Parker v R [2017] NZCA 550 (28 November 2017)

Last Updated: 6 December 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA85/2017 [2017] NZCA 550
BETWEEN	THOMAS HOGAN PARKER Applicant
AND	THE QUEEN Respondent

Hearing:	On the papers
Court:	Harrison, Courtney and Toogood JJ
Counsel:	M B Dodds for Applicant Z R Johnston for Respondent
Judgment:	28 November 2017 at 2 pm

JUDGMENT OF THE COURT

The application for an order appointing independent counsel to investigate juror misconduct is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] Following a jury trial in the District Court at Whangarei before Judge Harvey, Thomas Parker was convicted on one charge of sexual violation by unlawful sexual connection. His trial counsel subsequently received an email from a juror expressing concern about “what went on in the jury room”. Mr Parker has applied for directions appointing independent counsel or a private investigator to investigate the possibility of juror misconduct. Mr Parker accepts that if the application is declined no tenable ground of appeal will exist.

Section 76 of the Evidence Act 2006

[2] Mr Parker’s application engages s 76(1) of the Evidence Act 2006, which prohibits a person giving evidence about the deliberations of a jury save in exceptional circumstances. Section 76(1) is subject to the exception provided for in s 76(3) and (4):

76. Evidence of jury deliberations

...

(3) Subsection (1) does not prevent a person from giving evidence about the deliberations of a jury if the Judge is satisfied that the particular circumstances are so exceptional that there is a sufficiently compelling reason to allow that evidence to be given.

(4) In determining, under subsection (3), whether to allow evidence to be given in any proceedings, the Judge must weigh –

(a) the public interest in protecting the confidentiality of jury deliberations generally;

(b) the public interest ensuring that justice is done in those proceedings.

[3] Section 76(1) reflects the longstanding principle that jury deliberations are to remain secret save in exceptional circumstances. The underlying policy is to ensure the finality of verdicts, protect jurors from pressure and encourage frank discussion in the jury room.^[1] The threshold in s 76(3) is very high; in Neale v R this Court described it as a “very narrow escape hatch” through which exceptional cases might squeeze.^[2] More specifically, in Worrell v R the Court said:^[3]

We do not purport to define the circumstances in which the “exceptional” threshold will be crossed: in our view this is an area of the law where each case must be carefully considered on its merits, balancing the undoubted (and our legislatively endorsed) concern to protect the confidentiality of jury deliberations against the necessity to ensure that miscarriages of justice are not allowed to occur.

[4] The outcome of applications into juror conduct over recent years demonstrates the high threshold under s 76(3):

• (a) In Tainui v R the Court refused to order an investigation after a juror wrote a letter that indicated he or she was under pressure from other jurors.^[4]
• (b) In Derrick v R an application for an inquiry was declined in relation to a juror’s letter indicating that during deliberations the jury had been fatigued and wanted to go home.^[5]
• (c) In Neale v R an indication that a juror had been bullied and give in to the verdict did not justify a barrister being appointed to conduct an interview.^[6]
• (d) In Dale v R a juror’s letter indicating that two jurors had disagreed with the guilty verdict but felt they had no choice but to agree did not justify an inquiry.^[7]
• (e) In Smith v R an application for an order to interview jurors over suspected juror misconduct in taking into account the fact that the defence had intended to, but ultimately did not, call character evidence, was refused.^[8]
• (f) In Whyte v R a similar application for an order to interview jurors was declined where a juror had sent an email to the court after six unanimous guilty verdicts and one majority verdict were entered — the juror expressing himself as developing misgivings about the verdicts in the days and weeks following trial.^[9]

[5] Cases in which (as here) a minority juror has subsequently expressed concern about the jury’s deliberations and verdict have not typically been viewed as constituting exceptional circumstances for the purposes of s 76. In Worrell v R this Court declined an application to have a minority juror interviewed where the assertions included that the jury had misunderstood legal concepts, reversed the presumption of innocence and that some jurors had felt intimidated by the victims’ families.^[10] The Court endorsed the following comments made by Lord Judge CJ in R v Thompson:^[11]

Jurors now have the opportunity to dissent and a verdict of a statutory minimum number of jurors may be accepted. We acknowledge the danger that a juror who is in a minority may be disturbed at his or her failure to persuade the other jurors to his or her point of view and where the majority has convicted, to the sensitivity of a dissenting juror that an injustice may have been done. There are occasions when it is difficult to avoid the conclusion that a post-trial letter to the Judge complaining about different aspects of the process of deliberation is no more than a protest at the verdict.

[6] Similarly, in Pearson v R this Court refused an application for an inquiry following post-trial communication by a minority juror to defence counsel in which the juror expressed concerns about the domineering behaviour and possible bias of the foreperson.^[12]

Present application

[7] The complainant in this case was the seven-year-old stepdaughter of a friend. Mr Parker had stayed overnight at his friend’s house, as he had done many times before. About two weeks after the visit, the complainant told her stepmother that Mr Parker had come into her room during the night and put his hand in her underwear.
[8] This sequence of events followed the Judge’s summing-up:

• (a) 1.05 pm — jury retires to consider verdict.
• (b) 4.50 pm — jury question: “We are not unanimous and need some guidance on ‘reasonable doubt’”.
• (c) 5.10 pm — jury resumes deliberations after receiving further directions from the Judge.
• (d) 5.55 pm — jury presented with three options and nominated the third, namely to stop deliberations for the day and continue in the morning. While the issue of bail overnight was being considered, a further question came from the jury.
• (e) 6.05 pm — second jury question asked: “What are the terms for a majority decision? What are the preceding requirements?”
• (f) 6.17 pm — majority verdict directions given.
• (g) 6.25 pm — jury record on majority handout that majority verdict reached.

[9] At 8.46 pm the same evening trial counsel, Mr Fairley, received the following email:

Good evening Arthur,

I was on the jury for the case against Tom Parker. I was the 1 juror who voted not guilty. I am so shocked by what went on in the jury room towards the day I feel I have no choice but to contact you directly. I don’t know if I’m allowed to contact you or not, so before I go into detail about my concerns could you please let me know if I can or if I should direct my concerns elsewhere.

Thank you.

The juror’s name, phone number and email address were given.

[10] Mr Fairley did not respond to the juror but instead advised the Crown counsel and raised the matter with Judge Harvey the following day. The Judge considered that there were no exceptional circumstances that would justify permitting investigation into the juror’s concern. Instead, the Registrar was directed to email the juror, explaining that Mr Fairley was unable to respond and that there was nothing that the Court could do in the circumstances. Both counsel agreed with this course and the Registrar proceeded accordingly.
[11] As in Worrell and Pearson, the fact that a minority juror has expressed concern does not in itself suggest exceptional circumstances. There is nothing to suggest that the jury was exposed to extraneous material nor that there was any interference in the process of its deliberations. The circumstances generally suggest that the minority juror still holds the view she held at the time of the verdict and her concerns reflect that. But this scenario is within the ambit of what can usually be expected in terms of jury dynamics where there has been a majority verdict. It does not amount to exceptional circumstances and investigation into the jury’s deliberations is not justified.

Result

[12] The application is declined.

Solicitors:
Crown Law Office, Auckland for Respondents

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^[1] Smith v R [2017] NZCA 93 at [26] citing Law Commission Evidence: Reform of the Law (NZLC R55, 1999) at [348].

^[2] Neale v R [2010] NZCA 167 at [12].

^[3] Worrell v R [2011] NZCA 63 at [52].

^[4] Tainui v R [2008] NZCA 119.

^[5] Derrick v R [2011] NZCA 163.

^[6] Neale v R, above n 2.

^[7] Dale v R [2016] NZCA 104.

^[8] Smith v R, above n 1.

^[9] Whyte v R [2017] NZCA 536.

^[10] Worrell v R, above n 3, at [45].

^[11] At [50] quoting R v Thompson [2010] EWCA Crim 1623; [2011] 1 WLR 200 (CA) at [9].

^[12] Pearson v R [2011] NZCA 572.