ZEN PULEMOANA v R [2019] NZSC 131

ZEN PULEMOANA v R [2019] NZSC 131 [19 November 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 112/2019[2019] NZSC 131BETWEEN ZEN PULEMOANAApplicantAND THE QUEENRespondentCourt: Winkelmann CJ, Glazebrook and O'Regan JJCounsel: J D Munro and J N Olsen for ApplicantA J Ewing for RespondentJudgment: 19 November 2019JUDGMENT OF THE COURTA An extension of time to apply for leave to appeal is granted.B The application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant was tried before a jury in the High Court on two counts ofmurder. He was found guilty of the manslaughter of one victim, Raymond Fleet, andof the murder of the other victim, James Fleet. James Fleet was the nephew ofRaymond Fleet.[2] The applicant appealed against his conviction to the Court of Appeal.1 One ofthe grounds of appeal was that the trial Judge should have discharged a juror, who wasreferred to in the Court of Appeal judgment as "Mr X". The mother of one of thevictims, James Fleet, had raised with the officer-in-charge that she recognised Mr X1 Pulemoana v R [2019] NZCA 293 (Brown, Wylie and Moore JJ).and the Crown prosecutor drew the matter to the attention of the Judge. It transpiredthat Mr X had been in an antenatal course run by the mother (Ms Fleet) some 14 yearsbefore the trial, although he had attended only two classes. In addition, Mr X's wifehad Facebook contact with Ms Fleet but this had been several years before the trialand was unknown to Mr X. Having ascertained these facts, the Judge decided not todischarge Mr X from the jury.[3] The Court of Appeal rejected the argument put forward on behalf of theapplicant that the Judge had erred in not excusing Mr X from the jury under s 16(3)(b)of the Juries Act 1981. Under that section, a Judge may excuse a person called toattend as a juror if satisfied the person is closely connected with one of the parties.The Court of Appeal rejected the submission made on behalf of the applicant andexpressed agreement with the decision reached by the Judge. The Court gave sixreasons:2(a) Mr X's contact with Ms Fleet had occurred approximately 14 yearsearlier;(b) Mr X had attended only two of the antenatal classes;(c) the Facebook interaction between Mr X's wife and Ms Fleet hadoccurred six to seven years earlier and comprised approximately10 comments over a two or three year period;(d) Mr X had no other interaction with Ms Fleet and had not been aware ofhis wife's Facebook contact with Ms Fleet;(e) Mr X had confirmed to the Judge he was comfortable continuing toserve as a juror and that he could bring an open and unbiased mind tothe task; and(f) it was apparent from the jury's verdicts that they had carefullyconsidered all of the evidence.2 At [65]–[70].[4] The applicant seeks leave to appeal against this aspect of the Court of Appeal'sjudgment. His application for leave was filed about two months after the time forfiling expired. The delay is, however, adequately explained and the respondent doesnot oppose an extension of time being granted. We therefore grant the requiredextension.[5] The applicant wishes to argue on appeal to this Court that the Court of Appealerred in its assessment of the situation and misapplied the accepted test for juror bias.3The applicant points in particular to the fact that the applicant's co-accused was foundguilty of manslaughter in relation to both victims, whereas the applicant was foundguilty of murder in relation to Ms Fleet's son, James Fleet.[6] The application for leave to appeal is advanced on the basis that a substantialmiscarriage of justice will occur if leave is not granted.4 The applicant does notsuggest that any matter of general or public importance arises.[7] The High Court Judge and the Court of Appeal both applied thewell-established test for juror bias to the particular facts of the case. The case isentirely fact-specific and we do not consider there is sufficient prospect of success inthe proposed argument that the Courts below erred in their assessment to justify afurther appeal.[8] Leave to appeal is therefore declined.Solicitors:Crown Law Office, Wellington for Respondent3 Whether "a fair-minded and informed member of the public would have the reasonableapprehension or suspicion that a jury or juror would not discharge their task impartially":R v C (CA395/08) [2009] NZCA 272, [2010] 2 NZLR 289 at [35].4 Senior Courts Act 2016, s 74(2)(b).