Gummow and Callinan JJ undertook a simple statutory interpretation exercise. Section 21(2) provided the basic mandatory directive that the sheriff shall not disclose the names of people on the jury panel. But that injunction was subject to s 21(3), which expressly permitted the CCP to have access to the panel names to establish whether any person was disqualified from jury service.
[67] The Court held that the express exception in s 21(3) to the general rule in s 21(2) gave rise to a “negative implication” that no-one but the sheriff was to have access to the panel; in other words, that the panel was essentially confidential. Further, the majority read s 67(b) as emphasising the confidentiality requirement by making it an offence to permit anyone to have access to the jury panel (whether in whole or in part).
[68] Looked at together, the Court concluded, ss 21, 67 and 31 of the Victorian Juries Act created a matrix of confidentiality. The express stipulation of the circumstances in which, and people to which, the sheriff could deliver the panel impliedly prohibited its delivery to anyone else. Quite simply, s 21(2) of the Act was accorded primacy, and no exceptions (other than that in s 21(3)) were read into it.

Fogarty J’s application of Katsuno to the Juries Act 1981

[69] Having considered previous cases, Fogarty J concluded that the New Zealand position on jury-vetting was not settled, and therefore amenable to overseas legal developments.
[70] The open character of the law in New Zealand, Fogarty J said, made Katsuno a “very relevant” precedent, and the Judge sought to apply the reasoning and conclusions of the Australian High Court to the New Zealand Juries Act (at [16]).
[71] With respect, Fogarty J’s judgment conflates legislative analogy and policy. Ostensibly he adopted Katsuno on the premise that the New Zealand Juries Act has an emphasis on confidentiality that is analogous to that in the Victorian Juries Act. Specifically, the Judge cited ss 12(2) and 9(6) (the predecessor to s 12) which provide:

12 Access to, and confidentiality of, jury lists

...

(2) The registrar of a Court to which a particular jury list relates must ensure that the jury list is kept confidential to –

(a) the Registrar; and

(b) the Registrar’s staff.

9 Preparation of jury lists

...

(6) Except as may be ordered by the Court or a Judge for the purpose of any proceedings relating to the validity of the jury list or a panel of jurors or to the eligibility of any juror, the jury list shall be confidential to the Registrar and his staff.

[72] Section 9(6) was repealed by the Juries Amendment Act 2000 and replaced by s 12. Neither s 9(6) as originally enacted, nor s 12, makes the Juries Act 1981 analogous to the Victorian statute. Section 12 deals expressly with jury lists, which are much more extensive than jury panels. Jury panels are compiled from jury lists (which have been vetted by the Registrar to exclude people disqualified under the Act (s 13(2))), and it is those panels that are, in practice, made available to the police for the purpose of jury-vetting.
[73] Section 14 governs jury panels and provides that:

14 Inspection of jury panel

(1) If, at any time not earlier than five days before the commencement of the week for which the jurors on a panel are summoned to attend for jury service, any party to proceedings that are due to be heard during that week (or any other person acting on behalf of such party) requests the Registrar to make available a copy of the panel for inspection and copying by or on behalf of that party, the Registrar shall comply with that request.

(2) The Court may allow any other person to inspect and copy a copy of the panel at any time during the period referred to in subsection (1) of this section.

...

[74] Plainly, s 14 envisaged the publication, to the parties, of the jury panel. The panel is not subject to the same confidentiality requirements as the jury list, which is governed by s 12. Section 12 does not deal with the issue of jury panels (which are governed by s 14) but only jury lists. Section 14 does not contain the confidentiality requirement and its provision for the jury panel to be made available up to five days in advance of a hearing in fact envisages that the panel will be examined.

Conclusions

[75] Katsuno was decided in light of clear legislative intention in the Victorian Juries Act that the CCP – and only the CCP – should have access to the names of prospective jurors for the purpose of vetting disqualified persons. The language and structure of that Act implied a tight confidentiality requirement, which would not permit the dissemination of the jury panel to any other parties, including the DPP.
[76] In contrast, the New Zealand Juries Act 1981 is plain, in its language and legislative history, that the jury panel is not confidential. Section 14 is in terms distinct from s 12, to which Fogarty J referred when relying on Katsuno as a precedent. Further, the legislative history of the Juries Act indicates that the legislature considered and sanctioned the vetting of jury panels by the police.
[77] Whatever the substantive merits of without cause challenges – of which Fogarty J is seemingly sceptical (see [27] and [28] of his judgment) – their exercise cannot be diminished by a deft interpretation of the Juries Act. Parliament’s determination that each party has six peremptory challenges is beyond question. The different statutory scheme under consideration in Katsuno should not be artificially analogised to New Zealand’s Act so as to limit – by a back door route – the substance of peremptory challenges.

The questions posed

(i) Use of peremptory challenge

[78] The logical first issue is the second question posed.
[79] I do not accept that there is any justification or rationale for invoking s 7 to restrict or inhibit the manner in which the Crown may exercise its peremptory right of challenge under s 24. Section 7 disqualifies identified persons absolutely in stipulated circumstances, but it does not consider or address the potential consequences of other wrongdoing. The criteria for disqualification cannot legitimately colour the scope of peremptory challenges.
[80] It is of the very nature of peremptory challenges that those who have them can use them in ways that appear to them apposite and appropriate. There may be a good argument for suggesting that peremptory rights of challenge should not exist at all (as is now the position in England and Wales), but so long as they are statutorily provided for there is not (and cannot sensibly be) control over the manner in which they are exercised. Disqualifications for cause are dealt with separately and discretely. How that is done does not affect the open-ended and unfettered right that is provided by a peremptory challenge.
[81] Fogarty J at [29] concluded that there may be other reasons why a person with a prior conviction is “regarded by the Crown as not being a desirable person to be on the jury ...” and that “nothing prevented the Crown from relying on “local police knowledge of persons”. It is to create a distinction without a difference to suggest that a Crown solicitor cannot use the Wanganui computer, but could be informed of a juror’s criminal past from a police officer’s memory (whether accurate or inaccurate). The more principled, informed and intelligent the use of a peremptory challenge is, the better the system will operate and the more confidence there will be in its integrity. There is no reason why the source of the material in question should determine the legitimacy of its substantive end-use for peremptory challenges. This is all the more so when the source is reliable and the subject of authorising legislation.
[82] As peremptory challenges by their nature require no reason to be articulated, it is a contradiction in terms to suggest that there are bounds or restrictions upon how the user of such challenge becomes informed about potentially relevant issues.
[83] The second question must be answered in the affirmative.

(ii) The Police provision of information

[84] The next question is whether the police may provide the Crown Solicitor with material which goes to this issue.
[85] For the reasons discussed, I am satisfied that the first question posed must be answered in the affirmative. There is no statutory impediment to the provision of criminal records by the police to a Crown solicitor.
[86] For the avoidance of any doubt, I specifically note that the questions of law reserved for consideration in this Court relate only to criminal records. Other information on police files (in respect of which different considerations may apply) has not been the subject of argument before us and I express no view about it. Potential problems were noted by the Law Commission in Juries in Criminal Trials (NZLC R69 2001).

(iii) Sharing information with the defence

[87] Finally, there is the third question which relates to information available to the prosecution being shared. Both in his written submissions, and specifically in his oral presentation, the Solicitor-General accepted that, providing there was no legal impediment, it was in the interests of justice that this information made available to the Crown should, in a timely way, be made available to the defence as well. The problems noted by the High Court of Australia do not arise within the New Zealand statutory context.
[88] I am satisfied there is no bar to such disclosure. To the extent that it might be capable of affecting the issue, principle 11(b) of s 6 of the Privacy Act provides an appropriate exception to the general non-disclosure rule of the Act. Provided that the information disclosed to the defence is in form and substance the same as that which it could source from publicly available material, there is no principled or statutory objection to it being made available. The police, as the first point of access for the information, must compile it for the defence in a form consistent with the statutory regimes. The disclosure of that information by the defence would then be controlled by privacy principle 11, and defence counsel would themselves be subject to the Act’s non-disclosure rules.
[89] Even without the concession of the Solicitor-General, I would have held that information about previous convictions provided to a prosecutor by the police should be shared. In my view it is publicly-sourced material which each side should have available so no advantage exists for the prosecution in a trial. Access to this material by the defence was specifically recommended by the Law Commission in Juries in Criminal Trials, notwithstanding the problems it saw with sharing at a more general level. I find its approach attractive.
[90] The fact that such information is not otherwise easily accessible increases the need for it to be shared. A well-resourced defence could, by painstaking investigation, obtain such material. The stark reality is that seldom will the defence have the time or funds to seek and obtain it independently. At the most basic level of fairness, this information should be provided to be used by each party as they see fit. The Solicitor-General’s concession was a commendably responsible recognition of the need for equality in a trial process.

Result

[91] I would answer all the questions reserved for the opinion of this Court, namely:

(i) May the police lawfully access the [criminal records] database to provide the Crown Solicitor with the non-disqualifying criminal histories of persons on the jury list to assist the Crown to decide whether to oppose a person on the list being a juror?

(ii) If the answer to the first question is “yes”, may the Crown challenge without cause a person on the basis that he or she has one or more non-disqualifying convictions and sentences?

(iii) If the answer to the first question is “yes”, should the accused’s counsel be given the non-disqualifying criminal history at the same time as the Crown receives it from the police?

in the affirmative.

WILLIAM YOUNG P AND CHAMBERS J

(Given by William Young P)

Table of Contents
Para No

Preliminary observations [92]
What constitutes jury-vetting? [97]
The importance of the legislative setting [101]
Practice in other jurisdictions [103]
The New Zealand authorities [107]
Is jury-vetting by reference to criminal history inconsistent with
the Juries Act 1981? [118]
Is jury-vetting by reference to criminal history inconsistent
with the New Zealand Bill of Rights Act 1990 and if not, is
defence disclosure required? [121]
Is jury-vetting by reference to criminal history inconsistent with
the Privacy Act 1993? [131]
Should we address this question? [131]
The key statutory provisions [134]
Our identification of the key Privacy Act issues [137]
Can the police lawfully access criminal history information for
the purpose of jury-vetting? [140]
Can the police lawfully make this information available
to prosecutors? [142]
Can prosecutors lawfully make this information available
to the defence? [144]
Drawing the threads together [145]

Preliminary observations

[92] We are broadly, but not totally, in agreement with the approach proposed by Robertson J.
[93] Fogarty J focused on just one form of jury-vetting, namely vetting by reference to the prior criminal histories of jurors. He was not able to rely on a general legal prohibition on jury-vetting, because (as will become apparent) jury-vetting is contemplated by the Juries Act 1981. Instead, he concluded that the provisions of the Juries Act which provide that certain types of conviction disqualify potential jurors imply that the Crown cannot peremptorily challenge other potential jurors on the basis of non-disqualifying convictions. Before us, Messrs McCoy and Rapley (who in effect appeared to contradict the Crown appeal) sought to justify the result on other bases, particularly the New Zealand Bill of Rights Act 1990 and the Privacy Act 1993, grounds which were not addressed in the judgment but which are within at least the literal scope of the questions as posed by the Judge for the opinion of this Court.
[94] Fogarty J decided the issue on a very specific basis: that Crown jury-vetting by reference to the non-disqualifying criminal histories of potential jurors and the associated exercise of rights of peremptory challenge were inconsistent with the Juries Act. The only issue which should have been reserved under s 380(1) of the Crimes Act 1961 is whether that conclusion was right. The first two of the questions as posed reflect different facets of that issue but were treated before us by counsel as opening up arguments which were not before the Judge. The third question was not the subject of determination by the Judge albeit that this question was before him. There is thus a sense in which we are being asked to provide an advisory opinion (ie on issues which were not decided by the Judge) and in the absence of an appropriate evidential context (as to which we agree with the remarks of Robertson J at [11] – [14]). But, despite these reservations about process, we will endeavour to answer the questions as best we can on the information available.
[95] Before us, the Solicitor-General conceded that he did not seek to justify jury-vetting by reference to convictions which are covered by the Criminal Records (Clean Slate) Act 2004. We consider that this concession was justified given ss 19 and 20 of that Act. In particular, for reasons which are analogous to those which appear below in [137], we cannot see use (or any associated disclosure) of such convictions as being relevantly “necessary” for the purposes of s 19(3) of that Act, the only section which could conceivably be invoked. But, given the concession, there is no need to discuss the application of this Act in any more detail.
[96] Against that background, we propose to address the case under the following headings:

(a) What constitutes jury-vetting.

(b) The importance of the legislative setting.

(c) Practice in other jurisdictions.

(d) New Zealand authorities.

(e) Is jury-vetting by reference to criminal history inconsistent with the Juries Act?

(f) Is jury-vetting by reference to criminal history inconsistent with the New Zealand Bill of Rights Act 1990 and, if not, is defence disclosure required?

(g) Is jury-vetting by reference to criminal history inconsistent with the Privacy Act 1993?

(h) Drawing the threads together.

What constitutes jury-vetting?

[97] Jury-vetting has long been carried out in New Zealand by both Crown and defence. Relevant associated practices were reviewed by the New Zealand Law Commission in Juries in Criminal Trials at 83 – 84.
[98] Defence jury-vetting is likely to involve counsel personally perusing the panel (to identify any potential jurors he or she knows) and checking the names of potential jurors with:

(a) The defendant and anyone else closely associated with the case; and

(b) Work colleagues and perhaps family (or anyone else who can be persuaded to look at the list).

As well, and particularly where the occupation listed is not very informative (eg “housewife”), electoral rolls might be consulted with a view to identifying the occupations of other people (usually a spouse) living at the potential juror’s address. We suppose diligent defence counsel might now “google” potential jurors.

[99] Crown vetting might be expected to involve:

(a) Perusal of the panel by the prosecutor and the police officers directly involved in the case;

(b) The names of potential jurors being read out at a meeting of police officers in the local police station on the morning of the trial; and

(c) Criminal history checks.

The Law Commission in Juries in Criminal Trials noted (at 84) that Crown prosecutors did not routinely challenge all potential jurors with non-disqualifying convictions. This accords with our understanding of Crown practice (albeit that there will obviously be variations in the way in which individual prosecutors behave).

[100] Jury-vetting exercises associated with the trial of Sir Joh Bjelke–Petersen and the earlier trial of another well known political figure (Mr George Herscu) resulted in a political uproar in Queensland and an inquiry (see Criminal Justice Commission Report by the Honourable W J Carter QC on his Inquiry into the Selection of the Jury for the Trial of Sir Johannes Bjelke–Petersen (Report August 1993)). In the case of Mr Herscu, defence jury-vetting extended to the making of telephone calls to potential jurors to gauge their political sympathies. The jury-vetting (really jury manipulation) which occurred in the case of Sir Joh is too complex and far removed from the facts of the present case to warrant explanation in this judgment. What is significant is that the jury-vetting exercises in both cases were, in different ways, unacceptable and the upshot was the enactment of the Jury Act 1995 (Qld) under which it is now an offence to carry out questioning of potential jurors (or of third parties in relation to potential jurors) in relation to jury selection, see Schurr “Review of Australian Criminal Legislation, January to June 1995” (1995) 19 Crim LJ 335 at 337 – 338 and Shanahan “Implications of the Jury Act 1995” (1995) 15(11) Proctor 16.

The importance of the legislative setting

[101] The report into the Sir Joh Bjelke–Petersen case highlights the reality that the practical ability to engage in jury-vetting exercises is very much influenced by the extent to which the jury panel provides personal identifiers in relation to potential jurors and how long before the commencement of the trial the panel is released. In New Zealand, the copy of the panel must not disclose the dates of birth of those listed (s 14(4) of the Juries Act) but does provide their full names, occupations and addresses, see rr 5(6) and 8 of the Juries Rules 1990. Copies of the jury panel are released to the parties not less than five days before the commencement of the week for which those on the panel are summonsed to appear, see s 14.
[102] Other considerations that are material to whether jury-vetting is worthwhile include: the breadth of the relevant disqualification provisions, the availability of a power to direct jurors to stand by, rights of peremptory challenge, whether jury verdicts are required to be unanimous and the rigour and accuracy of the internal court processes which are intended to exclude disqualified jurors. Under s 7 of the Juries Act, persons who have been sentenced to imprisonment for a term of three years or more (including life or preventive detention) are disqualified from serving as jurors, as are those who have been sentenced to a term of imprisonment of three months or more within the preceding five years. The power to direct a juror to stand by is now vested solely in the Judge (see s 27) but the Crown and defence retain rights of peremptory challenge (see s 24). Unanimity is required in criminal cases. And, given the ubiquitous reach of Murphy’s Law, it is practically inevitable that the names of some who are legally disqualified from jury service nonetheless appear on jury panels (see for instance what happened in R v Mason [1981] QB 881 (CA)).

Practice in other jurisdictions

[103] In England, the practice of jury-vetting has been, for many years, the subject of guidelines issued by the Attorney-General. The current version of these guidelines is accessible as Attorney-General’s Guidelines Juries The Exercise of the Crown of Its Right Of Stand By (1989) 88 Cr App R 123. Jury-vetting has also been discussed in three decisions. R v Sheffield Crown Court, Ex parte Brownlow [1980] QB 530 (CA) was concerned with a Crown challenge to an order made by a Circuit Court Judge requiring the Crown to supply the defendants (who were serving police officers) with the criminal histories of potential jurors. This challenge failed on jurisdictional grounds (with Lord Denning MR dissenting) but all three judges in the Court of Appeal (Lord Denning and Shaw and Brandon LJJ) were, in varying degrees, hostile to, or at least sceptical about the propriety of, jury-vetting, albeit that they did not directly challenge the practice as carried out in accordance with the Attorney-General’s guidelines. In Mason (which was decided only three months after Brownlow), a very different approach was taken with Lawton LJ, speaking for himself and Michael Davies and Balcombe JJ, explaining (at 891 – 892):

The practice of supplying prosecuting counsel with information about potential jurors’ convictions has been followed during the whole of our professional lives, and almost certainly for generations before us. It is not unlawful, and has not until recently been thought to be unsatisfactory. ... In so far as the obiter dicta of this Court in [Brownlow] differ from what we have decided in this case we justify our presumption by the knowledge that we have been able to examine the issues raised in greater depth than our brethren were able to do.

The most recent judgment is R v McCann (1990) 92 Cr App R 239 (CA), which in effect follows Mason.

[104] Although the jury-vetting permitted under the current Attorney-General’s guidelines is very limited, this is in a legislative setting which is much less conducive to jury-vetting than our system. Since 1989, there have been no rights of peremptory challenge, resulting in an asymmetry between the rights of the Crown and defence, addresses and occupations of potential jurors have not appeared on the jury panel since the enactment of the Juries Act 1974 and majority verdicts (10:2) are permissible.
[105] Practice in Australia has varied depending upon the legislation in force in each jurisdiction. R v Katsuno [1999] HCA 50; (1999) 199 CLR 40 (the case primarily relied on by Fogarty J) concerned the jury system in Victoria. The practice of the Chief Commissioner of Police had been to give to the Director of Public Prosecution (for the use of prosecutors) details of nondisqualifying criminal convictions of, and other information about, potential jurors. This practice was held to be inconsistent with provisions in the relevant statute, which have no counterparts in our Juries Act. What is also important for present purposes is that a majority of the Judges rejected the argument that the Crown’s right of peremptory challenge could not be based on prosecutor and police knowledge of prior nondisqualifying convictions, see Gleeson CJ at 50, and Gaudron Gummow and Callinan JJ at 62. McHugh J seems to have been of the same opinion, see his remarks at 67. On this point, Kirby J took a different view, see his remarks at 89 – 90.
[106] In Canada, it appears that Crown jury-vetting by reference to criminal history information occurs regularly (see Vidmar, “The Canadian Criminal Jury: Searching for a Middle Ground” (1999) 62 Law and Contemporary Problems 141 at 150 (fn 47) and R v Kirkham (1998) 126 CCC (3d) 397 (Sask QB) at 402) albeit that the legitimacy of the process has not been the subject of authoritative appellate authority.

The New Zealand authorities

[107] The relevant New Zealand decisions are Greening, Watson and Tukuafu.
[108] In Greening, immediately prior to the presentation of the indictment and with the jury panel in Court, counsel for the defendants sought an order from the trial Judge (Tipping J) requiring the prosecutor to make available to the defence the results of enquiries as to previous convictions of jurors. Tipping J indicated that he was not prepared to direct the Crown to make the information requested available to the defendants. He subsequently gave his reasons.
[109] Tipping J concluded that the effect of Wanganui Computer Centre Act 1976 was that the police were entitled to obtain from the Wanganui Computer Centre the information in question. He then went on at (112):

There does not appear to be any provision in the Wanganui Computer Centre Act which limits the purpose to which the police may put the information once they can demonstrate they are entitled to it.

While I am not called upon to express any concluded view on the limits, if any, to which the police may put the information from the Wanganui Computer to which they are entitled I do not imagine that Parliament intended to give the police carte blanche to use that information wholly without restriction. Obviously the purpose must be a bona fide one and I would have thought it necessary for the police to be able to show if challenged that the use was reasonably necessary in exercise of their powers or duties.

Counsel in the present case did not submit that if, as I have held, the police were entitled to the information, the purpose to which they had put it, ie jury screening, was mala fide or an abuse of their powers. In that I consider counsel were right because such a proposition would have been very difficult to sustain.

[110] The Judge then held that the police had been entitled to pass the relevant information onto the Crown prosecutor, Mr Garland:

It was suggested at one stage that the police had no right to copy the information to the Crown Solicitor, but I am satisfied that Mr Garland is correct when he submitted that for present purposes the Crown Solicitor is to be regarded as the agent of the police and if the police are entitled to the information then it seems to me that it would be unreal to take the view that they are not entitled to pass a copy on to the Crown Solicitor who was in practical terms their legal representative for present purposes in spite of his independent status. Those are the reasons why I was unable to come to the view and indeed the point was not pressed, that the police had somehow acted unlawfully in obtaining the information in question about potential jurors and passed it onto Mr Garland as Crown Solicitor in Invercargill.

[111] The primary focus of the judgment was on the Official Information Act 1982 and particularly whether the withholding the information from the defendants was authorised under that Act. Referring to s 9 of that Act, Tipping J said:

Section 9 applies if and only if the various matters set out are satisfied. One of the matters set out is where the withholding of the information is necessary to protect the privacy of natural persons. I suggested to counsel during the course of argument that any ruling from me in favour of the accused in the present case would mean that the information in the hands of the police in such circumstances as these would in the case of an accused not represented by counsel have to be given on request to that accused person.

It seems to me that the privacy of potential jurors in respect of their previous convictions is a matter of considerable moment under the Official Information Act: see the long title to the Act and s 4(c). I would frankly have thought that potential jurors might be concerned to learn that the police routinely, as I understand it at least in this District, examine their previous conviction history, if any. After all the Registrar of the Court also conducts a similar screening process through the Wanganui Computer to make sure no potential juror is disqualified by dint of criminal history: see s 7 of the Juries Act 1981. To that extent a screening process by the Registrar is necessary to ensure no disqualified person is summoned for jury service. I would have thought there would be even greater room for concern if it were known that the previous conviction history of potential jurors must be given to counsel for the accused or the accused themselves if unrepresented. It is not as if the information in question relates directly to the accused or has any direct bearing on the matters to be canvassed at their trial. The information in question relates to the history of potential jurors and its disclosure would seem to me to be a substantial breach of their privacy.

It is perhaps a moot point as to whether or not the Crown should have the right to know the criminal histories of potential jurors without the accused also being entitled to know. ... However I am not persuaded that there is sufficient prejudice likely to ensue to an accused person not having the information to outweigh the substantial invasion of privacy that would be involved for potential jurors if an order were made directing the Crown to make the information available to the accused.

[112] The Judge finished by noting (at 114) that the question whether the practice of jury screening ought to continue “might reasonably claim the attention of the Solicitor–General, the Commissioner of Police and the Law Society”:

There are no doubt good arguments both ways, but I question the desirability of the present practice both in itself and because of the appearance of injustice it may genuinely cause. I am firm in my view that this sort of information about potential jurors, called to perform a public service, should not be made available to accused persons, there being no control over the use to which it might be put. There are obviously major potential problems in making it available under embargo to defence counsel. Perhaps the best course overall is for the practice to be discontinued.

[113] The judgment of Tipping J is not particularly germane to the basis upon which Fogarty J ruled against the Crown. But some of his remarks assume significance in relation to the Bill of Rights and Privacy Act issues to which we will return later.
[114] In Watson, the point was discussed at [55]:

[55] The appellant applied for an order preventing the Crown from determining through use of the Wanganui Computer whether any of the jury panel summoned for the trial had criminal convictions. The Judge declined to make the order. Although listed as a ground of appeal, the refusal of the order was not pursued as a basis for setting aside the convictions. Counsel responsibly accepted that in the circumstances it was not realistic to contend that a miscarriage of justice had resulted. In that situation we have concluded that it would not be appropriate to make any definitive ruling on the lawfulness, or alternatively the desirability, of the practice, one which we understand is not uniform throughout the country. It is of course common practice for both Crown and defence to make some inquiry in respect of potential jurors, with a view to assisting in exercising the right to challenge, whether peremptory or for cause. The limits of those were not addressed in argument before us, the sole point being Crown use (through the police) of the Wanganui Computer for disclosure of criminal convictions. It is difficult to see how such a practice could infringe, as was suggested, either the Juries Act 1981 or the New Zealand Bill of Rights Act 1990. The Privacy Act 1993 could require consideration, although Mr Davison for the Crown submitted that s111 was sufficient authority. The issue must however be regarded as open, particularly as regards the policy issue of overall fairness. Consideration of the dicta of Tipping J in [Greening] and of the English authorities such as [Mason] and [McCann] can await another occasion.

[115] The relevant passage in Tukuafu is at [126]:

[126] ... We can see no link between the jury-vetting and the appellant’s assertion of injustice. Whether such vetting is a desirable practice, in principle, is not the issue when the appellant must persuade this Court that he has suffered a miscarriage of justice. Considered logically, unfairness must be perceived in terms of either the Crown’s knowledge of a potential juror’s criminal convictions or the defence ignorance of such. As to the former the argument must be that unfairness lies in the Crown having the opportunity to challenge a person with criminal convictions whether or not such convictions are disqualifying in terms of s7 of the Juries Act 1981. Conversely, unfairness must be argued on the basis of the defence inability to challenge. On either approach it is difficult to understand of what the unfairness consists. We can see none in this case.

[116] Reference should also be made to the Law Commission’s report, Juries in Criminal Trials which recommended no change to the existing law as to peremptory challenges or the entitlement of the Crown to engage in jury-vetting by reference to prior criminal histories of jurors but did suggest that this information be made available to the defence.
[117] We should also note in passing the relevant provisions of the Criminal Procedure Bill, which is currently before the House of Representatives. Clause 73 of the bill would extend the period of time allowed for examining jury lists from five days to seven days and provide some measure of control over copies of the panel. Clause 81 restricts the number of peremptory challenges to four per party or eight in the case of prosecutor where there are two or more defendants. Clause 82 would provide for majority verdicts (11:1). Clause 83 would make it an offence to disclose identifying information about jurors but with an exception which we construe as permitting disclosure in the case of jury-vetting exercises. As well the proposed criminal disclosure rules are in terms which are arguably sufficiently general to provide for the disclosure by the prosecutor to the defence of criminal history information about potential jurors (see cl 29) but would not require that information to be obtained for the sole purposes of disclosure (see cl 30).

Is jury-vetting by reference to criminal history inconsistent with the Juries Act 1981?

[118] In the present case, Fogarty J identified (at [3]) the question which had to be resolved as being:

[W]hether or not it is the scheme and purpose of the Juries Act 1981 that the criminal history of persons on the jury list are confidential to the Registrar of the Court, for the purpose of jury selection, or can be accessed by the police using their powers to examine the criminal database.

Towards the end of his judgment he set out ss 24 and 25 of the Juries Act which respectively address challenges for cause and peremptory challenges. He then went on:

[27] Plainly, the fact that a person on the jury panel has a non-disqualifying conviction and sentence does not of itself justify challenge for cause under s 25. The prior convictions may be a reason for the Crown or other prosecutor or any counsel for the parties to challenge simply without cause. Such challenges are not in fact challenges without cause. Because the parties are limited as to the challenges they can make, there is always a reason for them. In the case of the Crown, there is a special responsibility to have a proper reason. In the case of the Crown it cannot be a reason which undermines the purpose of the Juries Act.

[28] Reading the Juries Act as a whole, its text and in the light of its purpose, it does not seem to me to be a proper exercise of the Crown’s statutory discretion to be entitled to challenge without cause, to challenge on the basis that the person has a non-disqualifying conviction. The Juries Act has deliberately provided for persons to be jurors notwithstanding past convictions. Moreover, the Act has envisaged that past history of minor conviction is an issue of privacy to be protected by confidentiality.

[29] This is not to say there may be other reasons why a person with a prior conviction is regarded by the Crown as not being a desirable person to be on the jury of this particular case, even though the Crown cannot argue a challenge for cause in respect of that person, pursuant to s 25. There is nothing in the Juries Act that prevents the Crown from relying on local police knowledge of persons.

[30] I intend to follow the High Court of Australia in Katsuno to draw the same inference, by corollary, that the New Zealand Parliament intends the exercise of enquiry into criminal conviction from the database to be a confidential exercise, done only by the Registrar, and not by the police. There is no decision of a superior Court in New Zealand to the contrary.

[119] The idea that permeates the judgment of Fogarty J is that the scheme of the Juries Act, and particularly disqualification only for certain types of conviction, prevents the Crown relying on non-disqualifying convictions as a basis for peremptory challenge. Similar ideas can be found in the judgments of Lord Denning and Shaw LJ in Brownlow at 25 and 28 – 29 and of Kirby J in Katsuno at 89 – 90. But it is important to recognise that the obiter dicta in Brownlow were distinctly repudiated shortly afterwards in Mason, which was followed in McCann. Further, in Katsuno, it was only Kirby J who thought that it would be inconsistent with the scheme of the Act as to disqualification to permit a prosecutor to exercise a peremptory challenge because of a non-disqualifying conviction. All the other Judges thought otherwise. So do we. Permitting prosecutors to exercise rights of peremptory challenge for nondisqualifying convictions does not mean that all potential jurors with such convictions will be challenged. A system under which all those with disqualifying convictions are excluded and some of those with non-disqualifying convictions may be challenged is not inconsistent with the scheme of our Act. Indeed, it is exactly what the statute contemplates. A comparison of our Juries Act with the Victorian statute under consideration in Katsuno, makes it clear that our statute is designed to facilitate the sort of jury-vetting exercises which the Victorian Act set out to make impossible. And if this were not made clear by the scheme of our Act, the point is put beyond doubt when reference is made to the relevant parliamentary material which shows that in 1981 the legislature specifically considered and rejected the possibility of banning jury-vetting, an extremely important point which is discussed in the judgment of Robertson J at [31].
[120] All in all we are satisfied that the Juries Act is not inconsistent with jury-vetting and on this aspect of the case we are in agreement with the approach proposed by Robertson J.

Is jury-vetting by reference to criminal history inconsistent with the New Zealand Bill of Rights Act 1990 and if not, is defence disclosure required?

[121] Section 25 of the Bill of Rights provides:

25 Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a) The right to a fair and public hearing by an independent and impartial court:

...

[122] Asymmetrical rights of challenge (or to direct jurors to stand by) might give rise to fairness concerns, cf R v Bain [1992] 1 SCR 91. But the decision taken by Parliament to give the Crown rights of peremptory challenge necessarily proceeds on the premise that prosecutors may challenge potential jurors for reasons which would not justify a challenge for cause. Given that the defence likewise has access to rights of peremptory challenge which are at least the equivalent of the Crown rights and are more extensive in cases where there are three or more defendants, there is no unfair asymmetry in the position of Crown and defence.
[123] Asymmetrical access to information is a more relevant concern – a concern which the Crown has sought to address with a concession by the Solicitor-General that the information available to Crown prosecutors as to previous juror convictions will also be made available to the defence. We recognise that fairness (and perceptions of fairness) would be enhanced if defence counsel had access to the same material as prosecutors and, as well, that such disclosure has been recommended by the Law Commission, see Juries in Criminal Trials at 95 – 96. But, for reasons we are about to give, we think that the concession was over-broad.
[124] In the past, prosecutors have usually (but not always) resisted informing defence counsel of jurors’ prior convictions. This has probably been partly due to adherence to long-standing practice. To the extent that prosecutors have sought to justify this practice, it has been on the basis of either or both of the propositions that such information is not of significance to the defence or that such disclosure would breach the privacy expectations of potential jurors.
[125] Obviously criminal history information relating to potential jurors might be of advantage to a defendant. For instance:

(a) Defence counsel may prefer a jury to include as many jurors with criminal records as possible and, armed with criminal history information, might exercise rights of peremptory challenge accordingly.

(b) Counsel for an accused serving police officer may wish to exclude any juror who may be thought to have an antipolice attitude. It will be recalled that this was the context in which a jury-vetting disclosure order was made against the Crown in Brownlow.

(c) Counsel for a man accused of murdering a burglar and who is running self-defence and provocation may prefer a jury which does not include too many convicted burglars.

While peremptory challenges provide a certain mechanism for excluding jurors who are potentially unfavourable (up to the number of challenges allowed), their exercise will not necessarily ensure that a potentially favourable juror is selected. And of course, the ability of defence counsel with access to criminal history information to influence jury composition would be compromised by the Crown’s rights of peremptory challenge. How this would pan out in practice would depend on random considerations – particularly the number of potential jurors with non-disqualifying convictions on a particular panel, panel size and the number of defendants (because each defendant has six peremptory challenges and the Crown never has more than 12). The reality must be, however, that the sort of juror whose previous convictions suggest to defence counsel a likely predisposition in favour of the defendant will almost always be peremptorily challenged by the prosecutor.

[126] The examples we have just given (along with the traditional use by prosecutors of criminal history information to exclude potential jurors with non–disqualifying convictions) highlight the practical implications of jury-vetting by reference to criminal history information – implications which some will view with dismay and others with resignation or acceptance. We see jury-vetting addressed to the exclusion of potentially unfavourable jurors or aimed at the selection of a broadly representative jury (in terms of age, gender and social class) as more in keeping with traditional concepts of trial by jury than jury-vetting which is aimed at ensuring that those who are thought to be favourable are selected – “jury packing”, to use a pejorative phrase. We accept that this implies an approach to what constitutes a representative jury which is not particularly inclusive of those with criminal histories and is accordingly susceptible to criticism. But given that we are required to operate within a statutory scheme which permits peremptory challenge – a system which necessarily involves some elements of stereotyping – we see the distinction we have drawn as material to what disclosure is required.
[127] A requirement that criminal history information about potential jurors be automatically made available to the defence would equate the Crown purpose of seeking a jury which is free of those with non-disqualifying but perhaps still serious criminal histories with a defence desire (impractical of achievement though it may be) that a jury include people with such convictions. As far as we are aware, and leaving aside some obiter dicta in Brownlow, no Court has been prepared to proceed on that basis. Instead, courts in New Zealand (see Greening, Watson and Tukuafu), England and Wales (see Mason and McCann) and Australia (see Katsuno) have rejected the contention that there is anything inherently unfair in a defendant being tried by a jury where the Crown prosecutor has had access to previous conviction histories for the purpose of exercising rights of peremptory challenge (or the functionally equivalent right to direct potential jurors to stand by).
[128] There are some other contextual points:

(a) A decision by a prosecutor to challenge peremptorily a potential juror may be based not on formal criminal history information but rather on an indication from the officer in charge of the case that the juror is a gang associate, a suspected but so far uncaught criminal, about to be arrested on serious charges as a result of a long-running investigation or is on bail. Once jury-vetting information becomes the subject of disclosure requirements, it may be difficult to define the metes and bounds of what must be disclosed. We do not see how it would be possible to require automatic disclosure to the defence of formal criminal history information without also requiring disclosure of the informal personal information about potential jurors of the type just mentioned.

(b) Where the prosecutor intends (and is confident that he or she will have the ability) to challenge peremptorily or persuade the Judge to stand by a particular potential juror, the only point in requiring disclosure of the underlying information to the defence would be to enable the defendant to conserve peremptory challenges, a benefit which we do not see as fundamental to fair trial process.

(c) There is, of course, no requirement on the defence in a criminal case to disclose to the Crown any information about juror background which pre-trial checks have thrown up or the particular potential jurors who are to be challenged.

[129] There is a privacy interest of potential jurors which warrants consideration. Disclosure for the sake of disclosure which infringes those privacy interests unnecessarily and with no countervailing fairness benefit ought not be required. Disclosure of criminal history information to a defendant will probably not enable that defendant to ensure that particular jurors with criminal convictions are selected and, in any event, frustration of the ability to do so does not impinge on the fairness of a trial. So we are of the view that there is no need for automatic disclosure of criminal history information about potential jurors. On the other hand, disclosure will be appropriate (and should be directed by the Judge if necessary) where a defendant can point to some likelihood that, in the context of the particular case, jurors with criminal histories may have an adverse predisposition towards the defendant or the defence which is to be advanced.
[130] On this last point we note that we have been discussing disclosure to the defence of criminal history information on the assumption that this information will be in the hands of the prosecutor. The situation may be rather different if, as is usually the case in Auckland, criminal history information has not been obtained by the police and prosecutor. In such a case, equality of arms concepts of fairness would have no application. It may be that a defendant seeking to obtain such information might find it more difficult to do so than if the relevant material is already in the hands of the prosecutor. We see this, however, as a question for another day.

Is jury-vetting by reference to criminal history inconsistent with the Privacy Act 1993?

Should we address this question?

[131] The information privacy principles which are provided for in s 6 of the Privacy Act are a form of “soft law” and are primarily within the jurisdiction of the Privacy Commissioner and the Human Rights Review Tribunal, see ss 11, 13, 66 - 71, 72A, 73 – 77 and 82 – 89. The jurisdiction of the courts under the Privacy Act is confined to the jurisdiction to grant declaratory judgments under s 20 and by way of reference and appeal under s 89. On this basis, we have wondered whether we should simply refuse to address the application of the Privacy Act, leaving any issues to be addressed under the procedures that it provides.
[132] It is right to recognise the limits of the Court’s jurisdiction. We cannot determine in advance and conclusively the way in which the institutions established under the Privacy Act might determine a complaint by a potential juror that the police accessed his or her criminal history information and shared it with the prosecutor or that the prosecutor disclosed such information to defence counsel.
[133] On the other hand, given that the Privacy Act has been invoked as relevant to an important issue of practice which is under the control of the courts, we do not see how we can avoid addressing whether the practice conforms to the Privacy Act. For instance, if we concluded that jury-vetting by reference to criminal history was contrary to the Privacy Act, we could hardly acquiesce in a resumption of such jury-vetting. So we propose to address the application of the Privacy Act, albeit with a recognition that our conclusion is not binding on the institutions established under the Act.

The key statutory provisions

[134] Fundamental to this aspect of the case are s 111, Schedule 5 and principle 11 of the information privacy principles.
[135] Section 111 is in these terms:

111 Access by accessing agencies to law enforcement information

An accessing agency may have access to law enforcement information held by a holder agency if such access is authorised by the provisions of Schedule 5 to this Act.

Schedule 5, under the general heading “Ministry of Justice records”, refers to:

Details of hearings of proceedings in respect of which an information has been laid, including convictions, sentences and all other matters ancillary and subsequent to a determination.

This schedule provides that access is available to, inter alia, the police, but with an exclusion in relation to certain details associated with young persons.

[136] Principle 11, contained in s 6 which sets out the information privacy principles, is also relevant:

Principle 11

Limits on disclosure of personal information

An agency that holds personal information shall not disclose the information to a person or body or agency unless the agency believes, on reasonable grounds,—

(a) that the disclosure of the information is one of the purposes in connection with which the information was obtained or is directly related to the purposes in connection with which the information was obtained; or

(b) that the source of the information is a publicly available publication; or

...

(e) that non-compliance is necessary—

(i) to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences; or

...

(iv) for the conduct of proceedings before any court or tribunal (being proceedings that have been commenced or are reasonably in contemplation); ...

Our identification of the core Privacy Act issues

[137] The Solicitor-General in argument primarily relied on principle 11(e)(i) and (iv). What troubles us about this argument is the word “necessary” in principle 11(e). This is because:

(a) There are a number of jurisdictions in which trial by jury operates without jury-vetting by reference to prior criminal history and indeed trial by jury has continued to function in New Zealand since February 2007 on the same basis. So we struggle to see how such vetting can be regarded as being “necessary”.

(b) Likewise, there are a number of instances in which courts have held that trials have been fair despite criminal history information held by the prosecutor not being shared with the defence (a point which we see as very material to whether principle 11(e) requires such disclosure).

We recognise that if the law requires a prosecutor to disclose prior criminal history information to the defence, such disclosure would be within principle 11(e)(i) and (iv) but this would not in itself address the propriety of the police obtaining such information for jury-vetting purposes and providing that information to the prosecutor.

[138] In the course of argument, there was some discussion as to the possible applicability of principle 11(b). Obviously there is a sense in which criminal history information (which is necessarily based on what transpires in open court sessions) is public information. Criminal history information associated with proceedings on indictment is more “public” (see r 2 of the Criminal Proceedings (Search of Court Records) Rules 1974) than the corresponding information derived from summary proceedings (see s 71 of the Summary Proceedings Act 1957). But as we construe the relevant definitions in the Privacy Act (“publicly available publication” and “public register”), we cannot see how the information in issue here can be said to sourced in a “publicly available publication”.
[139] With that background in mind, we see the core Privacy Act issues as being:

(a) Can the police lawfully access criminal history information for the purpose of jury-vetting?

(b) Can the police lawfully make this information available to prosecutors?

(c) Can prosecutors lawfully make this information available to the defence?

Can the police lawfully access criminal history information for the purpose of jury-vetting?

[140] We have no doubt that police officers are entitled under s 111 of the Privacy Act and Schedule 5 to have access to “law enforcement information” which includes criminal histories. Although s 111 does not limit this access entitlement, we accept that it is implicit in the scheme of the legislation that information can only be obtained for a legitimate purpose.
[141] Prior to the enactment of the Privacy Act, jury-vetting was such a legitimate purpose as Greening establishes. There is nothing in the language of s 111 and Schedule 5 to suggest that jury-vetting is no longer a legitimate purpose. So, if there is a problem with jury-vetting, it necessarily lies down stream of the initial police accessing of the relevant law enforcement information. On this point we agree with the approach taken by Robertson J at [43] – [46].

Can the police lawfully make this information available to prosecutors?

[142] We agree with the view expressed by Robertson J (at [47] – [48]) that there is no relevant disclosure for the purposes of the information principles as between police and prosecutor. For these very functional purposes, we regard the prosecutor as in effect an agent of the police.
[143] In any event, if this agency approach is not available, so that there is disclosure as between the police and the prosecutor, we regard such disclosure by the police to the prosecutor as permitted by principle 11(a):

(a) Criminal history information is collected by the Ministry of Justice for the purposes of being used for, inter alia, legitimate police purposes. Those legitimate police purposes include the facilitation of jury-vetting. This follows from Greening and is a conclusion of law.

(b) To the extent to which the application of principle 11(a) turns on the factual issue of why the information was collected, the answer must be the same. Criminal history information has been used for jury-vetting purposes for so long that this purpose must fairly be regarded as one of the reasons why the information is collected.

(c) When the officer in charge of a prosecution or other police officer obtains criminal history information about potential jurors, this is for the purpose of providing it to the prosecutor. Accordingly, looking at the issue from the perspective of the police officer giving the information to the prosecutor, that disclosure is to fulfil the purpose for which the police officer obtained it.

Can prosecutors lawfully make this information available to the defence?

[144] We take the view that disclosure to the defence which is properly referable to fair trial concerns (eg circumstances of the kind referred to in [125](b) and (c) above) is permitted by principles 11(a) and 11(e)(i) and (iv). Such disclosure would be a purpose which is “directly related to the purposes in connection with which the information was obtained” namely the use of the information by the prosecution for jury-vetting. It will be recalled that the Law Commission, which gave careful consideration to this topic, has recommended that the prosecution supply the criminal histories of potential jurors to the defence, see Juries in Criminal Trials at 95 – 96. The only reason for supplying criminal history information to the defence is to satisfy fairness considerations associated with prosecution use of such material in relation to peremptory challenges. This purpose is therefore “directly related” (within the meaning of principle 11(a)) to such prosecution use, which, for reasons already given, is within the purposes for which the relevant information was “obtained”. Further, in this context, fair trial considerations, once properly invoked, must be paramount, thus justifying disclosure under principle 11(e)(i) and (iv).

Drawing the threads together

[145] The reality is that the criminal jury system can operate without jury-vetting based on the non-disqualifying convictions of potential jurors. This is indicated by experience in New Zealand since February last year and in other jurisdictions which are similar to New Zealand and where jury-vetting does not occur.
[146] On the other hand, it is plausible to assume that nondisqualifying convictions may be associated with particular patterns of anti-social thinking or behaviour which may make a particular potential juror unfit to sit on a particular jury. A person with a history of convictions for cannabis cultivation or dealing might conceivably be seen as an inappropriate juror in a cannabis case. A potential juror with a string of convictions associated with drinking and driving might not be a suitable juror in a case where the defendant faces a breath alcohol charge. The public has a major stake in the efficiency and fairness of the criminal trial process. Although we know criminal trials can operate without jury-vetting by reference to criminal history, we do not know whether the cessation of the practice in February 2007 has increased the incidence of hung juries or produced any perverse verdicts.
[147] In 1981, the legislature rejected a ban on jury-vetting by reference to criminal history and, instead, enacted the Juries Act in a form which facilitated jury-vetting. In 2001, the Law Commission, after full inquiry, recommended retention of the practice (although with disclosure to the defence). The overall pattern of decisions in New Zealand and overseas is not inconsistent with the lawfulness and propriety of the practice. In this context we are firmly of the view that if there is to be a change, it should be made by Parliament and not the courts.
[148] For the reasons which appear in this judgment, we answer the questions posed in the case stated as follows:

(i) May the police lawfully access the [criminal records] database to provide the Crown Solicitor with the non-disqualifying criminal histories of persons on the jury list to assist the Crown to decide whether to oppose a person on the list being a juror? Answer: Yes.

(ii) If the answer to the first question is “yes”, may the Crown challenge without cause a person on the basis that he or she has one or more non-disqualifying convictions and sentences? Answer: Yes.

(iii) If the answer to the first question is “yes”, should the accused’s counsel be given the non-disqualifying criminal history at the same time as the Crown receives it from the police? Answer: In usual circumstances the Crown is not required or permitted to disclose to the defence non-disqualifying criminal history information about potential jurors, but is required to do so where a defendant can point to a likelihood that, in the context of the particular case, jurors with criminal histories (or particular types of criminal histories) may have an adverse predisposition towards the defendant or the defence which is to be advanced.

Solicitors:
Crown Law Office, Wellington