AUVAE TUPA’I v R [2022] NZSC 132

AUVAE TUPA'I v R [2022] NZSC 132 [16 November 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF "[C]" PROHIBITED BY S 203 OF THECRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlNOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF "[C]" PROHIBITED BY S 204 OF THECRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlNOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF "[T]" PROHIBITED BY S 204OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 89/2022[2022] NZSC 132BETWEEN AUVAE TUPA'IApplicantAND THE KINGRespondentCourt: Ellen France, Williams and Kós JJCounsel: N Levy KC for ApplicantJ A Eng for RespondentJudgment: 16 November 2022JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] The applicant faced two charges of sexual offending against a young familymember (C) and 16 charges involving physical violence against C and her sibling.Three of the violence charges were dismissed at the close of the Crown case.1 In thecourse of jury deliberations on the remaining charges, a juror (Juror 1) was dischargedby the trial Judge. The jury proceeded with 11 members. The applicant was acquittedon three of the violence charges and found guilty of the remainder of the charges. Hewas sentenced by Judge Snell, the trial Judge, to seven years' imprisonment.2[2] The applicant appealed unsuccessfully to the Court of Appeal againstconviction.3 He has made an application for leave to appeal to this Court. Theproposed appeal would focus on the circumstances of the discharge of Juror 1. Thosecircumstances are set out in some detail in the judgment of the Court of Appeal.4 Thefollowing background material will suffice.Background[3] Jury deliberations commenced on 19 February 2021, a Friday, and continuedon the Monday, 22 February 2021. At about 10.23 am on 22 February the Judgereceived a letter from the foreperson indicating concerns about two jurors. No issuearises about the second of the two jurors so we say no more about that.[4] In terms of Juror 1, the foreperson expressed concerns the juror had at manypoints expressed beliefs, such as that children were liars, which the forepersonconsidered should have been brought up during the jury selection process. Theforeperson also referred to the juror's reference to a family member who was"reportedly the victim of a spurious allegation of sexual assault". The foreperson wasalso concerned about what the foreperson saw as difficulties Juror 1 had inparticipating in discussion.1 Criminal Procedure Act 2011, s 147.2 R v Tupa'i [2021] NZDC 8272.3 Tupa'i v R [2022] NZCA 356 (Collins, Peters and Downs JJ) [CA judgment].4 At [21]–[33].[5] The Judge undertook a careful process to investigate these issues interviewingboth the foreperson and Juror 1. The Judge initially was inclined to consider Juror 1could continue on. But, before the juror returned to the jury room, the Judge was madeaware of comments made by Juror 1 in the corridor which as the Court of Appeal saidwere "to the effect that she was reluctant to return to the jury room".5 The Judge andJuror 1 had a further discussion. In this context, the juror said she would prefer toleave.[6] The Judge discussed matters with counsel. Both the Judge and trial counsel(not counsel on the appeal) took the view Juror 1 should be discharged. In his ruling,the Judge said this:6However, the juror expressed a view that she was very reluctant to continuedeliberating and had become distressed. She went further and indicated thatshe would not be able to continue unless she had had a significant clearing ofthe air with the foreperson. Both defence and Crown counsel were of the viewthat the concerns raised by the foreperson about this juror and the juror'sresponse regarding only being able to continue to deliberate if she was able tohave it out with the jury foreperson, rendered her incapable of performing orcontinuing to perform her duty as a juror in the case. Pursuant to s 22(1)(b)of the Juries Act 1981, I discharged the juror [juror 1] at the request of[juror 1], but with the agreement and informed approval of both defence andCrown counsel.[7] The Judge told the remaining members of the jury that Juror 1 had beendischarged because of "personal issues" that had arisen that morning "which mean[t]that she [was] no longer able to continue to discharge her duties as a juror". The Judgethen gave the jury the standard direction as to majority verdicts. This course of actionwas also discussed and agreed with counsel.The proposed appeal[8] The applicant wishes to argue first that the Judge erred in discharging Juror 1.The principal submission would be that discharge was not permissible where a"clearing of the air" would have resolved the issue. Second, the applicant says thatdirections should have been given to the jury to dispel the concern otherwise presentthat dissenting opinions in the jury room were not permitted.5 At [28].6 R v Tupa'i [2021] NZDC 4835 [Ruling 2].[9] In dismissing this aspect of the appeal, the Court of Appeal noted that theability to discharge a juror for incapacity in s 22(2)(a) of the Juries Act 1981 is notconfined to illness or disability. The Court referred to cases illustrating that trialJudges "are entrusted" to make decisions about juror capability "by taking into accountthe juror's circumstances and the dynamics of the trial".7 The Court said a trial Judgehad advantages in "seeing a juror's demeanour and assessing the whole situation",something an appellate court could not replicate.8 The Court continued:[70] The Judge clearly considered giving further directions to the juryabout how to conduct their deliberations but he and counsel assessed thesituation as being beyond salvation when Juror 1 said she would only continueif she could, to quote the Judge, "have it out" with the foreperson.[71] But, the concerns having been raised, we consider it was open tothe Judge to speak to the jurors rather than giving some form of direction, asMs Levy also argued. Having done so, the Judge was then confronted by ajuror who did not want, or feel able, to continue to participate in thedeliberations. In short, the Judge was then confronted by a juror, who in termsof s 22(2)(a), was not able to continue to perform her duties.[10] The proposed appeal would largely reprise the arguments considered by theCourt of Appeal. We are not persuaded that any material error in that Court's analysishas been identified. As the Court observed, the trial Judge was "alive to the delicacyof the situation" where the jury were deliberating.9 The decision to discharge reflecteda careful process and one supported by trial counsel. There was no submission at thetime that further directions were required to address this particular combination offacts. No question of general or public importance accordingly arises and nor is thereany appearance of a miscarriage of justice in the Court of Appeal's assessment.10Result[11] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent7 CA judgment, above n 3, at [68].8 At [69].9 At [71].10 Senior Courts Act 2016, s 74(2)(a) and (b).