DEHAAR v R [2019] NZCA 143

DEHAAR v R [2019] NZCA 143 [7 May 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA364/2018[2019] NZCA 143BETWEEN JASON PHILLIP DEHAARAppellantAND THE QUEENRespondentHearing: 25 February 2019Court: Clifford, Mallon and Whata JJCounsel: R A Barnsdale for AppellantE J Hoskin for RespondentJudgment: 7 May 2019 at 10.30 amJUDGMENT OF THE COURTThe appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr Dehaar was found guilty at trial, alongside two co-defendants, of onecharge of kidnapping. During the trial Judge Cocurullo received a note from the jurythat two of their number were "uncomfortable" with the way Mr Dehaar's counsel waslooking at them. The Judge refused an application to discharge the jury. Mr Dehaarsays his trial miscarried accordingly and appeals on that basis. Mr Dehaar alsochallenges his sentence. He says it was disproportionately high compared to that ofone of his co-offenders.1Background[2] The complainant, Mr Singh, offered to help Ms Cole (one of Mr Dehaar'sco-defendants) get some money by drug dealing. Ms Marenga (the otherco-defendant) was the source of the drugs. Mr Singh gave Ms Marenga the moneybut did not receive any drugs. A day later, Ms Marenga, Mr Dehaar and one of theirassociates picked up Mr Singh and drove him to an unknown address. Mr Singh'sphone was taken from him and he was asked to empty his pockets. Ms Marenga thentook Mr Singh into the garage and punched him multiple times in the head whileMr Dehaar looked on. They left Mr Singh in the garage overnight.[3] The next day Mr Singh woke up and was taken to Mr Dehaar's truck.Mr Dehaar was driving. Ms Marenga was there too with another friend. They stoppedat an unknown location. Ms Cole was there. Ms Cole and Ms Marenga then bothkicked and punched Mr Singh multiple times while Mr Dehaar was present.[4] They then took him to Ms Cole's address and into her garage. Inside thegarage, Ms Marenga again punched the victim to the head while Ms Cole andMr Dehaar were present. He was told that he would go missing if he did not pay them$5,000. Ms Marenga then asked him for his banking details while threatening himwith a stick that had a ball and chain attached. Mr Singh was told to call familymembers and ask them for $5,000.[5] Mr Dehaar, Ms Marenga and Ms Cole then made Mr Singh go with Mr Dehaarin his truck to go to the homes of family members to ask for money. A stop at a dairygave Mr Singh the opportunity to escape, which he took.[6] Mr Dehaar was initially charged with kidnapping, blackmail and injuring withintent. The blackmail charge was dismissed on a s 147 application at the end of the1 The memorandum particularising grounds of appeal included a claim that the conviction wasagainst the evidence. This was not pursued in argument. In any event, there was ample evidenceto support the Crown's narrative of events.Crown case because there was no evidence that Mr Dehaar expressly threatened thesafety of the complainant.2 The injuring with intent charge appears to have beenwithdrawn by the Crown at an earlier stage.[7] The trial issue on the remaining kidnapping charge was whether Mr Dehaarknew that Mr Singh was not consenting to Mr Dehaar driving him around to obtainthe money that had been demanded or whether instead Mr Dehaar was helping him.The jury's verdict means that they were sure it was the former.Did the trial miscarry because the Judge refused to discharge the jury?[8] The Judge issued a ruling addressing advice received by the Court that a fewof the jurors were feeling "uncomfortable" at the way Mr Weir, Mr Dehaar's counsel,was looking at them. The Judge noted:3[2] The extent of that uncomfortableness is not widely known and onthe basis of the written report, it is not clear as to the extent of how they wereperceiving the mannerisms and/or conduct of Mr Weir. It is unclear forexample whether they found the mannerisms intimidatory but certainlythe written report from Mr Crier which is the primary information I am usingexpresses it in terms of "feeling uncomfortable". I have in the presence ofthe crier just confirmed that the term reported to the crier was that a few ofthe jurors felt uncomfortable at the way Mr Weir was looking at them.[3] I have clarified that because, in chambers advising each counsel ofthe issue, I gave sufficient time upon which each counsel could takeinstructions and I now have applications from each of the defendants to abortthe trial. The Crown position is that it does not consent and has some concernabout particularly Mr Dehaar's position.[4] I gave opportunity for submissions. Mr Curran's position is that hisclient's trial is tainted given the perception the jury has — the defence mayhave a sense of cohesion between them. He says that his client is prejudicedfrom a fair trial and that the application to abort should be granted. Mr Weirfor Mr Dehaar raises the same arguments and makes the point that shortly ifthe trial proceeds, he will need to close in his submissions to the jury againstthe backdrop of them feeling somewhat uncomfortable about his mannerismsbefore the Court.[5] I should add that Mr Weir upon my raising the matter with counsel,immediately indicated that there was no intention of his to be untoward in anyglancing or looking at the jury. He shares as indicated, Mr Curran's position,in addition to now having to close to this jury, as to whether Mr Dehaar can2 R v Marenga [2018] NZDC 9714. A s 147 application to dismiss the kidnapping charge wasdeclined; see R v Marenga [2018] NZDC 9755.3 R v Marenga [2018] NZDC 9758.achieve a fair trial here. Mr Burroughs for Ms Cole raises essentially the sameargument and believed in effect his case is tainted by again the cohesionbetween [the] defence and its strategies and says that in all the circumstanceshis client's right to a fair trial is compromised as well.[9] The Judge rejected the defendants' submissions that the jury was not impartialbecause of the perception they had of Mr Weir's mannerisms. He noted:[8] This jury as the record will show had set out to them at the start of thistrial rather full-ish directions as to how they were to go about their task.That included a focus upon the evidence. To be unemotional and objectivebut also if they had any issues to raise them with me. Without any finaldetermination, I would have thought the foreperson, in the way the matter hasbeen raised, shows complete integrity with the jury that of a matter thatconcerned them they saw fit to raise it with me.[10] The Judge noted that this was not a situation of a defendant's unwantedbehavioural mannerism disturbing the jury. He said the focus was whether to continuewould enable a fair trial to each defendant. He concluded that this was not a situationwhere any of the defendants' rights to a fair trial had been compromised such that heshould discharge the jury. He observed:[14] In my view what has occurred here is well able to be overcome byindicating the way I have already proposed that the matter is dealt with so thatthe jury can be advised that what they perceived was singularly an unintendedmannerism (quite clearly I accept Mr Weir's response in respect of that) andask them to see it for what it is — that quite clearly it will not continue andthat the trial should proceed on.[11] The Judge therefore refused to discharge the jury. The Judge then gavethe following direction:Can I indicate to you Mr Foreperson members of the jury that I have raisedthe aspect of one of the lawyers' mannerism in looking over to you and havereceived which I completely accept that it was [not] in any way intended andit was a mannerism that in fact he had not realised what was occurring allright? And I am well satisfied that that is the position and well satisfied thatof course it will not continue and so I wanted to let you all know that. That Ihad raised the matter and indicated to you all that it had been resolved in thatway and I have had a brief discussion with counsel about that and I acceptcounsel's position it was not intended in any way towards you and I needed toindicate that to you. All right?Argument[12] Mr Barnsdale submits that the Judge made an insufficient inquiry into whythe jurors were, he says, "feeling intimidated by Mr Weir" and whether the affectedjurors felt capable of performing their duty. He further says there was no cleardirection to the jury to put aside any feelings of ill will they may have about Mr Weir.He contends that a direction of this kind was vitally important in a case wherethe jurors' impression of Mr Dehaar was critical to their assessment of his guilt.Assessment[13] The central issue on appeal is whether there has been a miscarriage of justicebecause the trial continued after some of the jury expressed discomfort about the wayMr Weir was looking at them. The short answer to this issue is no.[14] Section 22 of the Juries Act 1981 empowers the discharge of a jury if a"casualty or emergency" makes it in the Court's opinion "highly expedient for the endsof justice to do so". "Casualty" simply means "mishap".4 We agree with the Judgethat there was no proper basis to discharge the jury in the circumstances that arose.Two of the jury indicated they felt "uncomfortable" about the way Mr Weir waslooking at them. This falls well short of suggesting members of the jury wouldabdicate their duty to base their verdicts on the evidence.[15] Jurors undoubtedly form views about counsel every day. Rarely doesthe trial Judge hear about them. He did in this case, and told them that whatever theyperceived, it was not intentional. He also gave them the orthodox direction to assessthe guilt or innocence of the defendant fairly and impartially on the evidence given inCourt as part of both his opening address and summing-up. There was no need forthe Judge to do more given the obvious irrelevance of counsel's mannerisms to theirtask.4 Buddle v R [2009] NZSC 117, [2010] 1 NZLR 717 at [36].[16] Finally, it was not highly expedient to discharge the jury even if the juror'sperception of Mr Weir was a "casualty". The combination of directions given wassufficient to mitigate the risk of unfairly prejudicial reasoning.[17] The appeal against conviction is dismissed.Sentence[18] The appeal against sentence was not pursued in argument before us. We simplynote, as Mr Barnsdale observed in his written submissions, that the starting pointsentence of two years seven months for the kidnapping was well within range.5In addition, this starting point was not disproportionate to Ms Marenga's starting pointof three years six months, even accounting for the fact she was also convicted ofcharges of injuring with intent to injure and blackmail.6 Mr Singh spent the longesttime subject to restraint with Mr Dehaar. We accept that Ms Cole's starting point oftwo years four months is relatively light, especially as she was also convicted on onecharge of blackmail and injuring with intent to injure.7 But this disparity is not suchas to warrant a different sentence for Mr Dehaar.8Outcome[19] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent5 See R v Marenga [2018] NZDC 12545 at [34].6 At [31].7 At [36].8 R v Te Whata CA229/05, 23 February 2006.