Kitson v R [2014] NZCA 634 (19 December 2014)

Last Updated: 13 January 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA333/2013 [2014] NZCA 634
BETWEEN	JAMES DALE KITSON Appellant
AND	THE QUEEN Respondent

Hearing:	17 November 2014 (further submissions received 10 December 2014)
Court:	French, Asher and Clifford JJ
Counsel:	B J Hesketh and N P Chisnall for Appellant P K Feltham for Respondent
Judgment:	19 December 2014 at 3.00 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] James Dale Kitson was found guilty on 7 February 2013, following a jury trial before Judge Moses in the Papakura District Court, of one count of possession of cannabis for supply. He was sentenced to one year and five months’ imprisonment.^[1]
[2] He has filed an appeal against his conviction. The single ground of appeal is that a prosecuting lawyer inadvertently showed irrelevant and prejudicial material to the jury and the resulting prejudice was not adequately remedied by judicial direction. It is submitted that there is a real risk this occurrence affected the outcome of the trial, and resulted in an unfair trial giving rise to a miscarriage of justice.
[3] The appeal was filed out of time. In the circumstances, and there being no objection from the Crown, we consider an extension of time is appropriate. We grant one accordingly.

The unintended viewing of unrelated material

[4] Mr Kitson filed an affidavit in support of the appeal setting out the facts as he recalled them. Since the hearing of the appeal, we have received a transcript of the exchanges between trial counsel and the Judge on the topic, the Judge’s direction to the jury, and an affidavit from the prosecuting lawyer, Mr N.
[5] On the second day of the trial Mr N, who was one of two Crown prosecutors present and who had a support and assistance role in the trial, was looking at a booklet of photographs not connected to Mr Kitson’s case. The booklet was on his lap and had the name “Vincent Kitson” on the front. Vincent Kitson, a different person from Mr Kitson, was charged with methamphetamine offending. Mr N was preparing for his pending trial. That pending trial had nothing to do with Mr Kitson. Mr Kitson deposed that he saw some of the jurors looking at the material.
[6] The booklet contained photographs of items of glassware. In some of the photographs it was possible to see boxes. The booklet also included copies of documents, such as records relating to the importation of items into New Zealand from overseas. Mr N deposed that he was seated some two metres away from Mr Kitson and some two and a half metres away from the closest juror.
[7] At the next break Mr Kitson pointed out to his counsel, Ms Dyhrberg QC, that some of the jurors had been looking at the material. She brought the matter to the Judge’s attention and there was a discussion in the absence of the jury. Mr N explained to the Judge that the material in fact concerned an entirely different trial relating to a different Mr Kitson and that he was examining the material as part of his preparation for that trial. He had endeavored to keep the books turned away from the jury, but he could not say that no juror had seen them, and he accepted that what he did was an error.
[8] The Judge discussed with counsel what should be done about the error. He considered it necessary to ask the jury whether any of them had seen the photographs. Ms Dyhrberg agreed. The Judge went through what he proposed to say to the jury in the course of asking that question. Ms Dyhrberg agreed to what he proposed. She expressed a strong preference to continue with the trial.[9] The Judge then addressed the jury. Before asking the question as to what had been seen, he said:^[2]

Just before you came back into Court, there is a matter which has arisen which I do need to raise with you all. As you know Mr [N] has been here today just assisting other Crown counsel and he has amongst his tasks been preparing for another trial, and that is completely unrelated to this trial and involves a separate accused person.

A concern has been raised that a juror or jurors may have seen a photograph booklet that he has been looking at during the morning which, as I say, that has nothing to do with this trial or this accused.

The Judge went on to ask whether any of the jurors had seen the photographs Mr N had been looking at. He observed that if any juror had seen the unrelated photographs, this was not to be discussed with other jurors.

[10] The jury responded that five jurors saw the Crown prosecutor thumbing through a booklet containing pictures and that “none of the above know what these pictures are of or related to”. That answer appears to have satisfied the Judge and counsel, as the transcript shows that the Judge then went on to discuss an unrelated matter. Ms Dyhrberg did not seek any further directions, and she made no applications.
[11] The following factors emerge:

• (a) Only five of the jurors saw the material.
• (b) The first name on the outside of the file was different but the second name the same.
• (c) The jury did not know what the pictures were of or what they related to. If they had seen any of the material, it would have been images of laboratory glassware and some nondescript written material, such as waybills.
• (d) There was no suggestion in his trial that Mr Kitson was involved in methamphetamine trafficking. The charge related to cannabis, not methamphetamine.
• (e) The Judge, within a very short time of Mr N looking at the material, informed the jury that the files related to a different trial and a different defendant. It was made clear that the material was irrelevant to the trial the jury was concerned with.
• (f) Following the jury’s response, Mr Kitson’s experienced counsel, Ms Dyhrberg, did not consider that what the jury had seen warranted an application for a mistrial and was prepared to have the trial proceed. She sought no particular direction in the summing-up.
• (g) In summing up the Judge gave the usual direction to the jury that they could only decide the case on evidence adduced before the Court.

The submissions for Mr Kitson

[12] In his initial submissions, Mr Hesketh submitted that the Crown inadvertently exposed the jury to information that was irrelevant and that could have led them to conclude that Mr Kitson was involved in drug offending, or at least involved in another drug trial. He said this was undoubtedly “highly prejudicial” and the seriousness was compounded by the gravity of involvement with methamphetamine, a class A drug. He described the conduct of the prosecutor as a “reckless act”. In his original submissions he argued that no direction was given that the material did not concern Mr Kitson (a submission that in light of the material that has since been filed was incorrect).
[13] Following the hearing of this appeal, the decision of the Supreme Court in Guy v R was released on 19 November 2014.^[3] That decision involved the accidental introduction of material to the jury that was not in evidence. In light of that case, the Crown and defence have filed further submissions. Mr Hesketh has submitted that just as the accidental introduction of material into the jury room when the jury were deliberating constituted a fundamental breach of the principles of natural justice in Guy v R, so did the jury’s viewing of the photograph booklet in this case.

Our assessment

[14] It was not good practice for the prosecution lawyer to look at another criminal file when that material could be observed by the jury. In certain circumstances this could be highly prejudicial to a defendant, and give rise to a miscarriage of justice. However, this is not such a case for three reasons.
[15] First, the jury response that they did not know what the pictures were of or what they related to was to an extent ambiguous. It may have meant that they could only see a booklet and could not make out the photographs at all. Alternatively it may have meant that they could see the photographs but could not work out what the images were or how they fitted into the evidence. The Judge’s and counsel’s reactions to the response – to do nothing further – indicate that they interpreted it as meaning that the jury had not seen the photographs.
[16] Second, the photographs, if seen, were not in themselves shocking or sensational and would have been unlikely to fix in the memory of a juror as a factor indicating guilt. They did not relate to any issue relevant to Mr Kitson’s trial. For the prejudice suggested by Mr Hesketh to have arisen, a juror would have had to:

• (a) see the photographs;
• (b) observe that they appeared to be of laboratory glassware;
• (c) consider that the glassware may relate to the manufacture of methamphetamine;
• (d) also consider that the glassware may relate to Mr Kitson (even though he faced no methamphetamine charge); and
• (e) consider that this may indicate a propensity on Mr Kitson’s part towards drug dealing.

That scenario is highly unlikely and at worst could have given rise to only modest prejudice, which could in any event be cured by a direction.

[17] Third, the Judge gave such a direction within a short period of time. He told the jury that the file related to another trial and a “separate accused person” and had “nothing to do with” Mr Kitson’s trial. It would have been perfectly comprehensible to the jury that the prosecutor was looking at a file relating to a different pending case, and that it followed the material was therefore irrelevant. It can be expected that the direction would have cured any prejudice.
[18] It is relevant to the assessment of the possible impact of this material on the jury that Mr Kitson’s experienced trial counsel, once the issue had been raised and dealt with, did not assert prejudice and did not object to the trial proceeding. She would have had a good grasp of any potential prejudice. It can be assumed also that the Judge formed the view that despite the possible viewing of the material, Mr Kitson’s fair trial rights were not in peril.
[19] We turn to Guy v R. In that case Mr Guy was found guilty by a jury of a charge of sexual violation by unlawful sexual connection. After the verdict, it was discovered that by error the jury had been provided in the jury room with two documents that had not been admitted into evidence: a transcript of a police interview of the appellant and a transcript of a statement made to the police by the complainant. The trial Judge and counsel had not been aware of the error, and there had been no chance to remove the material and give a direction.
[20] A majority of three Judges (Elias CJ, Glazebrook and O’Regan JJ) allowed the appeal, quashing the conviction and ordering a retrial. Two of those three Judges, Elias CJ and Glazebrook J, held that the error constituted a fundamental breach of the principles of natural justice, and considered that in itself amounted to a miscarriage of justice warranting a retrial.^[4] They also held that in any event the material provided could have affected the result of the trial.^[5]
[21] O’Regan J also considered that the material could have affected the result of the trial so as to constitute a miscarriage of justice, and he therefore agreed with Elias CJ and Glazebrook J that the appeal should be allowed. However, he did not agree that the appeal could be allowed purely on the basis of breach of the right to a fair trial.^[6]
[22] The minority, McGrath and William Young JJ, considered that the provision of the transcripts would not have affected the result at trial and that the appeal should therefore be dismissed.
[23] The situation that arose in Guy v R is very different from the position in this case. Elias CJ and Glazebrook J noted that the introduction of the evidence undermined the fairness of the trial and its integrity, since it provided the jury with significant material that was directly relevant to the issues for trial without notice to the Judge or counsel, and without production in the public hearing.^[7] They noted that most flaws in trials do not amount to miscarriages of justice justifying the quashing of a conviction, and that many errors can be put right within the context of a trial.^[8] They also stated that in considering whether a trial is fair, the inquiry is on the right to fair trial itself,^[9] and went on to say:^[10]

Whether errors are so radical or fundamental as to undermine the integrity of the trial, so that the accused has been denied a fair trial, is a question of degree.

[24] It cannot be said in this case that the possible viewing by some of the jurors of photographs of glassware that they might have connected to Mr Kitson is an error in that radical or fundamental category. The factors that arose in Guy v R that do not arise in this case include:

• (a) The wrongly introduced material did relate to Mr Guy’s trial, and had been deliberately excluded from admission at that trial.
• (b) The jury had the wrongly introduced material in the jury room throughout its deliberations.
• (c) The wrongly introduced material was directly relevant to issues in Mr Guy’s trial, including the credibility of the complainant and the reliability of Mr Guy.
• (d) There was no direction given to the jury to ignore the wrongly introduced material.

[25] In this case, the material was unrelated to Mr Kitson and was not relevant to issues in his trial. The jury never had the material, though some members of the jury may have viewed it. Counsel and the Judge quickly became aware of the potential issue and were able to address it. This case has more similarity to the decision of R v Thompson, where there had been disclosure of illegitimate prejudicial material during a trial (although the material disclosed was still of considerably greater prejudice than in the present case).^[11] The Court of Appeal and Supreme Court held that it was for the discretion of the trial Judge to determine how to deal with the situation, and that the illegitimate prejudice caused was cured by the trial Judge’s direction.
[26] We conclude that in Mr Kitson’s case the integrity of the trial was not undermined by the prosecuting lawyer’s error. Any possible unfairness was rectified by the Judge’s direction. For the same reasons, there is no question of there having been a miscarriage of justice. Any possibility of that was cured by the Judge’s direction.

Result

[27] The appeal is dismissed.

Solicitors:
Public Defence Service, Wellington for Appellant
Crown Solicitor, Wellington for Respondent

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^[1] R v Kitson DC Manakau CRI-2010-092-12162, 24 April 2013.

^[2] Emphasis added.

^[3] Guy v R [2014] NZSC 165.

^[4] At [5].

^[5] At [53].

^[6] At [85]–[90].

^[7] At [5].

^[8] At [33].

^[9] At [36].

^[10] At [38].

^[11] R v Thompson [2006] NZSC 3; [2006] 2 NZLR 577 (CA); aff’d [2006] NZSC 3, [2006] 2 NZLR 589.