SIGNAL v R [2023] NZCA 459

SIGNAL v R [2023] NZCA 459 [22 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA724/2022[2023] NZCA 459BETWEEN JASON DAVID SIGNALAppellantAND THE KINGRespondentHearing: 4 May 2023Court: Cooper P, Moore and Fitzgerald JJCounsel: R E Harrison KC and M C Jaquiery for AppellantR K Thomson for RespondentJudgment: 22 September 2023 at 11.00 amJUDGMENT OF THE COURTA The appeal against conviction is allowed in part and the conviction on thecharge of participating in an organised criminal group is set aside. We directthe entry of a judgment of acquittal on that charge under s 233(3)(a) of theCriminal Procedure Act 2011.B The ground of appeal against conviction on the manslaughter charge basedon jury misdirection is adjourned pending delivery of the Supreme Court'sjudgment in Burke v R, for which leave to appeal has been granted.The parties should file memoranda as to the disposition of this ground ofappeal within 10 working days of delivery of the Supreme Court's judgment.C The appeal is otherwise dismissed.____________________________________________________________________Table of ContentsPara NoBackground [4]Relevant events at Mr Signal's trial [10]The appeal [23]First and second grounds [23]Third ground [61]Fourth ground [67]Result [70]REASONS OF THE COURT(Given by Cooper P)[1] The appellant Jason Signal was tried before Palmer J and a jury on chargesalleging the manslaughter of Codi Wilkinson,1 the wounding of Kyle Rowe with anintent to commit grievous bodily harm,2 and participation in an organised criminalgroup.3 He was found guilty on all charges and convicted on 21 September 2022.[2] Although he has not been sentenced, Mr Signal appeals against his convictionand in the circumstances of this case, where issues are raised about the deliberationsof the jury brought to the Judge's attention at and shortly after the trial, we accept thatwas the appropriate course to follow.[3] There are four grounds of appeal. The first two grounds relate to the jurydeliberations. The third ground concerns the way in which the trial Judge summed upthe charge relating to participation in a criminal group to the jury. The fourth concernsthe manner in which the Judge directed the jury on the "common purpose" that theCrown needed to prove to establish party liability for manslaughter.Background[4] For present purposes, much of the relevant factual background may be takenfrom a notice of admitted facts filed at the trial pursuant to s 9 ofthe Evidence Act 2006. The notice set out the following, under the heading1 Crimes Act 1961 ss 171, 160(2)(a) and 66(2).2 Sections 188(1) and 66(2).3 Section 98A."Background to this trial":The offending with which Mr Signal is charged is the result of a group attackon two junior patched members of the Mongrel Mob Aotearoa.The attack took place on 12 September 2019.One of the victims (Codi Wilkinson) received a number of injuries which wereinflicted during the attack, and the other (Kyle Rowe) received a significantwound to his head.Those involved in the attack, including Mariota Su'a, Quentin Moananui andDean Jennings, were senior patched members of the Mongrel Mob Aotearoa,Manawatu Chapter. Jeremiah Su'a was the president of the Manawatu Chapterat the time.Following a jury trial which took place between 9 February and 7 May 2021("the 2021 trial") Jeremiah Su'a, his brother Mariota Su'a and QuentinMoananui were found guilty of Manslaughter (Codi Wilkinson), Woundingwith Intent to cause Grievous Bodily Harm (Kyle Rowe) and Participation inan Organised Criminal Group.Although they each faced a charge of Murder in respect of Codi Wilkinson,the jury convicted them of Manslaughter. In acquitting the defendants ofmurder by inference the jury decided the Crown had not proven any of thedefendants subjectively appreciated the likelihood of Codi Wilkinson's deathas a result of the attack.At the 2021 trial Mr Jeremiah Su'a was convicted of Manslaughter andWounding with intent on the basis that he participated in planning andorganising the attack, and he was sentenced on this basis.At the 2021 trial Mr Moananui was also convicted of two further charges ofKidnapping, which involved taking the victims from where the attack tookplace in Ashhurst to Bunnythorpe.Dean Jennings was also a defendant in the 2021 trial. However the jury couldnot reach verdicts in relation to him.Dean Jennings subsequently pleaded guilty to Manslaughter, Wounding withintent to cause grievous bodily harm, and two charges of Kidnapping.He admitted his involvement, alongside Quentin Moananui, in taking the twovictims from Ashhurst to Bunnythorpe where Codi Wilkinson's body was laterfound.There is no independent forensic evidence as to who participated in thephysical attack. There is no evidence that Jason Signal was involved in thephysical attack on Codi Wilkinson and Kyle RoweThere is no evidence that Jason Signal was involved in the plan to kidnap thevictims Codi Wilkinson and Kyle Rowe, and he is not charged withkidnapping.Jason Signal is not a Mongrel Mob member, prospect or associate and neverhas been. He was a close friend of Jeremiah Su'a at the time of the offendingThere is no evidence of a friendship between Jason Signal and any of thefollowing: Dean Jennings, Mariota Su'a, Quintin Moananui or [BL].[5] Further facts set out in the notice stated that Mr Wilkinson and Mr Rowe hadcommitted an aggravated robbery without the knowledge or approval of the gang.The aggravated robbery was committed against a person associated with the gang,who was a known commercial drug dealer based in Bunnythorpe and an associate ofJeremiah and Mariota Su'a. Mariota Su'a was able to identify Mr Wilkinson andMr Rowe as having been responsible for the attack by viewing CCTV footage.Under the heading "[t]he common plan" the notice said:On 12 September 2019 a plan was formed by members of the gang to inflictserious violence on Codi Wilkinson and Kyle Rowe, to punish them for theunauthorised aggravated robbery and to "de-patch" them. The plan includedphysically taking their Mongrel Mob patches from them.[6] The attack on Mr Wilkinson and Mr Rowe was then described in the notice.It was said that Mr Rowe and Mr Wilkinson were "brutally attacked in a confrontationby members of the group". Mr Rowe sustained a "sharp force injury", causing alaceration approximately 10 cm in length to the top of his head, and exposing his skullunderneath the wound. There was severe swelling and bruising across his whole body,and an open wound to his left middle finger.[7] After the attack, Mr Wilkinson was placed in the boot of Mr Rowe's motorvehicle and Mr Rowe was made to sit in the front passenger seat. Mr Rowe managedto escape as the car was being driven. After running away, he found a member of thepublic who drove him to Palmerston North Hospital. It was unclear what happened toMr Wilkinson. His deceased body was found in Bunnythorpe some 15 days later.It was unclear whether he had managed to escape from the boot of the car himself orhad been assisted out of it. There was also no evidence that any of the defendants(Mariota Su'a, Quentin Moananui, Dean Jennings, Jeremiah Su'a or Jason Signal) wereaware that Mr Wilkinson was deceased until after his body was located.[8] Jeremiah and Mariota Su'a, together with Quentin Moananui were convictedof manslaughter, wounding and participating in an organised criminal group after a13 week trial in 2021. Mr Moananui was also convicted of kidnapping. The jurycould not agree on verdicts with respect to Mr Signal and the other co-defendant,Mr Jennings.[9] Mr Jennings subsequently pleaded guilty to the charges. Mr Signal wastherefore retried on his own at the trial which has given rise to this appeal.Relevant events at Mr Signal's trial[10] On 8 September, the third day of the trial, the Judge discharged a juror whohad a passing acquaintance with the victim of the aggravated robbery committed byMr Rowe and Mr Wilkinson. The trial proceeded before the 11 remaining members.[11] They retired to consider their verdict on Tuesday 20 September, broke justbefore 5 pm and resumed the following day. At about 10 am on 21 September, theforeperson sent a note stating that the jury had "reached their unanimous verdict on all3 charges". However, accompanying it was another note, signed by an individualjuror, in the following terms:To the judgeWhilst I have agreed that Jason has some responsibility and needs to face theconsequences of his part in this Awful Situation.I also wholeheartedly believe that Jason Played a very small part and acted theway he did to get recognition in a sense of I belong – I do not believe thatJasons heart Intention was to harm Codi or Kyle and that the true Mastermindsbehind this Crime was the Sua Brothers & Barry Long.Jason I believe does not deserve to be unduly punished.I feel to write this because people do things and don't do things for deeperreasons than just what the Evidence shows.Thank you for taking time to puruse this and good luck to Jason.[12] In a bench note made on 21 September, the Judge made this record:4[4] I heard from counsel in the presence of the defendant but the absenceof the jury:(a) Ms Jaquiery, for Mr Signal, was concerned about whether theverdicts were unanimous. She submitted further inquiriesshould be made of the jury about that or whether a majority4 Footnote omitted.verdict direction was required. She said she was notsuggesting there had been intimidation, but she also submittedit might be appropriate to poll the Jury, citing case law.(b) Ms Davies, for the Crown, agreed that it would be wrong tojust take the verdicts without further inquiry. She submittedsuggested majority verdicts may be part of the directionrequired. She stated that, to the extent the letter was a plea forleniency, much of what is in the letter is accepted by theCrown. She was unsure that a direction was needed aboutbullying because there was no clear evidence of bullying.If such a direction were given, it would need to be made in arelatively neutral way.[13] After retiring to consider relevant authorities,5 the Judge told counsel that hedid not consider he needed to mention "bullying or intimidation" because there hadbeen no indication of that, nor did he consider it necessary to poll the jury. Rather, heconsidered it necessary "to make further inquiries about the unanimity of the Juryabout the verdicts".[14] The Judge then discussed with counsel what he proposed to say to the jury.He amended his proposed instructions in accordance with suggestions made byMs Jaquiery who was leading the case for the defence. At around 11.20 am, the juryreturned to the courtroom. In his bench note the Judge recorded what he had said tothe jury:Members of the jury, thank you for your hard work. Thank you for theindication that you have unanimous verdicts on three charges. Thank you alsofor the additional note from one juror. I should say the identity of that juroris not known, other than by me.But before we take the verdicts, I want to make absolutely sure of theimplications of the separate note I received from the one juror. No jurorshould join a decision against their individual judgment, merely for the sakeof agreement or to avoid inconvenience. Each juror must be true to their oathor affirmation.If the juror who wrote the note or any other juror has a different view to therest of the jury of the answer to any question in the Question Trail, then youwill not have reached unanimous verdicts on all charges. And it may be thatyou would then need a direction on whether and how to give a majority verdictif 10 of you agree.So I do need to ask you to retire again, to all to confirm by note to me that allof you have reached the same answers to each question, whether the answeris yes or no, so that we know that you all agree with the verdict for eachcharge.5 R v N (CA373/04) (2005) 21 CRNZ 621 (CA); and Rakena R [2016] NZCA 357.[15] At about 11.30 am, the Judge received a further note from the jury. This wasin the following terms:Every member of the Jury understands the charges and their consequences,implications. All three of our charges are unanimous.[16] The Judge then heard again from counsel. He recorded that:(a) Ms Jaquiery was sure the Jury meant "verdicts" rather than "charges".But she submitted that it would be appropriate to take a poll of theJury, to protect the validity of the verdict.(b) Ms Davies submitted that polling is a rare step to take and was notrequired here. She submitted that the first note could have beenconsistent with unanimity, this one confirms that, and there is no riskof an unsafe verdict.[17] Relying on Rakena v R, the Judge told counsel that polling the jury is a rarestep, only taken where there was reason to doubt the jury's unanimity.6 He then saidthat given his previous direction and the response, he considered it sufficiently clearthat the verdicts were unanimous. He continued:But I said I would remind the Jury of what I said in my summing up about thegiving of the verdict by the Foreperson in the presence of the Jury withoutdissent is sufficient confirmation it is the unanimous verdict of them all, butthat if they did dissent they should say so. In addition, of course, before takingthe verdicts, the Registrar would again seek confirmation from the Forepersonthat the verdicts were unanimous.[18] At 11.45 am the jury returned to the courtroom. The Judge reminded themthat: in taking the verdicts, Mr Foreperson, you will be asked whether you areall agreed. If you are, you will say "yes", and if not, you will say "no".There is no need for the rest of you to say anything unless you disagree. Ifyou do disagree, of course, you should say no.[19] The proceedings were interrupted because of a failure of the Virtual MeetingRoom (VMR) which was needed to enable family members of the deceased to viewthe taking of the verdicts remotely. However, the jury was able to return at 12 pmwhen they confirmed to the Registrar that the verdicts were unanimous, and theirverdicts were taken. The Judge asked Mr Signal to stand down, and then thanked the6 Rakena v R, above n 5, at [32] citing R v Papadopoulos (No 2) [1979] 1 NZLR 629 (CA).jury, advised them about arrangements for sentencing and allowed them to go.After Mr Signal returned to the courtroom, Ms Jaquiery confirmed that there were noreasons why the Judge should not enter the convictions.[20] However, on Thursday 22 September, the juror who had sent the note on theprevious day sent a further email to the Registry. Its text was as follows:7Hello, my name is [Juror], I have recently served as a Juror on theJason David Signal case at the Palmerston North High Court. The reason formy correspondence, is I need to let someone know that while I was serving onthe jury I felt pressured by and concerned by another jury member.I know that it is not usual practice to be sending letters to Judges however Ifeel deeply grieved about the situation and I feel that had I said not guilty theoutcome for Mr Signal may have been very different, I need the judge to knowI feel this way not out of guilt for not saying no but out of anger towards thebiased manipulative statements made by Juror 9.The juror in question was juror 9 [name redacted] who when on the first dayof being on the jury stated the following, "Lets just all agree that anyone thatassociates with a gang is guilty" not only this but from my observations I notedthat he also bought to court with him a bias from a previous jury he had beenon stating that in the last jury he was on there was a woman who could neverfind someone guilty because of her religious beliefs.I found these 2 statements bias and concerning as it resulted in me feelingmanipulated and I would like to take the opportunity to ask that in the futurethat those that are picked to be the foreperson for a jury be given instructionon picking up on statements made like this from jurors as I feel that statementslike this can be used to emotionally manipulate others into taking the positionof finding the accused guilty or not guilty.Also I would very much appreciate that this information be passed onto thepresiding judge in the case that he took for Jason David Signal, simply so thathe is aware and also so that he can in the future provide education to theforeperson to be aware of this type of behaviour amongst those that havebias.................. I would appreciate Jason David's Signals lawyer knowing thatthere was at least one juror that believed he was innocent of 2 of the chargesbought against him and that this juror knows what it feels like to be in aposition where you feel pressured and unable to go against others decisionsand plans.I would also like to take this opportunity to say thankyou to all the court peopleincluding security health and safety officer the judge and the lawyers forproviding a safe secure environment and for the professional respectful wayin which each of them conducted themselves towards both the Jurors on theJury, and mainly towards the accused.7 We set out the email as recorded in the Judge's minute of 12 October 2022 in which the juror wasanonymised. There is no suggestion that the Registry officer who received the email, or the Judge,was in any doubt that the juror was the person who had provided the note on 21 September 2022.Thankyou for your time in perusing this correspondence and trust that thepresiding judge in this case will receive my correspondence.[21] In a minute dated 12 October, the Judge recorded that the juror's email of22 September was forwarded to him on 4 October. After discussing the matter withthe Registrar, he arranged for a copy to be provided to Ms Jaquiery and Crown counsel.On 7 October 2022, having obtained instructions from Mr Signal, Ms Jaquiery soughtan urgent telephone conference which was convened on 11 October 2022.[22] In his minute of 12 October 2022, the Judge recorded that Ms Jaquiery hadsought guidance as to the appropriate process to address the implications of the juror'scommunication. She had identified that the Court could appoint counsel to conductan independent inquiry into the matters that had been raised, and that Mr Signal couldseek leave from the Court of Appeal to appeal his conviction prior to sentencing. In theend, the Judge concluded that the best course to follow would be for the issues raisedby the juror's further communication to be considered on appeal, noting amongst otherthings that s 231(2) of the Criminal Procedure Act 2011, which provides that a noticeof appeal must be filed within 20 working days after sentence, did not prevent anappeal being filed prior to sentencing.8 Consequently, if the matters raised in the emailwere to be pursued, that should be done on appeal to this Court. In accordance withthe approach which the Judge foreshadowed, sentencing was adjourned and is now totake place on 2 October 2023.The appealFirst and second grounds[23] The first and second grounds of the appeal relate to the safety of the guiltyverdicts rendered by the jury. It will be convenient to deal with these grounds together.[24] The first ground alleges that a miscarriage of justice occurred because of theJudge's omission to poll the jury in the circumstances summarised in the bench notedated 21 September 2022. Mr Harrison KC submitted that the jury should have beenpolled either: (a) when the jury first returned to announce their verdicts at around8 Citing Mathers v Police [2018] NZHC 1408 at [9]; Gurney v Police [2017] NZHC 1581;Sloss v R [2021] NZHC 2179; and R v Rata [2007] NZCA 431 at [23].10 am on 21 September 2022; or (b) in the alternative, when the jury returned again ataround 12 pm to give the guilty verdicts.[25] As to the events that took place at around 10 am, Mr Harrison submitted thatthe note from the individual juror clearly conveyed that the proposed verdict was notunanimous, at the very least, it indicated an absence of belief on her part as to keyelements of the necessary mental state for some or all of the offences charged.He emphasised the juror's statement reproduced above at [11]: that the juror"wholeheartedly believe[d]" that Jason played a small part and "d[id] not believe thatJasons heart Intention was to harm [the victims]".[26] Mr Harrison argued that the concurrent receipt of two inconsistent notescreated a significant dilemma. One possible response would have been to take theverdicts as proffered and then poll individual jurors on each verdict. The otherapproach would have been to direct the jury to retire again for further deliberations, tosee whether unanimity could be achieved. He contended that a direction that the juryactively resume deliberation was necessary, given the actual or apparent absence oftrue unanimity evidenced by the individual juror's note.[27] Consequently, Mr Harrison submitted that the Judge erred by not directing thejury accordingly and simply telling them to retire again, to confirm that they wereunanimous on each question and "all agree[d] with the verdict for each charge".Given that the Judge had declined to poll the jury at that stage, the direction he gavewas inadequate to resolve the unanimity issue in the circumstances as they thenexisted.[28] Mr Harrison relied in this context on the juror's further email of22 September 2022. This, he said, showed that there was in fact reason to doubt thejury's unanimity at the stage when the Judge declined to poll the jury. That email madea hindsight judgment appropriate given the juror's statements about feeling "pressuredby and concerned by another jury member", "manipulated" and "pressured and unableto go against others decisions and plans".[29] Through reference to Mr Signal's absolute right to a fair trial, Mr Harrisonsubmitted that the crucial question in determining whether a miscarriage had occurredis whether Mr Signal had received a fair trial in the light of all known facts,9irrespective of whether the decision was available to the Judge on the circumstancesas they existed at that time. On appeal, the appropriate test was whether the train ofevents, including the failure to poll the jury with its potential for a lack of unanimityto emerge at that point, gave rise to a real risk that the outcome of the trial was affected.That, in turn, required consideration of whether there was a "reasonable possibilityanother verdict would have been reached."10[30] In the course of his argument, Mr Harrison distinguished this Court's decisionsin Rakena v R and R v Papadopoulos (No 2).11 In Rakena, the Judge had wrongly"polled" the jury before delivery of their verdict, with the consequence that a lack ofunanimity emerged: three members of the jury said at that point they did not at thatstage agree with conclusions reached by the other members of the jury.12 On appeal itwas argued that those events should have led the Judge to poll the jury when it returnedafter further deliberation, but this Court rejected the argument.[31] In Papadopoulos (No 2) Cooke J, writing for the Court, noted that polling ofthe jury by the judge has not been a practice in New Zealand, but observed that if thejudge has reason to doubt unanimity it is within their discretion to take a poll.13He went on to state that:14Such a departure from usual practice should be necessary in rare cases only;the matter must rest very much in the discretion of the Judge, who will beconscious of the atmosphere of the trial. Perhaps one cannot entirely excludethe possibility of an exceptional case where it might be held by an appellateCourt that a Judge had wrongly refused a request for a poll; but the presentcase is clearly not in that category.9 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [77]–[79] citing R v Howse [2005] UKPC30, [2006] 1 NZLR 433 at [36]; Jago v District Court of New South Wales (1989) 168 CLR23 (HCA) at 56–57; and Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].10 Citing Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [47]–[48].11 Rakena v R, above n 5; and R v Papadopoulos (No 2), above 6.12 Rakena v R, above n 5, at [18].13 R v Papadopoulos (No 2), above n 6, at 632.14 At 632–633.[32] Mr Harrison noted that Papadopoulos (No 2) had been decided prior to theenactment of the New Zealand Bill of Rights Act 1990, which affirmed criminal trialrights including the fundamental right to a fair trial.15 He contended that access to thepolling remedy in an appropriate case should arguably not now be constrained byrequirements such as the grant of the remedy being only a "rare step" or only availablein "an exceptional case".[33] In sum, Mr Harrison submitted that, in the particular circumstances of this case,the jury should have been polled when sought by Ms Jaquiery on the second occasion:that is, after the foreperson had given the Judge a note asserting that every member ofthe jury understood the charges and their consequences, and were unanimous.[34] The second ground of appeal asserts that a miscarriage of justice occurred byreason of the events set out in the email communication by the juror on22 September 2022. That email had asserted: predetermination and actual or apparentbias on the part of another member of the jury (Juror 9); complained of pressure toreturn guilty verdicts; and/or the absence of unanimity on the part of the juror whosent the email.[35] This ground of appeal relied directly on the content of the subsequent emailcommunication from the juror in its entirety. Mr Harrison submitted that the emailhad three important elements. First, it demonstrated the juror's belief that Mr Signalwas not guilty of at least two out of the three charges brought against him. Second,the juror complained that she had been pressured into going along with the jury's guiltyverdicts. Third, she complained that Juror 9 made statements indicating bias and pre-determination. Mr Harrison submitted that considered cumulatively, these issuesindicated that there had been a miscarriage of justice. The juror's assertions wereplausible, given what occurred on the day the verdicts were taken, and they arepresently uncontradicted.[36] Mr Harrison then referred to Rolleston v R in which he submitted a majority ofthe Supreme Court had left open the question of whether participation by one biased15 New Zealand Bill of Rights Act 1990, s 25.juror in the deliberations would be enough to create a miscarriage.16 By contrastGlazebrook J had concluded the better view was that the bias of one juror (whetheractual or apparent) would give rise to a miscarriage of justice.17 He submitted that thejudgment of the House of Lords in R v Abdroikov supported Glazebrook J's position,which should be followed.18[37] Mr Harrison submitted that the three assertions made by the individual jurorstrongly supported the second ground of appeal.[38] In sum, considered cumulatively, Mr Harrison's first and second grounds ofappeal purported to establish that there had been an "irregularity, or occurrence in orin relation to or affecting the trial" so has to give rise to a miscarriage of justice for thepurpose of s 232 of the Criminal Procedure Act.Admissibility of the juror's 22 September email[39] We first need to address the preliminary issue of whether the Court shouldconsider the email of 22 September. For the respondent, Ms Thomson submitted thatwe should not take the email into account, arguing first that it was not part of the recordof the trial, and in any event is hearsay.19 She argued further that it impermissiblypurported to recount events said to have taken place in the jury room, contrary to s 76of the Evidence Act 2006, and there was no basis on which the Court should allow thatto occur.[40] Appeals should be based on the trial record, or if events subsequent to theverdict are to be relied on, they should be the subject of fresh evidence which satisfies16 Rolleston v R [2020] NZSC 113, [2020] 1 NZLR 772 at [48] per Winkelmann CJ, O'Regan,Ellen France and Williams JJ citing Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009]NZSC 72; [2010] 1 NZLR 35.17 At [75]–[77] per Glazebrook J dissenting citing Saxmere, above n 16. We note that at [77], n 72,Glazebrook J stated that she was not definitively deciding the point as the Court did not hearargument on it.18 R v Abdroikov [2007] UKHL 37, [2007] 1 WLR 2679.19 Evidence Act 2006, ss 17–18. Counsel asserted that the email was a statement made by a personother than a witness, offered for the truth of its contents. She asserts that the s 18(1)(b)requirements are not met, and consequently the email cannot be relied on for the truth of itscontents.the requirements that it be credible and cogent.20 There was no attempt to adduce the22 September email as fresh evidence. Rather, Mr Harrison said the appellant hadmade a conscious decision not to apply to do so, in reliance on the comprehensivecurial record that the Judge had made of what occurred, including the receipt of thepost-conviction email.[41] In support of this approach, Mr Harrison referred to R v Taka, in which theappellant sought to rely on affidavits from two jurors concerning the deliberationprocess, which had been filed without leave.21 This Court held that the events referredto in the affidavits fell well short of meeting the high threshold needed to establish thatthe rule of confidentiality about jury deliberations should not apply and that theaffidavits should not have been filed without leave.22 But Mr Harrison relied on theCourt's observations about the appropriate approach where there was a reasonableground for contending that the disclosure of jury deliberations was admissible.Delivering the judgment of the Court, Cooke P said:23When there is reasonable ground for contending that, despite the general rule,a disclosure of jury deliberations is admissible, the proper course is an agreedmemorandum by prosecuting and defending counsel or, failing that, anapplication to this Court for directions. Members of the jury should not beapproached by counsel without the leave of the Court or the agreement of theCrown.[42] Mr Harrison noted it was clear the email of 22 September had been receivedby the Judge, who then treated it as a genuine expression of the views of the juror whowrote it. The result was an undisputed "curial record" of events, which should beregarded as at least as authoritative as an agreed memorandum of counsel.[43] Our ability to consider the 22 September email on appeal depends on whetherit is part of the trial record made by the Judge.[44] Mr Harrison submitted that the email had become part of the Court's formalrecord. Although originally opposed to the Court referring to it, Ms Thomson accepted20 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273; and Lundy v R [2019] NZSC 152,[2020] 1 NZLR 1.21 R v Taka [1992] 2 NZLR 129 (CA).22 At 131–132.23 At 131.in argument that it was part of the formal record provided to the Court by the Registrarunder s 323(2) of the Criminal Procedure Act. It had therefore been properly includedin the case on appeal. We agree. If the email had not been provided by the Registrar,the Court could have ordered its production as a document connected with theproceeding.24 We consider it is clear that this Court can refer to the email.[45] However, Ms Thomson submitted that even if the email could be referred to,that does not mean that it must be accepted as evidence of the truth of the statementsin it. She submitted that was clearly the purpose for which the appellant sought to relyon it. While the email could be referred to, that should not be on the basis that itscontents were true and correct. She rejected an argument advanced by Mr Harrisonthat the email was a public document that could be offered in evidence to prove thetruth of its contents in accordance with s 138(2) of the Evidence Act.[46] In addition, she submitted that even if the 22 September email could be referredto, s 76(1) of the Evidence Act, providing that a person must not give evidence aboutjury deliberations, should still be applied. Section 76(2) provides that subs (1) doesnot prevent the giving of evidence about matters that do not form part of thedeliberations of the jury. To the extent that the 22 September email is evidence, thecriticisms of the conduct of Juror 9 would relate to the intrinsic deliberations of thejury, and would not fall within the subs (2) exceptions to s 76(1).25[47] We are satisfied that we can take the 22 September email into account, for thepurposes of considering whether it should cause us to make further inquiry about thejury deliberations, but for reasons that we address below we are not persuaded that itdemonstrates that we should do so, or that there was a miscarriage of justice asMr Harrison claimed. We also record our view that the email was not a publicdocument for the purposes of s 138 of the Evidence Act. Plainly, it did not purport tobe a public document; nor had it been sealed or certified as envisaged by s 138(1).That means it could not be offered in evidence to prove the truth of its contents.24 Criminal Procedure Act 2011, s 335(2)(e).25 See the discussion in Rolleston v R, above n 16, at [28]–[29] per Winkelmann CJ, O'Regan,Ellen France and Williams JJ.Analysis[48] We have not been persuaded that the juror's note of 21 September should beconstrued as an indication that the verdict was not unanimous. We say that for anumber of reasons. First, the note begins by recording that the juror had agreed thatMr Signal had "some responsibility" and needed "to face the consequences" of hisinvolvement. We do not see that as a statement that the juror did not believe Mr Signalwas guilty of the crimes alleged. Although the communication recorded the juror'sbelief that Mr Signal had played a "very small part" before it discussed his motivesfor participating in the assault, we do not see those observations as an indication thatthe juror did not agree with the guilty verdicts either. The statement that others werethe "true Masterminds" is simply the juror's assessment that the culpability of otherswas greater than that of Mr Signal. The same applies in respect of the observation thatMr Signal should not be "unduly punished", as well as the reference to people doingthings "for deeper reasons than just what the Evidence shows".[49] Overall, we consider that the communication was consistent with the fact thejuror accepted that Mr Signal was guilty in accordance with the verdicts then deliveredon the jury's behalf, although it was her view that others should bear a greaterresponsibility for the events that took place. But the note must not be consideredoutside the context in which it was sent. Importantly:(a) in the Judge's summing up, and in the question trail, he had thoroughlyinstructed the jury on the need for unanimity on the elements of thecharges which the Crown needed to prove beyond reasonable doubt;(b) the foreperson of the jury provided a note to the Registrar advising thatthe jury had reached unanimous verdicts;(c) the Judge gave further instructions to the jury, specifically referring tothe juror's note received on 21 September, stating that "[n]o jurorshould join a decision against their individual judgment, merely for thesake of agreement or to avoid inconvenience", emphasising that theymust be "true to their oath or affirmation". It was at this point that theJudge spoke in particular to the juror who had authored the note(although the person was of course not identified) pointing out that ifthat person held a different view, unanimous verdicts would not havebeen reached. The Judge then asked the jurors to retire again, toconfirm unanimity on each question "so that we know that you all agreewith the verdict for each charge";(d) soon after the jury retired, there was a further note confirmingunanimity in the terms set out above;(e) when the jury returned to the courtroom, the Judge reminded the juryabout the process through which the verdicts would be taken by theRegistrar and also said, if there was any disagreement with what theforeperson said, a juror who disagreed should say so;(f) after an adjournment at that point because of the issue with VMR, thejury returned, confirmed to the Registrar that the verdicts wereunanimous and gave the verdicts; and(g) there is no suggestion in the record that there was any indication ofdissent to the guilty verdicts, as was announced by the foreperson.After the jury had been excused, Ms Jaquiery confirmed that there wereno reasons why the Judge should not enter convictions.[50] This context confirms what can be taken from the actual words used by thejuror in their note: she accepted that Mr Signal was guilty, but thought others weremore culpable. At no stage did she disagree with the guilty verdicts, despite havingample opportunity to do so, because of the careful way in which the Judge proceeded.[51] By the time the verdicts were taken, the jury had been properly directed on therequirement for unanimity a number of times, and the jury had asserted that theirverdict was unanimous on three occasions. Neither Palmer J nor trial counsel saw anyreason to doubt that the jury agreed with the verdicts delivered by the foreperson.We do not consider this is one of those exceptional cases justifying a decision by thisCourt that the judge had wrongly refused a request for a poll.[52] It was not until the following day that the juror wrote expressing her concernabout the conduct of "Juror 9".[53] The only basis on which evidence could be given of the conduct of Juror 9would be if s 76(3) of the Evidence Act applies. Section 76(3) and (4) provide:(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.[54] We do not think requirements of s 76(3) would be met in the circumstances ofthis case. We say that because, even if the allegations about the conduct of Juror 9 inthe 22 September email were accepted at face value, they would not constitute asufficiently compelling reason to allow evidence about deliberations to be given. Inessence, the complaint is that on the first day of the trial Juror 9 suggested they agreeabout Mr Signal's guilt because he associated with a gang, and also complained aboutthe attitude of a juror in another trial in which he had been a juror. This is notpersuasive as to the ongoing attitude or influence of the juror. To treat it as significantwould require us to discount the effect of the instructions given by the Judge. Theconduct referred to falls well short of establishing that the juror did not carry out hisrole in the deliberations in a manner that complied with the Judge's instructions.[55] The complaints in the juror's 22 September email about Juror 9's bias appearedto relate to comments that juror made at the outset of the trial, which commenced on6 September 2022. It was those statements that are said to have made the complainingjuror feel manipulated. They give no explanation for why she might have agreed tothe verdicts at the time aside from suggesting she felt manipulated. At the same time,she thanked court staff, the Judge and the lawyers "for the professional respectful wayin which each of them conducted themselves towards both the Jurors on the jury, andmainly towards the accused". Given this dynamic, it seems to us inherently unlikelythat, if the juror did not agree with the verdicts at the time, she would have felt unableto say so.[56] The juror's subsequent statement that she believed Mr Signal was innocent oftwo of the charges brought against him is not enough to lead us to a conclusion thatthere was a real risk that the outcome of the trial was affected. We say that becausethe terms of the letter suggest the juror did agree with the guilty verdicts at the timethey were given but subsequently regretted she did so.[57] In Chai v R, this Court emphasised the high threshold that must be met beforea case meets the test in s 76(3).26 The Court said:27[15] In its report on the proposed reform of the law of evidence which ledto the enactment of the Evidence Act, the Law Commission explained that theintention of the exception in what became s 76 was to ensure that an overlystrict application of the rule did not result in injustice. However, it wasenvisaged that evidence about jury deliberations should only be permitted incases of juror impropriety, such as where a juror was unqualified or incapableof serving as a juror or was in breach of his or her duty as a juror. It is clearfrom the statutory language — "so exceptional" and "sufficiently compelling"— that the exception was intended to be narrow in scope. It has consistentlybeen interpreted by this Court as imposing a high threshold.[58] We are satisfied this test is not met here. We do not consider there is evidenceof misconduct on the juror's part that would justify us directing further inquiry to bemade. The circumstances are less significant than the allegations of bullying amongstthe jury that arose in Neale v R, which were rejected as a ground for making furtherinquiry about the deliberation process.28 In that case, after the trial, a jury memberwrote complaining that she had not been allowed to state her reasons for doubting theguilt of the defendant. Following this, she had become upset and had felt bullied byone juror in particular. But she "gave in" on the issue, and the jury subsequently foundthe defendant guilty. She said in her letter that she was "upset, distraught and disturbedby the way the verdict was reached".29 This Court emphasised the exceptionalcircumstances needed to amount to a sufficiently compelling reason to allow evidence26 Chai v R [2020] NZCA 29.27 Footnotes omitted.28 Neale v R [2010] NZCA 167 at [14].29 At [6].to be given about the deliberations, "a very difficult standard to reach".30 The Courtheld that the circumstances came "nowhere near the required standard".31 We reachthe same conclusion here.[59] Consequently s 76(1) applies to prevent consideration of the content of the22 September email insofar as the jury deliberations are concerned.[60] For all these reasons we reject the first two grounds of appeal.Third ground[61] The third ground of appeal claimed a miscarriage of justice arose because of amisdirection by the Judge with respect to Mr Signal's participation in an organisedcriminal group by his "presence and conduct" though reference to Mr Signal "hav[ing]actually advanced or plainly appeared to advance the interests or activities of thegroup". The argument advanced in the appellant's written submissions was thatparticipation in the organised criminal group should involve mens rea requirementsdistinct from that for party liability under s 66(2) of the Crimes Act 1961.[62] However, at the hearing of the appeal, Mr Harrison indicated orally that theappellant was prepared to accept that this issue could be dealt with in the mannerproposed by the Crown, and he did not pursue the argument there had been amisdirection.[63] As noted already, in addition to the charge for participation in an organisedcriminal group, Mr Signal was also charged respectively with wounding one victimand killing the other, as a party to the common purpose of committing serious violenceagainst them and being aware that more than trivial harm was a probable consequenceof that common purpose. The facts on which the Crown relied to establish Mr Signal'sparticipation in the shared objective and his membership of the common purpose wereidentical. Ms Thomson accepted that Mr Signal had been convicted on three chargesfor one course of conduct. His participation in the organised criminal group and his30 At [12].31 At [13].sharing of the group's common purpose under s 66(2) of the Crimes Act wereestablished by the same facts, as Ms Thompson encapsulated in the following table:32Participating in anorganised criminalgroup: s 98AWounding with intent:ss 188(1) and 66(2)Manslaughter:ss 160(2)(a), 171 and66(2)Mr Signal'sactsMr Signal participated inthe group, by actuallyadvancing or plainlyappearing to advance theinterests or activities ofthe group, namely tocommit acts of seriousviolence against MessrsRowe and Wilkinson.Mr Signal's acts provingthat he shared in a commonintention to commit anunlawful act, namely actsof serious violence againstMr Rowe.Mr Signal's acts provingthat he shared in acommon intention tocommit an unlawful act,namely acts of seriousviolence against MrWilkinson.Mr Signal'smens reaMr Signal knew the othergroup members sharedthe objective ofcommitting seriousviolent offences againstMessrs Rowe andWilkinson; knew hispresence and conduct wascontributing to theoccurrence of criminalactivity; and knew thatthe criminal activity wascontributing to the sharedobjective of committingthe serious violentoffences.Mr Signal knew that it wasa probable consequence ofpursuing that commonpurpose that one of thegroup members wouldwound Mr Rowe with anintent to cause grievousbodily harm.Mr Signal knew that itwas a probableconsequence of pursuingthat common purposethat one of the groupmembers would attackMr Wilkinson in amanner likely to causemore than trivial harm tohim.[64] While the charges of wounding with intent and manslaughter were necessarilydifferentiated because they required a wounding and death respectively, Mr Signal'sinvolvement in both was identical. The actus reus for party liability, to form a commonpurpose with a group, is the same as that for participation in an organised criminalgroup, to participate in that group's shared objective. Ms Thomson accepted that forall three charges, Mr Signal's conduct was the same, and the mens rea for the s 98Acharge was necessarily included in that for the other charges.[65] Unlike the position in Mitchell v Police,33 the offences here entirelyoverlapped, and for each of the three charges Mr Signal's conduct was the same.32 We have reproduced only the relevant parts of the table.33 Mitchell v Police [2021] NZCA 417; and Mitchell v Police [2023] NZSC 104.In these circumstances, where both the organised criminal group's shared objectiveand their criminal activity was committing violence against the particular victimsaffected, the Crown accepts that Mr Signal's culpability is adequately reflected by hisconviction on the wounding and manslaughter charges. It suggests the appropriateoutcome is to quash the conviction under s 98A of the Crimes Act, and Mr Harrisonalso invites us to take that course.[66] We are satisfied we should do so. Section 26(2) of the New Zealand Bill ofRights Act provides that no one who has been convicted of an offence should be triedor punished for it again. Although the circumstances of this case do not directlyengage that rule, it can be applied by analogy. As the Supreme Court has recentlyemphasised, repetitive prosecution for what is substantially the same offence isproscribed by the rule against double jeopardy.34 Mr Signal has effectively beensubjected to criminal sanctions under s 98A of the Crimes Act for the same conduct aswhich led to his convictions on the other two charges. The fact that all the convictionsarose in the same trial is simply a consequence of the procedure adopted, and that doesnot detract from the point just made. The course that best meets the ends of justice isfor the conviction for participation in an organised criminal group to be quashed.We will allow the appeal to that limited extent.Fourth ground[67] The fourth ground concerns the manslaughter conviction. Mr Signal claims amiscarriage arose because the Judge misdirected the jury as to the common purposemental element which the prosecution needed to prove to find Mr Signal guilty as aparty to manslaughter. The focus was on question six of the question trail which theJudge gave to the jury, addressed in his summing up in the following terms:Question 6 is about whether you are sure Jason Signal knew it was a probableconsequence of pursuing that common purpose [of committing acts ofviolence against Codi Wilkinson] that one of them would attackCodi Wilkinson in a manner likely to cause more than trivial harm to him.34 Mitchell v Police (SC), above n 33, at [37] per Winkelmann CJ, O'Regan, Williams and Kós JJquoting Green v United States 355 US 184 (1957) at 187–188.[68] Mr Harrison noted this Court's decision in Burke v R and the majority'sassessment that a direction in those terms was legally correct.35 However, Mr Harrisonadopted the reasoning of Mallon J, who had dissented. He did not develop theargument, noting that the issue was now before the Supreme Court, leave having beengranted and the decision on the appeal reserved.36 Mr Harrison suggested in thecircumstances that we reserve our decision on this aspect of the appeal pendingdelivery of the Supreme Court's judgment, a course that Ms Thomson did not oppose.[69] We agree that is the appropriate course to follow.Result[70] The appeal against conviction is allowed in part and the conviction on thecharge of participating in an organised criminal group is set aside. We direct the entryof a judgment of acquittal on that charge under s 233(3)(a) of the Criminal ProcedureAct.[71] The ground of appeal against conviction on the manslaughter charge based onjury misdirection is adjourned pending delivery of the Supreme Court's judgment inBurke v R, for which leave to appeal has been granted.37 The parties should filememoranda as to the disposition of this ground of appeal within 10 working days ofdelivery of the Supreme Court's judgment.[72] The appeal is otherwise dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent35 Burke v R [2022] NZCA 279.36 Burke v R [2022] NZSC 124.37 Burke v R (SC), above n 36.