OLLIVER v R [2018] NZCA 74

OLLIVER v R [2018] NZCA 74 [28 March 2018]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFWITNESSES/VICTIMS/CONNECTED PERSONS PURSUANT TO S 202CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY COMPLAINANTS/PERSONSUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESSPROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA369/2017[2018] NZCA 74BETWEEN THOMAS JAMES LUKE OLLIVERAppellantAND THE QUEENRespondentHearing: 26 February 2018Court: Brown, Brewer and Collins JJCounsel: A J Bailey and E Huda for AppellantM H Cooke for RespondentJudgment: 28 March 2018 at 12.30 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Olliver appeals his convictions on three charges of indecent assaultrelating to two child complainants. He submits he did not get a fair trial because thejury was aware that, originally, he faced a further five charges in respect of a thirdcomplainant (F), including a charge of rape. This knowledge, which the jury shouldnot have had, raises in his submission a real risk that the jury was prejudiced againsthim.Background[2] On Monday, 19 September 2016, Mr Olliver appeared for trial in theHigh Court facing 11 charges relating to three complainants. The usual procedurefor empanelling a jury was followed. The charges were read out and then jurorswere selected from the jury panel by ballot. Once the jury foreperson was selected,the jury panel was excused from the courtroom and the trial proper commenced.[3] The following day, the complainant F became distressed and did not want togive evidence. Eventually, the Judge discharged Mr Olliver on the five charges hefaced in respect of F, declared a mistrial and discharged the jury.[4] On Wednesday, 21 September 2016, the same jury panel as had attended onthe Monday (less the discharged jurors) returned to the courtroom and a new jurywas selected from their number. The trial then proceeded on the charges relating tothe remaining two complainants.[5] In his introductory remarks, Nation J gave the standard direction that thejury's verdicts must be reached on the evidence, and only on the evidence, heardduring the trial. He also said:I do need to say that on Monday you were in Court when the charges wereread out and there was a list of witnesses read out. It was anticipated at thatstage that a trial would proceed and that it would take up all of this week.In fact, for reasons that can quite often occur and sometimes do occur, thathasn't been possible and that trial is completely at an end. What happenedduring that time, those first two days, is totally irrelevant to the matterswhich you now have to consider and you must put them out of your mind. Ifyou don't do that, there won't be a fair trial for the Crown or for Mr Olliver.[6] At the end of the trial, the jury found Mr Olliver guilty of one of the twocharges relating to one complainant and two of the four charges relating to the othercomplainant. The jury found Mr Olliver not guilty of the remaining three charges.Discussion[7] We must decide this appeal in accordance with s 232 of the CriminalProcedure Act 2011:(1) A first appeal court must determine a first appeal under this subpartin accordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his orher assessment of the evidence to such an extent that amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(3) The first appeal court must dismiss a first appeal under this subpartin any other case.(4) In subsection (2), miscarriage of justice means any error,irregularity, or occurrence in or in relation to or affecting the trialthat—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.(5) In subsection (4), trial includes a proceeding in which the appellantpleaded guilty.[8] Mr Olliver's position is that because the jury knew of F and the charges hefaced in relation to her, there is a real risk that the outcome of his trial was affectedand thus a miscarriage of justice has occurred.[9] Mr Bailey for Mr Olliver addressed us on the factors he submits go tocreating the real risk that the outcome of the trial was affected:(a) The charges in relation to the two complainants were significantly lessserious than the charges relating to F. One of those charges was rape,a word which has a particularly prejudicial resonance.(b) The jury was not told that the charges in relation to F had beendismissed because she did not want to give evidence. So, the jury didnot know that, in effect, Mr Olliver had been acquitted on thosecharges. Instead, the jury might have thought he had pleaded guilty tothe charges.(c) It is unrealistic to suggest that the jury would have complied with thedirection of the Judge that they put out of their minds the events ofthe Monday when the first jury was empanelled.[10] We accept it was undesirable for the second jury to be drawn from the samejury panel as the first. The knowledge that Mr Olliver had, on the Monday, facedcharges in respect of F was not knowledge that was relevant to the jury'sconsideration of the charges involving the other two complainants. Further, it wasknowledge that had the potential to cause prejudice to Mr Olliver because it wasunfavourable to him.[11] However, it is not the case that every time a jury acquires knowledge ofmaterial with the potential to arouse illegitimate prejudice against a defendant thatthere is created a real risk that the outcome of the trial will be affected such that amiscarriage of justice will occur if verdicts of guilty are given. It is a matter ofdegree.[12] In this case, the jury was directed from the outset by Nation J that the earliertrial was at an end and was not relevant to the charges before them. Juries arepresumed to follow the directions of trial judges.1 The Judge's direction wasadequate and readily understandable.[13] It is not uncommon for there to be media publicity about a case, or about adefendant, prior to trial. It is not uncommon, for example, for a defendant in a high-profile case to be convicted of offences and then secure a retrial of the sameoffences. Juries are commonly directed to decide the case only on the evidence putforward in the trial and to ignore anything they have learned outside the evidencepresented at trial. That is what was done here. As the Privy Council commented inTaylor (Bonnett) v The Queen:2The assumption must be that the jury understood and followed the directionthat they were given [T]he experience of trial judges is that juries performtheir duty according to law [T]he law proceeds on the footing that the jury,acting in accordance with the instructions given to them by the trial judge,will render a true verdict in accordance with the evidence. To concludeotherwise would be to underrate the integrity of the system of trial by juryand the effect on the jury of the instructions by the trial judge.[14] There is little direct authority relevant to the fact situation in this case.However, in 1960, this Court dismissed an appeal based on the prejudice arisingfrom a jury panel providing juries to hear two indictments against the appellant:3The arraignment on the first indictment of assault with intent to commit rapetook place on February 23, 1960, and the trial continued during that day andinto the afternoon of the following day, February 24. On the retirement ofthe jury the appellant was arraigned on the second indictment containingfour charges of breaking and entering, and one of unlawful conversion of amotor-vehicle. After the second trial commenced, the jury in the first trialreturned with their verdict of guilty, but the jury for the second trial retiredfrom the Court room while this verdict was given. The second trialcontinued into the afternoon of the following day, February 25, when thejury retired and later returned with their verdicts of guilty. It was argued thata fair trial on the second indictment was prejudiced by the cumulative effectof the arraignment of the appellant on the first indictment in the presence ofthe waiting jurors, the likelihood that waiting jurors heard at least some ofthe evidence tendered in the first trial, and the likelihood also that the jury inthe second trial learnt the result of the first trial from reading the newspapersbefore they returned their verdicts. It was pointed out that in the first trialthree members of the appellant's family were called to give evidencesuggesting an alibi, and that on the second trial the same persons were calledfor the same purpose.1 Mussa v R [2010] NZCA 123 at [41]; Weatherston v R [2011] NZCA 276 at [24]; andGreen v R [2016] NZCA 196 at [23]–[25].2 Taylor (Bonnett) v The Queen [2013] UKPC 8, [2013] 1 WLR 1144 at [25].3 R v Matich [1960] NZLR 1004 at 1005.[15] The Court reviewed and distinguished cases which had led to convictionsbeing overturned because of prejudicial information about the defendant beingdisclosed to juries. It approved English dicta "that it was impossible to lay down thegeneral proposition that in no case must a jury who have tried a man on one chargeproceed to try him on another charge, because each case must be considered withreference to its particular circumstances".4[16] Accordingly, the Court held that it cannot be said generally that "thearraignment of an accused person in the presence of waiting jurors on one chargeprecludes his trial by them on another charge".5 The Court found the eventsdescribed at [14] did not give real grounds for fearing prejudice and observed thatthe trial Judge had directed the jury appropriately to dismiss from their mindsanything they might have learned about the appellant outside the trial.[17] 1960 was, perhaps, a more robust time than the present in terms of judicialassessment of potential prejudice to a defendant. But, we agree that each case mustbe considered with reference to its particular circumstances and we agree there canbe no general proposition that if a jury is aware a defendant faces or faced othercharges it is disqualified from deciding the charges before it.[18] We acknowledge there are situations which arise in trials where knowledgeacquired by the jury in error or through an unforeseen occurrence will require thejury to be discharged because the risk of prejudice that such knowledge brings is toogreat to be banished by judicial direction. At the first trial, the Judge discharged thejury because it had seen F's distress and it had heard about her allegations in theCrown's opening address. It was obviously inappropriate for the trial to proceedonce the charges in relation to F had been dismissed.[19] Similarly, where particularly prejudicial knowledge is acquired by the jury —for example, that the defendant is a sentenced prisoner on related charges — the trialJudge should normally discharge the jury and, if this is not done, an appellate Courtmight well find there was a miscarriage of justice in allowing the trial to proceed.4 At 1005–1006.5 At 1006.[20] However, the fact the jury that tried Mr Olliver was aware that at thebeginning of the week there were charges against him in respect of F, including rape,does not raise a real risk that the outcome of his trial was affected so that amiscarriage of justice has occurred. The jury did not know any of the circumstancesof F's allegations nor whether they had been resolved, and was given an appropriatedirection to ignore the events of Monday.[21] There is no evidence that the outcome of the trial might have been affected.There was no question from the jury about F, and no concern was expressed by theforeperson during deliberations. Significantly, the jury acquitted on half of thecharges faced by Mr Olliver, including charges in relation to each complainant.Result[22] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent