R v W HC Auckland CRI 2005-004-15296 [2009] NZHC 1544 (12 March 2009)

Last Updated: 30 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2005-004-15296}

THE QUEEN

v

W

Hearing: 11 March 2009

Counsel: B R Northwood and M Harborow for the Crown

Mr W in Person

P Dacre acting as amicus curiae

Reasons: 12 March 2009

REASONS OF POTTER J Relating to Papadopoulos direction

Solicitors: Crown Solicitor, P.O. Box 2213, Auckland 1140

_{Copy to: P Dacre, P.O. Box 47963, Ponsonby, Auckland 1144}

R V W (ALSO KNOWN AS H) HC AK CRI 2005-004-15296 12 March 2009

[1] At 2.25 p.m. on the afternoon of Wednesday 11 March 2009, having heard from counsel for the Crown and from Mr Dacre on behalf of the accused, Mr W , I determined that a Papadopoulos direction should be given to the jury. I then delivered the Papadopoulos direction.

[2] These are my reasons for deciding to exercise my discretion to give a

Papadopoulos direction.

Background

[3] At the conclusion of my summing up at 12.45 p.m. on 10 March 2009 the jury retired to consider their verdicts on the five counts in the indictment.

[4] At 4.50 p.m, after hearing from counsel for the Crown and Mr Dacre on behalf of the accused, both of whom submitted there was no reason to sequester the jury overnight, I released the jury until 10 a.m. the following morning, 11 March

2009.

[5] At 10.14 a.m. the jury attendants were re-sworn and I asked the jury to resume their deliberations.

[6] At 12.25 p.m. I received a communication from the Foreperson of the jury:

We have finished deliberating and reached a decision.

[7] I asked the Registrar to inquire of the Foreperson what was meant by the communication, in particular “reached a decision”.

[8] I then received a further communication from the Foreperson at 12.40 p.m:

We are unable to reach a unanimous verdict on any of the five charges. Any further effort would result in bullying.

[9] I advised counsel and Mr W of the contents of the two communications from the jury. I said the options I was considering were:

a) To give the jury a Papadopoulos direction; and b) To discharge the jury and order a retrial.

[10] Because I wished Mr W to be fully informed about the situation and the options I was considering, and to receive from Mr Dacre any guidance he wished, I adjourned the Court until 2 p.m. and asked that Mr Dacre use the opportunity to fully discuss the matter with Mr W .

[11] When the Court resumed at 2.03 p.m. I received submissions from both counsel.

Submissions

[12] Mr Northwood for the Crown submitted:

• The jury should remain in retirement during the course of the afternoon and should at this point be given the standard Papadopoulos direction.

• Given the technical nature of the case, which was a circumstantial one, the period during which the jury had been in deliberation (approximately four hours yesterday, from about 1 p.m. to about 5 p.m. including lunch; and less than three hours that morning, about 10 a.m. to 1 p.m.) was not lengthy.

• This being a retrial finality is desirable.

• The standard Papadopoulos direction provides appropriate cautions against undue pressure being brought to bear on any members of the jury but at the same time provides direction in respect of entrenched positions that may have been adopted.

• In R v Hookway [2008] NZSC 21 at [3] the Supreme Court confirmed the judgment of the Court of Appeal that:

... whether a Papadopoulos direction should be given is ultimately a matter for the trial Judge’s discretion and that a substantial degree of latitude should be given to trial Judges in this respect.

The Supreme Court cautioned that to introduce an absolute rule depending on how firmly the jury appeared to be divided would:

... tend to put an artificial and unnatural premium on exactly how the jury expressed itself in its communication to the Judge.

• In the circumstances of this case, while there appeared to be a fairly firm indication from the jury, the Judge has a discretion in the matter, a result is desirable and the jury should be given further time to try to reach a unanimous verdict.

[13] Mr Dacre confirmed that he had carefully discussed the situation with Mr W with the assistance of the interpreter. He acknowledged the views expressed by the Court of Appeal in R v Hookway [2007] NZCA 567 particularly at [184] and at [3] of the Supreme Court judgment and submitted:

• It was ultimately a matter for the discretion of the trial Judge whether a

Papadopoulos direction is given.

• The notes from the jury are relevant and give a strong indication that the jury has reached a final position.

• The Crown’s case is circumstantial and this is the classic sort of case where a division in the jury could arise.

• The charges are serious; the jury’s decision is clear; the jury should be discharged and a retrial ordered.

^{Decision and reasons}

[14] Having considered the submissions of counsel I reached the decision that a Papadopoulos direction should be given to the jury. The circumstances I took into account included:

• The jury had been in deliberation for a total of approximately seven hours before they sent the first communication at 12.25 p.m. on 11 March 2009. During that period there had been a lunch break immediately after they retired to consider their verdict. There has also been two cigarette breaks in the course of the afternoon.

• The jury had not been sequestered overnight. The communications from the jury were conveyed after three hours of deliberation following the return of the jury at about 10 a.m. on 11 March 2009 when they were fresh from a night’s rest in their own homes.

• The jury were required to deliver verdicts on five charges covering two alleged importations of methamphetamine in May and July 2004 and a charge of money laundering based on the “serious offences” allegedly committed in May 2004.

• The Crown’s case was circumstantial and extremely detailed. The Crown called

19 witnesses. (There was no defence evidence).

• The jury were required to consider a Source and Disposition Statement which assessed unexplained income over a relevant period of six months, together with the financial data on which the Source and Disposition Statement was based. The Crown case was that the financial evidence was relevant both to Counts 1 and 2 in the indictment which related to the alleged May 2004 importation of methamphetamine and Count 5, the money laundering charge.

• There were extensive documentary exhibits including:

a) Records from Sky City Casino.

b) Call data connections compiled in a 38 page chart, together with the original data that supported the information in the chart.

c) An analysis of 13 telephone numbers of interest compiled by the

Police, and the Vodafone data supporting the analysis.

d) Documentation relating to three importations of lava lamps in April, May and July 2004 and evidence relevant to each of those consignments including the controlled delivery by New Zealand Customs of the July 2004 lava lamps.

• There had been no previous indication of problems with the jury. They had been punctual and attentive throughout the trial, notwithstanding that there had been numerous occasions when I had been obliged to ask them to retire while I dealt with matters that arose in the course of evidence, many because the accused was self-represented. The jury had been patient and tolerant throughout. No juror had given any indication of pressure that might have arisen from his or her personal circumstances.

• The trial was in its third week. The jury was empanelled on Monday 24

February 2009. I released them until the following day while I heard and determined a number of late applications by the accused, mainly relating to admissibility of evidence.

• This was a retrial.

[15] I considered that the content of the Papadopoulos direction referring to a duty to listen carefully to one another and including the caution that no juror should give in merely for the sake of agreement or to avoid inconvenience, would provide appropriate guidance and direction against any undue pressure that any juror or jurors might seek to exert.

[16] Accordingly, I gave a Papadopoulos direction in standard terms at 2.21 p.m.

^Postscript

[17] There was no further communication from the jury until the Foreperson advised at 3.20 p.m. that verdicts had been reached. The verdicts (guilty on the two charges relating to the July 2004 importation) and not guilty on the remaining three charges in the indictment were delivered at 3.34 p.m.