A (CA421/2022) v R [2023] NZCA 470

A (CA421/2022) v R [2023] NZCA 470 [28 September 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 201 OFTHE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA421/2022[2023] NZCA 470BETWEEN A (CA421/2022)AppellantAND THE KINGRespondentHearing: 26 July 2023Court: Mallon, Moore and Palmer JJCounsel: M G Robinson for AppellantC A Brook for RespondentJudgment: 28 September 2023 at 2 pmJUDGMENT OF THE COURTThe application to obtain and admit evidence of juror deliberations in an appealagainst conviction is declined.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] On 3 June 2022, following a 10-day trial before Grice J in the WellingtonHigh Court, a jury found A guilty by majority verdicts of two charges of sexualviolation by rape1 and one charge of kidnapping.2 He had earlier pleaded guilty to onecharge of sexual conduct with a dependant family member.3 He was acquitted on fiveother sexual charges relating to the same complainant. He has filed an appeal againstconviction alleging, inter alia, improprieties in the jury's deliberations resulting in amiscarriage of justice.4[2] In support of this ground of appeal, A wishes to admit evidence of jurydeliberations.5 In the first instance, he asks this Court to direct that an amicus curiaebe appointed to interview the foreperson.6[3] The Crown opposes the application on the basis that the proposed interviewseeks to elicit inadmissible evidence and the circumstances fall short of the requisitestatutory threshold.[4] This judgment deals with the application for directions.Background[5] A was represented at his trial by Mr Robinson who appeared as counsel beforeus on the present application.[6] On 14 June 2022, some 11 days after the verdicts, the jury's forepersoncontacted Mr Robinson by email. He expressed concern about the jury's1 Crimes Act 1961, ss 128(1)(a) and 128B; maximum penalty 20 years' imprisonment.2 Section 209; maximum penalty 14 years' imprisonment.3 Section 131(1); maximum penalty seven years' imprisonment. He was sentenced to seven yearsand six months' imprisonment: see R v A HC Wellington CRI-2021-035-761, 5 August 2022.4 The other grounds of appeal are concerned with the admissibility of propensity evidence and therefusal of a non-party disclosure application.5 Evidence Act 2006, s 76.6 An application to adduce fresh evidence on appeal is made under r 12B of the Court of Appeal(Criminal) Rules 2001.decision-making process.7 He attached a poem written for the appellant in which heinferentially suggested the jury had made the wrong decision.[7] Mr Robinson responded on 16 June 2022 noting that his professionalobligations precluded him from discussing the jury's decision but suggesting that theforeperson contact the trial Judge or Registrar if he had concerns.[8] Despite this caution, the foreperson responded to Mr Robinson with furtheremail correspondence containing specifics about the jury's deliberations. He allegedthe jury had been improperly influenced by prejudice, undue pressure andpredetermination, amongst other improprieties. Excerpts of the email are reproducedbelow: I don't have a moment's doubt in my mind that my fellow jurors, whilstthey might have thought they were doing their duty for the most part let theirprejudices blind them to amongst other things, the presumption of innocenceuntil proven guilty beyond reasonable doubt. Many things trouble me aboutthis case, not least, on the first day, having to remind my fellow jurors thatthey should not be talking about the defendant as if he was guilty when wehad only begun hearing the evidence against him. During deliberation, havinga fellow juror talk about how we could get involved in some horse trading tosort out the verdicts I found appalling. Another juror managed to sway othersinto making decisions (changing their decision in some cases) based on thecollective will of the majority. I was put under some pressure to follow theirdecisions for this reason. It is difficult not to come to any other conclusionthan this poor man's fate was not decided in the correct manner. These thingswent completely against our very clear directions as outlined by her HonourJudge Grice [sic]. My decisions were based on the facts and evidencepresented. In my considered opinion, far from proving the defendant's guiltthey in fact provided numerous examples beyond reasonable doubt that thedefendant was in fact innocent and should be found not guilty.[9] Mr Robinson advised that he was unaware whether the foreperson providedany additional information to the High Court. Assuming he did not, Mr Robinson asksthis Court to consider appointing an amicus curiae to interview the foreperson in orderto ascertain the reasons for his views. Mr Robinson says that until such informationis obtained, it will be difficult for the Court to assess whether the evidence should beadmitted in the appeal against conviction.7 It appears that the foreperson spoke to Mr Robinson on the phone prior to this, however no recordor transcript of this call is before the Court.Relevant law[10] The general rule at common law is that jury verdicts are required to remaininscrutable.8 The position in New Zealand is now governed by s 76 of the EvidenceAct 2006, which provides:76 Evidence of jury deliberations(1) A person must not give evidence about the deliberations of a jury.(2) Subsection (1) does not prevent the giving of evidence about mattersthat do not form part of the deliberations of a jury, including (withoutlimitation)—(a) the competency or capacity of a juror; or(b) any conduct of, or knowledge gained by, a juror that isbelieved to disqualify that juror from holding that position.(3) Subsection (1) does not prevent a person from giving evidence aboutthe deliberations of a jury if the Judge is satisfied that the particularcircumstances are so exceptional that there is a sufficientlycompelling reason to allow that evidence to be given.(4) In determining, under subsection (3), whether to allow evidence to begiven in any proceedings, the Judge must weigh—(a) the public interest in protecting the confidentiality of jurydeliberations generally:(b) the public interest in ensuring that justice is done in thoseproceedings.[11] This Court in Neale v R described s 76(3) as "a very narrow escape hatch" and"a very difficult standard to reach".9 The example often cited to illustrate the thresholdrequired is the English case of R v Young, where a jury resorted to the use of a ouijaboard to determine guilt.10Discussion[12] It is first necessary to determine whether the proposed enquiries will result inevidence that is "intrinsic" or "extrinsic" to the jury deliberations process.11 The8 R v Connor [2004] UKHL 2, [2004] 1 AC 1118; and Attorney-General v Scotcher [2005] UKHL36, [2005] 1 WLR 1867.9 Neale v R [2010] NZCA 167 at [12].10 R v Young [1995] QB 324 (CA).11 Rolleston v R [2020] NZSC 113, [2020] 1 NZLR 772 at [28].former is captured by the exclusionary rule in s 76(1) and must not be admitted unlessthe s 76(3) threshold is met, while the latter is admissible under s 76(2).[13] It was common ground at the hearing that this is a case involving intrinsicevidence. As Ms Brook submitted for the Crown, it is difficult to see how anyenquiries of the foreperson would not lead quickly to evidence being obtained aboutthe detail and dynamics of the jury's deliberations.[14] It follows we are easily satisfied the proposed enquiries are captured by theexclusionary rule in s 76(1). The application thus falls to be determined by referenceto s 76(3). The question is whether the particular circumstances are so exceptionalthat there is a sufficiently compelling reason to allow that evidence to nonetheless begiven.[15] It is a not uncommon phenomenon of trial by jury that some jurors do, with thebenefit of hindsight, regret making findings of guilt. However, the principle of finalityis of paramount importance, as is the need to maintain public confidence in theadministration of justice. The latter would be undermined if enquiries were made intothe dynamics and processes of a jury's decision-making and what happened inside thejury room in the absence of compelling evidence that something had truly gone wrongin the course of deliberations, such as the introduction of extraneous material by onejuror that is viewed by others or the adoption of fanciful and wholly unreliablemeasures to determine guilt.12 As the Supreme Court noted in Rolleston v R:13(a) Secrecy promotes candour in the process of collectivedecision-making and the prospect of later publication of juryconversations would have a chilling effect on such candour.(b) Secrecy protects the finality of the jury's verdict by ensuring that post-verdict appeals do not descend into blow by blow post-mortems of thecollective deliberation process.(c) Relatedly, secrecy protects public confidence in the collectivedecision making of juries by preventing inevitable disagreementswithin the jury room from becoming the subject of ongoing widercommunity debate and controversy.12 Such as the ouija board in R v Young, above n 10.13 Rolleston v R, above n 11, at [24].(d) Secrecy protects jurors by ensuring that they are not drawn intosubsequent appeals and that they are not exposed to criticism or worseby members of the community who may not agree with the viewsjurors express about the case in deliberations.[16] In the present case, the foreperson was simply expressing to Mr Robinson hisview about the dynamics which operated within the jury. For example, in his email,he stated, "[a]nother juror managed to sway others into making decisions" and that he(the foreperson) was "put under some pressure to follow their decisions". In his poemhe appears remorseful that his efforts to persuade the other members of the jury to hispoint of view were ineffective. For example, he writes, "I did what I could, but itwasn't enough". On its face, this is no more than the usual process of jury discussionthrough which ultimately each juror either becomes sure a charge is proven or is leftwith a reasonable doubt. It is analogous to Neale v R, where one of the jurors wrote aletter to the trial Judge (and others) stating that she felt bullied by another juror intofinding the defendant guilty.14 That was not found to be sufficient to meet theexceptionality threshold in s 76(3). There counsel requested that directions appointingan independent barrister be made for the purpose of obtaining an affidavit from thejuror, following which the Court would be in a position to consider whether the groundof appeal merited further attention. In dismissing the application for directions, thisCourt held:[13] This application comes nowhere near the required standard unders 76(3). The juror has felt remorseful, after the verdict. She had "capitulated"during deliberation to the other members of the jury. This, without more, couldnever be a ground for further inquiry by the Court under s 76(3).[17] The foreperson in the present case also claims that his fellow jurors "for themost part let their prejudices blind them". That is the extent of the evidence beforethe Court on that point. There is no further particularisation of what prejudices mighthave been in play or how they might have operated to improperly influence the result.While the Supreme Court in Rolleston considered the possibility that actual orapparent bias on the part of a juror could be sufficient to establish a miscarriagewithout the need for an enquiry into intrinsic evidence, that comment was made in thecontext of a potential association or pre-existing relationship between juror, defendant14 Neale v R, above n 9.and witness.15 The present assertion of bias is much more general and non-specificand invites the Court to embark on a "fishing expedition unsupported by a credibleevidential narrative".16[18] As for the foreperson's claim that he heard a juror talk of "horse trading to sortout the verdicts", the expression "horse trading" is capable of multiple meanings,including unprincipled compromising ones. However, there is no suggestion that thisoccurred or that the juror's comment, if made and correctly remembered and recorded,was taken seriously or acted upon by other jurors. The mixed verdicts suggest that thejury undertook a discriminating and evaluative process in reaching its decision on eachcharge. They acquitted the appellant of five sexual charges (including charges ofunlawful sexual connection and various indecencies) and found him guilty by majorityof two charges of sexual violation by rape and one charge of kidnapping. All chargesrelated to the same complainant whose credibility was central to the jury's findings.[19] Mr Robinson acknowledged at the outset of his oral submissions that he facedan uphill battle. In the course of argument, he accepted that he was not aware of anyauthority where intrinsic aspects of a jury's deliberations similar to the present haveled the Court to direct an enquiry be made. Indeed, Neale is one of five cases reliedon by the Crown in which the exclusionary rule has operated to protect the secrecy ofinternal jury deliberations in similar circumstances.17 Mr Robinson also conceded thatthere was no evidence to support a link between the communications from the foremanand the propensity evidence challenge.[20] It follows we are satisfied that the present application falls well short of theexceptional circumstances threshold. There is no compelling reason to allow theevidence to be given by the juror.[21] We accordingly decline to make the direction sought that an amicus curiae beappointed to interview the foreperson, or any other directions to obtain evidence of the15 Rolleston v R, above n 11, at [31].16 At [43].17 R v Tainui [2008] NZCA 119; Derrick v R [2011] NZCA 163; Dale v R [2016] NZCA 104; andWhare v R [2022] NZCA 332.jury deliberations. It follows that the application to adduce further evidence is alsodeclined.Result[22] The application to obtain and admit evidence of juror deliberations in an appealagainst conviction is declined.Solicitors:Robinson Legal, Wellington for AppellantCrown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent