WALLACE v R [2023] NZCA 422

WALLACE v R [2023] NZCA 422 [5 September 2023]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 AOTEAROACA215/2022[2023] NZCA 422BETWEEN AARON LEE WALLACEAppellantAND THE KINGRespondentHearing: 16 February 2023, further submissions received 3 March 2023Court: French, Ellis and Churchman JJCounsel: W C Pyke for AppellantM F Laracy and H S Cunningham for RespondentJudgment: 5 September 2023 at 2.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONSEllis J [1]French and Churchman JJ [158]Table of ContentsELLIS J [1]Overview [3]Taking a majority verdict [7]The COVID-19-related grounds: context [18]The COVID-19 "traffic light" system and the courts' response [18]The decisions by the trial Judge in Mr Wallace's case [30]The mask-wearing complainant [37]R v NS: the niqab case [39]Applying R v NS to mask wearing during the pandemic [46]This case [52]The unvaccinated juror [56]Statutory context [56]The Juries Act 1981 [57]Qualification and liability to serve [57]Jury lists [59]The jury panel [61]Deferral and excusal of jury service: Registrars' powers [63]Deferral and excusal of jury service: Judges' powers [68]Selecting the jury [72]Challenges [78]Informalities [80]The Jury Rules 1990 [81]The Courts Security Act 1999 [84]The Epidemic Preparedness Act 2006 [87]31 January 2022 Protection Framework Protocol [92]The COVID-19 Response (Courts Safety) Legislation Act 2022 [93]The right to trial by an impartial jury: the importance of randomness [98]Inclusionary vetting [104]Exclusionary vetting [106]Unlawfulness [109]The direction created a new class of disqualified jurors [112]Section 22 can only be used to discharge an identified juror, oncethe trial has started [119]No s 22 grounds for discharge existed [123]A residual or common law power? [130]What is the effect of any unlawfulness? [139]A real risk that the trial outcome was affected? [141]Nullity: the authorities [145]This case [151]FRENCH AND CHURCHMAN JJ [158]Result [168][1] In February 2022, following a retrial before Judge Greig and a jury,1Mr Wallace was convicted of one charge of sexual violation, one charge of kidnappingand one charge of male assaults female.2 He was sentenced to seven years'imprisonment.3 He now appeals his convictions on three grounds.4[2] Due to COVID-related matters the appeal was filed 13 working days late. Anextension of time was granted by Clifford J in a minute dated 20 July 2022.Overview[3] Two of the grounds of Mr Wallace's appeal highlight the challenges thecoronavirus pandemic posed for the courts, and particularly for jury trials. The twoquestions posed are whether, under the law as it was in February 2022 —approximately two weeks after the first community case of the Omicron variant hadbeen confirmed in New Zealand,5 the Judge was able, on health and safety grounds,to:(a) require a crucial witness who was unvaccinated to wear a maskcovering her nose and mouth while giving her evidence; and(b) prevent a qualified, but unvaccinated, member of a jury panel who hadattended court pursuant to a summons from being part of the juryballoting process and (so) from serving on a jury.[4] If the answer to either question is no, there are further questions about the effectof the error on the fairness of the trial and on the validity of the jury's verdicts.1 The first trial ended in a mistrial, on 21 April 2021.2 Crimes Act 1961, ss 128(1)(b) (maximum penalty of 20 years' imprisonment), 209 (maximumpenalty of 14 years' imprisonment), and 194(b) (maximum penalty of two years' imprisonment)respectively. Mr Wallace was found not guilty of four further charges (all of which related to thesame events).3 R v Wallace [2022] NZDC 4658 at [34].4 An appeal against sentence has since been abandoned.5 Manatū Hauora | Ministry of Health "COVID-19: variants" (5 May 2023) <www.health.govt.nz>.[5] For reasons we explain, while the panel is ultimately unanimous on theoutcome, there is a difference of opinion about the cogency of the "unvaccinated juror"ground of appeal.[6] The third ground of appeal is whether the Judge erred in giving the jury amajority verdict direction as and when he did. It is convenient to address this issuefirst.Taking a majority verdict[7] As noted earlier, Mr Wallace faced seven charges at trial.6[8] The evidence was complete on Friday 11 February 2022 and closing addressesand the summing up were delivered on Monday 14 February. The jury began itsdeliberations at 2.08 pm. At 3.30 pm there was a jury question relating to thekidnapping charge. This was answered by the Judge a few minutes before 4 pm and,after continuing their deliberations, the jury was sent home at 5.01 pm.[9] The jury advised they had reached some decisions but were "split" on thesexual violation charge (and more specifically, on the question of consent) at 10 amthe next day. Sometime later, the Judge inquired whether they were making progresstowards a unanimous verdict, advising that the jury should let him know "when andif" they wanted a majority verdict direction. At 11.20 am the jury again advised theywere making no progress and that a majority verdict "[was] not likely".[10] The jury was brought back to Court at 11.29 am and, presumably after theforeperson had confirmed in open court that a unanimous verdict was unlikely, at11.31 am the Judge reiterated his direction on consent and gave an orthodox majorityverdict direction.[11] The jury returned its verdicts (unanimously not guilty on four charges,unanimously guilty on two and guilty by majority on the sexual violation charge) at6 Alongside the charges we have already discussed, Mr Wallace was charged with one charge ofinjuring with intent to injure, one charge of threatening to cause grievous bodily harm, and asecond and third charge of male assaults female under ss 189(2), 306(1)(a) and 194(b) of theCrimes Act respectively.2.20 pm. As indicated by their earlier communication, the jury had been unable toagree on the most serious, sexual violation charge.[12] Section 29C(2) of the Juries Act 1981 (the JA) provides that a court may accepta majority verdict if:(a) the jury has deliberated for at least four hours; and(b) the jurors have not reached a unanimous verdict; and(c) the foreperson of the jury has stated in open court—(i) that there is no probability of the jury reaching a unanimousverdict; and(ii) that the jury has reached a majority verdict; and(d) the court considers that the jury has had a period of time for deliberationthat the court thinks reasonable, having regard to the nature andcomplexity of the trial.[13] The "at least 4 hours" requirement was (just) met here. The jury deliberatedfor two hours and 53 minutes (between 2.08 pm and 5.01 pm) on 14 February and forone hour and 29 minutes (between 10 am and 11.29 am) on 15 February, before themajority verdict direction was given.7 So they deliberated for a total of four hours and22 minutes.[14] Proceeding on the basis that the Judge considered this was a reasonable periodof time in the circumstances, the other s 29C prerequisites were met.[15] As we understood it from counsel's written submissions, Mr Wallace alsocontends (albeit rather faintly, by the time of the hearing before us) that the jury should7 It is not clear from the log notes when the jury recommenced deliberating on 15 February.Although the log records Court (for Chambers) resuming at 10.22 am we take it that the jury hadreturned by 10 am, which is the recorded time of their communication.have been given a Papadopoulos direction before (or possibly instead of) the majorityverdict direction.8 The difficulty with that, however, is that the Supreme Court hasconfirmed it is a matter of discretion for the trial judge whether, and when, to give amajority verdict direction and that it is generally preferable for a majority verdictdirection to be given before a Papadopoulos direction.9[16] In this case, the Judge gave an orthodox majority verdict direction. The Judgeencouraged unanimity and reminded the jury of their oath, but cautioned them not tochange their view merely for the sake of agreement. There is no appearance of errorin this procedure and no record of any objections being raised by counsel at the time.[17] This ground of appeal cannot succeed.The COVID-19-related grounds: contextThe COVID-19 "traffic light" system and the courts' response[18] On 2 December 2021 the COVID-19 Alert Level System came to an end andNew Zealand moved to the COVID-19 Protection Framework (known as the trafficlight system).10 At that point, New Plymouth was at the Orange setting.[19] On 21 December 2021, the Chief Justice released a media statement about theoperation of the Courts under the traffic light system, outlining processes which wereto take effect from 31 January 2022. The statement detailed courthouse entryrequirements:11(a) At all traffic light settings, every person entering the courthouse wouldbe asked to show their My Vaccine Pass, or evidence of a recentnegative COVID-19 test.8 The current form of the so-called Papadopoulos direction is to be found in R v Accused (CA 87/88)[1988] 2 NZLR 46 (CA) at 59. The direction in its original form is set out in R v Papadopoulos[1979] 1 NZLR 621 (CA) at 623 and 626.9 Hastie v R [2012] NZSC 58, [2013] 1 NZLR 297 at [14].10 Ministry of Health "History of the COVID-19 Protection Framework (traffic lights)" (10 October2022) Unite against COVID-19 <https://covid19.govt.nz>.11 Chief Justice Winkelmann "Court operations under the COVID-19 Protection Framework" (pressrelease, 21 December 2021) Ngā Kōti o Aotearoa | Courts of New Zealand<https://www.courtsofnz.govt.nz>, emphasis added.(b) In the High Court and District Court, people required to attend court inperson would be allowed entry even if they did not show a Vaccine Passor negative COVID-19 test. Rather, "their entry may be subject tospecial measures to manage health and safety risks. These entryrequirements are subject to any court protocols, and to judicialdirection".[20] On 23 January 2022 New Zealand's first community cases of the Omicronvariant were confirmed.12 The whole country then moved to the Red setting at11.59 pm.[21] On 28 January the Ministry of Justice issued communications to the variouslaw societies and associations detailing the processes that would be in place for theconduct of trials effective from 31 January. These reflected and amplified the ChiefJustice's pre-Christmas statement, advising that:13(a) those who were required to attend court in person (for example pursuantto a summons) would be permitted to enter the building even if they donot show a My Vaccine Pass or evidence of a recent negativeCOVID-19 test;(b) there will be 'processes' in place (on a 'site-by-site' basis) to managethose who cannot show a vaccine pass or a negative test;(c) attendees who have neither a vaccine pass nor proof of a negativeCOVID-19 test will be able to go to a pharmacy to do a rapid antigentest (RAT);(d) all juror summonses would be sent with an accompanying informationsheet explaining the new measures and advising that if the juror cannot12 Ministry of Health, above n 10.13 Letter from Carl Crafar (Chief Operating Officer of the Ministry of Justice) to the New ZealandLaw Society and others regarding implementing the COVID-19 Protection Framework in thecourts and tribunals (28 January 2022) (emphasis added).meet the new entry requirements they could ask to have their serviceexcused or deferred;(e) where an unvaccinated jury panellist is selected for a jury, direction willbe sought from the presiding judge about how this will be managed;(f) pre-balloting might be used, where appropriate, to reduce the need forjurors to attend in person; and(g) masks would still need to be worn in all courts and tribunals.[22] On 31 January 2022 the Chief District Court Judge issued a document entitledCOVID-19 Protection Framework – Green, Orange and Red Protocol.14 The protocolbegan:Nothing in this protocol is intended to reduce fair trial rights, the right tonatural justice, or rights under the New Zealand Bill of Rights Act 1990.The courts are an essential service and the District Court will remain open atRed, Orange and Green settings.This protocol recognises that local solutions may be necessary to best addresslocal issues. Any variations must be approved by the Chief District CourtJudge.[23] Next, under the heading "Access to the District Court at Green, Orange, andRed Settings" the protocol stated:2. Persons attending Court must:(i) show a vaccine pass; or(ii) provide evidence of a negative COVID-19 test administeredwithin 72 hours of attendance; or(iii) provide evidence of a negative rapid antigen test administeredwithin 24 hours of attendance.14 Chief District Court Judge Heemi Taumaunu "Archived COVID-19 Protection Framework –Green, Orange and Red Protocol, commenced on 31 January 2022" (31 January 2022) Ngā Kōtio Aotearoa | Courts of New Zealand <https://www.courtsofnz.govt.nz>.[24] This paragraph expressly included an endnote in the following terms:Nothing in this protocol will prevent the attendance at court of any personrequired to attend court, for example pursuant to a summons, legislativerequirement or judicial direction, who does not meet the requirements inparagraph 2. Appropriate health and safety measures will be put in place.[25] After setting out special provisions relating to defendants who did not meet theabove requirements, the protocol specifically addressed the requirements for jurors,namely:4. Those summoned for jury service who do not meet the requirementsin paragraph 2 will be subject to separate arrangements withappropriate health and safety measures put in place by the Ministry ofJustice.[26] Under the heading "Health and safety" the Protocol provided:10. All people who enter the Court must scan the QR code or completethe contact tracing register before entering the Court.11. Persons present in the Court must observe all physical distancingrequirements as specified by the Ministry of Justice. This may resultin limits to the number of people permitted to enter the Court building.12. Subject to limited exceptions, and the discretion of the presidingjudge:a) Persons attending Court must wear a cloth mask, surgicalmask or a KN95 (or equivalent) mask at all times within thecourt precinct. These will be provided.[27] The "limited exceptions" to mask wearing that could be made were specifiedin an endnote to para 12 as follows:(i) People who have a mask exemption card issued by theMinistry of Health will not be required to wear a mask.(ii) Some court attendees (for example jurors, defendants andwitnesses) may be directed by the Judge to wear a clear mask,which will be provided by the Court.(iii) Leave may be given to vaccinated attendees, or unvaccinatedattendees who have provided a negative COVID-19 testresult, to remove their mask when speaking.(iv) Leave may be given to unvaccinated court attendees who havenot provided a negative COVID-19 test result to replace theirKN95 (or equivalent) mask with a clear mask when givingevidence.[28] Health and safety measures that would apply in courthouses were set out inpara 13:a. access will be denied to anyone who is showing signs of illness, orhas a body temperature of 38 degrees Celsius or higher, or has hadclose-contact with a suspected, probable or confirmed case ofCOVID-19;b. surgical masks will be provided at the entry to the courthouse for allthose who do not have their own mask;c. cleaning products are available on site to enable staff and lawyers tokeep their immediate areas clean (including AVL suites); andd. hand sanitiser will be readily available within the courtroom.[29] And paras 14 and 15 provided:14. Any concerns about health and safety in the Court should be raisedwith the local Court Manager in the first instance.15. In the event of community transmission within a courthousecatchment area, public health advice will be adopted and furtherdirections given.The decisions by the trial Judge in Mr Wallace's case[30] Mr Wallace's trial was set to begin in the New Plymouth District Court on8 February 2022. As already noted, it was a retrial; the first trial had been in April2021. On 8 February there were 202 new community cases of COVID-19, althoughthat number increased exponentially over the next three weeks.15[31] Four days before the trial began it seems there was a pre-trial conferencebetween counsel and the Judge. In his minute that day the Judge recorded a "numberof issues have arisen".16 The first related to the vaccination status of the complainant,which the Judge addressed as follows:15 Ministry of Health "Update on COVID-19 Cases – 8 February 2022" (8 February 2022) Uniteagainst COVID-19 <www.covid19.govt.nz>.16 R v Wallace DC New Plymouth CRI-2018-043-001895, 4 February 2022 [Minute of Judge Greig]at [1].[2] the complainant is unvaccinated and it would be my preference that shegive evidence via CCTVIAVL.[3] I am advised by the Crown however that this will present insuperabledifficulties for them in terms of the particular features of this complainant'sevidence and what she will need to do. The Crown need to play a number ofmoving and still images and the complainant will need to refer to those duringher evidence. This cannot be done remotely. The Crown know what they aretalking about because this is a retrial.[4] I have therefore directed that the complainant gives her evidence wearinga mask. She will also be behind a clear Perspex screen. Prior to making thatruling I have consulted with the defence. My concern has been whether thedefence consider that this will impact on the jury's ability to assess demeanour.[5] Mr Mooney, on behalf of Mr Wallace has advised that he is "not overlyconcerned" if the witness appears with a mask.[32] The second issue related to what the Judge recorded as "my decision not toallow unvaccinated members of the jury pool into the courthouse".17 He went on:[8] I consider that s 22 of the Juries Act 1981 allows me to stand down a jurorwho is unvaccinated. I acknowledge that there is some divergence in opinionas to whether this should only be done once the juror's name is drawn out ofthe barrel during the ballot. My direction to security has been that theunvaccinated jurors, whose identity is already known, should be interceptedoutside the courthouse and turned away at that point. They will have reportedfor jury service, will be entitled to their allowance, but will not risk the healthof other vaccinated jurors who will be present.[9] My reasons for making this direction, as opposed to standing them downinside the courtroom are simply that the New Plymouth courthouse is toosmall to allow me to separate the jury pool any further than it is already beingseparated. I have tried to do this, but have been assured by the registry staffthat it is not possible. The New Plymouth courthouse has three courtroomsand the jury pool will already be spread between those three rooms. There isno other space that can be utilised.[10] Since I would in any case be standing those potential jurors down, it isunreasonable to allow them into the courthouse simply to do that, whilst at thesame time risking the health of everyone else in the courthouse, vaccinatedjury pool, court staff, counsel and any others.[33] The Judge recorded that he was making this direction over the objection ofdefence counsel:[11] Mr Mooney has made his objection clear. He may have a number ofreasons that he has not had time to properly articulate, but the reasons headvanced were that the jury room has been modified so that jurors canmaintain social distance and that I should not eliminate potential jurors simply17 Minute of Judge Greig, above n 16, at [7].because of a choice they have made. Mr Mooney does not accept that s 22 ofthe Juries Act 1981 can be read to the extent that I have read it. He is concernedthat the jury pool will not be representative of the community at large.[12] I acknowledge those reasons. They are valid considerations and I havegiven the matter further thought. My overwhelming priority must be for thesafety of the remaining jury pool. I disagree with Mr Mooney that our juryroom could accommodate a mixture of vaccinated and unvaccinated jurors. Itmeasures approximately three metres by four metres and the windows cannotbe opened. Furthermore, jurors have to pass through a small narrow corridorin order to enter the jury room. Given the way the Delta variant is supposed tohave escaped into the community, I could not possibly eliminate the thoughtthat breathed out air particles might not linger in the corridor long enough forthe next person to pass through and inhale them.[34] It seems defence counsel raised the juror issue again, immediately before thestart of the trial on 8 February. He sought an adjournment. The Judge's first ruling(10 February) recorded:18[2] We are about to commence the trial. This is the first jury trial to be held atthe New Plymouth District Court under the "red traffic light" system.Members of the public will be answering their summons for jury service. Ihave asked our security team not to admit members of the jury pool answeringtheir summons who are unvaccinated.[3] I have further asked security to intercept the unvaccinated members of thejury pool in the street and turn them away before they enter the court. Thesedirections have been made for a number of reasons.[4] The New Plymouth Courthouse is physically unable to separate theunvaccinated members of the jury pool from the vaccinated members of thejury pool. The courthouse has a total of three court rooms. In order to maintainsocial distancing, it is going to be necessary to spread the jury pool outamongst all three courtrooms and then ballot the final jury members from thatpoint.[5] I have researched the situation with the manager of the criminal team. I amassured there is no room in which to separate the unvaccinated members ofthe jury pool from the vaccinated.[6] The jury room at New Plymouth is, in common with many other juryrooms, a small room in which jurors could not be spread out so that each ismore than one and a half metres from the other.[7] The trial due to be heard is a re-trial; the defendant faces charges thatinclude sexual violation along with assaults on a female, injuring, kidnappingand threatening to kill. I was advised by the Crown that, if this trial had to beaborted part-way through, it was unlikely they could get the complainant backfor a third time.18 R v Wallace [2022] NZDC 1879.[8] The security of the trial and the protection of the jury pool were therefore,to my mind, primary considerations, to be looked at always through the lensof the defendant's right to a fair trial.[9] If the Omicron figures start to climb dramatically during the course of thetrial, as they were forecast to do, I want to be able to have done all I can toreassure the jury that they will not be in close contact with any unvaccinatedpeople during their time giving their service as jurors. It is a message I intendto give them right at the start of trial.[10] Section 22 of the Juries Act 1981, in my judgement, allows me to standdown a juror on a number of grounds. The presence of an unvaccinated jurorin this jury panel constitutes such grounds. It cannot be expected thatvaccinated jurors are required to mix with unvaccinated jurors, at closequarters, for several days on end. It would therefore be my decision to standdown any unvaccinated jurors.[11] The issue then becomes, at what point are the unvaccinated jurors stooddown?[12] If the unvaccinated members of the jury pool could be kept separate fromthe vaccinated members of the jury pool, then there would be a case for havingthem assemble within the courthouse and stood down if drawn from the ballot.However, for the reasons already set out, that is not possible. There is nowherethat the unvaccinated members of the jury pool can be kept apart from thevaccinated members of the jury pool.[13] Furthermore, recent advice to the bench has been that turning a juroraround at the court entrance, in the midst of other people, could in itself be aspreading event.[14] It is for those reasons that I asked security to intercept each member ofthe jury pool outside the courthouse and to tum away any unvaccinated jurors.[15] I made it clear to counsel on the Friday before the trial was due to startthat I would be taking such a step. The defence made its opposition clear.[16] This morning I have been handed a notice of appeal, indicating that thedefence intend to appeal against this decision. The defence then asked for thetrial to be adjourned pursuant to s 301 of the Criminal Procedure Act 2011. Imet with counsel in chambers.[17] Mr Mooney advanced submissions that in his view s 301(4)(b)(iv)applied, that there was a novel question of law to be decided and that thereforethe trial should be adjourned. I was not willing to do that. It is not in theinterests of justice to do so.[18] I accept that this is a novel question of law. However, this is not an issue,such as a ruling under the Evidence Act, where the outcome of the appealcould determine the outcome of the trial or have a significant impact on theevidence at trial. This is a decision I have already made and nothing can nowchange that. The unvaccinated juror could not be retrieved prior to trial.[19] As already mentioned, this is a re-trial and the complainant is fragile.Trial time is a precious resource and there are no backup trials ready to beheard in place of this one at the moment so far as I am aware.[20] The principal reason however for not vacating the trial is simply that myruling will have no bearing on the jury's decision in terms of the evidencepresented.[21] I also advised counsel that my understanding of the position with the jurypool today was that 64 vaccinated members of the jury pool were in thecourthouse by 9.30 am having answered their summons. A further three hadto be sent away because there was no capacity to hold any more than thatnumber. One unvaccinated juror did present. I am told that juror was happy tobe sent away.[22] The New Plymouth Courthouse is therefore unable to accommodate allof those members of the public who have been summonsed for jury service,whether they are vaccinated or not.[35] As defence counsel had before the District Court Judge, Mr Pyke on appealplaced more emphasis on the Judge's exclusion of unvaccinated jurors than the Judge'srequirement that the complainant wear a mask while giving her evidence or themajority verdict point.[36] The unvaccinated juror issue is the most difficult aspect of this case, and it isalso the issue on which the three of us are not in complete agreement, although we areagreed as to the final outcome. For that reason, we propose to deal with the "lesser"issue of the complainant wearing a mask first.The mask-wearing complainant[37] To reiterate for convenience, the Protocol issued by the Chief District CourtJudge in January 2022 relevantly required: 19(a) generally, that all persons attending Court must wear a cloth mask,surgical mask or a KN95 (or equivalent) mask at all times within thecourt precinct;(b) witnesses could be directed by a Judge to wear a clear mask;2019 Taumaunu, above n 14.20 There is no information before us as to whether clear masks were, in fact, an option in the NewPlymouth District Court in February 2022.(c) leave could be given to unvaccinated attendees who have provided anegative COVID-19 test result, to remove their mask when speaking;and(d) leave could be given to unvaccinated court attendees who have notprovided a negative COVID-19 test result to replace their KN95 (orequivalent) mask with a clear mask when giving evidence.[38] As the Protocol also made clear, however, these rules were all expressly subjectto a defendant's fair trial rights.R v NS: the niqab case[39] The impact of witnesses who give evidence with their face covered on adefendant's fair trial rights was considered by the Supreme Court of Canada in R vNS.21 The issue in that case was whether a complainant in a trial concerning sexualoffences could be required to remove her niqab22 while giving her evidence and, moreparticularly how the tension between two potentially competing Canadian Charter ofRights and Freedoms 1982 rights: a witness's religious freedom and a defendant's rightto make full answer and defence could be resolved.23[40] The majority held that always preferring one right to the other was nottenable.24 Rather, the answer lay in striking a just and proportionate balance betweenfreedom of religion and trial fairness, based on the particular case before the court.25Thus a witness who for sincere religious reasons wishes to wear the niqab while givingevidence in in a criminal trial will be required to remove it if:2621 R v NS 2012 SCC 72, [2012] 3 SCR 726.22 The niqab covers the whole face apart from the eyes.23 At [7].24 At [47].25 At [31] and [46]. Two judges concurred (with their own reasons) and one dissented. JusticesLeBel and Rothstein were of the view that, for fair trial and open justice reasons, a witness shouldnever be permitted to wear the niqab while giving evidence. Justice Abella was of the oppositeopinion; unless the witness's face is directly relevant to the case (such as where identity is in issue)she should not be required to remove her niqab.26 At [3].(a) removal is necessary to prevent a serious risk to the fairness of the trial,because reasonably available alternative measures will not prevent therisk; and(b) the salutary effects of requiring her to remove the niqab outweigh thedeleterious effects of doing so.[41] The majority's analysis involved posing four questions:27(a) Would requiring the witness to remove the niqab while giving herevidence interfere with her religious freedom?(b) Would permitting the witness to wear the niqab while giving herevidence create a serious risk to trial fairness?(c) If both freedom of religion and trial fairness are engaged on the facts,is there a way to accommodate both rights and avoid the conflictbetween them?(d) If no accommodation is possible, then do the salutary effects ofrequiring the witness to remove the niqab outweigh the deleteriouseffects of doing so?[42] The sincerity of the witness's religious beliefs is relevant to the first question.28[43] Relevant to the second question is what the majority said was the deeply rootedpresumption (uncontradicted by the material before them) that seeing a witness's faceis important for a fair trial, because it facilitates effective cross-examination and theassessment of credibility.29 But whether being unable to see the witness's facethreatens trial fairness in any particular case will depend on the evidence that thewitness is to provide and, in particular the centrality of the evidence and whether ornot it is contested. If the evidence is not contested, then being unable to see the27 At [9].28 At [13].29 See discussion at [22]–[28].witness's face will not impinge on trial fairness and a witness who wishes to wear theniqab for sincere religious reasons may do so.30[44] The third question requires a judge to consider whether there are reasonablyavailable alternative measures that would respect the witness's convictions while stillpreventing a serious risk to a defendant's fair trial.31[45] And in terms of the weighing exercise required by the fourth question:32(a) Assessing the deleterious effects of directing the niqab to be removedrequires consideration of the importance of the religious practice to thewitness, and the actual situation in the courtroom (such as the peoplepresent and any available measures that might limit the witness's facebeing exposed). The judge should also consider broader societal harms,such as discouraging niqab-wearing women from reporting offencesand participating in the justice system.(b) Relevant salutary effects include preventing harm to fair trial rights andsafeguarding the administration of justice. When assessing potentialharm to the accused's fair trial rights, the judge should consider theimportance of the witness's evidence to the case, the extent to whicheffective cross-examination and credibility assessment of the witnessare central to the case, and the nature of the proceedings. Where theliberty of the accused is at stake, the witness's evidence central and hercredibility vital, the possibility of a wrongful conviction must weighheavily in the balance.Applying R v NS to mask wearing during the pandemic[46] In submissions made after the hearing of Mr Wallace's appeal Mr Pyke drewour attention to a recent Canadian case in which the majority's decision in R v NS hadbeen applied in a COVID-19 context. In that case the trial judge was required to decide30 At [28]–[29].31 At [33].32 At [34]–[45].whether some or all witnesses should be required to remove their masks while givingtheir evidence.33 The Judge adopted a modified R v NS four question framework, asfollows:34(i) Would requiring the witness to remove their mask interfere, in thiscase, with public health measures to limit transmission of the virus,and protect the safety of people in the courtroom?(ii) Would requiring the witness to wear a mask while testifying create aserious risk to a fair trial?(iii) If both an important public interest (here public health measures) andtrial fairness are engaged on the facts, is there a way to accommodateboth and avoid the conflict between them? and(iv) If no accommodation is possible, do the salutary effects of having thewitness remove the face covering outweigh the deleterious effects ofdoing so?[47] In answering the first question the Judge took a detailed account of the specificCOVID-19 context within which the Court was operating, including relevantdirections from the Chief Justice of Ontario and the public health and safety measuresthat would be in place in the courthouse. Of particular note in this respect is that, atthat point in time (April 2021), the majority of people living in Ontario had not beenvaccinated.35 She concluded that:[60] in the present state of scientific knowledge available to the court, andthe present state of the pandemic in this city, I am satisfied that requiringwitnesses who testify in person to remove their mask would interfere withpublic health measures to limit transmission of the COVID-19 virus, andprotect the safety of people attending in the courtroom.[48] In terms of the defendant's fair trial rights, Copeland J noted:[62] Mr MacKinnon is facing one count of second degree murder, and onecount of attempted murder. Apart from a first degree murder charge, these areamong the most serious charges in the Criminal Code. His interest in a fair trialis substantial. I would add that the public also has an interest in all trials beingfair. I accept as well that given the liberty interest at stake for Mr MacKinnon as33 R v MacKinnon 2021 ONSC 2749, 155 OR (3d) 81.34 At [37].35 At [41] the Judge noted that the most recent publicly available vaccination data was that in therange of 20 per cent of residents of the City of Toronto, and a similar percentage of residents ofthe province over the age of 18 had received at least their first dose of a COVID-19 vaccine. Andalthough court staff, counsel and judges were regarded as "essential workers" they had not beenprioritised in the vaccine roll out. She said at [41]: "the effect of the current stage of vaccinationsis that there is no question that a significant percentage of the people present in the courtroom forin-person portions of this trial will not be vaccinated at all".the defendant in a criminal trial, his fair trial rights must be zealously protected,even in the face of a global pandemic [49] The judge went on to record that there was no dispute that the credibility ofsome of the civilian witnesses would be very much in issue and that some of thosewitnesses were of central importance to the trial.36 She noted that the majority in theSupreme Court had accepted that a witness's face being covered could impede anassessment of credibility by the trier of fact and may impede the ability to cross-examine.37 But then, she said:38[67] In my view, it is important not to overstate the importance of seeing awitness' face to assessing the credibility and reliability of the witness. Claimsabout the importance of seeing a witness' full face are based on the claim thatobserving the witness' demeanour is important to assessing credibility andreliability (or as a cue in cross-examination). However, the Court of Appealhas cautioned against overreliance on demeanour evidence in assessingcredibility and reliability Reliance on demeanour in assessing credibilityand reliability is based on generalizations about what people's demeanourmeans, and such generalizations can be wrong.[68] In addition, the experience of trial judges with witnesses wearing masksfor public health reasons during the pandemic is not information that wasbefore the Supreme Court in N.S As I advised counsel during submissions, inthe fall of 2020, I conducted in-person trials where witnesses whose credibilitywas very much in issue testified wearing masks (including a defendant whotestified in one trial). It was my experience as a trial judge who has hadwitnesses testify before me wearing masks that it did not affect my ability toassess the credibility and reliability of the witnesses' evidence.[69] My experience with masked witnesses during the pandemic is consistentwith my experience as a trial judge in general: that the substance of a witness'evidence, and its relationship to the other evidence in a trial, are better guidesto assessing credibility and reliability than a witness' demeanour. I refer tofactors such as the logic and consistency of a witness' version of events;whether a witness' evidence is internally and externally consistent; whetherthe evidence of a witness is consistent or inconsistent with objective evidence;the consistency or lack of consistency in the witness' evidence in cross-examination; whether a witness had made statements inconsistent with theirevidence in the past on matters of significance; evidence of bias, interest, or amotive to lie on the part of a witness; and the witness' ability to recall events.I do not entirely rule out demeanour, because as a matter of law, it is a factorthat a trier of fact is entitled to consider. But in my experience, it is of limitedvalue.[70] I note as well that the fact that parts of the face of a witness will becovered if they are required to wear a mask for public health reasons does notremove all indications of demeanour from either counsel or the court. The36 At [63].37 At [65].38 Citations omitted.other portions of the witness' face will still be visible, as will the witness' bodylanguage (at least in the upper body). The witness' voice and hesitation, if any,will be audible. Expressions of emotion from the voice or the rest of the faceor upper body will be visible and audible.[50] Although it was possible to imagine a case where seeing a witness' face mightbe critical, the Judge was not persuaded that this was one of those.39 It was strictlyunnecessary, therefore for her to consider the remaining two questions, although sherecorded that (in terms of question three) witness evidence by videoconference wouldbe a reasonable alternative that could accommodate both the public health concern tolimit spread of the COVID-19 virus, and the defendant's fair trial rights.40 Otherpossibilities were also canvassed.41 The Judge expressed her findings as follows:[95] This is a difficult issue. There are no easy answers. But considering thebalancing approach from N.S., and all of the factors I have weighed in light ofthe current circumstances created by the pandemic, I find as follows:(i) Requiring witnesses to remove their masks while testifying inperson would interfere with the important public healthinterest of limiting transmission of the COVID-19 virus in thecourtroom – a risk that is heightened now with the increasedtransmissibility of variants of concern, the increased risk ofhospitalization and death from variants of concern, and thepresent high case counts in the City of Toronto.(ii) I find that requiring that witnesses who testify in person toremain masked during their testimony does not create aserious risk to trial fairness.(iii) In the alternative, even if there is some minimal risk to trialfairness from not seeing the full faces of in-person witnessesduring their testimony, the alternative of testimony byvideoconference would allow counsel, the defendant, and meas the judge to see witnesses' full faces. It would allowcounsel to cross-examine, and me to appropriately assess thecredibility and reliability of witnesses, even where credibilityis significantly in issue for a particular witnessVideoconference testimony would protect the public healthinterest in COVID-19 safety precautions, while allowing thedefendant, counsel, and the court to see the witnesses' faces.39 At [74]–[75].40 At [78]–[89].41 At [90]–[92].[51] She directed that all witnesses giving evidence in person were to remainmasked, although she said she would determine later whether that direction applied tothe defendant himself, should he choose to give evidence.42 She concluded:[98] I want to say one more thing before closing. I want everyone involved inthis case to understand that I believe that assessing the evidence fairly to bothsides and ensuring a fair trial is my most important role as a judge. I would notmake this ruling if I felt it would endanger Mr MacKinnon's right to a fair trial.This case[52] There are some differences between the context in MacKinnon and the present.In particular, the relevant vaccination rates in Taranaki were very high.43 As well, wenote that the possibility of the complainant giving her evidence by video link had beenrejected by the Judge due to practical objections raised by the Crown.[53] That said, the approach of the New Zealand courts to the importance of witnessdemeanour is very similar to that articulated in MacKinnon. It is no longer regardedas a good indicator of credibility and specific warnings are routinely given to jurorsabout that.44 It follows that we agree with counsel for the Crown, Ms Laracy, that evenif wearing a mask did make an assessment of the complainant's demeanour moredifficult for the jury, this would have had no meaningful impact on Mr Wallace's fairtrial rights. In any event (and as noted by Copeland J in MacKinnon) there were anumber of aspects of demeanour (tone of voice, body language) that would still havebeen discernible despite the wearing of a mask.[54] As far as any impact on cross-examination is concerned, the signal point is thatMr Wallace's then counsel was consulted before the ruling was made and expressedno concern about the complainant giving evidence while masked. Unusually, andimportantly, defence counsel was in a remarkably good position to make an assessmentabout any prejudicial impact her masking might have had, because he had cross-examined the complainant before, during the first trial. Mr Pyke responsibly42 At [96].43 Department of the Prime Minister and Cabinet and others COVID-19 Response Weekly Report (11February 2022) at 33.44 Following Taniwha v R [2016] NZSC 121, [2017] 1 NZLR 116 at [46] the standard warning nowgiven by trial judges is that "simply observing witnesses and watching their demeanour as theygive evidence is not a good way to assess the truth or falsity of their evidence".acknowledged this as a significant impediment to this aspect of Mr Wallace's appeal.We agree.[55] This ground of appeal cannot succeed.The unvaccinated jurorStatutory context[56] Whether the Judge had the power to exclude a qualified, randomly selected butunvaccinated member of the jury panel from the jury selection process turns largelyon a number of statutory provisions and their context. That context primarilycomprises the JA, the Jury Rules 1990 (the Rules) and the Court Security Act 1999(the CSA) as they were at the time material to these proceedings (February 2022).Also relevant, however, is certain primary and secondary legislation related to thepandemic: the Epidemic Preparedness Act 2006 (the EPA) and any secondarylegislation made by the Chief District Court Judge under s 24A of that Act.The Juries Act 1981Qualification and liability to serve[57] Section 6 is undoubtedly the cornerstone of the JA. It provides that, subjectonly to certain limited exceptions, every person who is registered as an elector isqualified and liable to serve as a juror upon all juries that may be empanelled for anytrial within the jury district in which the person resides. Section 6 reflects thefundamental constitutional principle that juries are to be representative of adefendant's community.45[58] The exceptions to qualification under s 6 are specified in ss 7 and 8.46 Section 7disqualifies those who have any convictions for serious offending (measured by thesentence imposed) and those with convictions for certain lesser, but recent, offendingfrom serving on a jury "on any occasion". Section 8 prohibits certain office holders45 For a discussion of this principle, see Ellis v R [2011] NZCA 90.46 A review of the predecessors to the JA shows that the trend over time has been to extend the reachof the duty and privilege of jury service. Most notably, any property qualification and thedisqualification of women and Māori have long since disappeared.(such as the Governor-General), those engaged in certain occupations (such as lawyersand police employees) and those with an intellectual disability from serving,47 as wellas "a person who, under section 15A, is excused by the Registrar from attending as ajuror in any court on any occasion".48 We discuss excusal under s 15A shortly.Jury lists[59] Section 9 provides for the compilation of jury lists by the ElectoralCommission, at the behest of the chief executive of the Ministry of Justice. Such a listmust not contain the name of any person who, according to the electoral roll, holdsany office, or is engaged in any occupation, referred to in s 8 or in respect of whom adirection is in force under s 115 of the Electoral Act 1993 that their name, residence,and occupation not be published. But otherwise:49The Electoral Commission must, for each jury district, prepare a jury listcontaining a random selection of the names of people who, according tothe electoral roll, reside in the jury district and are registered as electors.[60] Section 12 controls access to, and the confidentiality of, these lists.Section 12A authorises the Registrar to amend a jury list by deleting any person whois not qualified in terms of s 6, disqualified under s 7, not permitted to serve under 8,has died, has successfully applied for a deferral of their service under s 14B or who is"otherwise prevented or excused from serving on a jury by this Act or by order of aJudge".50The jury panel[61] As required, the Registrar then compiles from a jury list a panel of those whoare to be summoned for jury service. In doing so the Registrar must take reasonablesteps to ensure those statutorily disqualified or directed not to serve are not on the47 "Intellectual disability" is defined in s 2 of the JA as having the same meaning as in the IntellectualDisability (Compulsory Care and Rehabilitation) Act 2003.48 Juries Act 1981, s 8(hc); unless the person's permanent excusal has been cancelled under s 15A(3).49 Section 9(3).50 Under s 12A(2) a Registrar may act on their own knowledge or on any evidence they considersufficient when exercising the s 12A(1) amendment power. As discussed shortly, a Judge mayexcuse a person on a jury list from serving in certain specified circumstances.panel.51 The method of compilation, which is specified in the Rules, is otherwise oneof random selection.52[62] Sections 14 and 14A governs inspection of the jury panel by others and thevery limited use to which copies of the jury panel may be put.Deferral and excusal of jury service: Registrars' powers[63] The circumstances in which a person on a jury panel who has been summonedto attend Court may have their attendance excused or deferred by a Registrar, inadvance of attendance are dealt with in ss 14B, 14C, 14D, 15 and 15A.[64] Putting to one side certain prerequisites of a more procedural kind,53 unders 14B deferral may only be granted by the Registrar if, by reason of —(a) the nature of that person's occupation or business, or of any specialand pressing commitment arising in the course of that person'soccupation or business:(aa) that the person has difficulties in understanding or communicating inthe English language, so that they are not capable of acting effectivelyas a juror:(b) that person's disability:(c) that person's state of health, or family commitments, or other personalcircumstances— the Registrar is satisfied that attendance "would cause or result in undue hardshipor serious inconvenience to that person, any other person, or the general public".54A deferral can only be granted under s 14B following a written application by or onbehalf of the person concerned.55[65] Under s 15 excusal may be granted where, due to one of the matters set out ins 14B, attendance would result in undue hardship or serious inconvenience to thatperson, any other person, or the general public. A Registrar must in addition be51 Sections 13(1) and 13(2).52 Jury Rules 1990, rr 6(3) and 7(2).53 For example, the deferral power can only be exercised in respect of a summons that is not areplacement summons under section 14C(1)(c).54 Sections 14B(2)(c) and (3).55 Section 14B(2)(c).satisfied that, if the juror's attendance were required, the person would not be able toperform a juror's duties satisfactorily and that deferral under s 14B is not reasonablypracticable.56[66] Under s 15(2), a Registrar must excuse a person summoned to attend as a jurorwhere the Registrar is satisfied that either:(a) the person is a practising member of a religion that holds that juryservice incompatible with its tenets; or(b) is over the age of 65; or(c) has served or attended for service as a juror at any time within thepreceding two years; or(d) has been excused from jury service for a period of time that has not yetexpired.[67] As before, a written application by or on behalf of the person concerned is anexpress prerequisite to the exercise of the excusal powers under s 15.Deferral and excusal of jury service: Judges' powers[68] The circumstances in which a person on a jury panel who has been summonedto attend may have their attendance excused by a Judge, in advance of attendance, aredealt with in ss 16 and 16AA.[69] Section 16 confers an independent power on a Judge to "excuse a personsummoned to attend as a juror on any occasion in the court in which the Judge sitsfrom attending on that occasion".57 Again, such an excusal can only occur followingan application made by or on behalf of that person, although there does not seem to bea requirement that such an application be in writing. The circumstances in which the56 Section 15(1A)(b)-(c).57 Section 16(1).excusal power can be exercised are set out in subss (3) and (4), which respectivelyprovide:58(3) The Judge may excuse the person from attending on that occasion if—(a) the panel that was used in summoning the person to attend asa juror has been compiled in respect of 1 trial only; and(b) the Judge is satisfied that the person is personally concernedin the facts of the case, or is closely connected with one of theparties or with one of the prospective witnesses.(4) The Judge may excuse the person from attending on that occasion ifsatisfied of either of the following:(a) a ground on which the Registrar could have excused thatperson under section 15;59 or(b) that the person objects to jury service on grounds ofconscience, whether or not of a religious character.60[70] Under s 16AA, a Judge may, on their own motion or on the application of theRegistrar or other registry staff member, cancel the summons of that person if satisfiedthat the person is not capable of acting effectively as a juror due to disability ordifficulties communicating in the English language.61[71] And s 16A empowers a Judge, at any time after the panel has been prepared inaccordance with s 13, to order the removal of a trial to some other place if they aresatisfied that "no adequate courtroom is available at the place" where the trial is to beheld.62Selecting the jury[72] Sections 17 through 22C are grouped under the heading "Constitution of jury".They are concerned with the rules surrounding the selection of a jury of 12 jurors (s 17)and a foreperson (s 21) from the wider jury panel.58 Citations added.59 Namely, the grounds set out at paras [65] and [66] above.60 This is a wider ground for conscientious excusal than the ground under s 15(2)(a).61 By dint of s 16AA(3) any such application must be made before the jury is constituted and, bydint of subs (4), must be heard in private. The word "disability" is defined in s 2 to include "visualor aural impairment".62 Section 16A(1).[73] Section 18 provides:63Where any case is to be tried by a jury, the persons who are to comprise thejury must be selected in the precincts of the court using the method determinedin accordance with the jury rules.[74] Subject to the powers of a Judge to discharge a juror under s 22, a jury is tocomprise the first 12 people selected in accordance with s 18 who remain after allproper challenges have been allowed.64[75] Section 22 assumes some importance in this case. Subsection (1) relevantlyprovides:(1) When this subsection applies, the court, having regard to the interestsof justice, may either—(a) discharge the jury without the jury giving a verdict (whetherunanimous or majority); or(b) discharge the juror or jurors concerned from the panel andjury and, subject to subsection (1A), proceed with theremaining jurors and take their verdict (whether unanimous ormajority).[76] The circumstances in which the subs (1) power may be exercised are set out insubs (2):(2) Subsection (1) applies if, and only if, before or after the jury isconstituted but before the jury's verdict is taken, the court considersthat—(a) a juror is incapable of performing, or continuing to perform,the juror's duty as a juror in the case; or(b) a juror is disqualified; or(c) a juror's spouse, civil union partner, or de facto partner,member of the juror's family, or member of the family of thejuror's spouse, civil union partner, or de facto partner, is ill orhas died; or(d) a juror is personally concerned in the facts of the case; or(e) a juror is closely connected with a party or witness orprospective witness.63 The relevant rules will be discussed later in this judgment.64 Section 19.[77] Sections 22A and 22B deal with the consequences of discharge under eitherss 22(1) or (3). Insofar as discharges under s 22(1)(b) (the provision relied on by theJudge here) are concerned, they provide:22A Consequences of discharge under section(1) If a juror is discharged under section 22(1)(b),—(a) the discharge of the juror does not affect the juror's liabilityto serve on any other jury:(b) the court may, if the discharge occurs before the case isopened or the defendant is given in charge, require a furtherjuror to be selected from the panel and sworn under sections18 and 20:(c) the choice of a foreperson is not affected (even if 1 or morereplacement jurors are selected and sworn under paragraph(b)) if that choice has already been made and the juror whowas chosen as foreperson is not the juror discharged:(d) if the juror has, by the time he or she is discharged, beenchosen as foreperson, another foreperson must be chosenunder section 21 from among the other jurors (including any1 or more replacement jurors selected and sworn underparagraph (b)).(3) If the court proceeds with fewer than 12 jurors under section 22(1)(b),their verdict (whether unanimous or majority) has, despite section 17,the same effect as a verdict of 12 jurors.22B Further provisions about discharge under section 22(1) The court may discharge the jury or a juror or jurors under section22(1) or (3)—(a) on an application for the purpose; or(b) on its own initiative.(2) A defendant is entitled to appear and be heard on an application undersection 22.(3) In considering whether to discharge the jury or a juror or jurors undersection 22(1) or (3), the court may conduct a hearing, and considerany evidence (other than evidence of the jury's deliberations) it thinksfit.Challenges[78] The Act then provides for different forms of challenge to prospective jurors bythe parties during the jury selection process. Jurors can be challenged for want ofqualification.65 There is also provision for challenge for cause, on the ground that thejuror is not indifferent between the parties, or not capable by reason of disability ofacting effectively as a juror.66 All challenges must be made before the juror concernedtakes their seat in the jury box.67[79] Section 27 also allows a judge to direct that a person "stand by" in certaincircumstances. Such a direction may only be made on an application by a party withthe consent of the other party,68 or by the Judge of their own motion, where "satisfiedthat it is in the interests of justice to do so".69 A juror who is directed to stand by isnot discharged but remains available to be on the jury in the event the jury panel isexhausted.Informalities[80] Section 33 provides that no verdict shall in any way be affected "merelybecause":(a) any juror has been erroneously summoned from a greater distance orfrom a different district or otherwise than is required by this Act or thejury rules; or(b) any person who was not qualified and liable for jury service, or whowas disqualified from jury service or was not according to section 8 toserve on a jury, nevertheless served on the jury; or(c) of any error, omission, or informality in any jury list, panel, or otherdocument.The Jury Rules 1990[81] As is to be expected, the rules are generally procedural in nature, and it is notnecessary to set them out at any length here.65 Section 23.66 Section 25.67 Section 26.68 Section 27(1).69 Section 27(2).[82] What are, perhaps, worth specifically mentioning are the "jury card" andballoting processes, which are set out in rr 13 to 21. Thus:(a) r 13 requires the Registrar to prepare a separate jury card in respect ofevery juror who has been summoned and whose service has not beendeferred or excused under ss 14B, 15, 15A or 16 of the JA and to placethe cards in the "principal ballot box";(b) r 14 provides "[t]he jurors summoned to attend a court at a particulartime shall assemble at that time in the area of the court precinctsdesignated for the purpose by the Registrar"; and(c) where a jury is required for a particular trial there may be a preliminaryballoting (r 15(1)) and there must be a balloting of jurors (rr 17 or18(2)). Both forms of balloting shall ensure random selection and takeplace in the presence of available jurors.70 Preliminary ballotinginvolves the Registrar drawing "out of the principal ballot box asufficient number of jury cards",71 and balloting involves the Registrardrawing out a "number of jury cards sufficient to constitute the jury".72[83] Rule 21 requires that jury cards balloted in accordance with rr 15(1) or 18(2)but not required for a particular trial are to be returned to the principal ballot box.The Courts Security Act 1999[84] We mention the CSA briefly here because although the Judge's ruling makesno reference to that Act, it seems he effected the exclusion of unvaccinated jurypanellists through a direction to Court Security officers to not permit them to enter thecourthouse.70 Jury Rules, rr 15, 17 and 18. The Jury Amendment Rules 2020 made changes to rr 15, 16 and 18to permit the balloting and escorting of jurors to occur in multiple areas of the court precincts, andnot in the physical presence of the Registrar, so as to meet "physical distancing requirements"where necessary.71 Jury Rules, r 15(1).72 Jury Rules, rr 17 and 18(2).[85] There can be no doubt that the CSA confers powers on security officers toexclude persons from a court or courthouse and also contemplates the exercise of suchpowers by a Judge, at least when presiding over proceedings in a courtroom. Thuss 11A(3) makes the general right of members of the public to enter and remain in areasof a court that are open to the public subject to (among other things):(b) any direction given by a presiding judicial officer that a person mustnot enter or remain in a courtroom or any other specified part of thecourt:(c) any inherent or implied jurisdiction of a Judge or presiding judicialofficer to regulate the procedure of a court or tribunal over which thatperson presides:(d) any enactment regulating who may be present at proceedings.[86] While these provisions recognise the reality that a Judge may in somecircumstances direct that a member of the public be excluded from a courtroom or acourt, they do not by and of themselves constitute a power to do so. So, absent someindependent security related concern (which is the focus of the CSA), the lawfulnessof a direction to exclude a jury panellist who has been summoned to attend court wouldstill need to be consistent with the JA.The Epidemic Preparedness Act 2006[87] The COVID-19 pandemic resulted in the issue of an Epidemic Notice unders 5 of the EPA in March 2020.73 The Notice remained in force in the months before,and during, Mr Wallace's retrial.74[88] While an Epidemic Notice is in force, ss 24 and 24A of the EPA permit Judgesand Heads of Bench to modify the rules of court.7573 "Epidemic Preparedness (COVID-19) Notice 2020" (24 March 2020) New Zealand Gazette No2020-go1368.74 "Epidemic Preparedness (COVID-19) Notice 2020 Renewal Notice (No 3) 2022" (12 September2022) New Zealand Gazette No 2022-sl3849.75 Epidemic Preparedness Act 2006, s 24 was amended, and s 24A inserted, on 3 November 2021 bythe COVID-19 Response (Management Measures) Legislation Act 2021.[89] More particularly, under s 24 of the EPA, any Judge, including a Judge of theDistrict Court, is empowered to modify any rule of court to any extent that they thinknecessary in the interests of justice to take into account the effects of the relevantepidemic. Section 4(1) states that the term "rules of court", in relation to a court,—(a) means rules (for example, the High Court Rules), or any secondarylegislation (for example, regulations), regulating the practice andprocedure of the court:(b) for the purposes of section 24, includes any applicable modificationsmade, and in force, under section 24A.[90] A modification under s 24 may be absolute or subject to conditions and maybe made "by stating an alternative means of complying with a requirement orrestriction imposed by the rules".76[91] And s 24A permits modification to the rules of court by Heads of Bench, onthe same conditions as s 24. However, where a modification is made by a Head ofBench pursuant to this section, s 24A(4)(a) also deems it to have the status ofsecondary legislation.31 January 2022 Protection Framework Protocol[92] We have summarised the COVID-19 Protection Framework – Green, Orangeand Red Protocol promulgated by the Chief District Court Judge on 31 January 2022already.77 Although it does not expressly refer to s 24A of the EPA, we proceed on thebasis that it was promulgated pursuant to that section and so constituted secondarylegislation.The COVID-19 Response (Courts Safety) Legislation Act 2022[93] Although not in force at the time of Mr Wallace's retrial, the COVID-19Response (Courts Safety) Legislation Act 2022 (the Response Act) has some potential76 Section 24(3)(b).77 See [22]–[29] above.relevance here.78 The Response Act temporarily amended the JA, the CSA andCriminal Procedure Act 2011 by inserting schedules into those Acts which containprovisions (called clauses) that replace certain sections in the Acts themselves, for solong as the Response Act remains in force. Amendments to the JA are contained insch 3. The purpose of the Response Act was to "remove current legal barriers facingthe judiciary when addressing health and safety risks in the courts".79[94] Central to the temporary modifications to the JA effected by the Response Actis the concept of "COVID-19 Jury Requirements", which are defined as meaning:80(a) requirements set out in a protocol issued by a Head of Bench under cl 4(which are not subject to an exception under cl 5(1)) of Schedule 2 ofthe JA; and(b) any requirements made under cl 6 of Schedule 2 imposed by a Judgefor a particular trial.[95] As with the protocols made under the EPA, cl 4 protocols issued by Heads ofBench are deemed to be secondary legislation.81 And importantly, cl 4(2)(a) makes itclear that requirements set out in such a protocol can override certain sections of theJA: s 13 (summoning of jurors), s 18 (selection of jurors) and s 22 (discharge of jurorsor jury),82 as well as the Rules.83 This can be contrasted with requirements imposedby a Judge under cl 6, which must be trial and juror specific and cannot override theJA.[96] As well:8478 The Response Act came into effect on 21 April 2022. To the extent there is any ambiguity in theearlier JA provisions, the provisions of the Response Act can be used as an in interpretive aid: seethe discussion in Diggory Bailey and Luke Norbury Bennion, Bailey and Norbury on StatutoryInterpretation (8th ed, Lexis Nexis, London, 2020) at [24.19].79 (10 March 2022) 757 NZPD (COVID-19 Response (Courts Safety) Legislation Bill – FirstReading, David Parker).80 Juries Act, sch 2 cl 1(1).81 Juries Act, sch 2 cl 4(4).82 Except s 22(1A).83 Certain such protocols are, themselves, subject to exceptions directed by a Judge in the interestsof justice: Juries Act, sch 2 cl 5.84 All of the cls below are contained in sch 2 to the Juries Act.(a) cl 8 authorises a Registrar to ask a person summoned to attend as a jurorto provide information as to their ability to comply with the COVID-19jury requirements;(b) cl 9 extends the Registrar's deferral power to cases where the Registraris not satisfied that the person the person meets the COVID-19 juryrequirements;85(c) cl 10 extends the Registrar's excusal power to cases where the Registraris not satisfied that the person the person meets the COVID-19 juryrequirements;86(d) cl 11 makes it clear that anyone whose service is deferred or excusedby a Registrar under cls 9 or 10 (or by a Judge pursuant to cl 15, 17 or20) must not serve on the relevant occasion, despite s 6 of the JA;(e) cls 12 and 14 confer powers on the Registrar to defer or excuseattendance on application by a person summoned to attend for personalreasons related to COVID-19;87(f) in cases where a Registrar is unsure about whether to defer or excuse(under any of cls 9, 10, 12 or 14) the matter may be referred to a Judgefor decision;88(g) under cl 20 a Judge may also on their own initiative excuse a personsummoned to attend from attending if not satisfied that the person theperson meets the COVID-19 jury requirements;(h) on an application by a person summoned to attend a Judge may excusea person summoned to attend as a juror under cl 21 for personal reasonsrelated to COVID-19;85 The power may be exercised on the Registrar's own initiative; cl 9(1).86 The power may be exercised on the Registrar's own initiative; cl 10(1).87 For example, where the person, or a member of their household is particularly vulnerable toCOVID-19, as in cl 14(2)(a).88 Clauses 15 and 16.(i) s 18 of the JA is amended by cl 23 to remove the requirement that juryselection take place "in the precincts of the court"; and(j) s 33 of the JA is amended by cl 24 by adding two further types ofinformality that do not affect verdicts.[97] The Response Act relevantly amended the CSA by permitting court securityofficers to make inquiries of members of the public who wish to enter a courthouse asto whether they meet any COVID-19 related directions or requirements and to denyentry to those who have not or will not comply with such direction or requirements.89The right to trial by an impartial jury: the importance of randomness[98] By s 24(e) of New Zealand Bill of Rights Act 1990 (NZBORA) all personscharged with an offence carrying a penalty of imprisonment of two years or more havethe right to the benefit of a trial by jury.90 In Katsuno v R Kirby J said of the equivalentright in the Australian Constitution:91[Section] 80 of the Australian Constitution provides that "[t]he trial onindictment of any offence against any law of the Commonwealth shall be byjury." This provision is a "fundamental law of the Commonwealth."Contrary to early opinions about its operation, it is now clearly establishedthat the section requires that, in all cases involving offences against the law ofthe Commonwealth to which it applies, a trial must be had which partakes ofthe essential features or requirements of jury trial. Such requirements includethe impartiality and representativeness of the jurors. Amongst the"unchanging elements" of these requirements is that the panel of jurors must"be randomly or impartially selected rather than chosen by the prosecutionor the State."[99] In New Zealand, the incorporation of impartiality in the s 24(e) right is madeseparately plain by s 25(a) of the NZBORA, which confirms the umbrella right of allwho are charged with an offence to a fair and public hearing by a court that isindependent and impartial.89 Schedule 1 of the Response Act inserted a new s 37 into the CSA to this effect.90 Excluding those who are to be tried before a military tribunal.91 Katsuno v R [1999] HCA 50, (1999) 199 CLR 40 at [67] (citations omitted, emphasis added).[100] Where a jury is to be the decision-maker in a trial, the link between impartialityand random selection is fundamental. In Gregory v United Kingdom the EuropeanCourt of Human Rights said:9220. Jury service is regarded as an important civic duty. The Juries Act 1974,as amended, governs qualification for jury service, ineligibility,disqualification, excusal, discharge and other relevant matters.21. Every person between 18 and 70 who satisfies the requirements set outin section 1 of the Juries Act 1974 is qualified to serve on a jury and liable todo so if summoned under section 2 of that Act. The electoral register servesas the basis of jury selection.22. Random selection of potential jurors is regarded as a key safeguardagainst corruption or bias in a sworn jury. [101] Similarly, in R v Robinson, Nathan J observed that the emphasis on randomselection throughout the Juries Act 1967 (Vic) reflected that "the quiddity of the jurysystem is the random composition of juries, designed to reflect the community and itsvalues".93 He elaborated:94 its contextual examination produces the conclusion that the selection ofjurors from amongst all enrolled persons, apart from those disqualified orineligible, must be a random process. Any procedure which interferes withthe chance selection of a juror is incompatible with the integrity of the systemand should be eschewed. This principle is not undermined, but is merelyqualified by the right of an accused to challenge and the Crown to stand aside.I deal with the latter modification now, but the starting point must be to sustainthe random selection of jurors.Jury service is both a right and an obligation of all electors. It enhances thecitizen's commitment to the fair administration of justice and should be anobligation shared equally. As I have already observed, it is no longer a maleprivilege, nor is it now to be performed only by the wealthy. Juries aresupposed to reflect the community in all its prisms. Any vetting or pre-selection process is repugnant to these concepts.[102] And in New Zealand, in R v Gordon-Smith (No 2), McGrath J observed:95The registrar must compile from the list received, as required, a panel of thosewho are to be summonsed for jury service. In doing so the registrar must takereasonable steps to ensure those disqualified or directed not to serve are noton the panel. The method of compilation, which is specified by jury rules, is92 Gregory v United Kingdom (1998) 25 EHRR 577 (ECHR) (emphasis added).93 R v Robinson [1989] VR 289 (SC) at 304 (emphasis added), cited with approval in Katsuno, aboven 91.94 At 305–306 (emphasis added).95 R v Gordon-Smith (No 2) [2009] NZSC 20, [2009] 2 NZLR 725 at [56] (citations omitted).otherwise one of random selection. The centrality of the random nature of theprocess in jury selection is maintained on the day of the trial when those calledto serve on the jury for a particular trial are determined by a ballot of thosesummonsed.[103] The cases in which the courts have been called upon to consider the issuesaround randomness and jury selection can be divided into two categories:(a) cases in which it has been argued that it behoves a Judge to make aparticular jury more "representative" by compelling inclusion of morepersons from certain sections of society; and(b) the "jury vetting" cases, which are concerned with the collection anddissemination of personal information about otherwise qualified jurorsprior to trial, to enable the Crown (and possibly the defence) to decidewhether to challenge, and therefore exclude, certain individuals fromselection, on the grounds of presumptive bias.Inclusionary vetting[104] As far as we can ascertain, cases aimed at greater inclusion have always failed.The leading authority is probably the English and Welsh case of R v Ford.96 There,one of the four grounds of appeal was that the trial judge had been wrong in decliningto accede to an application for a multi-racial jury. In the absence of any specificstatutory power permitting this, it had been submitted that Judges could exercise theirresidual common law power to achieve this result. This was rejected. The Court ofAppeal said:97At common law a judge has a residual discretion to discharge a particularjuror who ought not to be serving on the jury. This is part of the judge's dutyto ensure that there is a fair trial. It is based on the duty of a judge expressedby Lord Campbell CJ in Reg v Mansell (1857) 8 E & B 54 as a duty "to preventscandal and perversion of justice." It is important to stress, however, that that is to be exercised to preventindividual jurors who are not competent from serving. It has never been heldto include a discretion to discharge a competent juror or jurors in an attemptto secure a jury drawn from particular sections of the community, or otherwise96 R v Ford [1989] QB 868; [1989] 3 All ER 445.97 At 871–448 (emphasis added).to influence the overall composition of the jury. For this latter purpose the lawprovides that "fairness" is achieved by the principle of random selection.[105] Six years later, the New Zealand High Court arrived at the same conclusion.In R v Pairama, an application to alter the composition of a jury on racial grounds wassummarily dismissed; the Court held there was no jurisdiction to make such an orderas the make-up of the jury is determined by chance, subject only to the statutory rightsof challenge.98 Penlington J also emphasised that randomness was a clear statutoryrequirement, saying:99There is no authority in law to order a jury with any particular composition.Until 1962 it was possible in New Zealand to have an all Maori jury. See s 4and ss 141 to 151 of the Juries Act 1908. These provisions were repealed bys 2(2) of the Juries Amendment Act 1962 and the Schedule to that Act. It isno longer possible for an accused to call for either a Maori jury or for thatmatter a jury of any other ethnic composition. Section 9 of the Juries Act 1981and r 5 of the Jury Rules 1990 provide for the preparation of a jury list basedon the electoral rolls for the jury district of the Court where jury trials are tobe held. The list is prepared annually. It is composed of persons who havebeen selected by ballot or by any other method of selection based on chance.When a jury trial is about to be held the Registrar is required to compile apanel from the jury list and summon those persons. Once again, the membersof the panel are selected by chance. And finally, the jury for any particulartrial whether in the High Court or the District Court is selected at random.These provisions ensure that the make-up of any particular jury is determinedby chance subject to the rights of challenge under s 23 (challenge for want ofqualification), s 24 (challenge without cause; that is the peremptorychallenge), and s 25 (challenge for cause).Exclusionary vetting[106] The exclusionary vetting cases all involve the provision of information bypolice to a prosecutor about persons who appear on a jury panel for the purposes of itsuse in the exercise of the prosecution's statutory rights of challenge. The informationprovided is usually (but not always) about non-disqualifying convictions.[107] The legality of this practice has been the subject of decisions by theNew Zealand and Canadian Supreme Courts, and the High Court of Australia, with98 R v Pairama (1995) 13 CRNZ 496 (HC) at 502.99 At 501–502 (emphasis added).somewhat mixed results.100 In the United Kingdom there were two sharply conflictingdecisions on the issue delivered by the Criminal Division of the Court of Appeal withinthree months of each other, in 1980.101 Jury vetting is now generally prohibited there.[108] The divergence of approach between the cognate jurisdictions to which wehave just referred can, to some extent, be explained by the differences in the relevantstatutory regimes. But in New Zealand, Australia and (as just noted) theUnited Kingdom there has also been disagreement between members of the relevantcourts as to the legality of these vetting practices and, in cases where unlawfulness hasbeen found, about the consequences that follow.Unlawfulness[109] On this issue the panel is divided. I have reached a firmer conclusion than themajority, who — as they elaborate later — would prefer not to express a view in a casewhere some of the facts are unclear and any unlawfulness is not determinative of theappeal. Although (for reasons given shortly) I ultimately agree that the illegality hereis not dispositive, I consider the material facts are clear and the fundamental nature ofthe matters at issue make it important to express a view. As well, I consider it isdifficult to address the question of nullity without determining the nature of the error.So the views expressed in [111] to [137] below are mine alone.[110] In the present case, the Judge directed, before the commencement ofMr Wallace's trial, that no unvaccinated jury panellists who had been summoned toattend on 8 February 2022 would be permitted to enter the Court building or toparticipate in the balloting process. He considered he had the power to do this unders 22 of the JA. As a consequence, one juror was, in fact, turned away.100 See, for example, Katsuno, above, n 91; Gordon-Smith (No 2), above n 95; R v Yumnu 2012 SCC73, [2012] 3 SCR 777; R v Emms 2012 SCC 74, [2012] 3 SCR 810; and R v Davey 2012 SCC 75,[2012] 3 SCR 828.101 In R v Crown Court at Sheffield, ex parte Brownlow [1980] QB 350; [1980] 2 All ER 444, twojudges of the Court of Appeal were strongly critical of the practice, Lord Denning MR calling itwholly impermissible and "unconstitutional" on the basis that it undermined the fundamentalprinciple that jurors should be randomly selected. But three months later, in R v Mason [1981]QB 881, [1980] 3 All ER 777 a differently constituted bench disagreed.[111] I consider this was unlawful for three reasons, any one of which would sufficeto ground that conclusion. The reasons are that:(a) the direction itself was unlawful because it purported to create a wholenew class of disqualified jurors, outside the scheme of the JA, whichcomprised at least seven per cent of the total pool;102(b) s 22 was not capable of authorising the dismissal of the juror in thiscase because:(i) s 22 does not authorise the discharge of an as yet unidentifiedjuror (or jurors) before the commencement of the trial; and(ii) a qualified and healthy (but unvaccinated) juror cannot be saidto be "incapable" of performing their duty as a juror.The direction created a new class of disqualified jurors[112] Section 6 of the JA expressly states that — subject only to ss 7 and 8 (neitherof which have any application here) — every person who is currently registered as anelector "is qualified and liable" to serve as a juror. That the classes of disqualified orexcepted persons are small, statutorily mandated (by ss 7 and 8) and closed isfundamental to the operation of the JA and the jury system as a whole. That is becausejury selection that is truly random depends on it being so.103 And as the authoritiesmake clear, random selection from a broad community base is, in turn, the key toachieving impartiality and, so, to NZBORA compliance.[113] The JA also sets out specific and limited grounds on which otherwise qualifiedindividuals who have been summoned for jury service can be excused or have theirservice deferred (before the trial).104 But none of those grounds were in play here. No102 The information provided to us by Ms Laracy was that at the time of Mr Wallace's trial, 93 percent of Taranaki "people" (meaning adults) had been fully vaccinated and 90 per cent of Māorihad received their first dose.103 As a result of the juror being turned away at the courthouse door, it is difficult to see how theRegistrar could have complied with the balloting procedures required by rr 13 to 21 of the Rules(set out at [82] and [83] above) all of which are concerned with the process of random selection.104 Sections 14B, 14D, 15, 15A, 16 and 16AA.doubt that is because they cannot be applied generally, or in the abstract, to a class ofunidentified persons. That much is clear from the requirements in ss 14B, 15 and 16for a specific (and usually written) application to be made by the person who is seekingto have their service deferred or excused. And the juror in question here was qualified,answered his summons and — as a matter of fact — did not apply for excusal ordeferral.[114] Unlawfulness of this kind would likely not be mitigated because, as a matterof happenstance, only one juror was in fact excluded as a result. There might havebeen twenty. And if twenty had been turned away it would be hard to argue that thedirection had not only the intention, but the effect, of interfering with the randomnessof the panel.[115] Lastly, there is the issue of the Protocol issued by the Chief District Court Judgejust prior to Mr Wallace's trial.105 The legality of the Protocol itself depended on itsconsistency with the JA and it is no doubt for that reason that the Protocol treads adeliberate and careful line in this respect. To reiterate, for convenience:(a) all those attending Court were required to show a vaccine pass or arecent (within the times specified) negative COVID-19 test;(b) physical distancing requirements would be observed, which might limitthe number of people permitted to enter the Court building; and(c) subject only to the limited exceptions and the discretion of the presidingJudge masks were to be worn by all those attending Court.[116] The Judge in the present case did not direct that any unvaccinated jury panellistbe asked if they had had, or be offered, a COVID-19 test.[117] And lastly, the Protocol also expressly stated that:105 Taumaunu, above n 14.(a) it was not to operate to prevent any person required to attend Courtpursuant to a summons from attending Court; and(b) anyone summoned for jury service who did not meet the entryrequirements summarised in [115](a) would be "subject to separatearrangements with appropriate health and safety measures put in placeby the Ministry of Justice".[118] These parts of the Protocol suggest that even jury panellists who did not meetthe entry requirements (either a vaccine pass or recent negative test) were not simplyto be turned away.Section 22 can only be used to discharge an identified juror, once the trial has started[119] The first argument relating to s 22 is that, as with the statutory grounds ofdeferral or excusal, the section is, on its terms, directed to identified individuals. Eachof the grounds for discharge are geared to personal circumstances pertaining to "ajuror", not some general characteristics of a class of, as yet, unascertained people.[120] Secondly, I do not consider s 22 is capable of any application or use before thecommencement of the trial.[121] The Act is carefully structured in what might be called a chronological way. Itbegins with the general provisions about jury service itself: qualification and liabilityto serve. Next come all the provisions concerning jury panels before the trial(compilation jury lists, summonses, excusal and deferral). Then comes the part inwhich s 22 appears, which is headed "Constitution of the jury". "Constitution" in thiscontext simply means the process of establishing or forming the jury — an act that iscompleted by swearing them in. By definition, a that process does not start untilempanelling begins. So although s 22(2) refers to exercising the s 22(1) dischargepower "before or after the jury is constituted", read in context that can only be areference to a discharge during the empanelling process, but before it is complete.[122] In terms of that context, the provisions under this heading are all concernedwith balloting, jury selection, challenges and the selection of a foreperson and anylater issues that might have an effect of the jury established as a result. As well, theterms of s 22A imply that a juror who is discharged under s 22 will (together witheither the rest of the jury panel or the rest of the jury) be present in Court and that thetrial will be in the process of starting or will have already started. And as s 22B makesclear the s 22 discharge process is one that occurs in the presence of the defendant.106It also seems to me that for reasons of transparency — and in particular light of theimportance of randomness — discharge should always occur in public/open court.No s 22 grounds for discharge existed[123] I necessarily proceed on the basis that the Chief District Court Judge's protocol(which had binding legal effect) would have been complied with and all jury panellistswould, on arrival at the courthouse, have been asked whether they had recentlyundertaken, or whether they would undertake, a COVID test prior to being permittedto enter the courthouse.107 In its terms, however, the Judge's direction was clearlyaimed at bypassing that process and the appeal was argued on the basis that it had,indeed, done so.[124] The only conceivable ground for a discharge under s 22 here was that anyunvaccinated juror was "incapable of performing , the juror's duty as a juror in thecase".108 I do not consider a healthy, negative testing, unvaccinated juror could be saidto be "incapable" in that way.[125] Whether the breadth accorded to the concept of "incapability" by some Judgescan really be justified has been questioned by the Law Commission.109 After notingthe evidence that some judges do discharge potential jurors who were suffering from106 Section 22B expressly gives a defendant a right to be heard in circumstances where an applicationfor discharge is made under s 22. Here, the order excluding unvaccinated jurors was made inchambers and the juror was turned away at the courthouse door.107 The Protocol required that any panellist who declined a test was to be kept separate and wouldalmost certainly have been found to be "incapable", in the event of selection. If that point hadbeen reached the case becomes much more similar to Iuliano v R [2021] NZCA 432, which isdiscussed shortly, below. Obviously, any panellist who returned a positive test would also be"incapable" of serving.108 In terms of s 22(2)(a).109 Law Commission Juries in Criminal Trials (NZLC R69, 2001).certain kinds of "non-physical disability" (such as emotional vulnerability) theCommission observed:110 The legal basis for this is unclear We do not consider that these peopleare necessarily "incapable", rather as a matter of policy it is desirable that theyare not obliged to serve.[126] It was for that reason the Law Commission recommended a broader power todischarge, modelled on the equivalent provision in the Canadian Criminal Code, whichsimply states:111Where in the course of the trial the judge is satisfied that a juror should not,because of illness or other reasonable cause, continue to act, the judge maydischarge the juror.[127] Self-evidently, that recommendation was not pursued.[128] That said, I acknowledge that this Court recently observed in Iuliano v R,(another COVID-19 case) that "incapability" continues to be broadly interpreted.112In that particular case, however, the trial had already started and there was no disputethat the juror concerned was unable to return to the courtroom unless and until she hadreturned a negative test. There was uncertainty about when those results would beavailable and a concern about (further) delays to the trial.113 There was, accordingly,no dispute that she was not able (incapable) of performing her functions as a juror atthe time she was discharged; the real issue was whether the Court should have waited.So, the facts there were not on all fours with the present.[129] And lastly, it is worth noting in passing that the facts of R v M — the case citedin Iuliano as authority for the proposition that "incapability" includes posing a risk tothe trial more generally — had facts very far from the present case.114 There, thehusband of a juror had been seen talking to relative of accused. The trial Judgedischarged her on the ground that she had become "disqualified". The Court of Appealdisagreed, saying that the concept of disqualification suggested "a status rather than110 At [261].111 At [265] (emphasis added).112 Above n 107 at [29].113 The Court was already only sitting on alternate days, due to the defendant's health condition.114 R v M (1991) 7 CRNZ 439.something that has happened" and that incapability was the better ground.115 Withrespect, that is plainly correct; the contact between the juror's husband and a relativeof the accused gave rise to a clear concern that the juror might not be able impartiallyto perform her functions as a juror.A residual or common law power?[130] It is also necessary to address the Crown's alternative submission that the Judgecould have used his residual or common law discretion to discharge the juror here.But as will be evident from the passages from Ford set out earlier,116 a Judge's residualcommon law discretion in matters of jury selection is a limited one. Not only mustany such discretion be consistent (or, at least, not inconsistent) with the relevantlegislation but it must be exercised in the interests of facilitating fair trial rights.[131] That is also evident from the authorities closer to home. In particular,Ms Laracy referred us to the earlier case of R v Greening, where this Court confirmeda trial Judge's inherent power to dismiss a juror where his impartiality — and so thefairness of the trial — was in issue.117 Gresson J writing for the (two judge) Courtsaid:118 there is, in our opinion, an inherent jurisdiction by virtue of which thepresiding Judge, if satisfied that justice requires that a particular juror shouldnot be allowed to be sworn as a juror, may exclude him from the panel, or mayexclude him after he has been balloted, and is coming forward to take his placein the jury box. It is not necessary, nor is it possible, to define in what casesthis power should be exercised. It is a power to be exercised judicially whenthe circumstances are such that a fair trial cannot be had if the particularjuror is allowed to become one of the jury to try the case. The authority for theexistence of such a power is somewhat meagre, but, in our opinion, it issufficient; and it is acted upon from time to time both in criminal and in civiltrials.115 At 441. Incidentally, the relevant discharge provision at that time was s 374(3) of the Crimes Act1961, which made it very clear that juror incapability could only arise during the trial. It gave theCourt a discretion to discharge "If, at any time before the verdict of the jury is taken, any jurorbecomes in the opinion of the Court incapable of continuing to perform his or her duty "116 See above at [104].117 R v Greening [1957] NZLR 906 (CA); That case was concerned with the consecutive trials of fouroffenders charged with raping the same 14-year-old girl. It transpired that some of jurors who hadbeen on the jury that found one of the men guilty were then selected to sit as jurors at the trial ofanother of the men. The Court found that those jurors could not reasonably be seen to be impartialand should have been discharged by the judge.118 At 915 (emphasis added).[132] By way of authority for the existence of the power, Gresson J referred to the19th century decision in Mansell v R,119 (also referred to in the passages from Ford setout above) and then went on:120We think the power has been exercised in New Zealand, even though there isno reported case. It is within our knowledge that, in a recent trial for murder,the trial Judge excluded from the panel several persons on various grounds—at least one who asserted that he had conscientious objections to capitalpunishment, one or more who claimed an intimate acquaintance with theaccused and his family, and another who was a relative of one of the chiefwitnesses for the prosecution. In our opinion, the Judge presiding at a criminaltrial has power of his own motion to direct the removal from the panel of anyjurors who have previously tried the same or a similar issue to that about to betried, or, in the case of any juror duly called in the ballot, to exclude him,whether or not any challenge be made by either party, if in the exercise of ajudicial discretion the Judge considers such juror is unlikely to be impartial orindifferent. We think, in the case of the trial of the appellant, a directionshould have been given by the presiding Judge excluding from the ballot thenames of those jurors who had convicted Richardson; moreover, we think thatthe Judge would have so directed had his attention been called to the situation.[133] The first and obvious point is that many of the grounds on which it was thought(in the older cases) that the residual discretion might be called upon are nowencompassed by the JA itself. All jurors of the kind referred to in Mansell (a jurorwho is "completely deaf, or blind,121 or afflicted with bodily disease which renderedit impossible for him to continue in the jury-box without danger to his life, or wereinsane, or drunk, or with his mind so occupied by the impending death of a nearrelative that he could not duly attend to the evidence") would undoubtedly now fallunder the s 22(2)(a) "incapability" umbrella.122 So, too, with those whose presenceon a jury might give rise to concerns of partiality; Judges have express statutorypowers to excuse or discharge under ss 16(3), 22(2)(d) and (e). The ambit of theresidual power has necessarily narrowed considerably.[134] The second point is that none of the cases suggest that the common law powercould be used to discharge otherwise qualified and impartial jurors who themselvessuffer from no such disability, incapability or appearance of bias.119 Mansell v R (1857) 8 E & B 54, 169 ER 1048.120 At 916–917.121 There are, of course arguments to be made that, today, a juror who is deaf or blind might not beregarded as "incapable" but I do need to get into those here.122 Mansell v R, above n 119, at 80–81; Although in 2001 the Law Commission suggested that anintoxicated juror might give rise to the need for resort to the residual power to discharge, such ajuror would undoubtedly now be regarded as "incapable" (above n 109, at [254]).[135] More generally, an inherent power cannot be inconsistent with a detailedstatutory scheme, such as the JA. As Lord Hailsham said in Richards v Richards:123 where, as here, Parliament has spelt out in considerable detail what mustbe done in a particular class of case it is not open to litigants to bypass the Act, nor to the courts to disregard its provisions by resorting to the earlierprocedure, and thus choose to apply a different jurisprudence from that whichthe Act prescribes.[136] And as Lord Sumption said, in another context, "the inherent jurisdictionshould not be exercised in a manner which cuts across the statutory scheme".124[137] All that said, however, I would accept that a judge has the inherent power todischarge an individual jury panellist during (or after) the empanelling process if itappeared that their presence or continued presence on a jury would be so disruptivethat other jurors would be unable properly to fulfil their functions. In essence that wasthe Judge's rationale for doing what he did here. But whether or not the presence of ajuror who was unvaccinated but (for the reasons given at [123] above) had compliedwith the requirement to return a negative test would have had that effect on other jurorsis a matter of speculation. Had there been an empanelling process that accorded withthe Protocol, the answer would, no doubt, be known.[138] And if I am wrong in that, I am still unable to accept that the inherent powerextends to making a blanket pre-trial ruling that excluded a particular group ofotherwise qualified and lawfully summoned panellists from entering the courthouseor serving on a jury. For the reasons I have already given, I consider an order of thatkind (and its execution) cuts directly across the fundamental precept of randomness ina way that is completely contrary to the JA.What is the effect of any unlawfulness?[139] Section 232(2) of the Criminal Procedure Act provides that the first appealcourt must allow an appeal against conviction if satisfied, relevantly, that "a123 Richards v Richards [1984] AC 174 (HL) at 200.124 Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016]UKSC 4, [2016] AC 606 at [85].miscarriage of justice has occurred for any reason". A miscarriage of justice is definedin s 232(4) as: any error, irregularity, or occurrence in or in relation to or affecting the trialthat—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.[140] For the purposes of the discussion that follows, we necessarily assume thatthe exclusion of the unvaccinated jury panellist was an "irregularity" or "error",despite the fact that the majority have not expressed a concluded view on that issue.As noted, however, we are unanimous in our conclusion that this (assumed) error wasnot vitiating, for the reasons below.A real risk that the trial outcome was affected?[141] First, there is inevitably a degree of speculation involved in concluding thatthere was a real risk that the outcome of the trial was affected. We do not knowwhether the juror who was sent home would have been selected during the ballotingprocess or, if so, whether he might have been the subject of a challenge. We do notknow whether (if selected and unchallenged) his presence on the jury might have ledto a different outcome.125[142] Those degrees of remoteness make it more difficult to say the risk that theoutcome of the trial was affected by the error was a "real" one and we do not considerwe could go that far.[143] It is also not possible to conclude that the exclusion of the unvaccinated jurorfrom the balloting process had an impact on the impartiality of the jury in fact selectedin Mr Wallace's case. Despite that exclusion, the jurors ultimately chosen wererandomly selected from the remaining panel and there is certainly nothing here tosuggest that any or all of them were in any way predisposed either against or forMr Wallace. So, it cannot be said that the trial was, in that sense, unfair.125 Although we note that Mr Wallace's conviction on the most serious charge was a result of amajority verdict.[144] Instead, the critical question here is whether the assumed unlawfulness couldgive rise to verdicts that were a nullity. In essence, this is a question going tojurisdiction.Nullity: the authorities[145] This Court's decision in Abraham v District Court at Auckland contains themost comprehensive recent discussion of the concept of nullity in this country.126 Thequestion for the Court there was whether the District Court had been wrong to rejectthe arguments that a failure to advise Mr Abraham of his right to elect trial by jury, inaccordance with s 66(2) of the Summary Proceedings Act 1957 (the SPA), resulted inhis subsequent guilty pleas being a nullity or his convictions constituting a miscarriageof justice.[146] It was accepted that the failure was an error or irregularity in terms of s 204 ofthe SPA, which provided that no process or proceeding shall be held invalid "by reasononly of any defect, irregularity, omission, or want of form unless the Court is satisfiedthat there has been a miscarriage of justice". The Court noted that s 204 protectsprocedural and documentary error, subject to the miscarriage proviso andacknowledged that the Courts had previously recognised that the curative power ofs 204 is not available at all "if a defect is so serious as to result in what should bestigmatised as a nullity".127[147] After reviewing a number of relevant authorities (in which nullity variouslyhad, and had not, been established), the Court said:128[48] The forgoing authorities indicate that whether a particular proceduralfailure constitutes a nullity in the context of s 204 is a matter of degreerequiring an overall assessment of the particular failure against the relevantstatutory background. It is critical to understand the place of the particularrequirement in the scheme of the legislation. Further, as Cooke J noted inPolice v Thomas, the concept of nullity will frequently overlap with theconcept of miscarriage of justice in s 204.126 Abraham v District Court at Auckland [2007] NZCA 598, [2000] 2 NZLR 352. The decision inAbraham was effectively approved by the Supreme Court in S v R [2018] NZSC 124, [2019] 1NZLR 408, which (like Abraham) was also concerned with an error relating to a defendant's modeof trial election.127 At [42]; citing Cooke J (as he then was) in Police v Thomas [1977] 1 NZLR 109 (CA) at 121.128 Citations omitted.[49] The application of the nullity concept will be straightforward in somesituations. For example, if a judicial officer deals with a matter that he or shehas no jurisdiction to deal with, it seems obvious that the resulting decisionshould be characterised as a "nullity" which cannot be rectified by resort tos 204. The effect of s 204 cannot be to confer jurisdiction where it does notexist. (A similar issue arises in relation to the application of the proviso tos 385(1) of the Crimes Act to trials that are nullities in terms of s 385(1)(d) –see R v Blows and R v O (No 2) ). Similarly, where some process, theeffect of which is to confer jurisdiction, has not been followed (for example,a statutorily required consent to prosecute has not been obtained), it is easyenough to characterise what follows as a nullity.[148] The Court went on to observe that English law has undergone what had beendescribed as a "sea change" in this area, summarised by the English and Welsh Courtof Appeal in R v Ashton as follows:129[4] whenever a court is confronted by failure to take a required step,properly or at all, before a power is exercised ("a procedural failure"), thecourt should first ask itself whether the intention of the legislature was thatany act done following that procedural failure should be invalid. If the answerto that question is no, then the court should go on to consider the interests ofjustice generally, and most particularly whether there is a real possibility thateither the prosecution or the defence may suffer prejudice on account of theprocedural failure. If there is such a risk, the court must decide whether it isjust to allow the proceedings to continue.[5] On the other hand, if a court acts without jurisdiction—if, for instance, amagistrates' court purports to try a defendant on a charge of homicide—thenthe proceedings will usually be invalid.[149] Although there had been a series of decisions (discussed in Ashton) in which itwas held that any failure to comply with the statutory procedure for determining themode of trial would render any subsequent hearing ultra vires or a nullity, the Court inAshton observed that those cases would be decided differently if they were decided"now" (in 2007):130 an inflexible invalidity rule is contrary to the interests of the accused andthe prosecution, as well as running contrary to the public interest in the fairadministration of criminal justice.[150] So similarly, in Mr Abraham's case, the Court concluded that the error in notadvising him of his right of election did not render his trial a nullity.131129 At [56]; quoting R v Ashton [2006] EWCA Crim 794, [2007] 1 WLR 181 (CA).130 At [72].131 Abraham, above n 126, at [60]; the Court went on to find there here had been a miscarriage ofjustice, on other grounds.This case[151] Self-evidently, the present is not a case involving either an error in terms of thes 66 election right or one that engages s 204 of the SPA. What is clear, however, isthat whether the verdicts were rendered nullities requires an overall assessment of theerror against the relevant statutory background. As noted in Abraham, in making thatassessment it is critical to understand the place of the requirement that has beenbreached in the scheme of the legislation.132[152] So, we begin with the assumed error itself: the Judge unlawfully directing thevetting of the jury panel with the object of excluding a certain class of juror despitetheir being qualified and able to serve. At a high level this could properly be regardedas a significant matter that was contrary to fundamental precepts and provisions of theJA, for the reasons Ellis J has given above.[153] As a matter of reality, however, the Judge's direction resulted in security staffturning away a single jury panellist, who may or may not otherwise have been selectedfor Mr Wallace's jury. As we have already said, it is not possible to conclude that theabsence of this juror from the panel made any difference at all to the trial or to theverdicts or that the jury that was selected was not impartial. We do not consider thatit could have been parliament's intention that a trial by such a panel would be invalid.[154] Had more jury panellists in fact been rejected, however, the question wouldundoubtedly be a more difficult one.[155] For completeness, we record that, although we do not regard the assumed errorhere as vitiating, we also do not consider it one that is saved by s 33 of the JA. Toreiterate for convenience, s 33 states that no verdict shall in any way be affected"merely because":(a) any juror has been erroneously summoned from a greater distance orfrom a different district or otherwise than is required by this Act or thejury rules; or132 Abraham, above n 126, at [48].(b) any person who was not qualified and liable for jury service, or whowas disqualified from jury service or was not according to section 8 toserve on a jury, nevertheless served on the jury; or(c) of any error, omission, or informality in any jury list, panel, or otherdocument.[156] There can be no question that neither (a) nor (b) are in play here. And (c) isconcerned with errors (or omissions or informalities) in documents. There was noerror in the jury list or jury panel. The (assumed) error was in the Judge overridingthe jury panel.[157] Nonetheless, for the reasons we have given, we are agreed that — evenassuming illegality — the trial was not a nullity and the verdicts were not abortive.FRENCH AND CHURCHMAN JJ[158] We agree with the judgment of Ellis J save in one respect, and that relates tothe issue of whether the sending away of the unvaccinated juror was unlawful.[159] That issue is not a straightforward one and is further complicated in this caseby uncertainty about the facts. It appears for example from the Judge's minute of4 February 2022, that an inquiry about vaccination status may have been made at thetime the summonses were first sent out to the jury panel. If so, what was the wordingof the inquiry? And how many unvaccinated jurors were identified as a result? It isalso unknown whether the card with the juror's name was put into the ballot box andif so at what point it was removed. It is also unknown exactly what the security guardsaid to the juror in question and what their response was.133[160] In these circumstances and given the unanimity of the panel on the nullityissue, we would prefer to leave the complex issue of lawfulness for a case where it isdeterminative. We therefore express no concluded view and would only make thefollowing observations.133 There is for example no information whether the issue of a negative test was ever raised with thejuror or even whether the juror had undertaken any test and was "negative testing".[161] The Judge in this case was presented with a difficult situation given theconfines of the courthouse in question, in particular the limited ability to sociallydistance in the court rooms for the purposes of jury selection and the inability tosocially distance in the jury room, which the jury was expected to occupy for somefour days. The first community case of Omicron in New Zealand had only just beendetected and experts were warning it was highly transmissible. Exponential growthwas considered inevitable.[162] Against that background, we consider it was reasonable for the Judge to takethe view that in the New Plymouth courthouse, an unvaccinated juror represented anunacceptable risk to the health of other jurors. That in turn heightened the risk of thetrial (which was a re-trial) being de-railed part way through because of illness. Therewas also, in our assessment, a substantial risk that other jurors would feel vulnerableand anxious about being in such close proximity to an unvaccinated person and hencedistracted from the important task at hand. As time went by, and the Omicron wavesubsided, and more effective masks were widely available, it may be that jurorsbecame more sanguine, but what happened needs to be seen in the context of early2022. It is important to note too that the Judge gave counsel an opportunity to be heardand considered the possibility of alternative arrangements but concluded these werenot practical or possible.[163] Judges possess inherent or implied powers to control and manage a trial as wellas a statutory power under s 22 to discharge a juror both before and after the jury isconstituted if that juror is incapable of discharging their duties. As cases such asJuliano134 and more recently R v Wong135 demonstrate, the courts take a very broadattitude to what amounts to incapacity including in the context of unvaccinated jurors.[164] If a reasonable foundation existed for concluding that a potential juror or jurorsposed a risk to the integrity of the trial and/or health and safety of other court users,then in our view it seems odd that despite broad implied and statutory powers, a trialjudge should nevertheless has been powerless to send that juror away and instead be134 R v Iuliano, above n 107.135 R v Wong [2023] NZCA 341 at [25].obliged to allow them to enter a crowded courtroom and so unnecessarily andunreasonably risk the health of others.[165] We observe too that support for the Judge's approach can be found in someAmerican and Canadian cases where appellate courts have upheld decisions to excludeunvaccinated jurors.136 In a Canadian decision for example, it was held that to allowan unvaccinated person to serve as a juror would "irresponsibly introduce risk to thetrial".137[166] That said, we accept there was uncertainty in New Zealand as to the existenceof a power to exclude unvaccinated jurors — no doubt for the very reasons relied uponby Ellis J — and that this uncertainty was one of the reasons for the enactment of theCOVID-19 Response (Court Safety) Act. To what extent the legislation was intendedto create new powers as opposed to clarifying and affirming existing ones is debatable.On any view of it, the legislation does of course tend to support that what the Judgedid in this case was reasonable.[167] Ultimately, even if there was an error of law, what matters for the purposes ofthis appeal is what impact the error had on Mr Wallace's trial. For the reasonsarticulated by Ellis J we are satisfied that it did not render the trial unfair and nor didit render the trial a nullity.Result[168] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent136 See for example United States v Elias 579 F Supp 3d 374 (ED NY 2022), R v Barac 2021 ONSC6605; and R v Aiello 2021 ABQB 772.137 R v Frampton 2021 ONSC 5733 at [7].