The Queen v Gray [2009] NZCA 438 (25 September 2009)

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The Queen v Gray [2009] NZCA 438 (25 September 2009)

Last Updated: 29 September 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA708/2008

[2009] NZCA 438

THE QUEEN

v

RACHAEL LOSANNA GRAY

Hearing: 21 September 2009

Court: O'Regan, Venning and Winkelmann JJ

Counsel: E J Forster for Appellant
T Epati for Crown

Judgment: 25 September 2009 at 11.30 am

JUDGMENT OF THE COURT

An extension of time to appeal is granted but the appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] The appellant was found guilty of arson following trial in the District Court at Palmerston North before Judge Atkins QC and a jury. She was sentenced to imprisonment for two years six months (which included an uplift of three months to take account of the appellant’s guilty pleas on two fraud charges). The appellant appealed against her conviction and sentence on the arson charge. She has subsequently abandoned the appeal in relation to sentence.

General background

[2] In 2006 the appellant and her husband were carrying out extensive renovations to their home. To finance the renovations they had borrowed $100,000. The borrowing had placed the appellant and her husband under severe financial pressure.
[3] On 6 November 2006 the appellant was at home alone. At 10.46 am she made a 111 call reporting that the house was on fire. The fire brigade attended and put the fire out. The house was severely damaged. Subsequent inquiries by the fire brigade, the insurance company and the police established the fire had been deliberately started by the application of heat to a fabric-covered armchair in the lounge of the house. The appellant told the police that she had left the house in the morning at 10.40 am to get some bread, that she had parked in the carpark at the Four Square store, but had returned home when she discovered she did not have her wallet on her. She said that when she returned home the house was on fire.
[4] Police inquiries, assisted by video camera footage, confirmed that the appellant’s car had not been in the carpark of the Four Square store that morning. The forensic examination of the scene established that at the time the appellant made the emergency call at 10.46 am the fire must have already been well under way and would have been started some 12 to 15 minutes earlier, at a time that, according to the appellant, she was at home. In sentencing the appellant Judge Atkins said he considered that the jury was right to reject the appellant’s explanation as dishonest because it was apparent that at the time she claimed to have left her home the fire must already have been burning for some time.

Procedural background

[5] The trial started on a Monday and ran for the week. On the Friday, Court commenced just after 9.30 am. The closing addresses of counsel were followed by the Judge’s summing up. The jury were sworn in and retired to consider their verdict at 12.34 pm. Between 6 and 7.05 pm the jury went to dinner. At 8.30 pm the jury indicated that they were hung. After discussing the matter with counsel the Judge decided to give the jury a Papadopoulos direction. Counsel for the appellant did not oppose such a direction. The Judge gave the Papadopoulos direction at 8.49 pm and the jury retired to continue their deliberations.
[6] At 9.20 pm, in response to an inquiry from the Judge, the jury advised they were making progress and felt they would have a verdict in about 20 minutes or so.
[7] By 10.13 pm the jury had still not returned a verdict. After seeing counsel briefly in chambers the Judge convened in Court for Chambers to discuss what he should do. While the Judge was discussing the matter with counsel, there was a knock on the door and the jury indicated that they had agreed upon their verdict. The jury returned at 10.19 pm. The foreperson confirmed that the jury had unanimously agreed on their verdict and delivered a guilty verdict.
[8] Counsel for the appellant then sought a poll of the jury. The Judge asked the jury to retire again.
[9] After hearing from counsel the Judge agreed to conduct a poll of the jury. All members of the jury individually confirmed they agreed with the verdict given by the foreperson.

Grounds of appeal

[10] Mr Forster argued the conviction was unsafe and the appeal should be allowed because:

(a) The jury deliberation was “excessive” giving rise to jury fatigue;

(b) The Judge should not have sent the jury out together before conducting the poll.

