ATONE IULIANO v R [2021] NZCA 432

ATONE IULIANO v R [2021] NZCA 432 [3 September 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY PERSON UNDER THE AGE OF 18YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THECRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA109/2021[2021] NZCA 432BETWEEN ATONE IULIANOAppellantAND THE QUEENRespondentHearing: 20 July 2021Court: Miller, Thomas and Wylie JJCounsel: A B Fairley for AppellantJ A Eng for RespondentJudgment: 3 September 2021 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] The appellant was found guilty on one charge of sexual violation by unlawfulsexual connection1 and three charges of sexual conduct with a child.2[2] He appeals his conviction, principally on the ground that the trial judge waswrong to discharge a juror who was required to undergo a COVID-19 test and isolatein the interim.3 The appellant says the juror, who was the foreperson, was notincapable of performing her duties for the purposes of s 22 of the Juries Act 1981;the trial ought to have been adjourned until she had returned a negative test, as shesubsequently did. This was especially important, he maintains, because the jury hadalready been reduced to 11 persons and the juror concerned was the foreperson.He also appeals two evidential rulings.Narrative facts[3] The appellant is a distant relative of the complainant. He and his wife caredfor her and her brother from around 2007 until 2015, when she was between the agesof three and 10 years. The first two charges were representative. It was said thatthe appellant would try to touch the complainant's genitalia when they were sitting athome watching movies or while travelling in a van, and that he kissed the complainanton the mouth, using his tongue, on several occasions. The fourth charge was a specificallegation that the complainant woke in the van to find the appellant touching hergenitalia over her clothes. The third charge, of sexual violation by unlawful sexualconnection, was one of digital penetration in the van while the complainant's brotherwas swimming in a creek nearby. The appellant's defence was that none ofthe incidents happened.The trial[4] The trial began on 18 January 2021. It was set down for two weeks andthe jurors were advised that they were required for that period. Because the appellantwas on dialysis, the Court sat on Mondays, Wednesdays and Fridays only.1 Crimes Act 1961, ss 128 and 128B.2 Section 132(3).3 An appeal against sentence was abandoned; the appellant is terminally ill and has been releasedfrom prison.[5] The evidence in chief of the complainant's brother took the form of anevidential video recording, in which he said that he would on occasion go to the creekand "they would stay in the car and I thought they were just eating lollies".[6] Defence counsel wanted to cross-examine on a statement recorded by a socialworker who had spoken to the complainant's brother before the evidential video wasrecorded. In the statement, the brother said he had never seen the appellant doanything to the complainant and the appellant had never done anything that made himfeel scared or worried. Counsel wanted to demonstrate inconsistency by showing thatthe brother had not spoken of the complainant and the appellant remaining in the car.The Judge ruled that the statement did not amount to an inconsistency but merelyconfirmed the witness had not seen anything.[7] The Judge had also ruled, pre-trial, against excision of part of the videointerview in which the brother said he thought his sister was lying when shecomplained to him initially but when he got older and she kept repeating it, he didbelieve her. Counsel had objected to the latter statement on the ground that it wasinadmissible opinion evidence. The Judge reasoned that the brother's opinion did nottend to prove a fact but merely recorded his perception of his sister, which wasnecessary to allow him to communicate what he understood and what he said to her inresponse to her disclosure. It was also necessary for balance; he would be permittedto say he did not believe her initially.[8] On the second Monday one of the jurors had to be excused because her husbandcollapsed with a serious illness and was admitted to intensive care.[9] On the same day, the Court was advised that the foreperson believed she mayhave been exposed to the risk of contracting COVID-19. It appears that a close contactof hers had visited the same café as a tourist who had contracted the virus. She wastold to have a test and the Court adjourned, envisaging that the trial would resume onWednesday after she had her result. She did not undergo the test until Tuesday andthe result was not available when the Court resumed on Wednesday 27 January 2021.At that point the Judge was given to understand that the result might be available byFriday. If the trial ran over into a third week, it would not resume until the Wednesdaybecause the Monday was a public holiday.[10] Defence counsel urged the Judge to wait until the test was available, reasoningthat only one day might be lost. The prosecutor argued that the trial was becoming"disjointed in terms of the evidence".[11] The Judge recorded there was no assurance the test result would be availableby Friday. He said his real concern was that if he delayed the Court might be inprecisely the same situation. He added that:[9] There is an allied issue with this. We are at a stage where evidencefor the defence is anticipated, it is thought possibly that will be completedwithin relatively short order given the estimates identified. It may well bepossible to have closing addresses at least today, and there is the potential forsumming up too. This matter has occupied a two-week slot. Essentially onthe basis that, Mr Iuliano suffers from a health condition which necessitateshim having dialysis Tuesdays and Thursdays and Saturdays, so the court hasbeen sitting Monday, Wednesday and Friday.[10] What that reflects is the time that it has taken to hear the evidence.The allied concern is that if we were to move into a third week, it would be toWednesday because Mr Fairley, counsel for the defence, is unavailable on theTuesday; he is out of Whangarei, and Mr Iuliano would be unavailable too.That brings with it a different issue, whether the remaining jurors would beable to proceed. I have not polled those jurors and I do not propose to do so.[12] The Judge accordingly discharged the foreperson on the ground that she wasincapable of performing her duties "in consequence of the outstanding [COVID-19]test".[13] The trial continued. The appellant and his wife gave evidence, closingaddresses were delivered, and the Judge summed up. He directed the jury that theywere not to rely on the brother's assessment of the complainant's credibility; they hadheard that evidence as context for the fact that she had repeated her complaints to him.We need not say more about the summing-up, which is not criticised on appeal.[14] The jury began deliberations late in the day, then were released until the Friday,29 January. At that time, they were told that the discharged juror had returneda negative test. They deliberated for most of the day before returning unanimousverdicts.The appeal[15] The appellant maintains that the Judge erred in three respects: he was wrongto discharge the foreperson; he was wrong to disallow cross-examination ofthe complainant's brother on the prior statement referred to at [6] above; and he waswrong to allow the brother to depose to his belief that the complainant was tellingthe truth.Discharge of the juror[16] Mr Fairley argued that the Judge's decision to discharge the juror waspremature. He acknowledged that the authorities justify the discharge of the otherjuror on the ground that her husband's serious illness would distract her from her duty.But the foreperson was not unwell and the decision to require a COVID-19 test wasprecautionary. It was likely that, as in fact happened, she would return a negative testin short order, meaning that only one day would be lost and the trial could resumethe same week. The Juries Act provides that a jury comprises 12 persons anddepartures from the rule must be justified. Although it is no longer the law that onlyin exceptional circumstances that a juror can be discharged, it remains the case thata judge should be slow to exercise the jurisdiction. In this case the juror had beenserving as foreperson and her discharge reduced the number of jurors to 10. Mr Fairleyobserved that the Judge had not polled the jury to establish whether they could sit onthe Saturday or return the following week.The Juries Act 1981[17] The Juries Act establishes jury districts, provides for eligibility andthe obligation to serve,4 and establishes or authorises processes for summoning,excusing and selecting jurors.5 Speaking generally, these processes are designed to4 Sections 5–8.5 Sections 13, 15–16 and 18.ensure that juries are chosen at random from members of the community in the jurydistrict in which the trial is held.[18] The Juries Act states that "[e]very jury shall comprise 12 jurors."6 It goes onto provide that in certain circumstances the court may proceed with fewer than12 jurors.7 Those circumstances may arise where a juror or jurors are discharged fromthe jury panel which has been summoned, or from the jury once it has been selected.In the latter case the court may require that a further juror be selected from the panelif the juror has been discharged before the case has been opened or the defendant givenin charge.8 The legislation accordingly envisages both that there may be too few jurorsleft in the pool to form a jury of 12 and that jurors may be discharged during the trial.A juror may be discharged on application by a party or on the court's own initiative.9The defendant is entitled to be heard.10 The court may consider any evidence (otherthan evidence of jury deliberations) that it thinks fit.11 Rather than proceed with fewerthan 12 jurors, the court may discharge the jury and direct a new trial in the samesitting or postpone the trial.12[19] The court may proceed with fewer than 10 jurors only if all parties consent andthe court thinks it is in the interests of justice to do so.13 The verdict of the jury,whether unanimous or by majority, has the same effect as a verdict of 12 jurors.[20] The criteria for discharge are found in s 22. Subsection (1) establishesthe jurisdiction to discharge a juror and continue with fewer than 12 jurors, or todischarge the jury. It also states that the jurisdiction to discharge a juror or jury is tobe exercised having regard to the interests of justice:22 Discharge of juror or jury(1) When this subsection applies, the court, having regard to the interestsof justice, may either—6 Section 17.7 Sections 19 and 22.8 Section 22A.9 Section 22B(1).10 Section 22B(2).11 Section 22B(3).12 Section 22A(4).13 Section 22(1A).(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 withthe remaining jurors and take their verdict (whetherunanimous or majority).(1A) The court may proceed with fewer than 10 jurors under subsection(1)(b) only if all parties consent to doing so and the court, havingregard to the interests of justice, considers that it should do so.[21] Subsection (2) provides that the jurisdiction may be exercised if and only ifthe Court considers that one of five grounds for discharge applies to the jurorconcerned:(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 ofthe juror's spouse, civil union partner, or de facto partner, isill or has 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.We record for completeness that subs (3) authorises a trial judge to discharge a jury inthe event of a casualty or emergency, or if the jury remains deadlocked afterdeliberating for a reasonable period of not less than four hours.[22] The legislation has taken this form since 2012.[23] The jurisdiction to proceed with fewer than 11 jurors was formerly morerestrictive. The former s 374 of the Crimes Act 1961 provided that a court mightproceed with 11 jurors if it thought fit, having regard to the interests of justice,14 but it14 Section 374(4) (from 11 December 1997–24 December 2008).might proceed with fewer than 11 jurors only in "exceptional circumstances relatingto the trial".15 In R v Rajamani and in R v Wong the Supreme Court held that whetherexceptional circumstances existed was a matter of fact requiring judicial assessment.16In a passage emphasised by Mr Fairley the Court stated in Wong that:17The right to a jury trial has long been a fundamental right. It is now confirmedin s 24(e) of the New Zealand Bill of Rights Act 1990. It is a right of suchimportance that Parliament should not be taken to have intended to abridge itmore than is necessary to prevent confidence in the system being underminedby the need to abort very long trials when jurors are unable to continue.However, the exact number of jurors who must participate in the unanimousdecision of a jury has been altered by Parliament from the traditional 12.Section 374 permits a reduction to 11 members and, under subs (4A), incertain circumstances to ten. The legislature chose not to specify anyparticular length of trial which could be continued with only ten members.The subsection, instead, empowers the judge to exercise a discretion tocontinue with ten members if that is considered by the judge to be inthe interests of justice. But it has restricted the exercise of that discretion tocircumstances which are "exceptional" — a term which is frequentlyencountered in different statutory contexts but here must be read bearing inmind the importance of the right being affected.[24] However, the requirement that circumstances be exceptional before a trial mayproceed with fewer than 11 jurors was removed in December 2008.18 In his concurringjudgment in Roderick Harris v R Baragwanath J discussed the 1998, 1999 and 2001Law Commission reports which led to this development, noting that the reports hadled to proposed legislation in which a majority verdict of 10 jurors would soon beacceptable.19 In its 1998 report the Law Commission had discussed the goals ofthe jury selection process, listing them as competence, independence, impartiality, andrepresentation of the community.20 It reasoned that representativeness increasesthe legitimacy of the jury system, and the diversity of perspectives and life experiencethat it brings to deliberations may improve the quality of a jury's work.21 A point15 Section 374(4A) (from December 1997–24 December 2008).16 R v Rajamani [2007] NZSC 68, [2008] 1 NZLR 723 at [4]; and R v Wong [2008] NZSC 29,[2008] 3 NZLR 1 at [3].17 At [8].18 At that stage, however, s 22 of the Juries Act 1981 made had no specific provision relating toproceedings with fewer than 11 jurors, which is now included in s 22(1A).19 Harris v R [2008] NZCA 298 at [52]–[55] [Roderick Harris v R], referring to Law CommissionJuries in Criminal Trials Part One (NZLC PP32, 1998), Law Commission Juries in CriminalTrials Part Two (NZLC PP32, 1999) and Law Commission Juries in Criminal Trials (NZLC R69,2001). The legislative history indicates that although there was a long delay betweenthe Commission's reports and the amendment to s 22 of the Juries Act, Parliament intended toadopt the Commission's recommendations with respect to, among other things, juror discharge.20 Law Commission Juries in Criminal Trials Part One, above n 19, at [232]–[252].21 At [249]–[252].would be reached at which reduction in juror numbers would compromisethe representative character of the jury, but a judicial decision to proceed with 10 jurorswould not have that effect.22 That being so, the Law Commission considered,the "exceptional circumstances" requirement could unnecessarily restrict a court'sability to proceed with a trial due to the possibility of counsel, who may be concernedabout balance, withholding consent to proceeding with fewer than 11 jurors.23[25] In a judgment delivered almost contemporaneously in a different case,Gregory Harris v R, the Court noted that when considering the interests of justicetrial judges must bear in mind "the interests of the accused in completing his trial,the interests of the victim, and the interests of the State", and balance these againstthe circumstances of the juror.24[26] Two points emerge from this brief discussion. The first is that the decision todischarge a juror is discretionary in nature, meaning there is a good deal of room forthe exercise of judgement by trial judges when balancing the circumstances ofthe juror against the interests of the defendant, complainants and other participants,and the State. As this Court said in Roderick Harris v R, in which the trial hadcontinued with 10 jurors after the eleventh fell ill, trial judges are uniquely placed todetermine these issues.25[27] The second is that, contrary to Mr Fairley's submission, it is no longer correctto say that additional care must be taken when considering whether to discharge aneleventh juror and continue with 10. The statutory test is the same as it is whenconsidering whether to discharge the twelfth. The fundamental nature of the right toa jury trial does not dictate that the statutory criteria for proceeding with fewer than12 jurors should be overlaid with additional restrictions. We adopt, as the Court didin Roderick Harris v R, the following passage from the judgment of the High Court ofAustralia in R v Brownlee:2622 At [452].23 At [451].24 Harris v R [2008] NZCA 300 at [11] [Gregory Harris v R].25 Roderick Harris v R, above n 19, at [27].26 At [29], citing R v Brownlee [2001] HCA 36, (2001) 207 CLR 278.[21] The function of jury trial is not such as to make it essential thatthe common law rule [that juries comprise 12 jurors] be preserved in its fullrigour. Adopting a functional approach to questions of the validity of statelegislation permitting juries of a lesser number than 12, the Supreme Court ofthe United States held that such a reduction in numbers was consistent withthe corresponding constitutional guarantee. In Williams v Florida27 White J,delivering the opinion of the court, said:The purpose of the jury trial is to prevent oppression bythe Government Given this purpose, the essential featureof a jury obviously lies in the interposition betweenthe accused and his accuser of the commonsense judgment ofa group of laymen, and in the community participation andshared responsibility that results from that group'sdetermination of guilt or innocence. The performance of thisrole is not a function of the particular number of the body thatmakes up the jury. To be sure, the number should probablybe large enough to promote group deliberation, free fromoutside attempts at intimidation, and to provide a fairpossibility for obtaining a representative cross-section ofthe community. But we find little reason to think that thesegoals are in any meaningful sense less likely to be achievedwhen the jury numbers six, than when it numbers 12 —particularly if the requirement of unanimity is retained.28[22] Those observations apply with even greater force to a system whichrequires 12 jurors to begin with, but permits the trial to continue with 10 ofthe original 12 where two have been discharged, and requires a unanimousverdict of the remaining ten. Such a system is not inconsistent withthe purposes of trial by jury. In particular, it is not inconsistent withthe objectives of independence, representativeness and randomness ofselection, or with the need to maintain the prosecution's obligation to prove itscase beyond reasonable doubt.[28] That said, the legislation provides that a jury must comprise 12 jurors unlessone of the statutory criteria for discharge is made out, and the interests of justice mustbe weighed when deciding to discharge a juror or the jury. It must follow that, asMr Fairley submitted, it remains true that a juror should not be discharged for reasonsof mere administrative convenience.29 Where there is a prospect that the juror may beable to continue, the judge should consider whether it is in the interests of justice todelay the trial, or adjourn during it, if that will allow the juror to resume their duties.27 Williams v Florida 399 US 78 (1970) at 100.28 See also Ballew v Georgia 425 US 223 (1978); and Brown v Louisiana 447 US 323 (1980).29 R v Wong, above n 16, at [9].Discharge for incapacity[29] The question is whether the juror was "incapable of performing, or ofcontinuing to perform" her duty as a juror in this case for the purposes of s 22(2)(a).As Mr Fairley acknowledged, the authorities take a broad view of incapacity toperform a juror's duty.30 It is not confined to illness or disability. The authoritiesrecognise that a juror may be incapable where some personal concern or commitmentis likely to distract or upset them.31 In its 1991 decision in R v M, this Court furtherheld that:32"Incapable" must include the case of a juror whose continued presence onthe jury would jeopardise the fairness of the trial to either side, or make theverdict abortive or seriously vulnerable. It could hardly be said that a juror is"capable" of continuing to act if the inevitable result is a suspect trial.[30] This juror was unquestionably incapable of continuing while awaiting herCOVID-19 test results. She was not experiencing symptoms of illness, but she couldnot be permitted into the courtroom to participate in the trial. The Judge had to weighthe likelihood that she could resume two days later against the risk that the fairness ofthe trial and reliability of the verdicts would be affected should the Court not resumeuntil what might be the following Wednesday. (As noted above, the Judge could notbe sure the juror would have her test result by Friday.) The best possible outcome wasnot much better: the evidence, and likely the closing addresses, would be completedon the Friday and the jury presumably would hear the summing-up and begindeliberations the following Wednesday. We do not think the jury, whose collectiveinterests were relevant, could reasonably have been required to deliberate onthe Saturday in the circumstances. So their deliberations would have begun more thantwo weeks after they heard from the complainant herself and five days after they heardfrom the appellant, with many non-sitting days in the interim.[31] In our view it was within the Judge's discretion to discharge the juror andproceed with a jury of 10 in all the circumstances.30 R v Wilson CA17/03, 29 September 2003 at [16].31 Stewart v R [2016] NZCA 217 at [33].32 R v M (1991) 7 CRNZ 439 at 442.Cross-examination on the prior statement[32] Mr Fairley argued that the social worker's note recorded a previous statementby the complainant's brother and he ought to have been permitted to cross-examine onit, to show that what was said in the evidential interview was not something the brotherhad spoken of at the first opportunity. The brother could have been asked whether heattested to the appellant and the complainant remaining in the car because he was bythat time aware of the need to create an opportunity for the alleged offending.[33] We are prepared to accept for purposes of this appeal that it was an error not toallow counsel to explore the issue in cross-examination. The brother might haveadopted the statement recorded by the social worker (who was not a witness) andthe omission could have been highlighted to doubt the reliability of what hesubsequently said in his evidential interview.[34] However, we do not accept that a miscarriage has resulted. In our opinion thereis no real risk that the omission made any difference to the outcome. It is highly likelythat the cross-examination would have established only that the brother was neverasked about opportunity.The opinion evidence[35] Mr Fairley submitted that it was wrong to allow the jury to hear that ultimatelythe brother believed his sister's account. The brother's opinion was irrelevant, or notsubstantially helpful.[36] There is nothing in this point. We accept Mr Eng's submission that the timingand nature of the complainant's disclosures were important features of the case, andthe fact that she was initially disbelieved is relevant to how she then acted and whatshe disclosed to adults. The Crown did not deploy the brother's opinion to buttressher credibility, and the direction given by the Judge was more than sufficient to controlany risk of impermissible reasoning.Result[37] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent