R (CA679/2015) v R [2016] NZCA 444

R (CA679/2015) v R [2016] NZCA 444 [19 September 2016]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF RETRIAL.PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS AND PERSONSUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESSPROHIBITED BY SS 203 AND 204 OF THECRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA679/2015[2016] NZCA 444BETWEEN R (CA679/2015)AppellantAND THE QUEENRespondentHearing: 26 May 2016 (further submissions received on 5 August 2016)Court: Cooper, Clifford and Katz JJCounsel: M F Laracy and T Massyn for AppellantC A Brook for RespondentJudgment: 19 September 2016 at 10 amJUDGMENT OF THE COURTA Appeal against convictions allowed.B The convictions are set aside.C A retrial is ordered.D Any question of bail pending the retrial is to be determined in theDistrict Court.E Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of retrial.Publication in law report or law digest permitted.F Order prohibiting publication of name, address, occupation or identifyingparticulars of appellant pursuant to s 200 Criminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The appellant, Mr R, was found guilty on 28 July 2015 after a trial before JudgeThomas and a jury in the Auckland District Court on five counts of sexual offending,including rape, against each of two complainants, AM and LR. He now appeals hisconvictions.[2] Mr R says his convictions involve a miscarriage of justice because:(a) The Judge erred by not declaring a mistrial when it was discovered thatthree jurors had, contrary to the Judge's directions, conducted their ownresearch during the trial and by only discharging two of those threejurors. Amongst other things, the jurors had researched the legaldefinition of rape and, in particular, of penetration. On the basis ofAM's evidence, whether penetration had occurred was a significantissue at Mr R's trial. In the circumstances, Mr R's trial waspresumptively unfair.(b) There was, in any event, insufficient evidence of penetration for Mr Rto be convicted of AM's rape. Even if there was sufficient evidence,the Judge's direction on that element of the offence was inadequate inthe circumstances.(c) Evidence that Mr R's father had sexually abused children was admittedinto evidence when it had been agreed it would not be. Theconsequences of that mistake were not properly addressed by the Judge.Those consequences were exacerbated when the Crown prosecutor, inclosing, referred to that fact and left the impression that it was thereforemore likely that Mr R had committed the offences with which he wascharged.[3] In arguing Mr R's appeal, Ms Laracy placed particular emphasis on the first ofthose grounds. We consider each of the grounds of appeal in turn. But first, principallyby way of context, we summarise relevant aspects of Mr R's trial.Facts[4] The offending for which Mr R was convicted took place within his large,extended, family. The two complainants are his nieces: AM, who is the daughter ofMr R's sister; and LR, who is the daughter of Mr R's brother.[5] Mr R allegedly offended against AM on various occasions when staying withher family between January 2001 and December 2008.[6] In December 2004 the second complainant, LR, was placed in the care of Mr Rand his partner by Child, Youth and Family Services. LR stayed with Mr R and hispartner until April 2010, by which time she was 11 years old. It is alleged Mr Rsexually abused LR regularly from the time she moved in to live with him.[7] The final allegation of sexual abuse of AM concerned an occasion when AMwas staying with Mr R and his partner in November 2008 on an evening when she wassharing a bedroom with LR.[8] Mr R was first tried on the basis of AM and LR's complaints, together withthose of a third complainant, in 2014. Mr R faced some 16 charges in all. At theconclusion of that trial, the jury was hung on some of the counts relating to thirdcomplainant, but found Mr R not guilty on the others. The jury was hung on all countsin relation to the complaints of AM and LR, save for one count of male assaults femalein respect of AM, on which they found Mr R guilty, and one count of rape in relationto AM, on which they found Mr R not guilty. At Mr R's retrial, the Crown did notproceed with charges in respect of the third complainant.[9] At the retrial the defence theory was AM and LR had colluded and made falsecomplaints against Mr R. They had done so prompted, amongst other things, by:(a) their knowledge and discussion of the way the extended family hadresponded to support AM's younger sister, NM, following her abuse byher paternal grandfather; and(b) a confrontation between AM and Mr R that occurred when he hadreturned AM to her mother's house after she had run away in 2010.Jurors' inquiries[10] When we originally heard this appeal, we did not have the transcript of theJudge's interactions with the jury and counsel following the realisation during the trialthat members of the jury had conducted their own inquiries and had accessedextraneous material. We subsequently obtained that transcript. We circulated thattranscript to counsel by way of a minute that, as relevant, read:[1] We have procured a transcript of the Judge's interactions with counseland jurors prior to his mis-trial ruling. We did so to check whether the Judgehad canvassed with jurors just who had read the material found in the juryroom.[2] A copy of that transcript is being distributed with this Minute. As bestas we can tell, the Judge did not canvas that particular issue.[3] Given that we have obtained the transcript, we think it is appropriatefor counsel to have the chance to review it. We also seek submissions on thesignificance of the fact that the judge did not ask who had read the materialfound in the jury room. Counsel should also address any other matters theysee arising from the transcript.[11] We have now received and considered those submissions, and this judgment isgiven on that basis.Circumstances[12] Mr R's trial began on Monday 20 July 2015. By lunchtime on the Friday theCrown had completed its case and the defence elected not to call evidence. Closingaddresses were to be given on Monday 27 July. That morning, a change of courtroom,and therefore of the jury room, was required. When the crier was shifting the jurors'materials from the old jury room to the new jury room, extrinsic material that had beenprinted off the internet was found. It appeared that material had been printed by aparticular juror, Juror A. The matter was drawn to the Judge's attention and, in turn,to counsels' and Mr R's.[13] That material comprised some seven sheets of paper:(a) Two of those appeared to comprise an email the juror had sent to herselfin which she had pasted some generic material. That materialapparently originated in the United States of America and contained adiscussion of the definition of rape, including on the questions ofpenetration and consent.(b) One page was from a website called Rape and Abuse Support CentreSouthland Inc. That material appeared to be addressed to women whomay have been raped.(c) Two pages were from the website of ARCS (Abuse & Rape CrisisSupport) Manawatu, which contained material said to be sourced fromthe Crimes Act 1961 as to the legal definition of sexual crimes.(d) Two pages, which appear to be sourced from the website called FreeAdvice, and which addressed the question "What is rape?" That toowas apparently from the United States.[14] We consider that material in more detail below.[15] The Judge first discussed with counsel, in the presence of Mr R, the approachthat should be taken. It was agreed the Judge needed to find out the extent to whichthe material had been discussed by jurors and whether any other juror had made similarinvestigations. It was agreed that the Judge would first see "how far this particularjuror has gone and this particular piece of information has travelled", and he wouldthen find out "from the rest of the jury what else may have been done".[16] Juror A was then brought into the Court by herself. The Judge explained thecircumstances in which the material had been found, and asked Juror A whether shehad sourced that material. She confirmed that she had. Juror A said she was lookingfor clarity for herself on a number of things, such as reasonable doubt and rape. Shehad visited a number of New Zealand and overseas websites. She confirmed that theseven pages were what she had printed out and that she had printed out everything thatshe had looked at. She also confirmed that the material had, to a certain extent, beenshared with other jurors. The jury had been discussing what penetration meant and,because it was something the jurors were not conversant with, she decided to look itup and see whether any degree of penetration was sufficient to constitute rape. Shehad discussed that aspect of the outcome of her search with the foreperson and thejurors. She explained she had, in fact, given the foreperson a piece of paper with "avery small section about penetration" on it. She had done so on the Tuesday orWednesday of the previous week. She had done that in the presence of all the jurors.The following exchange then occurred between Juror A and the Judge as to thediscussion that followed:Q. Alright. So you discussed it with the foreman?A. Well the jurors. We were discussing about penetration and whatconstitutes penetration so.Q. Yes.A. I thought it was the kind of thing we needed to know really.Q. Yes. To your knowledge did anybody else look up anything?A. No. Not to my knowledge.Q. Not to your knowledge. No-one's discussed anything else?A. No.Q. Have you discussed with the jury this morning anything about beyondreasonable doubt?A. No.[17] At that point, the Judge asked the Crier to go into the jury room and see if shecould find the piece of paper Juror A had given to the foreperson.[18] The Crier returned from the jury room and told the Judge that the forepersondid not have that piece of paper any more. Juror A then identified, from the sevenpages of material, the passage that had been provided to the foreperson. It was areference to the definition of rape under the International Criminal Court (ICC) statute.That extract read:The elements that form the definition of rape under the ICC statute are that:"The perpetrator invaded the body of the person by conduct resultingin penetration, however slight, of any part of the body of the victim orof the perpetrator with a sexual organ, or of the anal or genital openingof the victim with any object or any other part of the body.""The invasion was committed by force, or by threat of force orcoercion, such as that caused by fear of violence, duress, detention,psychological oppression or abuse of power, against such person oranother person, or by taking advantage of a coercive environment, orthe invasion was committed against a person incapable of givinggenuine consent."(Footnotes omitted.)[19] The juror said she thought the foreperson had only read out the first paragraph,which comprised three lines. The Judge asked her to confirm that, in the followingexchange:Q. So it was just those three lines?A. I think so, because that was what we had been discussing anyway, I'mtrying to make an informed decision on this. So that's quite difficultreally.[20] The Judge then said that he intended to speak to the rest of the jury, togetherwith Juror A. But first he wished to discuss matters with counsel. Juror A was takento the Judge's retiring room. The Judge asked counsel whether there was any questionhe should have asked Juror A but had not. Defence counsel said she was worried aboutwho else had read the material. The Judge answered that by saying that Juror A saidthe foreperson had read out those three lines. The Judge said he would get theforeperson to confirm whether that was the case or not, and whether there was anythingelse from that material that was discussed. He would then go on to have a discussionwith the jury about whether anyone else had looked anything up.