The issues

[11] The issues in the case are:

(a) Is the verdict unsafe by reason of the process of deliberation;

(b) Was a poll required and, if so, did the method adopted by the Judge render the poll unsafe or unreliable?

The deliberation process

[12] Mr Forster submitted that, in reliance on the decision of R v Donnelly [2007] NZCA 313, the guilty verdict was unsafe on the grounds of jury fatigue. He submitted there were a number of similarities with that case, namely that this was a one issue case, the jury had indicated they were hung, and the verdict was returned late on a Friday night.
[13] Jury fatigue was accepted as a basis for allowing an appeal in R v Hapeta [1995] 1 NZLR 6 (CA). In that case the Judge summed up late on the Friday evening after normal sitting hours. The jury were immediately sent out for a meal and began deliberations at 9.00 pm. They did not return verdicts until 2.45 am in the morning. The appeal was allowed on the basis there was a distinct possibility the verdict had been reached for extraneous reasons such as exhaustion, discomfort or family concerns given the lateness of the hour. We take Mr Forster’s reference to jury fatigue in this case to be a convenient shorthand reference to these types of factors.
[14] Given the facts of Hapeta it is readily understandable the Court was prepared to draw an inference of fatigue. The jury had sat through a full day of trial. The Judge had not completed his summing up until well into the evening. The verdict was not delivered until the early hours of the morning. The finding of fatigue was almost inevitable in those circumstances. But such will not always be the case, even if the deliberations continue for some hours.
[15] In R v Sampson [1989] 2 NZLR 288 (CA) a jury returned with a verdict at 3.00 am in the morning. The jury had retired just after 1.00 pm that day with a dinner break at about 8.00 pm following a question. An appeal based on juror fatigue was dismissed. This Court observed at 291:

Cases vary enormously in complexity, and juries can also vary in their ability to comprehend them and sustain constructive discussion. In determining whether a verdict should be regarded as unsafe or unsatisfactory, we think it necessary to take an overall view of the trial, the summing-up, the record of the jury's deliberations and the character of the verdict, bearing in mind that the trial Judge is often in the best position to exercise an informed discretion about whether or not to discharge the jury from his “feel” of the case which may develop over some days' association with them.

The Court noted that the jury gave positive indications they were making progress throughout their deliberations.

[16] In R v CKM [2007] NZCA 92 this Court considered the additional impact of a Papadopoulos direction on a lengthy deliberation. The jury retired to deliberate at 12.42 pm. They returned with two questions in the early evening. At 10.10 pm they returned to the Court and were asked about their progress. The foreman told the Judge that 11 were in agreement. The Judge gave the jury the option to continue deliberations or return in the morning. At 10.20 pm they returned and told the Judge they would continue deliberating. At that stage the Judge gave them a Papadopoulos direction. Counsel and the Court then overheard a heated discussion in the jury room before the door was closed. The jury returned about 40 minutes later at 11.10 pm with guilty verdicts. An appeal on the ground that the length of the deliberations and the heated discussion showed there was undue pressure on the jury to reach a verdict was dismissed.
[17] In another recent case of R v Aroh [2008] NZCA 457 this Court rejected a submission that verdicts delivered at 1.27 am following a deliberation of some 10 hours 20 minutes were unsafe.
[18] As the appellant relies on Donnelly it is necessary to consider that case in some detail. Donnelly’s trial commenced on the Monday. Almost immediately a jury member was discharged. On Tuesday another jury member had to be discharged. The Judge discharged the entire jury. A second trial commenced on the Wednesday at 11.11 am. The Judge was under pressure to ensure the trial was completed by the end of Friday. There was an issue whether overnight accommodation would be available for the jury because of a local A&P show on the weekend. On the Friday Court commenced at 9 o’clock. The defence opened, and then called evidence. That was followed by the Crown and defence closings. The lunch adjournment was taken at 12.25 pm. The Judge started summing up to the jury at 1.45 pm and concluded at 2.50 pm. The Judge was then required to recall the jury to clarify a matter. The jury continued in deliberation until 8.10 pm when the Judge received a note from the jury. The note indicated a complete impasse in that the jury were at 6:6. Over an objection from defence counsel the Judge gave a Papadopoulos direction. The Judge concluded the standard Papadopoulos direction with the following (at [39]):

Members of the jury, use your common sense. If I can suggest to you that you focus on the main issues in the case and do not get yourselves too bogged down in detail. Have another go on the basis of what I have told you.

[19] At 8.22 pm the jury retired to continue deliberations. At about 10.00 pm defence counsel indicated he wished to see the Judge as he was concerned at the length of the deliberations. The jury returned a verdict at 10.12 pm before the Court was able to be reconvened. Donnelly’s appeal was allowed on the basis the verdict was unsafe, primarily for three reasons:

(a) The jury note indicated an outright deadlock;

(b) The Court considered a Papadopoulos direction should not have been given late on a Friday in the circumstances of the particular case; and

(c) Even if a standard Papadopoulos direction was justified the additional wording used by the Judge was problematic.

[20] It is also apparent from the judgment that the Court was concerned at certain of the evidentiary aspects relied on by the Crown to support the prosecution case.
[21] The appellant places too much reliance on Donnelly. Donnelly largely turns on its own facts. Although reference to other cases provides some helpful background, each case must turn on its own facts. As this Court said in Donnelly itself at [58]:

... lengthy and protracted deliberations are to be weighed against any ostensible signs of juror progress. In the end it is a question of fact and degree as to whether the verdict is likely to be unsafe.

[22] In the present case there is no evidence of jury fatigue. There was no complaint from the jurors about fatigue or conditions in the jury room for example. The trial followed a relatively common process for a week long trial with closing addresses and the Judge’s summing up on the Friday and verdicts that night.
[23] Mr Forster is correct that there was only one issue in this case, namely whether the appellant was the arsonist. But it was not a case involving a direct conflict of evidence between a complainant and the accused, for example. It was a circumstantial case requiring the jury to carefully consider all the evidence which had been given over the preceding four days and the addresses they had heard that day. The Crown case turned on opportunity and motive. There was expert and reconstruction evidence on the timing of the fire and the explanation the appellant had given for her whereabouts. It is understandable the jury would take time to debate the evidence.
[24] The jury deliberated without raising any issues until 8.30 pm, when they indicated they were hung. Unlike Donnelly, where there was an outright deadlock, the jury were just unable to unanimously agree at that time, and properly advised the Judge of that fact. The Judge gave them a Papadopoulos direction. It was within his discretion to do so. Mr Forster properly accepted that he did not suggest to the Judge that the jury should have been discharged at that time. There was no basis to do so. There was no reason for the Judge to consider the jury were fatigued at that stage and unable to carry on. They had recently had a meal break and were merely seeking direction given they were unable to agree.
[25] There is nothing to suggest that between 8:30 pm and the delivery of the verdict at 10:19 pm the jury became fatigued or the verdicts were the result of undue pressure. Importantly, when an inquiry was made at 9.20 pm the jury advised they were making progress and said they “feel they will have a verdict in about 20 minutes or so”. That showed that discussions were ongoing and positive. While the length of the deliberation was long, it cannot be suggested that it was untoward. The delay of approximately eight hours 50 minutes (excluding the dinner break) is similar to that in R v CKM for example where the jury delivered their verdicts after nine and a half hours (excluding the dinner break).
[26] When an overall view of the trial is taken, the deliberations in this case cannot be said to be excessive in time, there is no actual evidence of fatigue and no basis to infer that juror fatigue or improper pressure were factors in the verdict. Mr Forster’s submissions to the contrary are essentially speculative.

The poll

[27] Mr Forster submitted that the Judge erred by allowing the jury to return to the jury room while he discussed the issue of the poll with counsel. He submitted that inevitably any minority dissenting juror(s) would have been under immense pressure to conform especially given the hour of the night on a Friday.
[28] There is nothing in this point. There was no need for a poll in the first place. The record does not support Mr Forster’s written submission that when the jury returned the verdict of guilty there were audible expressions of demur by the jury members and that the Judge accepted that. The record discloses that on Mr Forster requesting a poll the following exchange took place between counsel and the Judge:

Mr Forster Sir, I would seek a poll.

His Honour On what basis?

Mr Forster The basis of time, sir and I watched the jury carefully and I didn’t hear all of them speak to the answer about unanimity. I certainly heard the forewoman speak, sir.

His Honour All right well members of the jury I will ask you to wait in the jury room briefly and I will see counsel. You return to the jury room please.

Jury Retire: 10.20 pm

Court Resumes: 10.21 pm

COURT AS CHAMBERS

His Honour Mr Murray, I will hear you on the point.

Mr Murray Sir, I have to confess I am not overly familiar with the relevant provisions but I would of thought sir that in the circumstances it’s fairly clear given the way that the matter has progressed this evening and in my respectful submission sir, I would oppose a polling of the jury.

His Honour Yes all right. Well I wasn’t able to see all of the jurors as the question was asked of them but I didn’t hear, certainly didn’t hear all of the voices. I think that I am prepared to conduct a poll of the jury. Now I will adjourn briefly whilst that is organised.

[29] The Judge then retired to consider the procedure to follow. The Court then resumed at 10.35 pm. At that time the Judge noted that there had been a subsequent communication from the jury in which they, correctly, said the foreperson spoke for them all:

We will apologise as we had no knowledge that we were all to say yes. We all believe the foreman spoke for us all. Our decision is unanimous.

[30] However, as the point had been raised, the Judge decided to proceed with the poll. The jury were then brought in. The Judge explained the process he would follow and then polled the jury. Each of the jurors individually confirmed they agreed with the verdict given by the foreperson.
[31] The short point is that the record does not disclose there was any obvious dissension among the jury when the verdict was returned. There was no need for a poll in the circumstances.
[32] The foreperson is the spokesperson for the jury. The proper process is, as was initially followed in this case, for the relevant questions as to unanimity to be addressed to the foreperson. Before delivery of the verdict, the foreperson is asked to respond on behalf of the jury: “Members of the jury, have you unanimously agreed on your verdict?” Following a positive answer from the foreperson, the verdict is taken. Then, after delivery of the verdict, the foreperson is asked again, “And are you all agreed members of the jury?”, to which the foreperson again responds on behalf of the jury. Individual members of the jury are not required to confirm their assent on either occasion.
[33] In practice a Judge should observe or survey the jury while the verdict is being taken so that in the event a jury member indicates dissent in response to either of the questions the Judge can take whatever action he or she determines appropriate. As Heron J said, in delivering the decision of this Court in R v Wood CA414/96 22 April 1997 at 2 - 3:

The duty of the trial Judge is to ensure that the verdict is unanimous and such will generally be satisfied by a survey of the jury when the registrar asks if the verdict is the verdict of them all.

[34] The Judge may observe a variety of responses from the jury. Some may express assent, some may nod, some may be upset, but unless there is something of concern to the Judge which suggests the verdict is not unanimous (now a majority verdict) then the Judge must accept what the foreperson says on behalf of the jury. There is nothing on the record of this case to suggest dissent by any juror. The record discloses that Mr Forster requested a poll because he said he had not heard all of the jurors express their unanimity. But the jurors were not required to do so. This appeal point is misconceived.
[35] In any event the evidence of the unanimity of the verdict is overwhelming. The foreperson confirmed the verdict was unanimous. The jury then sent a note to confirm they were unanimous. Finally, when polled, they each again confirmed the verdict for the third time.

Extension of time

[36] The notice of appeal was filed late. We are satisfied that, in the circumstances, it is appropriate to grant an extension of time for the filing of the appeal.

Result

[37] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington