ROLLESTON v R [2018] NZCA 356

ROLLESTON v R [2018] NZCA 356 [7 September 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA485/2017[2018] NZCA 356BETWEEN BROOKE CHRISTIE ROLLESTONAppellantAND THE QUEENRespondentCA486/2017BETWEEN BRANDON JAMES ROCHEAppellantAND THE QUEENRespondentHearing: 2 August 2018Court: Asher, Brewer and Thomas JJCounsel: E Huda for AppellantsK S Grau for RespondentJudgment: 7 September 2018 at 12.30pmJUDGMENT OF THE COURTThe application to interview jurors is declined.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)[1] Following a nine-day trial in the Christchurch District Court in mid-2017, theappellants, Brooke Rolleston and Brandon Roche, were convicted of sexual violationby rape and sexual violation by unlawful sexual connection and sentenced to terms ofimprisonment.1 The complainant was a 15-year-old girl who had held an unsupervisedparty at her house in January 2016 while her parents were away. The appellants wereaged 19 and 18, respectively. The foreperson of the jury, who we will call S, was ayoung man who Mr Brooke Rolleston now says was at school with him and hisbrother, Mr Dante Rolleston, who bullied the foreperson. The appellants haveappealed their convictions and sentences and, as a preliminary matter, seek ordersdirecting an independent practitioner interview the jurors from the trial.Background[2] The evidence at trial was that the complainant was heavily intoxicated at theparty and her boyfriend was concerned about her. He unsuccessfully tried toencourage her to leave with him when he had to leave the party at midnight. Earlierthat night Mr Brooke Rolleston had asked the complainant's boyfriend if he wouldlike to put her on a "spit roast". The appellants aggressively saw the complainant'sboyfriend off the property. The appellants took the complainant from her bed whereshe and two friends were sleeping, and took turns at having sexual intercourse withher, one from behind while the other penetrated her mouth with his penis. Afterwardsthey laughed with their friends about having had a spit roast.[3] The complainant was left distressed, crying and vomiting. The next morning,she had no recollection of sexual activity but felt very unwell and had sore genitaliaand a sore throat.[4] The appellants accepted they had engaged in sexual activity with thecomplainant but claimed it was consensual, or that they believed on reasonablegrounds that it was consensual.1 R v Rolleston [2017] NZDC 17046.Application to interview jurors[5] The appellants claim they did not receive a fair trial as a result of juror bias.Prior to the hearing of their conviction appeals, the appellants seek orders directing anindependent practitioner to interview jurors from their trial.2[6] The application seeks the following:(a) that the foreperson, S, be asked whether he recognised Mr BrookeRolleston and/or Mr Dante Rolleston at the trial; if yes, whether he toldother jurors that he knew them; and(b) that the remaining 11 jurors be asked whether S told them he knewMr Brooke Rolleston and/or his family; if yes, whether S told themanything prejudicial about Mr Brooke Rolleston and/or his familywhich did not form part of the evidence at trial.[7] Mr Huda, for the appellants, has filed a draft of proposed questions.The law[8] The appellants appeal against their convictions, claiming a miscarriage ofjustice in terms of s 232(4)(b) of the Criminal Procedure Act 2011 (the Act) whichrequires an error, irregularity or occurrence affecting the trial which has resulted in anunfair trial.[9] Evidence regarding jury deliberations is addressed in s 76 of theEvidence Act 2006 which provides:76 Evidence of jury deliberations(1) A person must not give evidence about the deliberations of a jury.(2) Subsection (1) does not prevent the giving of evidence about mattersthat do not form part of the deliberations of a jury, including (withoutlimitation)—2 An application for an inquiry into juror misconduct should generally be determined by three judgesof this Court: see JRM v R [2016] NZCA 37 at [7].(a) the competency or capacity of a juror; or(b) any conduct of, or knowledge gained by, a juror that isbelieved to disqualify that juror from holding that position.(3) Subsection (1) does not prevent a person from giving evidence aboutthe deliberations of a jury if the Judge is satisfied that the particularcircumstances are so exceptional that there is a sufficientlycompelling reason to allow that evidence to be given.(4) In determining, under subsection (3), whether to allow evidence to begiven in any proceedings, the Judge must weigh—(a) the public interest in protecting the confidentiality of jurydeliberations generally:(b) the public interest in ensuring that justice is done in thoseproceedings.[10] This section concerns the admissibility of any material obtained as a result ofinquiries of jurors. Evidence about jury deliberations will not be admitted except inexceptional circumstances. In determining whether such circumstances aresufficiently compelling, the judge must weigh the matters set out in s 76(4).[11] In 2017, this Court summarised the outcome of applications into jurormisconduct over recent years in order to demonstrate the high threshold under s 76(3):3(a) In Tainui v R the Court refused to order an investigation aftera juror wrote a letter that indicated he or she was underpressure from other jurors.4(b) In Derrick v R an application for an inquiry was declined inrelation to a juror's letter indicating that during deliberationsthe jury had been fatigued and wanted to go home.5(c) In Neale v R an indication that a juror had been bullied andgive in to the verdict did not justify a barrister being appointedto conduct an interview.6(d) In Dale v R a juror's letter indicating that two jurors haddisagreed with the guilty verdict but felt they had no choicebut to agree did not justify an inquiry.7(e) In Smith v R an application for an order to interview jurorsover suspected juror misconduct in taking into account the3 Parker v R [2017] NZCA 550 at [4].4 Tainui v R [2008] NZCA 119.5 Derrick v R [2011] NZCA 163.6 Neale v R [2010] NZCA 167.7 Dale v R [2016] NZCA 104.fact that the defence had intended to, but ultimately did not,call character evidence, was refused.8(f) In Whyte v R a similar application for an order to interviewjurors was declined where a juror had sent an email to thecourt after six unanimous guilty verdicts and one majorityverdict were entered — the juror expressing himself asdeveloping misgivings about the verdicts in the days andweeks following trial.9[12] Similarly, in Pearson v R, this Court refused an application for an inquiryfollowing a communication post-trial from a minority juror to defence counsel inwhich the juror expressed concerns about the domineering behaviour and possible biasof the foreperson.10[13] The exceptional circumstances threshold does not apply to matters external tojury deliberations. In that event, the Court will instead consider whether permittingan interview would be "in the overall interests of justice" and whether, if an interviewwere to prove the allegations, it could provide a successful ground of appeal.11[14] In JM v R, although the Court distinguished between an inquiry into conductoccurring outside deliberations and an inquiry into the conduct of deliberations, itobserved that extrinsic conduct has the potential to impact on deliberations.12 In thatcase, independent counsel was appointed when a police prosecutor told the Crownprosecutor about a conversation with a juror who had said the Crown had not provedits case and the jury conducted its own inquiries and discovered further information.Both parties agreed further inquiry was warranted. Following that inquiry, the Courtconsidered a serious question remained as to whether extraneous inadmissibleinformation was available to the jury.13 The Court directed an interview of theforeperson to inquire whether any juror brought information to the jury room aboutthe appellant's previous convictions.148 Smith v R [2017] NZCA 93.9 Whyte v R [2017] NZCA 536.10 Pearson v R [2011] NZCA 572.11 Knight v R [2018] NZCA 71 at [8]; Tuia v R [1994] 3 NZLR 553 (CA) at 557; and JM v R [2016]NZCA 383 at [24].12 JM v R, above n 11, at [19].13 At [28].14 At [31].[15] The recent case of Knight v R involved a Crown witness, the appellant's formerpartner, who gave evidence at trial contrary to the evidence in her police statement.15After the trial, she provided an affidavit claiming she recognised a male juror and herecognised her, as he was her former client when she worked as a prostitute. The Courtwas satisfied no inquiry of jurors should be made, given the strength of the Crowncase, the fact the performance of the witness at trial did not make her a credible witnessand her contact with the juror was of a commercial nature some 18 months before thetrial. Furthermore, there was no evidence of bias or prejudice by the jury.16[16] The policy behind the high threshold to be reached before jurors areapproached after a trial is that jurors should not be identified, they should not beinterviewed and there should not be any evidence about juror deliberations. It reflectsthe essential rule that jury deliberations not be disclosed to protect public confidencein the jury system, to protect jury members and to protect the candour of jurydiscussions.17 That rule, in turn, reflects the four goals identified by theLaw Commission in selecting jurors: to obtain a jury that is competent, independent,impartial and representative of the community.18[17] Of particular importance in the present proceeding is impartiality. Although itis a core principle of the jury system, in its earlier work on the role of juries, theLaw Commission acknowledged it is probably impossible to compose a jury which iscompletely impartial.19 New Zealand's small population increases the possibility thata defendant will be known to a jury member. As this Court recognised inR v McCallum:20It is inevitable, particularly in the circuit Courts, that from time to time amember of the jury panel will have some acquaintance with the accused or thewitnesses or persons associated with them. Whether it is appropriate for sucha person to serve on a jury will depend on the closeness of theacquaintanceship and the degree of knowledge of relevant facts andcircumstances.15 Knight v R, above n 11.16 At [10].17 Tuia, above n 11, at 555.18 Law Commission Juries in Criminal Trials: Part One (NZLC PP32, 1998) at [232].19 At [242].20 R v McCallum (1988) 3 CRNZ 376 (CA) at 379.[18] That sentiment is echoed in later decisions, for example, R v Pearson:21While, ideally, a juror should not have any knowledge of any kind about thecase or those involved, it is elementary that not every piece of knowledge ofthat kind will require the Judge to discharge the juror, let alone declare amistrial. Further, what we have described as the ideal is an unrealisticexpectation. In the 14 provincial towns in New Zealand where jury trials takeplace that mode of trial would be impossible were one to insist on a jury devoidof all knowledge about the case or the participants.Evidence in support and submissions[19] The application is supported by affidavit evidence.[20] Mr Brooke Rolleston, discussed the process of jury selection. Heacknowledged his then lawyer took him through a list of names of potential jurorswhich he briefly perused. He said he did not recognise anybody from the list, nor didhe recognise anybody actually selected as a juror. He explained he was scared and didnot pay sufficient attention to the jurors, relying on his lawyer. At some stage duringthe Crown case, Mr Brooke Rolleston realised he knew S. He said he was a yearbehind him at high school. Mr Brooke Rolleston did not think to bring this to theattention of his lawyer or anyone else.[21] Mr Dante Rolleston says he was in the same year at high school as S betweenthe years of 2011 and 2014. He exhibited a copy of photographs taken from theschool's yearbook in confirmation. Mr Dante Rolleston says he was a bully at schooland abused other students verbally and physically. He says:I had many aggressive exchanges with [S]. That is because he was weird inthat he would stare at me intensely for minutes at a time. His staring led meto ask him why he was staring and whether he had a problem with me. Whenhe did not respond, I verbally abused him in front of other students both, maleand female. This was a regular occurrence.[22] Mr Dante Rolleston explains he attended the trial from either the second orthird day, sitting in the public gallery. S caught his eye because he was staring at himintensely for minutes at a time. That made him think he knew S but he was not sure.21 R v Pearson [1996] 3 NZLR 275 (CA) at 278.After the trial had concluded, he went to his high school and looked at the 2012yearbook which confirmed his suspicion.[23] The final affidavit is from a teacher at the high school. He knows the Rollestonfamily and confirms that Mr Dante Rolleston and Mr Brook Rolleston attended theschool in 2011. He had several interactions with Mr Dante Rolleston, saying:These interactions involved my disciplining and supporting him because ofhis bullying attitude toward other students at the school. Dante, as is commonwith bullies, had a habit of verbally and/or physically confronting studentswho could not or would not retaliate.[24] In Mr Huda's submission, the affidavits provide compelling evidence which,if accepted, allows for an inference that S very likely harboured prejudicial feelingsabout Mr Brooke Rolleston, albeit indirectly, because of the nature of S's relationshipwith Mr Dante Rolleston. He referred to research to the effect that memories of beingbullied at school can haunt a child for many years and the experience is notinfrequently considered by bullied persons as one of the worst things that has happenedto them.22[25] Mr Huda submitted that, if it could be established that S recognisedMr Brooke Rolleston and shared with other jurors prejudicial information about himand/or his family which was not in evidence, that would constitute a successful groundof appeal of Mr Brooke Rolleston's conviction. He referred to the jury's obligation todetermine the facts impartially, absent inadmissible information which could distortthe proper assessment of admissible evidence. He cited Lord Steyn in R v Mirza, whosaid:23In a case of a grave departure by the jury or jurors from judicial standards, ajudge may before verdict have to discharge the jury. A subsequent revealedinfringement of judicial standards by the jury or jurors may require theCourt of Appeal to quash the conviction. A lack of impartiality would be aclassic case requiring such action to be taken.[26] Ms Grau, for the Crown, opposed the application, submitting there was noevidential basis for an allegation S was biased against either or both of the appellants22 Gabrielle M Maxwell and Janis Carroll-Lind Impact of Bullying on Children (Office of theCommissioner for Children, Occasional Paper No 6, October 1997) at 14.23 R v Mirza [2004] UKHL 2, [2004] 1 AC 1118 at [6].and/or improperly influenced other jurors. She referred to the strength of the Crowncase, issues revealed at trial as to the appellants' credibility and the lack of proximitybetween any bullying of S by Mr Dante Rolleston and its impact on the trial. Finally,she submitted there was no evidence of bias or prejudice by S and/or the jury.Assessment[27] S was not a person who would necessarily be disqualified from being a juror.The Judge would have been permitted to excuse him from jury service if satisfied hewas personally concerned with the facts of the case or closely connected with one ofthe parties or one of the prospective witnesses.24 Even if S had recognised Mr BrookeRolleston or Mr Dante Rolleston, he may well not have been discharged. He was not"closely connected" with Mr Brooke Rolleston,25 they were not in the same class atschool.[28] S did not raise any concern at any stage of the trial, despite the Judge'sinstructions that any juror selected should inform the Judge if he knew one of thedefendants.26 The Judge's opening remarks to the jury emphasised that the case mustbe decided solely on the sworn evidence presented in Court. He warned the jury ofthe risk that the trial would have to be aborted if any juror made any inquiries ordiscovered information not tested as evidence. The Judge told the jury that they hadto put aside any feelings of prejudice or sympathy.[29] At its highest, the application turns on the possibility that S recognisedMr Dante Rolleston, remembered being verbally bullied by him at school at least threeyears earlier, harboured a grudge as a result and visited the sins of Mr Dante Rollestonon both Mr Brooke Rolleston and Mr Roche. Further, that S told the rest of the juryabout being bullied and that influenced their attitude towards both appellants andtherefore their deliberations.[30] As against that, there is no suggestion there was any issue between S andMr Brooke Rolleston, who was the year above him at school. Mr Brooke Rolleston24 Juries Act 1981, s 16(3)(b).25 Sections 22(1) and 22(2)(e).26 There is no dispute that this standard direction was given by the Judge at the time of jury selection.did not recognise S when he was selected as a juror or when he was elected foreperson,an event one would have expected to have attracted Mr Brooke Rolleston's attention.S either did not recognise Mr Brooke Rolleston by name or visually or, if he did, hedeliberately disregarded the Judge's instructions.[31] There is then the even more tenuous link between Mr Brooke Rolleston andS via Mr Dante Rolleston. It is not in dispute that the public gallery of the courtroomwas full during the course of the trial. The only basis for the application is on theassumption that, in that packed courtroom, S, as foreperson, whose job was to focuson the evidence, picked out and recognised Mr Dante Rolleston from the publicgallery, remembered having been verbally bullied by him at school and made theconnection between Mr Dante Rolleston and Mr Brooke Rolleston. And he then,either before or after the start of deliberations, told the jury of that and sought toinfluence them in his role as foreperson, without any member of the jury raising anyissues or concerns. This all in the context of the Judge's clear instructions in hisopening and in his summing-up when he instructed that the jury was to come to itsverdicts solely on the evidence placed before them in Court and, if they had anyprevious knowledge of the case or any person involved in it, they must put thatknowledge entirely out of their minds. Furthermore, they were told they were not toallow their decisions to be influenced by feelings of prejudice against, or sympathyfor, any defendant. The Judge expanded on that direction by instructing the jury to putaside feelings they might have towards the appellants having engaged in sexualactivity with an under-aged complainant.[32] There was no evidence of any problems within the jury either before or duringdeliberations.[33] Although Mr Huda's questions are designed to avoid eliciting any informationabout the jury's deliberations, we agree with Ms Grau that there would need to besome link between this information and the jury's deliberations. We say that becausewe are not satisfied the allegation, even at its highest, as described above, would meetthe test of there being a miscarriage of justice on the basis of an unfair trial. Therewould need to be some evidence that the jury improperly judged Mr Brooke Rollestonon the basis of what Mr Dante Rolleston did when he was a schoolboy.The circumstances of this case are very different from other cases where convictionshave been quashed, for example where a jury has been made aware of the fact adefendant has prior convictions.27 Moreover, they do not reach the levels of concernapparent in other cases where convictions were not quashed, such as where the juryconducted their own experiments on the detectability of the heat of a car engine toestablish time since the car was driven,28 and where a juror (a retired police officer)attempted to obtain from prosecuting counsel a copy of the Crimes Act 1961 and apassage from Adams on Criminal Law.29[34] In our view, the linkage on which the appellants rely is very tenuous and doesnot provide an evidential basis for alleging S was biased against either or bothappellants and/or improperly influenced other jurors.Result[35] For the reasons given, the application to interview jurors is declined.Solicitors:Patient and Williams, Christchurch for AppellantsCrown Law Office, Wellington for Respondent27 R v Brandon (1969) 53 Cr App R 466 (CA).28 R v Taka [1992] 2 NZLR 129 (CA).29 R v Beer (1999) 16 CRNZ 390 (CA).