MONTAPERTO v R [2021] NZCA 170

MONTAPERTO v R [2021] NZCA 170 [20 April 2021]NOTE: PUBLICATION OF ANY INFORMATION THAT IDENTIFIES, ORTHAT MAY LEAD TO THE IDENTIFICATION OF, JURORS PROHIBITEDBY S 32B(1) OF THE JURIES ACT 1981.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA656/2018[2021] NZCA 170BETWEEN WAYNE GARY MONTAPERTOAppellantAND THE QUEENRespondentHearing: 20 April 2021Court: Kós P, Miller and Courtney JJCounsel: R M Mansfield for AppellantS K Barr for RespondentJ-A Kincade QC as counsel assistingJudgment: 20 April 2021 at 12.20 pmReasons: 6 May 2021JUDGMENT OF THE COURTA The appeal is allowed.B The convictions appealed are quashed.C No order for a new trial is made.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] The appellant was convicted of kidnapping four children and doing an indecentact in a trial at the High Court in 1988.1 He has always protested his innocence.An appeal based on Crown non-disclosure was dismissed by this Court in 1989.2In 2008 the jury foreman (whom we refer to as Juror A) contacted the appellant'scounsel to say he had received information during the appellant's trial linking theappellant to another crime, the murder of 6-year-old Teresa Cormack in 1987, and thathe had passed that information on to other jurors before their deliberations.[2] In 2018 the Governor-General referred the appellant's convictions to this Courtunder s 406(1)(a) of the Crimes Act 1961, on the basis that this new evidence couldlead this Court to conclude that a miscarriage of justice had occurred.[3] An inquiry of the jurors was directed by the Court, ultimately by consent, unders 335 of the Criminal Procedure Act 2011. It was undertaken by Mr Stephen BonnarQC (subsequently, Judge Bonnar). Thereafter we summonsed Juror A to give evidenceon this reference, and we appointed Ms Kincade QC as counsel assisting, to advisehim.3[4] After hearing Juror A's evidence (and his cross-examination by Mr Barr andMr Mansfield), we were satisfied that a clear case of apprehended jury bias had beenestablished and that the verdicts were therefore unsafe. We delivered an oral judgmentat the hearing quashing the convictions. Given the passage of time, and the fact thatthe appellant had long since served the sentence imposed in 1988, no new trial wasordered. This judgment now sets out the reasons for that decision.Background[5] The background may be drawn from the Governor-General's reference.In August 1988, the appellant was convicted in the High Court at Wellington on fourcounts of kidnapping contrary to s 209 of the Crimes Act and one count of doing anindecent act with intention to offend contrary to s 126 of that Act.1 R v Montaperto T77/88, 9 September 1988.2 Montaperto v R CA288/88, 8 September 19893 The jury foreman may not be identified: Juries Act 1981, s 32B(1).[6] The convictions arose from an incident in the Hastings suburb of Flaxmere on21 June 1986. Four children were at a birthday party at a Flaxmere household. In thelate afternoon, they left the party to walk to the shops. On the way, they came acrossa man trying to start his car. After discussion, they got into the car with the man, who,instead of giving them a ride home, drove them to the riverside after stopping at aservice station. The children said that the man gave them beer and offered them moneyin exchange for sex but they refused. The man drove the children back to Flaxmere inthe early evening and dropped them off.[7] The police interviewed the children and took descriptions of the man and thecar the man drove. They also interviewed the service station attendant.The investigation focused on locating the driver of a green and white 1962–63 HoldenPremier. A number of owners were identified and interviewed, including the appellant,but no one was charged.[8] Police interest in the Flaxmere incident was renewed after the abduction, rape,and murder of 6-year-old Teresa Cormack in July 1987. The appellant wasinterviewed by the police in connection with the Teresa Cormack inquiry and emergedas a suspect. He was not charged in relation to the Teresa Cormack case, but remaineda suspect. Ultimately, in October 2002, a man called Jules Mikus was convicted ofthe abduction, rape and murder of Teresa Cormack.[9] Police re-interviewed the service station attendant and one of the childrenabout the Flaxmere incident in December 1987. The appellant was arrested andcharged on 31 December 1987 in relation to the Flaxmere incident.[10] In June 1988, the appellant's counsel applied for a change in trial venue becauseof publicity in the Hawke's Bay area linking the appellant to the Cormack case.Jeffries J granted the application for change of venue in a decision dated 1 July 1988.[11] The appellant stood trial in the High Court at Wellington in August 1988.The only issue was identification. The Crown case depended on the identificationevidence of the four children, supplemented by evidence from the service stationattendant. The defence case was that it was a case of mistaken identification. The juryaccepted the evidence of the Crown witnesses and returned guilty verdicts on thecharges noted at [1] above. On 9 September 1988, the appellant was sentenced toconcurrent terms of 3 years' imprisonment on the kidnapping charges and 6 months'imprisonment on the indecency charge.First appeal[12] The appellant appealed his convictions to this Court in 1989. The first groundof appeal was that the Crown had not disclosed police job sheets and other materialscontaining statements by witnesses. All this was of course before the CriminalDisclosure Act 2011. These documents, once disclosed, demonstrated evidencefavourable to the appellant and which might have been of value in cross-examiningwitnesses.[13] By way of example, the child witnesses had made undisclosed statementsconcerning whether the vehicle was or was not an automatic (the appellant's car was).The service station attendant had identified a white and green Holden parked in aFlaxmere street as the car that had come into his garage, being sure it was the samevehicle "because of its good condition and the badges on it". But the job sheet reportedthat when the police interviewed the owner of that car, who was not the appellant, itwas clear that he had not visited the service station on the day of the offence. What ismore, in the job sheets the attendant described the car had faded paint. Furthermore,when interviewed within a few hours of the Flaxmere incident, he described the car ascoming in between 5.30 and 6.15 pm, whereas in evidence at trial he said it was atabout 8.30 pm. This Court considered the disclosure of statements relating to the childwitnesses did not add anything material to the evidence given at trial. The servicestation attendant's identification was more troubling, but given his evidence and cross-examination, this Court concluded the jury would have had a healthy scepticism abouthis reliability as an observer witness in any event. The evidence, looked at as a whole,produced "a strong case".[14] The second ground of appeal, relating to alleged unfairness in the openingaddress, was dismissed fairly summarily. On 8 September 1989, the Court of Appealdismissed this first appeal.The jury foreman speaks up[15] In June 2008 Mr Mansfield was contacted by Juror A. In evidence given beforeus, Juror A said that he did so because he had read an article in the newspaper in whichMr Mansfield made the suggestion the jurors may have had information linking theappellant to the Teresa Cormack case. It was for that reason he rang Mr Mansfield, toconfirm that that was in fact the case. Mr Mansfield referred Juror A to an independentbarrister, Mr Bonnar.[16] Mr Bonnar made an affidavit in March 2012, at that time in support of anintended application for leave to appeal to the Supreme Court. The affidavit was basedon notes taken at a meeting with Juror A at Mr Bonnar's chambers, on 17 June 2008.The Crown accepts it is admissible on this reference. In that affidavit Mr Bonnar statesthat Juror A identified himself as the foreman of the jury at the appellant's 1988 trial.He told Mr Bonnar that the jury had obtained information which, in Juror A's opinion,had clearly influenced the jury in its deliberations. The information had not been givenby way of evidence. The information was that the appellant "was a prime suspect inthe Teresa Cormack murder investigations". Juror A identified the source of theinformation as a work colleague, who had two brothers who were policemen.Mr Bonnar recorded:[Juror A] also advised me that he had passed this information onto othermembers of the jury. He expressed the view to me that the jury wereinfluenced by this information and used it against [the appellant] although itwas not before the Court.[17] In 2010 Mr Bonnar asked Juror A whether he would be prepared to swear anaffidavit. But Juror A did not wish to be involved further or to speak to anyone elseabout the issue.Governor-General refers case to this Court: a second appeal[18] On 23 October 2018 the Governor-General referred the question of theappellant's convictions to this Court.4 The reference records that an application wasmade on 20 February 2014 for the exercise of the royal prerogative of mercy. This4 Crimes Act 1961, s 406(1)(a).was made explicitly on the basis of the evidence of Mr Bonnar as to Juror A'sdisclosures.[19] The effect of the reference is that the question referred is heard and determinedas if it is a fresh appeal against conviction. It is, therefore, an exception to the statutoryprovision that there is but one appeal to this Court.5An inquiry is directed[20] The jurisdiction to order an inquiry into alleged jury irregularity was discussedby the Supreme Court in Rolleston v R.6 The Supreme Court noted that s 335 of theCriminal Procedure Act provides for special powers of appeal courts in convictionappeals. Where the court considers it "necessary or expedient in the interests ofjustice", s 335(2) provides that the court may order the examination of witnesses whowould have been compellable witnesses at trial, and appoint an assessor.7 As the Courtalso noted, whether or not inquiries of jurors fit within the terms of s 335(2) or notdoes not particularly matter, given the court's inherent power to address irregularitiesin its processes by such means as may be necessary in the interests of justice.8[21] A potential barrier exists in s 76 of the Evidence Act 2006, which provides thatpersons must not give evidence about the deliberations of a jury. Section 76(2)provides that the prohibition does not prevent the giving of evidence about matters,not forming part of the deliberations of a jury, where the subject matter of the evidenceis the "conduct of, or knowledge gained by, a juror that is believed to disqualify thatjuror from holding that position". As the Supreme Court noted in Rolleston:9Potentially disqualifying conduct will include, for example, jurorsundertaking their own investigation into trial issues. Potentially disqualifyingknowledge will include knowledge of inadmissible prejudicial evidencereceived from a source outside of trial.[22] It is that provision that is triggered in this case. Section 76(3) provides a furtherexception to the prohibition, going further and enabling evidence about deliberations,5 Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [16].6 Rolleston v R [2020] NZSC 113.7 At [19], citing Criminal Procedure Act 2011, ss 335(2)(b) and (f).8 At [20].9 At [29]"if the Judge is satisfied that the particular circumstances are so exceptional that thereis a sufficiently compelling reason to allow that evidence to be given".[23] In February 2019 the Crown accepted an inquiry should be made in this case.At the very least there was now apparently credible evidence of a serious irregularity,sufficient for the Governor-General to refer the case back to this Court. Sections 76(2)and (3) were both triggered. The allegation was sufficiently credible, and exceptional,that inquiry into the receipt of prejudicial extrinsic information, and perhaps intoassociated deliberations, might be necessary. But there were still doubts. Was thenow-uncooperative man who spoke to Mr Bonnar actually the jury foreman? Was hisaccount true? Had other jurors received the information from him, as he claimed?[24] The Court directed counsel to confer and submit draft terms of reference foran inquiry. Mr Bonnar was appointed independent counsel to assist the Court byundertaking the inquiry. Mr Bonnar was instructed to inquire whether jurors recalledreceiving information about the appellant that was not part of the evidence, what thatevidence was, and then (more directly) whether a juror had disclosed information tothe jury that the appellant was a suspect in the Teresa Cormack case. He was then toreport to the Court with his findings.10 By agreement the police were to assistMr Bonnar by locating potential addresses for the jurors.[25] Ultimately, only six jurors could be contacted. Several had died in theintervening three decades. Juror A remained, at that stage, uncooperative. Anotherjuror, Juror C, confirmed that he or she was aware of the appellant potentially being asuspect in the Teresa Cormack case, but could not recall whether that appreciationoccurred during the trial. Juror D was elderly and suffered from significant memoryloss, but her daughter (who had been living overseas in 1988) advised that Juror D hadwritten to her about being a juror in the trial, and that Juror D had told her that thedefendant in the trial was linked to the Teresa Cormack case. Juror D's daughterbelieved that letter had been written during the course of the trial. Juror E did notthink Teresa Cormack's name came up during the trial. Juror H did not believe that10 For the avoidance of doubt, the provision of juror information to Mr Bonnar was treated asdisclosure of information under s 32B(4) of the Juries Act, not amounting to an offence unders 32B(1).he or she had any awareness of police interest in the appellant in other cases at thetime. Juror K did not, as far as he or she could recall, believe any extraneousinformation came to the jury.The jury foreman is summonsed to give evidence[26] Given the importance of the evidence of Juror A, and his preference not tocooperate with Mr Bonnar's inquiry, we resolved that he should be summonsed to giveevidence at the hearing of the appeal. As noted earlier, we appointed counsel assisting,Ms Kincade QC, to assist Juror A. An application was made to the Solicitor-Generalfor immunity against prosecution, but that application was declined. However, anindication was given that the Deputy Solicitor-General did not consider it in the publicinterests to prosecute Juror A's possible contempt, even if the basis for a contemptwere clear.[27] In advance of the hearing, Juror A made an affirmation. In that instrument heessentially confirmed the information by him to Mr Bonnar in 2008.11 There werehowever some differences. Crucially, however, he stated:After receiving this information I told the rest of the jurors that Mr Montapertowas the lead suspect in the Teresa Cormack investigation. I told them thisbefore deliberations. It did not occur to me to tell the trial Judge of theinformation that I had obtained. At the time, I merely thought it interestinginformation and naïvely did not believe it to be more than that. I did not intendto nor did I want to impact on the outcome of the trial in any way. I decidedthe case on the evidence that we heard in court. I do not believe that itinfluenced my decision.[28] Later in his affirmation he fairly states that he cannot say whether or not theinformation influenced other jurors to give the verdict they did. He noted that he "mayhave overstated the importance of this information" to Mr Bonnar. He also said thathe had "always been adamant that Mr Montaperto was convicted based on theevidence given at trial". He said he felt during deliberations that it was "a pretty strongcase". He also gave evidence as to the verdict being reached at about 10.20 pm, thejury not wanting to be sequestered. One juror had been reluctant to convict, but thatwas "because she did not believe in the whole justice system".11 At [16] above.[29] Under cross-examination by Mr Barr, Juror A cleaved to the terms of hisaffirmation. He reiterated on more than one occasion that the verdict had been reachedon the evidence. He did not however vary at all from his essential evidence that hehad communicated the information that he had obtained indirectly from police officersabout the connection with the Teresa Cormack case to the other jurors. He again,fairly, said he could not speculate on how that information was interpreted by otherjurors.[30] Under cross-examination by Mr Mansfield, he acknowledged the potentialrelevance of the Teresa Cormack connection, given that it too involved the abductionof a child and the appellant was facing abduction charges. He accepted also the factthat the information had apparently come from police officers added credibility to it,and distinguished it from mere gossip. Towards the end of his evidence this exchangeoccurred:Q And to the best of your recollection some 33 years later, you don'tthink consciously the receipt of that information had any impact foryou?A I can't remember.Q Obviously you can't comment on what kind of subconscious impactthat information A I am not a psychologist, no.Submissions[31] Mr Mansfield submitted that this was an exceptional case, and that no similarcase could in his view be identified. The information here was obviously prejudicial;there were obvious similarities between the abduction of the four children in this case(which was not itself in issue — only identification was) and the abduction ofTeresa Cormack. The appellant had wrongfully been identified as a prime suspect inthe Teresa Cormack case. Events ultimately proved that he had nothing to do with it.It was sufficient to amount to a miscarriage of justice if just one juror — here Juror A— was infected. But here there was a credible basis to say that other jurors hadreceived the information, and an adverse impact on their weighing of the evidencecould not be excluded.[32] For the Crown, Mr Barr challenged the reliability of Juror A's recollection thathe had received that information, and had conveyed it to the jurors. If the informationhad not been transmitted to other jurors, Mr Barr submitted that it would be open tous to find that a fair-minded lay observer could conclude that there was not a realpossibility that Juror A's bias affected other members of the jury.12 However, Mr Barrfairly accepted that if the Court was satisfied that Juror A had transmitted theinformation to the jurors, then unless all jurors could give sworn evidence that theywere unaffected, which was no longer possible, the Court would have to allow theappeal.Analysis[33] Mr Barr expressly disclaimed any challenge as to the honesty of Juror A.His challenges, in cross-examination and his submissions, were based on matters ofreliability, including certain inconsistencies between Mr Bonnar's account of Juror A'sdisclosure in 2008 and his evidence, and the inconsistency between Juror A'sdisclosure of communication and the responses received from the other jurors able tobe interviewed.[34] We formed the impression that Juror A was essentially an honest and reliablewitness. It was plain that disclosure to Mr Mansfield in 2008 was made out of a senseof perceived duty and was painful to him (thus explaining the periods in which he hadbeen uncooperative until summonsed). His honesty was unimpugned incross-examination. He had no interest or advantage in coming forward; plainly he feltthe contrary to be the case. He was prepared to make concessions where appropriate.He acknowledged gaps in his memory. He was cautious in attributing perceivedknowledge on topics to memory, as opposed to subsequent information gained fromthe internet. He admitted a difficulty identifying exactly which work colleague hadtold him of the Teresa Cormack case connection. That such a connection was beingmade by the police at the time is undoubted; they were unwise enough to suggest it toreporters and that had resulted in the trial being moved to Wellington. But Juror A wasclear on two things: that he had received the information, and that he had transmitted12 Referring to R v Pintori [2007] EWCA Crim 1700 and Rolleston v R, above n 6.it to other jurors before the verdicts were reached. In fairness to Juror A, he hadassumed the responsibility of jury foreman at a time when he was very young.[35] We are satisfied that it is more probable than not that Juror A did receiveinformation, from an apparently credible source connected with the police, linking theappellant to the Teresa Cormack case as a "prime suspect".[36] We are also satisfied that it is more probable than not that Juror Acommunicated this information, ignorantly and naively, rather than maliciously,to other jurors. We accept his evidence on that point, which is to a limited extentcorroborated by evidence concerning Jurors C and D. We do not think thenon-reporting of other jurors, or their non-recollection after 32 years, displaces thatprobability.[37] Mr Barr sought to make some capital from the fact that neither Juror A nor anyother juror told the Judge about this information entering the jury room. Given thetrial Judge almost certainly told jurors that they must disregard extraneousinformation, that suggested Juror A's recollection was unreliable. We do not acceptthat argument. Experience suggests jurors find the context of a criminal trial a difficultone in which to communicate perceived irregularities. The initial direction by theJudge (which cannot now be found) would have been not to make enquiries, and toput aside any current but extraneous information. It was not then practice to directjurors to disclose the receipt of extraneous information. It still is not standard practice.In other jurisdictions it is standard practice for Judges to direct jurors to disclose anyreceipt of extraneous information.13[38] We consider that practice should now be adopted in New Zealand. Drawingon New South Wales practice, the direction ought broadly to be in these terms:If you learn that another juror has made their own inquiries about the case, orspoken to someone outside the jury about it, you must bring it to myattention. Similarly, tell me if you should find material in the jury room that13 R v Thompson [2010] EWCA Crim 1623, [2011] 1 WLR 200 at [8]; HHJ Martin Picton (ed)The Crown Court Compendium: Part I: Jury and Trial Management and Summing Up (JudicialCollege, London, 2020) at [3–1]; Criminal Trial Courts Bench Book (Judicial Commission ofNew South Wales, Sydney, 2002) at [1–490]; Victorian Criminal Charge Book (Judicial Collegeof Victoria, Melbourne, 2013) at [1.5.46]–[1.5.49].has not been given to you by the Registrar. If I am advised of these eventsimmediately, it may still be possible for the trial to continue. If it emergesonly later that something has gone wrong, it may be too late to fix it and theend result may be a retrial before another jury.[39] As the Supreme Court noted in Rolleston, the starting point is the New ZealandBill of Rights Act 1990.14 Section 25(a) of that Act guarantees the right to a faircriminal trial before an independent and impartial Court. Where it is shown, on thebalance of probabilities, that a jury had access to materially prejudicial extrinsicinformation, of the kind here, that right is likely to be infringed. A fair-minded layobserver acquainted with the factual background would likely conclude a realisticpossibility that such a jury was no longer independent and impartial.15 That state ofaffairs would amount, then, to what is known as "apparent bias". It might be otherwiseif, say, the information was trivial. It might also be otherwise if the error had beenapprehended by the Judge and explicit directions, likely to be effective, had beengiven. That is not this case. We are not attracted to Mr Barr's submission that thejurors might eliminate apparent bias by all swearing affidavits that they had put thematter out of their minds.[40] In Rolleston the concern expressed by the appellants related to actual orapparent bias on the part of a single juror only. The foreman, Juror S, had been toschool with one of the defendants and had been bullied there by that defendant'sbrother. The defendant gave evidence that he had not recognised the jury foremanuntil several days into the trial. The defendant's brother gave evidence that Juror Shad seemed to stare intensely at him, implying recognition and the potential for bias.This Court declined to order an inquiry, finding that the evidence of alleged bias didnot warrant it. The Supreme Court eventually ordered an enquiry in relation to Juror Sonly.16 In fact the enquiry ascertained that Juror S had not recognised the brother atall, did not recall the brother being one of those who had bullied him, and did not recallthe defendant either.17 No case of actual or apparent bias was made out.14 Rolleston v R, above n 6, at [35].15 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at[3] per Blanchard J.16 Rolleston v R, above n 6, at [48]–[49]. Compare Rolleston v R [2018] NZCA 356, [2018] NZAR1560.17 Rolleston v R, above n 6, at [53].[41] The present appeal is entirely different. The connection between theTeresa Cormack enquiry and the appellant had been made by police officers and in thenews media, particularly in the Hawkes Bay area. That was the very reason why thetrial was transferred to the Wellington High Court, in those pre-internet days. In thosedays transfer to another venue, and a general judicial direction to disregard any priorknowledge of a case, sufficed. But in this case, we have found that Juror A introducedthis information to the jury despite that precaution. The information was obviouslyhighly prejudicial. It was more than rumoured connection. It was that police officersconsidered the appellant the prime suspect in the Teresa Cormack case. And theinformation had apparent credibility in being sourced, indirectly, from police officers.That they considered the appellant the prime suspect for the Teresa Cormack abductionand killing, a case that had transfixed a nation, was information that had real potentialto weigh on the mind of the jurors when balancing the evidence.[42] Juror A treated the information as credible and could not exclude that it hadimpact on him (and could not say what effect it had on others). In Rolleston divergentviews were expressed about whether tainted knowledge by a single juror could amountto apparent bias, invalidating verdicts. It may be noted that Glazebrook J observed:18I consider the better view to be that bias (whether actual or apparent) of onejuror does mean a miscarriage of justice. This means that the position is thesame for juries as for panels of judges. That this is the case is reinforced by s25(a) of the New Zealand Bill of Rights Act 1990 and ss 22 and 25 of theJuries Act 1981 Other members of the Court chose not to determine that point.19[43] But we have found this case involves the transmission of materially prejudicialextraneous information to the whole jury. We are satisfied that this transmissioncreated a real risk of miscarriage of justice. The appellant did not receive a fair trial.The verdicts entered in 1988 were unsafe and must be set aside.2018 At [77].19 At [48].20 See also R v Bates [1985] 1 NZLR 326 (CA); R v Tinker [1985] 1 NZLR 330; R v Sannd (1988) 6CRNZ 323 (CA); and R v Morris [2001] 1 NZLR 1 (CA).[44] For these reasons the convictions appealed were quashed by us at the hearingon 22 April. As noted earlier, given the passage of time and the fact that the appellanthad long since served the sentence imposed in 1988, no new trial was ordered.[45] We express our appreciation to all counsel for their assistance in the correctionof what we have found to be a serious miscarriage of justice. We also express the sameappreciation to Mr Bonnar, and to Juror A.Result[46] The appeal is allowed.[47] The convictions appealed are quashed.[48] No order for a new trial is made.Solicitors:Crown Law Office, Wellington for Respondent