[21] The jury, including Juror A, were recalled. The Judge explained what hadhappened and then asked the foreperson to confirm that Juror A had provided him withone definition of penetration and that he had read that out to the jury. The forepersonconfirmed that was the case.[22] The Judge then asked the jury to retire and for each of them to make a list ofany inquiries they may have made. They were not to discuss what they might havedone with anybody else. Approximately half an hour later the Court resumed havingbeen provided with the responses from the jury.[23] As matters transpired, two more jurors, the foreperson and Juror B, confirmedthey had conducted inquiries.[24] As he had with Juror A, the Judge first spoke to Juror B alone in the presenceof counsel and Mr R. In her written note, Juror B had said she had googled reasonsfor a mistrial to determine why a new trial might be needed. Her search had turned upa number of things. Juror B wrote those down. They were: jury bias; incorrectinstructions from judge; fresh evidence from defence; and hung jury. Juror B hadmade those inquiries on the previous Wednesday or Thursday. She had not passedwhat she had found out on to any other member of the jury. Her inquiry had beenprompted by having heard in evidence that this was a second trial, and she was curiouswhy.[25] The Judge then asked for Juror B to be kept separate from the rest of the jury,confirmed with counsel that there was nothing else they would have liked asked ofher, and had the foreperson brought into Court.[26] In his written note, the foreperson had said he had looked up the definition ofrape in New Zealand. The following exchange then took place between the Judge andthe foreperson:A. Um it, I guess I was looking for something succinct.Q. Yes.A. Um because you know, I was hoping that there was a succinct answer.And it basically, it was actually different to what I read out to thepeople in there. In fact the one that I saw, um, it was just, ah, talkedabout penetration or lack of. Um, and so yeah, it was just a succinct.And I stopped looking, once I'd found that, which was straight away,because I could find it straight away.Q. Yes.A. I didn't need to search any further after that. I found my quench [sic]for needing to know an answer that I had to go and find someone notguilty or guilty on.Q. Right. Did you discuss what you'd found with the other jurors?A. No, I mean I was the one on the first day to sort of, um, to speak outloud and say that I'd love to know what the definition of rape was.Because you know, the words said "by rape". And I think theprosecutor had mentioned that in her opening statements but I didn'ttake that all in, to know exactly whether that was a full definition, umso. Have I answered that question?Q. You have. [27] The Judge then asked for the foreperson to be taken to a separate room as hehad with Juror A and Juror B. He then discussed the matter with counsel. Again, heasked whether there were any questions that he should have, but had not, asked theforeperson. Defence counsel said the foreperson had not been asked when heundertook his inquiry. The Judge commented he did not think that mattered.Prosecuting counsel then said she was inferring, from what the foreperson had said,that the definition he read out was the only piece of information he had shared withthe jury. The Judge commented that the foreperson had confirmed that he had onlyread out what had been given to him by Juror A.The Judge's ruling[28] The defence moved for a mistrial. The Judge discussed that application withcounsel. Eventually the Judge decided that Jurors A and B would be discharged, thatthe foreperson would not be, and that the application for a mistrial would be declined.[29] In his ruling the Judge recorded the events just described. In terms of what hadbeen discussed by Juror A as regards the material she had downloaded he concluded:[7] With the exception of that discussion, [that is, when the foreman readout the first three lines of the definition of penetration taken from the ICCstatute] none of the other material that was downloaded or viewed or read by[Juror A], did she discuss with any other juror.[8] The definition is itself uncontroversial. It is consistent with thedefinition of penetration that would be given in a rape trial in New Zealand.[30] The Judge then summarised the steps that had been taken after Juror A hadbeen initially spoken to, including the foreman's search for a rape definition and hisconfirmation that he had not discussed what he had found with any other juror.[31] In considering Mr R's application for a mistrial, the Judge noted that the jurorshad been wrong to make their own inquiries in breach of the very clear directions hehad given at the outset of the trial. But just because such inquiries had been made didnot mean that Mr R had not had a fair trial. The Judge said he needed to look criticallyat whether there had been any harm done as a result of what they had looked at andwhat they had discussed. If there had been any harm, he also had to look critically atwhether it could be repaired.[32] The Judge then commented:[17] This is a retrial. It involves young witnesses. It involves seriousallegations which must be tried. We are at a very late stage in the trial. All theevidence is in. Both complainants have finished their evidence, having givenevidence the first time round as well. All that remains in this trial are closingaddresses. There is an enormous public interest in ensuring that this trial iscompleted.[18] On the other hand it is absolutely fundamental that if your fair trialrights are genuinely prejudiced, that the trial does not proceed.[33] The Judge considered the impact of the extrinsic material that all of the juryhad before them: the three lines read out by the foreperson. He said those three lineswere uncontroversial. So no harm had occurred simply because the jury had assessedthat material.[34] The question then became whether the jurors who had accessed a wider rangeof extrinsic material, that is, Jurors A and B and the foreperson, could continue on thejury.[35] The Judge noted that Juror B had not discussed her search and the results ofthat search with anybody. Nevertheless the Judge had a genuine concern about herability to serve as a juror. He had given very clear directions to the jury not to speculateas to why there might be a second trial going on. She had done that very thing. TheJudge concluded it was appropriate that she be discharged.[36] As regards Juror A, much of what she had researched was uncontroversial, butthat could not be said of all the material. More importantly, the Judge was not preparedto run the risk that Juror A had formed views about certain things based on the researchshe had undertaken. Whilst it appeared she had only discussed the definitions ofpenetration and consent with other jurors so far, the Judge did not wish to run the riskthat she might discuss other aspects of her research with other jurors. Juror A hadfound it difficult to abide by directions to date, and the Judge was not satisfied that afirm direction would remove that risk. Juror A was accordingly also discharged. Thereis no challenge to those conclusions.[37] The Judge then considered whether proceeding with the remaining 10 jurors"affects [Mr R's] fair trial rights to such an extent that there should be a mistrial". Heconcluded that the answer to that question was no. He noted defence counsel'sargument that the jury had, in effect, been deciding their verdicts as the trial had gonealong and before they had heard final addresses and, most importantly, the Judge'sdirections. They had, therefore, failed to follow the direction to keep an open minduntil the trial process as a whole had been completed and they had been asked to retireto consider their verdict.[38] The Judge did not agree. He said nothing that had been discussed that morningpointed to that. The material the remaining 10 jurors had discussed wasuncontroversial. To a certain extent, the jury had had that information through theCrown's opening. He concluded:While it is unacceptable for them to go and find those definitions themselves,in the end there is nothing particularly controversial about them having themand ultimately therefore the damage is limited. Any damage in my view wouldbe entirely avoided by the time I have given them firm directions during mysumming up, that it is my directions on consent and penetration and rape thatthey are to take note of and none others. As it happens there would be verylittle difference between the directions that I will give them tomorrow, andthose that they have found themselves off the internet.[39] After the Judge had, in the jury's absence, discharged Jurors A and B, he calledthe remaining 10 jurors back into Court. He told them he had discharged Jurors A andB because of the inquiries they had made. He confirmed the trial would continue intheir absence. He concluded: "It goes without saying I hope, please don't do anyinternet searches or inquiries whatsoever. Thank you."[40] In his summing-up, the Judge did not refer explicitly to the circumstances thathad led to Jurors A and B being discharged. Rather, and as part of the standard generaldirections, he said:[2] My duty, as you have seen in this trial, has been to regulate how it isconducted. To rule on questions of evidence and procedure and now to directyou on what the law is as it applies to this case. You must accept what I sayto you about the law. Please take no notice of anything that anyone else hassaid or told you or what you may have thought the law might be. It is onlywhat I say about the law that you must consider and what counts at this stageof the game.Submissions[41] For Mr R, Ms Laracy submitted that the Judge had been wrong in notdischarging the foreperson (which would itself have brought the trial to an end) and indeclining to order a mistrial. The foreperson, and the other two jurors, haddemonstrated beyond doubt that they were not capable of following the Judge'sdirections. An important element of trial by jury is the courts' general acceptance thatjuries do follow directions. Where, as here, it had been demonstrated that three of thejurors had not done so, that general acceptance could not be relied on.[42] The material printed out by Juror A would appear to have been in the jury roomfor some time. Although he apparently intended to do so, the Judge had not inquiredwhether any other jurors had themselves seen or read that material. All he had askedwas whether they had conducted their own inquiries. Accordingly, the position wasthat the Judge's decision whether or not to discharge any particular jurors, or the juryas a whole, was made without knowing how many of the jurors had looked through orread the material found in the jury room either in part or in whole. The Judge couldnot, therefore, reach the conclusion that no harm had been done or that, if it had been,it could be remedied by his directions.[43] Ms Laracy further submitted that the issue of penetration, although not muchwas made of it during the trial, had obviously been of concern to the jury. That wasthe very issue which had been discussed on the basis of extrinsic material. It wasfundamental that a fair trial required a jury to make its decision by reference only tothe evidence and the submissions that were presented in the courtroom. That had nothappened here.[44] More generally, Ms Laracy pointed to the important value in justice not onlybeing done, but being seen to be done.1 Given what had happened, and although theJudge had been presented with a difficult situation, a reasonable person observing whathad gone on would have real doubts as to the fairness of Mr R's trial. There was,moreover, no apparent difference between the situation of the two jurors who weredischarged and the foreman who was not. The Judge had failed to appreciate thegravity of the situation.[45] Ms Laracy referred us to a range of authority, including the 2014 decision ofthe Supreme Court in Guy v R, in support of the proposition that the proper course forus was to allow the appeal on the basis that a miscarriage of justice had occurred.2 Inparticular she noted that in Guy, where it was also not known whether the extraneousmaterials had been looked at by members of the jury, it was common ground that itwas necessary to consider the appeal on the basis that they had been.3 That was the1 Citing R v Bates [1985] 1 NZLR 326 (CA) at 328.2 Guy v R [2014] NZSC 165, [2015] 1 NZLR 315.3 At [1].approach we should adopt given that the Judge had not asked all the jurors whetherthey had looked at or discussed Juror A's seven pages of material. Ms Laracyemphasised that this was also the approach taken by the Court of Appeal of Englandand Wales in R v Karakaya and R v Marshall.4 In his ruling, the Judge had also failedto address the test for a mistrial set out in R v C (CA395/2008).5[46] For the Crown, Mrs Brook's submission was that while the foreperson'sconduct had been disappointing, the Judge had been correct to characterise theinformation he had obtained and disseminated as uncontroversial so as not to requirehis discharge. The foreperson would have clearly understood that he had been wrongto do what he had done. It could therefore be inferred he would, thereafter, follow theJudge's directions carefully. To suggest there was a risk that the printed material mayhave been obtained or read by another juror was to speculate. The Judge directed thejury firmly and clearly in his summing-up. A straightforward question trail had beenprovided in which the applicable law had been set out.[47] There was, Mrs Brook argued, a critical distinction between the facts in thiscase and those in the authorities on which Ms Laracy relied: the fact jurors had madefurther inquiries was discovered during the trial, rather than — as in Guy — followingthe verdict. In cases such as the latter, there was no way to know the extent of thecontamination. No curative steps had — by definition — been taken by the Judge.That was why there could be no confidence in the safety of convictions in thosecircumstances. This case was entirely different. The fact that further inquiries hadbeen made was discovered during the trial and prompt action was taken by the Judge.The Judge spoke to the individual jurors. The errant jurors were discharged. The jurywas directed to disregard any and all information they may have received improperly.The Crown accepted there was a theoretical risk, speculative only, that unbeknownstto Juror A some members of the jury might have seen the further material she hadobtained. But any prejudice to Mr R was mitigated by the Judge's directions.4 R v Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 5; and R v Marshall [2007] EWCACrim 35.5 R v C (CA395/2008) [2009] NZCA 272, [2010] 2 NZLR 289 at [36].[48] Mrs Brook interpreted the transcript as showing that the Judge had not intendedto ask the jurors individually whether they had read the seven pages of material ordiscussed it. Rather, she submitted, the Judge and counsel had agreed to ascertainfrom Juror A whether anyone else had seen the material she had obtained and then,depending on the result of that inquiry, discuss whether to ask the jury to compile alist of their own investigations. Mrs Brook acknowledged that, at a later point, theJudge appeared to indicate that he would inquire of the jury whether there wasanything else from the seven pages of material that had been discussed. The Judge,Mrs Brook also acknowledged, had done neither of those things. The jurors were notasked whether they had seen or discussed the rest of the information and the page theforeman had read from, nor any of the other materials Juror A had obtained.[49] Notwithstanding that, the Crown's submissions were that the Judge's responsewas adequate in the circumstances. Mrs Brook interpreted Juror A's responses asconfirming that no other juror had seen or discussed the wider material. It wasappropriate, she submitted, for the Judge to rely on those answers.[50] There was a clear distinction between the foreperson and Jurors A and B. Theforeperson had accessed the information about legal definitions only. The other jurorshad accessed a wider range of information. There could be no criticism of the way inwhich the Judge responded to the seriousness of the incident. That he did not take asterner line with the two jurors who had failed to follow his directions was notinappropriate. The Judge discharged them, after all. Lecturing them about the damagethey had done would have achieved nothing in the circumstances.Discussion[51] It is axiomatic that a person is to be tried, and the jury's verdict is to bedetermined, solely on the basis of the evidence, submissions and directions that thejury receive in the courtroom. That is essential to a fair trial: how can a trial be fair ifthe defendant does not know and cannot address all the material that the jury isconsidering and is being influenced by? By the same token, however, it is acceptedthat not every instance of juror misconduct (here, against the Judge's directionsmaking personal inquiries and communicating at least some of that material to the restof the jury) will give rise to a miscarriage. The question is one of degree.[52] Guy did not involve juror misconduct.6 Rather, after Mr Guy had been foundguilty it was discovered that, by error, the jury had been provided with two documentsthat had not been introduced in evidence. That fact was not known to the Judge or tocounsel, however. Both documents, stamped with exhibit numbers, were in plasticsleeves within an envelope. When they were discovered, the two documents had beentaken out of the envelope but were within the plastic sleeves. The first document wasa 16-page transcript of an interview conducted by police with Mr Guy and recordedby video. Following objection by defence counsel, the Crown did not seek to producethe video interview or the transcript. The second document was a transcript of astatement made to the police by the complainant. That statement was inadmissible asa previous consistent statement. No reason was identified at trial to justify itsadmission.[53] The Court of Appeal dismissed Mr Guy's appeal on the basis that the provisionof the statements to the jury in those circumstances had not constituted a miscarriageof justice.7 On appeal, the Supreme Court unanimously held that the question to beasked is whether the material accessed as a result of juror misconduct was capable ofaffecting the verdict or the result of the trial.8 As O'Regan J put it:9That approach starts from the proposition that not every flaw in a trial rendersthe trial unfair or constitutes a miscarriage of justice.10 In a case such as thepresent case, where material that was not in evidence is provided to, orbecomes available to the jury during its deliberation, the question which mustbe answered is whether the availability of this material to the jury was"capable of affecting the result of the trial".11 If the answer is that theprovision of the material was capable of affecting the result, then there willhave been a miscarriage of justice in terms of s 385(1)(c) [of the Crimes Act].6 Guy, above n 2.7 Guy v R [2012] NZCA 416.8 Guy, above n 2, at [33] and [53] per Elias CJ and Glazebrook J, [65] per McGrath andWilliam Young JJ and [85] per O'Regan J. However, Elias CJ and Glazebrook J preferred to allowthe appeal on the ground that the provision of the statements to the jury led to an unfair trial andthat in itself amounts to a miscarriage of justice: see at [33]–[34], [45], [51] and [53]. McGrathand William Young JJ would have dismissed the appeal on the basis the jury's approach would nothave been any different if the statements were not available to it: see at [79]‒[80].9 At [85].10 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].11 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [31].[54] O'Regan J went on to comment that in Karakaya,12 the England and WalesCourt of Appeal had not found the mere availability of extrinsic material had made theconvictions in that case unsafe.13 Rather:14The material that became available to the jury in that case was described bythe Court as being "potentially relevant to the outcome of the case".15 That isnot markedly different from the [R v Matenga] test of "capable of affectingthe result".16 The Court in Karakaya undertook an assessment of the materialthat was before the jury and, only after having done so, concluded that theconvictions in that case were not safe.[55] O'Regan J agreed with Elias CJ and Glazebrook J that the availability of theextrinsic material to the jury was capable of affecting the verdict.17 He said:18I acknowledge that the Crown case was strong and that the jury already hadbefore it material along the same lines as that contained in the transcripts. Itis possible the approach of the jury would have been the same whether or notthe transcripts were available to, and read by, members of the jury. But thepossibility that the jury's approach was affected by the availability of thetranscripts cannot be ruled out. The issue is whether the availability of thematerial to the jury could have affected the outcome, not whether it did in factdo so.[56] There is, as Mrs Brook submitted, a distinction to be drawn between cases likeGuy where the irregularity is discovered after the verdict has been delivered and theconviction has been entered, and cases where the irregularity occurs and is discoveredduring the trial and prior to, or during, the jury's deliberations. In the latter situation,the question of whether a miscarriage has occurred requires consideration of the stepstaken by the judge once the irregularity has been discovered. In our view, in terms ofGuy, the question becomes whether, taking into account the actions taken by the trialjudge, the irregularity could nevertheless have affected the outcome.[57] The courts have acknowledged on many occasions the difficulties that trialjudges face when dealing with circumstances such as those that occurred during12 Karakaya, above n 4.13 Guy, above n 2, at [87].14 At [87].15 Karakaya, above n 4, at [27].16 Matenga, above n 11, at [31].17 Guy, above n 2, at [88].18 At [88].Mr R's trial. In R v C, Anderson P commented on those difficulties in the followingterms:19[27] Jury incidents such as those we have discussed often create seriousdifficulty for trial Judges because they entangle a number of important rightsand interests. First, there is the individual's right to a fair and impartial trial,assured by s 25(a) of the [New Zealand Bill of Rights Act 1990], together withthe public interest in ensuring that such rights are accorded. Next, there is thepublic interest in maintaining the integrity of the jury system by ensuring,subject to rights of appeal, the confidentiality and finality of jury deliberations.Then there is the interest of the public, accused and alleged victims in theconclusion of trials by verdicts rather than the discharge of juries and ordersfor new trial. There is also a need to recognise that serving on a jury is both aduty and a privilege of citizenship. Subjects should not be relieved of the dutynor deprived of the privilege without proper cause.[58] The approach to be taken is affected by the point in time at which theirregularity occurs or is discovered. Where that occurs during the trial, a judge has agreater degree of flexibility in his or her response. When that occurs duringdeliberations or after the verdict is given, the principles of the secrecy of jurydeliberations (now reflected in s 76 of the Evidence Act 2006) and of the finality ofconviction restrict that flexibility considerably. In R v Smith the House of Lordsdiscussed the range of issues that arise in those various circumstances.20[59] Whatever the circumstances, and whatever the restriction those circumstancesmay place on the appropriateness of making inquiries of jurors themselves, what thecases make clear is that where an irregularity involving the jury is discovered duringa trial, the actions the judge takes must: address the substance of that irregularity;identify the risk to the principles of a fair trial that irregularity has raised; and givespecific and firm directions so that risk can effectively be addressed and eliminated onthe basis of the court's acceptance that juries generally follow the directions theyreceive. In R v Smith, although the Judge had given the jury directions following thediscovery of an irregularity, the House of Lords was of the view that the directions theJudge gave were not sufficiently "clear", "apposite", "comprehensive", "emphatic" orparticular in the circumstances of that case.2119 R v C [2005] 3 NZLR 92 (CA).20 R v Smith [2005] UKHL 12, [2005] 1 WLR 704 at [16] per Lord Carswell.21 At [24] and [26].[60] Unfortunately, and notwithstanding the actions taken by the Judge in this case,we are not able to reach the conclusion that the accessing of the seven pages of materialby Juror A, and its likely presence in the jury room for some time, along with theactions of Juror B and the foreperson, could not have affected the outcome of the jury'sdeliberations in Mr R's trial. There are five principal considerations that lead us tothat conclusion.[61] First, although we have before us the material that Juror A provided in writingto the foreperson that he then read out to the jury, we do not have any record of thematerial that was accessed by Juror B and the foreperson. We are therefore simply notin a position to assess whether that material was capable of affecting the result. Wenote that the foreperson said the material he accessed was different to the materialJuror A had accessed.[62] Second, the United States material referring to the ICC definition of rape issimilar, but expressed in quite different language, to the provisions of the New ZealandCrimes Act. Rape in New Zealand is the penetration of the genitalia, not of any partof the body of the victim. The ICC reference to the penetration of the perpetrator witha sexual organ is confusing, and the reference to an invasion committed by forcereflects the jurisdiction of the ICC and its focus on crimes committed in wartime.[63] Third, and of most concern, are other elements of the material Juror A accessed,combined with the fact that we do not know whether any other juror or jurors hadthemselves read that material during the period it may have been in the jury room.[64] In the material from the Free Advice website, the following appeared:What is rape?Rape is considered a violent crime and carries heavy sentences, even for a firstoffense [sic]. Depending on the circumstances, rape may be punishable byseveral years up to a life sentence. The death penalty is no longer given incases of rape, but life sentences are not infrequently given. Aggravatingcircumstances increase the penalties for rape significantly. For example,where the victim is elderly or very young, where serious injury either physicalor emotional was caused to the victim, and where excessive amounts ofviolence were used in the commission of the rape or great bodily injury wascaused. Where a rape was planned in advance or repeated acts of rapeoccurred, or where a rapist has prior convictions for rape, sentences will belong. Other aggravating circumstances include subjecting the victim to sexualperversion in addition to the rape.[65] In the material from the Support Centre Southland website, the followingappears:What is Rape?Rape is an act of violence and domination and anger. It uses sexual actsincluding penetration as weapons. Rape is a subject which most people finduncomfortable. For women it conjures up all kinds of images such as dirtyold men in plastic coats waiting in dark alleys.Every woman in our society feels the fear of rape — children are taught to beafraid of 'strange men' who offer us lollies or rides. Women are taught to lockour doors, not to be alone and not to look or act in any way that might 'bringrape upon ourselves'. Perhaps the most obvious situation in which we aretaught to be afraid is when we walk home alone at night. This awareness ofviolence brings fear and changes a routine or pleasant activity (eg. a walk inthe park) into a worrying experience.However rape and sexual violence happen far more than we realise to ordinaryfemales in ordinary places. Many people do not really understand about rape.You are not aloneSexual violence can happen to anyone. 88% of victims knew the person whosexually abused or raped them. Nobody provokes rape no matter how theyare dressed or how they were acting. Rape is an expression of power andcontrol. Someone might justify his raping by pointing to the other person'sbehaviour, but that is an excuse rather than a reason.[66] That material is emotive: it seeks — we accept, on a well intentioned basis —to address what has been seen as the traditional reluctance of victims to complain.But, if tendered evidentially, the material would be inadmissible. It is, in our view,material that was capable of affecting the jury's verdicts. In that circumstance, it wasnecessary for the Judge to find out whether any other jurors had accessed that materialand, if so, how many. We are unable to accept the Crown's proposition that theresponse of Juror A to the Judge's inquiry satisfactorily addresses that point.[67] Fourthly, no fewer than three jurors, including the foreperson, failed to complywith the fundamental direction of not making extrinsic inquiries. This calls intoquestion the normal acceptance that the Judge's instructions to the jury will befollowed. We cannot accept, as the Crown argued, that we can assume with thenecessary confidence that the foreperson, and indeed the rest of the jury, would havecomplied with their duties when considering their verdict after Jurors A and B hadbeen discharged.[68] Fifthly, the Judge's directions in response to the irregularity discovered werein our view neither sufficiently stern nor specific. It was not enough to say "it goeswithout saying I hope, please don't do any internet searches or inquiries whatsoever"given what had happened. There should have been a very firm direction, perhapsincluding reference to the jurors' oath, that they were not to do that with a briefexplanation of the underlying policy reasons. The Judge should also have specificallyaddressed the discussion of the definition of penetration, and told the jury at that pointthat they were to put that discussion out of their mind and wait for the Judge'sdirections. In our view, the Judge should also have addressed the risk posed by thebalance of the material: the way in which he would have done so would have dependedon the jurors' answers to the necessary question of whether any of them had read thatmaterial.[69] The Judge was, we acknowledge, faced with a difficult situation. He handledthat situation sensitively and in a way that did not unnecessarily cause individual jurorsto feel unduly responsible. But he may have been overly influenced by his naturalwish to avoid a retrial, as opposed to the most fundamental duty of ensuring fairnessto the defendant. Society's long-term interest is in ensuring that trials are conductedfairly, as opposed to being in avoiding the undoubted inconvenience of retrials.[70] It is difficult to conclude that a reasonable person, observing what happened inthe District Court on 27 July 2015, knowing the nature of the material that Juror Aaccessed, and sharing our uncertainties as to the material accessed by Juror B and theforeperson and the extent to which other jurors might have had access to the materials,would not reasonably and objectively have been left uncertain as to whether Mr R hadreceived a fair trial.[71] We therefore conclude that, in the circumstances, the extrinsic material foundin the jury room was capable of affecting the jury's verdict notwithstanding the stepstaken by the Judge, and that a miscarriage of justice has occurred. There is, in ourview, little or no room for the application of the proviso.22Other appeal grounds[72] In the circumstances, we can deal with the other two points raised on appealsuccinctly.Misdirection as to penetration[73] The Judge gave a standard direction on penetration. Whilst, as we have noted,there was some ambiguity and uncertainty in AM's evidence on the question ofpenetration, whether penetration had occurred was not an issue relied on by thedefence at any point in the trial. There was no cross-examination on the matter, norwas it referred to by the defence in its closing to the jury. Moreover, in our view therewas ample reason why that approach was taken. Whilst AM's evidence was that MrR was unable to get his penis into her vagina, she also gave evidence consistent withpenetration, and certainly consistent with the degree of penetration that the lawrequires for a conviction of rape. We acknowledge that the inquiries by Juror A andthe foreperson, and the matters that became apparent in the course of the Judgereviewing the extent of juror inquiries, showed that the question of penetration wassomething that was on the jurors' minds. But, absent those improper inquiries and theimpact they had on the trial, the Judge's direction on the point was, given the evidenceas a whole and the approach taken by the defence, completely adequate.Evidence as to Mr R's father[74] Nor do we think there is anything material in the slip by which the fact that MrR's own father had been guilty of child abuse became part of the evidence. At Mr R'sfirst trial, that reference had been excised from his evidential interview. When theretrial material was prepared, to take account of the verdicts that had been given andthe Crown's decision not to retry Mr R on the charges involving the third complainant,that reference was inadvertently reintroduced. It would appear to have been agreedthat, the mistake having been discovered after the event, the better course of action22 Crimes Act 1961, s 385(1).was to make no reference to it but to explain the impermissible reasoning. There wasenough complexity in the family relationships, and the accepted evidence regardingNM's abuse by her paternal grandfather, to make that a sensible decision. We do notknow why the Crown prosecutor referred to it in her address to the jury. That wasunfortunate. However, in our assessment, the reference was sufficiently brief andinsignificant not to constitute an error capable of affecting the verdict. In our view, itwould simply have been lost in all the evidence about the family's interactions and thecore narrative of AM and LR's complaints against Mr R.Result[75] Mr R's appeal against his convictions is allowed. His convictions are set aside.We order a retrial. Any question of bail pending the retrial is to be determined in theDistrict Court.[76] For fair trial reasons, we make an order prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publicly available database until final disposition of retrial. Publication inlaw report or law digest permitted.[77] In order to protect the identities of the complainants, we also make an orderprohibiting publication of name, address, occupation or identifying particulars of Mr Rpursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Respondent