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Court of Appeal of New Zealand |
Last Updated: 7 December 2011
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA301/2011
[2011] NZCA 611 |
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BETWEEN TONY JOHN HARRIS
Appellant |
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AND THE QUEEN
Respondent |
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Hearing: 10 November 2011
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Court: Ellen France, Miller and Asher JJ
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Counsel: J H M Eaton for Appellant
L C Preston for Respondent |
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Judgment: 2 December 2011 at 3 pm
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JUDGMENT OF THE COURT
Order made extending the time for appeal but the appeal is dismissed.
REASONS OF THE COURT
(Given by Ellen France J)
Table of Contents
Para No.
Introduction [1]
Factual background [2]
The issues on appeal [13]
Admissibility of medical
records and convictions [14]
The approach in the summing up
to the defence case [25]
Accidental killing [29]
Self-defence [37]
Access to audio and video
equipment during deliberations [52]
Answer to the jury question on
self-defence [61]
The taking
of a majority verdict [66]
Result [76]
Introduction
[1] Shane Bensemann died as a result of a stab wound to his heart, one of two inflicted in the early hours of 7 September 2009. The appellant was charged with his murder. After a jury trial, the appellant was acquitted of murder but convicted of manslaughter. He was sentenced by the trial Judge, Wild J, to a term of imprisonment of three years six months.[1] The appellant appeals against his conviction on the basis that a miscarriage of justice has resulted from a number of matters including the Judge’s approach in summing up.
Factual background
[2] On 6 September 2009 the appellant drove from his home in Reefton to Kumara to visit friends. He met up with his friend, Neil Balderstone. That evening they decided to call in at the house Mr Bensemann was renting from the appellant in Kumara. The appellant and Mr Bensemann had become friendly. Mr Balderstone had met Mr Bensemann on a small number of occasions.
[3] Over a period of about three hours, the three men stood around a tallboy which Mr Bensemann used as a bar leaner, drank Mr Bensemann’s home distilled whiskey, smoked cannabis and talked.
[4] Mr Bensemann was experienced in martial arts. He had a boxing bag in the lounge and showed the others his skills with the bag. Mr Balderstone said Mr Bensemann showed him a trick he had learned which involved palm punching the bag causing it to spin right out.
[5] It appears Mr Bensemann was keen to spar with the appellant and eventually the two did that. This involved some punching and kicking. The incident ended when Mr Bensemann knocked the appellant over onto the hearth. Mr Balderstone said they both indicated to Mr Bensemann to cut it out to avoid someone getting hurt.
[6] The three men resumed their talking and it seems had another cannabis cigarette and, possibly, drank more alcohol.
[7] At some point in the evening, Mr Bensemann had brought out a knife. He showed the other two his knife sharpening skills by shaving hairs off his forearm.
[8] Later in the evening, Mr Bensemann again became physical. He knocked Mr Balderstone’s hat off. It appears Mr Bensemann had another go at the appellant. The appellant picked up the knife from where it had been left on the tallboy. On his account, he held it and told Mr Bensemann to cut it out but Mr Bensemann lunged at or walked on to the knife. As a result, Mr Bensemann suffered two wounds, one of which went through the biceps on his left upper arm while the other, to Mr Bensemann’s chest, penetrated his heart. Death resulted very quickly.
[9] The appellant and Mr Balderstone then went to Mr Balderstone’s house to call the police. They had not been able to get cell phone coverage at Mr Bensemann’s house. In the 111-call, and in a subsequent police video interview, the appellant said the wounding was accidental.
[10] The Crown case at trial was that the appellant had got angry and murdered Mr Bensemann but then almost immediately regretted it. He either intended to kill Mr Bensemann or was reckless in stabbing him twice at chest height.
[11] The defence case was that the killing was accidental or, if there was any force, it was in self-defence. The appellant did not give evidence.
[12] After deliberating for some time, the jury returned a majority verdict (11:1) of manslaughter.
The issues on appeal
[13] The matters raised on the appeal can be addressed in the order in which they arose at trial under the following heads:
(a) The Judge’s decision not to admit evidence of Mr Bensemann’s medical records and criminal history.
(b) The approach taken in the summing up in relation to the defence case.
(c) The Judge’s decision to permit the jury to have access to audio and video equipment during deliberations.
(d) The response to a jury question on self-defence.
(e) The taking of a majority verdict.
Admissibility of medical records and convictions
[14] We understand that, shortly before the trial was to commence, medical records and criminal history relating to Mr Bensemann were disclosed to the defence. The medical records dated back to 1998 and dealt with Mr Bensemann’s history of mental health problems. While the Crown case was in its early stages, the defence made an application to be able to use Mr Bensemann’s medical notes and to adduce evidence of Mr Bensemann’s convictions for crimes involving physical violence.
[15] Wild J granted the defence application to use this material as a basis to cross-examine Mr Bensemann’s former partner, Eleanor Shaw, who was a Crown witness. The Judge declined the defence application to admit the entire set of medical notes as documentary hearsay through the officer-in-charge. He also declined the alternative defence proposition which would have involved admission of those comments recorded in the medical notes attributed to Mr Bensemann again as documentary hearsay via the officer-in-charge.[2]
[16] The Judge said that the bare record of the convictions was inadmissible but that evidence of Mr Bensemann’s convictions for crimes of physical violence could be admitted if sufficient factual information as to the circumstances of the convictions was available to establish their relevance to the asserted propensity of Mr Bensemann.
[17] The appellant says the effect of the ruling was to deny the appellant evidence of Mr Bensemann’s propensity to act irrationally, unpredictably and violently, especially when under the influence of alcohol and drugs. The defence was further hamstrung because the prosecution were unable to provide any summaries of facts about the criminal convictions. Mr Eaton on behalf of the appellant also says, on reflection, that the concerns would have been addressed if an admitted statement of facts along the following lines had been in evidence:
Between 1998 and 2008 the deceased undertook mental health assessments confirming a longstanding alcohol and drug dependence. Generally treatments were the consequence of the deceased’s violent and threatening behaviour. In particular the medical files confirm the deceased’s status as a black belt in martial arts, engaging in threatening and violent behaviour and doing so impulsively. From time to time the deceased expressed concern that he was a danger to others.
[18] This ground of appeal, although not abandoned, was not pressed in oral argument. We consider it can be dealt with shortly because it has no merit for a number of reasons.
[19] First, in terms of the medical records, we agree with the reasons given by the Judge in support of the ruling that the defence could not introduce the entire medical notes (160 pages) through the officer-in-charge. Wild J ruled against this for three inter-related reasons, namely:
[18] First, [the defence proposal] would dump on the jury a large amount of medical information, without the assistance of any witness qualified to explain to the jury what, if any, relevance it has to this case. ... The jury would be asked to speculate or guess that what is recorded in the medical notes is evidence of the propensity asserted. Having scanned the medical notes, I can see that it may be. But it also may not be. An expert view would be required before the jury could reach a sound decision. ...
[19] ... [S]econd ... much of the medical information is now dated, and much of it, indeed most of it, records violence or mental health problems stemming from Mr Bensemann’s past difficulties with his relationship(s) with one or more female partners, in particular, the breakup of that or those relationship(s). Those difficulties do not have an obvious or clear relevance to the situation which is the focus of this trial.
[20] The questionable relevance of the medical information brings other, countervailing considerations into play. These form my third reason for ruling the medical notes out. The first consideration is trial fairness. Although it is generally fairness to the accused that is referred to, fairness to the Crown as proxy for the public is also important. I would view the medical notes as representing an impossible task for the jury, and as representing a major distraction for them. ...
[20] We agree also with Wild J’s conclusion that the alternative course of action proposed, admitting only statements attributed to Mr Bensemann, suffered from similar difficulties. Further, as the Judge said, that course had its own problems “not the least of which is plucking statements out of [their] context”.[3]
[21] We add that it is also questionable whether, absent consent to this course, it was permissible under the Evidence Act 2006 for this evidence to be introduced via the officer-in-charge.
[22] Secondly, as to the criminal records, we agree with the Judge that admission of the bare criminal record did not have a tendency to prove or disprove anything that is of consequence to the determination of the proceeding as contemplated by s 7(3) of the Evidence Act.
[23] Even if there was an issue about the admissibility of this material, we are satisfied the Judge’s ruling has not given rise to a miscarriage. We say that because when we consider the approach now advanced for the appellant, the jury did hear evidence of the matters set out in the proposed statement of facts, such as Mr Bensemann’s violence and impulsivity. That evidence was primarily adduced in the cross-examination of Ms Shaw. For example, Ms Shaw accepted their relationship came to an end because of Mr Bensemann’s violence towards her and that Mr Bensemann could be unpredictable and aggressive. She also agreed that, on one occasion, he had used his martial arts to stop a friend driving whilst intoxicated and caused his friend quite significant injury.
[24] Defence counsel’s line of questioning of Ms Shaw was assisted by the disclosure in the course of the trial of email exchanges between Mr Bensemann and Ms Shaw which included references to his martial arts skills and his physical strength. While the detail of the mental health assessments and the fact his alcohol and drug dependence were long standing were not before the jury, those matters without any further expert explanation as to their significance would not have advanced the defence case.
The approach in the summing up to the defence case
[25] The appellant says his defence was not properly put to the jury in summing up and that there was a lack of balance. The focus of the submissions in this respect is that the defence, particularly in relation to self-defence, placed greater emphasis on the 111-call and Mr Balderstone’s evidence at trial than on the video interview with the police. The complaint is that this aspect did not receive attention in the summing up and this, particularly when coupled with the more detailed discussion of the Crown case, undermined the defence.
[26] The primary obligations of a Judge’s summing up were summarised by this Court in R v Keremete:[4]
[18] ... A judge’s summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect to those facts, and leave the jury in no doubt that the facts are for them and not for the judge. Rival contentions with respect to the factual issues will normally be summarised ... but there is a wide discretion as to the level of detail to which the judge descends ... Treatment of matters affecting the cogency of evidence is not required as a matter of law ...
[19] The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or the other ... A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact. ...
[27] The observations of Hammond J in R v Shipton are also on point, namely, that the Judge is required to see that the nature of the defence is “squarely put ... by summarising the nature of the defence and the evidence” but that the Judge is not, however, required to “repeat defence counsel’s arguments, nor to endeavour to “top up” a weak defence by setting out inconsistencies or matters of that kind”.[5]
[28] We examine the approach in the summing up to both of the defences that were advanced at trial, although the emphasis in the amended notice of appeal was on the treatment of self-defence.
Accidental killing
[29] In terms of accidental killing Mr Eaton, who was trial counsel, in his closing address encapsulated the defence case in this way:
But as he tells the 111 operator and he tries to explain to the police as best he can, “[Mr Bensemann] had turned bloody nasty. He [became] so f...ing violent”. He’s come at him, lunged at him and in doing so, he’s obviously collided with this knife and [the appellant] says repeatedly, “I didn’t stab him, it was an accident”.
Mr Eaton in closing also made the point that the appellant’s response after the stabbing was consistent with his view that it was an accident. Indeed, the appellant said he did not know he had stabbed Mr Bensemann until after Mr Bensemann had fallen.
[30] We turn then to consider the summing up. The first point that should be made is the Judge in summing up spoke to the question trail he had provided to the jury. There is, quite properly, no criticism of the question trail. The second general matter to note is that in a very succinct and accurate way at the start of the summing up the Judge set out the Crown and defence cases. That summary is balanced in terms of the emphasis given to each of the respective cases. Again, no criticism can be made of this. Further, the Judge repeated the core defence in relation to accidental killing in explaining to the jury that the question “Are we sure [the appellant] intentionally stabbed Mr Bensemann?” had to be answered because:
[24] ... [the appellant] says he did not intend to stab Mr Bensemann, indeed he did not even realise he had stabbed him until Mr Bensemann fell or went back and collapsed on the couch.
As will be apparent, that passage echoes the emphasis in the defence closing address.
[31] The first specific criticisms of the summing up relate to the following passage:
[27] The defence case on this is very straightforward. It relies on [the appellant’s] account, in particular in his videotaped interview ... , that he took the knife and held it around about waist height (you will recall he demonstrated that in the video) and that Mr Bensemann came at him and effectively stabbed himself on the knife. And [the appellant] did not actually realise Mr Bensemann had done that until he collapsed onto the couch.
[28] The Crown met this defence with a number of points. I will remind you only of the main ones:
[32] Mr Eaton submits the Judge has over-simplified matters. He makes the complaint we have foreshadowed, namely, that this passage emphasises the videotaped interview rather than the 111-call. In addition, there is criticism of the reference to the appellant’s demonstration on the video of where he held the knife. Mr Eaton says that the Judge should have referred to the defence submission in closing that the demonstration not be taken literally. Finally, it is said that the Crown case is over-emphasised.
[33] We consider that the Judge’s assessment that this was a straightforward defence was an accurate one. In our view, a more detailed discussion of the Crown case in this respect reflects the trial focus. The Crown sought to rely on the expert evidence, particularly that of the pathologist, Dr Sage, which was less straightforward and so required further attention. In any event, the summing up has to be considered as a whole and on that overall analysis we are satisfied the approach was a balanced one.
[34] In terms of this defence, the reference to the video interview was not critical because throughout that interview the appellant maintains that what occurred was an accident. In any event, Wild J did not direct the jury to look solely at the video interview. There are also sufficient references to the 111-call in other parts of the summing up and the centrality of the appellant’s various accounts would have been obvious to the jury.
[35] We deal with the concern about the appellant’s demonstration on the video in the context of self-defence. At this stage, however, we note that given the immediacy of the closing addresses to the summing up (it followed immediately after the closing addresses), we do not see any omission arising from the absence of repetition of some of the detail of the arguments.
[36] The Judge then dealt with the intention to kill. The complaint we need to address in relation to this part of the summing up is that the Judge’s approach was a more detailed and structured one in terms of his references to the Crown case. Again, however, the key points of the defence were set out. Importantly, the Judge did summarise, albeit succinctly, the defence response to the expert evidence. Nothing further was required as a matter of fairness.
Self-defence
[37] The gravamen of the submission on this is that the defence had to provide an answer at trial to the statements in the video-taped interview that the appellant was not fearful of Mr Bensemann and that Mr Bensemann was not angry or aggressive. Otherwise, Mr Eaton says, self-defence was not a realistic option. The point advanced is that the Judge in summing up did not set out the defence answer to the video-taped interview. Rather, in simplifying the defence argument the Judge had undermined it in a context where he gave more detail about the Crown case.
[38] To assess this submission it is necessary to understand what it was the defence provided in closing as the “answer” to the account given in the interview. Essentially, the answer was an enjoinder to the jury not to take the video-taped interview literally, particularly, the demonstration of how the appellant held the knife. Hence, Mr Eaton in closing emphasised the circumstances in which the interview was conducted (in the early hours of the morning after the appellant had been drinking and consuming cannabis) and the appellant’s concern about police entrapment. Mr Eaton also told the jury that the appellant did not speak critically about Mr Bensemann, so, it was submitted, the jury could infer he had downplayed the threat posed by Mr Bensemann. The other aspect of the defence we need note in this context is the submission that the other evidence supported the defence propositions, particularly, the 111-call and Mr Balderstone’s evidence.
[39] We turn then to the summing up. The Judge dealt first with the Crown case, namely, that self-defence did not arise on the appellant’s accounts in the 111-call or in the video interview because the appellant did not claim he had used the knife to defend himself against Mr Bensemann, indeed his account was to the opposite effect. The Judge then described four, short, passages of evidence relied on by the Crown. This was followed by a description of four aspects of Dr Sage’s evidence, again, each fairly short.
[40] The Judge then explained the defence case. He began by saying this:
[51] As I have said, self-defence is the [appellant’s] primary defence. It rests primarily on the [appellant’s] account to the 111 operator of what had just happened, and on his much more detailed account to [the police officer] during the videotaped interview a few hours later, and on the evidence of Mr Balderstone.
[41] Wild J is criticised for describing self-defence as the appellant’s primary defence. But nothing turns on that in this context given it was plain that the appellant was running two defences.
[42] We are satisfied that in this passage and in the passages which followed, the Judge adequately put across the defence case. We make the following points. First, as we have noted, the core of the defence case was put at the start of the summing up in the context of a question trail which, it is accepted, accurately summarised the matters on which the jury needed to be satisfied.
[43] Secondly, in dealing with what the appellant believed to be the position, the Judge did refer to key passages in terms of self-defence. First, the Judge referred the jury to what the appellant said in the 111-call and summarised that evidence as follows:
[53] ... [Mr Bensemann] suddenly turned nasty – he turned into a Kung Fu ... There was no malice. We are friends – it was a bit of an accident.
[44] The change in Mr Bensemann, that is, turning into what the appellant described as “a kung fu”, was really the high point of the self-defence argument. The Judge then referred to the fact that there were “quite a few” relevant passages in the video-taped interview.[6] The jury were referred particularly to specific pages. Those references drew the jury’s attention to, amongst other matters, Mr Bensemann starting to do some martial arts and getting a bit “aggro violent” earlier in the evening and then later to what is described as “biff[ing]” the appellant. In the later pages referred to by the Judge, the appellant describes Mr Bensemann showing them his skills on the punching bag and feeling like he was “f...en ... Bruce Lee ...”. The appellant also makes reference to Mr Bensemann having done martial arts and liking doing that “combat stuff”. In these passages there is also a discussion of the suddenness of what occurred and how Mr Bensemann would usually respond when in a real “aggro”, and that on the night he wanted to show a little bit of martial arts. These passages put across the thrust of the case for self-defence.
[45] Specific reference to Mr Balderstone’s evidence was not required given the short compass of the trial and the immediacy of the closing addresses which discussed this evidence. In any event, the effect of his evidence in relation to self- defence should not be overstated. Obviously, he set the scene and his essential narrative of events was not challenged, for example, he described Mr Bensemann kicking the appellant earlier in the evening. However, he also said it looked like Mr Bensemann was coming at or into the knife. He disavowed the suggestion that what he had seen earlier on was “intimidating”, preferring to describe it as “unpredictable”. He did describe Mr Bensemann as having “lost the plot” and becoming “absolutely crazy” such that Mr Balderstone was “petrified”. However, when asked whether he sensed that the appellant was trying to protect him, he said “possibly” but that he had his back to the appellant. There was also reference later in the summing up to the fact the defence relied on Mr Balderstone’s evidence and the 111-call.
[46] The Judge continued by reference to the account of what the appellant said to the arresting officer. When the appellant was arrested, the detective noted him as saying “I know what it seems like and I stabbed him”. Wild J went on to say:[7]
You will recall the detective was questioned closely about that and accepted that may not be verbatim what the [appellant] said to him.
[47] The criticism of this is that the Judge was not more explicit about the detective’s responses in cross-examination. We think this is squarely in the category of matters of argument and emphasis and did not need more than the Judge’s summary.
[48] Finally, we address the appellant’s criticism of the Judge’s description of the facts. We need to set out the two paragraphs in full:
[56] So from all of that you will get the picture that after being knocked over onto the hearth by Mr Bensemann and getting that bruise on the side of his face, the [appellant] had gone back to the bar cabinet and things had settled down. As the [appellant] said “It was all good and we were all yakking”. And then Mr Bensemann knocked Mr Balderstone’s hat off and had another go at the [appellant] who picked the knife up off the cabinet and held it saying to Mr Bensemann words to the effect “Hey cut it out bro, we’re mates y’know”, and then Mr Bensemann came at the [appellant] and the knife wounds were inflicted. You will see that the [appellant] did not think Mr Bensemann was coming at him to attack him or hurt him and he did not think that Mr Bensemann was getting out of control. It seems that he picked up the knife and held it to dissuade Mr Bensemann from doing any more physical things against him, and perhaps against Mr Balderstone as well. So he was holding the knife and telling Mr Bensemann at the same time to cut it out.
[57] All of that really also deals with step 2 [that is, whether the appellant believed he was acting defensively]. I reiterate that the [appellant] was emphatic that he didn’t think he was being attacked or would be hurt and did not intend to thrash out (lash out?) at Mr Bensemann or to stab him. His account is that he held the knife to dissuade Mr Bensemann from doing anything more physical.
[49] Three points can be made about these two passages. First, having left self-defence to the jury (in a situation where the narrative for that was strained) the Judge was not then required to “gild the lily” in any way. Secondly, it does need to be remembered that there was something of a dilemma for the Judge in this case in dealing with the defences because the two defences were inconsistent. The Judge has had to do his best to steer his way around this problem. Finally, Wild J made it clear to the jury that they were the judges of the facts.
[50] In any event, having reviewed the evidence, we consider that these two paragraphs are an accurate reflection of the evidence. For present purposes we only need to highlight some passages from the appellant’s video-taped interview:
AL[8] Yeah good. Right um so would it be fair to say that um you were play fighting?
...
...
...
...
...
...
...
...
...
[51] For these reasons, we are satisfied the summing up was fair and balanced.
Access to audio and video equipment during deliberations
[52] The jury retired to deliberate at 4.21 pm on Thursday 14 October 2010. The jury retired overnight and began deliberating again at 10 am on 15 October 2010. At some point, the foreperson asked the Judge if they could have a TV/VCR and stereo in the jury room. The Judge granted the request and the record shows the jury played the appellant’s video interview.
[53] The appellant says that the Judge agreed to this course without consulting counsel. The appellant also says it was necessary for the Judge to direct the jury and, in particular, to remind them of the need to consider the video interview in light of the 111-call and the other evidence including Mr Balderstone’s narrative of events and counsel’s submissions.
[54] We are satisfied that what occurred has not given rise to a miscarriage. The following points are relevant.
[55] First, it is plain that at least by about 3 pm on 15 October,[9] counsel were aware the jury had the VCR and had played the video interview. The Judge expressly states that in his answer to the jury’s question about the reasonableness of force. The appellant was represented by experienced counsel who made no objection to the course followed nor sought further judicial direction.
[56] Secondly, we see this case as distinguishable from that of R v Crawford[10] relied on by the appellant.
[57] One of the grounds of appeal in R v Crawford was that the trial Judge should not have allowed the jury to play the videotape of the accused’s interview in the jury room without supervision from the Judge. This Court said it did not determine whether it was appropriate for the jury to be given the videotape to replay during deliberations. But, because of what were described as the “unusual circumstances” of the case, the Court concluded there was a risk the jury may have inadvertently reversed the onus of proof.[11]
[58] The circumstances to which the Court referred were, first, the two significant differences between Mr Crawford’s account to the police officer and that of the complainant. In the present case, the most that could be said is that in the 111-call the appellant more clearly articulates a possible basis for self-defence.
[59] Secondly, the Court said that on the videotape Mr Crawford presented as an “intimidating” figure, initially argumentative and then giving the impression of trying to deflect questions about the alleged offending.[12] In this case, nothing is said to turn on any aspect of the appellant’s demeanour as apparent on the video tape. The only potential issue of that kind might relate to his demonstration of where he held the knife. However, there is no suggestion that the appellant’s demonstration is not accurately portrayed. Rather, the submission made was that it should not be taken at face value especially given the other evidence such as the 111-call and Mr Balderstone’s evidence. The jury had the transcript of the interview and, in the circumstances of this case, there was no apparent difference between the ability to pore over particular aspects of the transcript, which is not challenged, and replaying the tape or parts of it.
[60] We note in this respect that, as referred to in R v Crawford, there is authority in England for the proposition that juries may take videotaped interviews into the jury room to consider in retirement.[13] In this case, the matter can be resolved on the basis there was no objection to the course adopted and, in any event, the potential dangers averted to in R v Crawford do not arise on the facts.
Answer to the jury question on self-defence
[61] In the course of their deliberations on 15 October, the jury asked the Judge for “written clarification” of “reasonable force allowed for self-defence”.
[62] After discussing his proposed answer with counsel, Wild J directed the jury on this point. The Judge explained that he did not consider written material would be helpful. The Judge then reminded the jury of the three steps to which he had referred in summing up. Wild J then expanded on the third step, the reasonableness of force.
[63] In the appellant’s written submissions, there was criticism of the Judge’s use of examples in relation to the reasonableness of force. As it transpired, following counsel’s objection to the use of these examples, Wild J omitted them from his answer. The remaining criticism of the answer is directed at the Judge’s direction that the jury could take into account that Mr Bensemann was not armed with any weapon.
[64] Mr Eaton complained about this aspect at the time but the Judge did not make any further direction. In submissions before us, Mr Eaton maintained the direction was inaccurate because Mr Bensemann’s martial arts skills meant his body was a weapon.
[65] We see no basis for criticism of this aspect. It was factually accurate and it was fairly a matter for the jury to consider in assessing the reasonableness of the appellant’s use of the knife. Further, given the evidence already referred to, the jury would have been well aware of Mr Bensemann’s martial arts skills.
The taking of a majority verdict
[66] The short point raised by this ground of appeal is that in the circumstances it is not possible to be sure that the requirements of s 29C of the Juries Act 1981 have been met. Mr Eaton emphasises that there was no earlier indication that the jury was struggling to reach unanimity. As a result of the lack of such indication, everyone was taken by surprise and so no specific directions about majority verdicts were given.
[67] Section 29C(1) of the Juries Act provides that a majority verdict means a verdict agreed by 11:1. Section 29C(2) sets out the circumstances in which a court may accept a majority verdict, namely, if:
(a) the jury, having retired to consider its verdict, has deliberated for at least 4 hours; and
(b) the jurors have not reached a unanimous verdict; and
(c) the foreperson of the jury has stated in open Court—
(i) that there is no probability of the jury reaching a unanimous verdict; and
(ii) that the jury has reached a majority verdict; and
(d) the Court considers that the jury has had a period of time for deliberation that the Court thinks reasonable, having regard to the nature and complexity of the trial.
[68] Section 29C(4)(a) provides that nothing in the section prevents the court from taking a poll of the jury.
[69] This Court in Wharton v R said that a trial judge should “ordinarily” give a jury a specific direction about majority verdicts and allow the jury to deliberate further in light of the direction.[14] In summing up, Wild J twice directed the jury to strive to reach unanimity. The Judge also referred to the change to the law allowing the possibility of a majority verdict. He said that he would explain the position further to the jury “[i]f and when the time arises” for the jury to consider that.[15] Because of the way in which the matter arose, there was no further direction. However, we do not consider that omission has given rise to the risk of a miscarriage.
[70] There is no issue about the first two requirements in s 29C(2). The jury had by this point been deliberating for about seven hours (s 29C(2)(a)). The foreperson’s immediate response to the Registrar’s question “have you reached a unanimous verdict ... one in which the 12 of you agree” was “We have a majority, 11 to one”. Section 29C(2)(b) was satisfied.
[71] At that point, Wild J intervened and the following exchange (all of which was in open Court) is recorded:
THE COURT:
Right. Madam foreperson are you satisfied that you are not able to reach a unanimous verdict in the trial?
MADAM FOREPERSON:
Yes I am satisfied we won’t be able to reach a unanimous verdict.
[72] The Judge then asked whether the members of the jury were all satisfied that they would not be able to reach a unanimous verdict. The response recorded is “Jury: Yes”.
[73] Expressly recognising this was not the normal way in which events might unfold, Wild J then asked counsel if they agreed to the taking of a majority verdict. Both counsel agreed.
[74] The question as to the jury’s position was then put again by the Registrar following the Judge’s direction. The Registrar asked the jury members whether it was probable that the jury could reach unanimous verdicts, that is, one in which all 12 agreed. The foreperson answered “No”. The Registrar followed up by asking whether the jury had reached a verdict on which all except one juror agreed. The foreperson responded “Yes” and the verdicts were taken.
[75] These exchanges fulfilled the requirements of s 29C(2)(c)(i) and (ii). In our view, it is also implicit that the Judge was satisfied as to the requirements of s 29C(2)(d). He had the acceptance of experienced counsel to that course. Further, this was a short trial (the trial commenced on 11 October 2010, the Crown case concluded at 10.15 am on 14 October with closing addresses and summing up all having concluded by 4.30 pm that day). While the facts were unusual, there was not much dispute about the factual narrative and the issues were not complex. In those circumstances, the Judge was entitled to conclude the period of time for deliberation was reasonable and all of the requirements in s 29C(2) were met.
Result
[76] For these reasons we are satisfied there has been no miscarriage of justice. The notice of appeal was filed out of time but the delay is explained. An order is made extending the time for appealing but the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v
Harris HC Greymouth CRI-2009-018-901, 8 April
2011.
[2] R v
Harris HC Greymouth CRI-2009-018-901, Ruling No 1, 12 October
2010.
[3] Ruling No
1 at [21].
[4] R
v Keremete CA247/03, 23 October 2003.
[5] R v Shipton
[2007] 2 NZLR 218 (CA) at [37] and see also R v Clayton-Wright (1948)
33 Cr App 22 (CCA) per Lord Goddard CJ at
29.
[6] The
Judge’s summing up at
[54].
[7] At
[55].
[8] The police
officer.
[9] The electronic
log maintained by the Court staff suggests counsel consented to this course of
action but counsel for both parties
agree that their views were not sought on
this matter.
[10]
R v Crawford [2007] NZCA
418.
[11] At
[53].
[12] At
[48].
[13] R v
Emerson (1991) 92 Cr App R 284 (CA); R v Szypusz [2006] EWCA Crim
1552 (CCTV footage from cameras near the scene of the crime); R v Rawlings
[1995] 1 All ER 580 (CA) (video recording of complainant’s evidence in
chief); and see Archbold Criminal Pleading, Evidence and Practice at
[4-421]–[4-422]. Mr Szypusz subsequently took a claim to the
European Court of Human Rights which concluded that what had
occurred in his
case was not a breach of Art 6(1) of the European Convention on Human Rights
(fair trial): Szypusz v United Kingdom [2010] ECHR
1323.
[14]
Wharton v R [2011] NZCA 476 at
[14].
[15] At
[62].
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URL: http://www.nzlii.org/nz/cases/NZCA/2011/611.html