Smith v R [2018] NZCA 415 (10 October 2018)

Last Updated: 18 October 2018

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA599/2017 [2018] NZCA 415

	BETWEEN	ERIC WALTER SMITH Appellant
	AND	THE QUEEN Respondent

Court:	Gilbert, Venning and Dunningham JJ
Counsel:	T J Ellis for Appellant K S Grau for Respondent
Judgment: (On the papers)	10 October 2018 at 11am

JUDGMENT OF THE COURT

The application to appoint a lawyer to interview jurors is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

[1] Following a trial by jury in the District Court at Nelson in July 2017, Mr Smith was found guilty of 12 charges of sexual offending against the same complainant — seven charges of sexual violation by unlawful sexual connection (including one representative charge), one charge of attempted rape, and four charges of indecent assault of a girl aged between 12 and 16 years (three of which were representative charges). Mr Smith was found not guilty on two other charges of sexual offending against the same complainant. The offending spanned a period of nearly six years, from 1 January 1992 to 26 October 1997. Mr Smith was convicted and sentenced by Judge Ruth to 10 years and six months’ imprisonment.^[1]
[2] Mr Smith appeals against his conviction contending that: the verdicts were unreasonable; the trial Judge unfairly intervened while defence counsel was crossexamining the complainant; the Judge’s directions concerning the propensity evidence of another female complainant were inadequate; and the Judge’s summing up was unbalanced and unfair.
[3] Mr Smith now applies for an order appointing an independent lawyer to interview the jurors to determine whether they received extraneous, irrelevant and prejudicial information while serving on the jury and may have taken this into account when considering their verdicts. In support of this application, Mr Smith has filed an affidavit from Robert Hobbs, who was called as a witness for the defence at the trial. Mr Hobbs states in his affidavit that one of the jurors frequently serves him at a local café. He says that he spoke to this juror at the café approximately eight months after the trial had concluded resulting in the following exchange:

One time, about the end of March 2018, we had a conversation that started uneventfully. But then, the juror went on to say this comment, to the best of my memory: “We were told that [Mr Smith] had been up for the same thing once before”.

I do not know of anything that [Mr Smith] has done like this, before. I just replied that: “that is not right”, or something to that effect.

The juror looked a bit surprised, but we did not continue the conversation. I was just waiting near the counter to be served my mochaccino. When I got it, I took it and went on to work, again.

[4] For the reasons that follow, we are satisfied that the juror’s comment does not raise a concern that the jury may have been infected by extraneous, irrelevant and prejudicial material and the application should be declined.
[5] The case on appeal does not include Mr Smith’s criminal record but it appears that he does not have any relevant prior convictions. We say this because the Judge observed in his pretrial ruling on the admissibility of the propensity evidence that Mr Smith has previous convictions but nothing of any relevance to the matter before the Court. Further, the Judge made no reference to Mr Smith’s prior convictions at sentencing. We conclude that the juror’s comment that Mr Smith “had been up for the same thing once before” cannot refer to Mr Smith’s previous convictions. The risk of the jury being aware of Mr Smith’s criminal record can be discounted.
[6] There is an obvious explanation for the juror’s reported comment. It is entirely explicable as being a reference to the evidence the jury heard at trial from the propensity witness. This witness, who was the same age as the victim, gave evidence that Mr Smith offended against her in a similar way during the same time period. That would explain the reported comment about Mr Smith having done “the same thing once before”.
[7] We are not satisfied that it would be appropriate to appoint an independent lawyer to interview the jurors. In our view, this course is not justified in the overall interests of justice.

Result

[8] The application to appoint a lawyer to interview jurors is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Smith [2017] NZDC 21461.