Biddle v R

• Jurisdiction: New Zealand
• Judge: Lang J
• Judgment Date: 10 March 2021
• Neutral Citation: [2021] NZCA 57
• Court: Court of Appeal
• Docket Number: CA247/2020
• Date: 10 March 2021

Between

Rihari Chance Matthew Biddle

Appellant

and

The Queen

Respondent

Between

Jordan Mathew Thacker

Appellant

and

The Queen

Respondent

[2021] NZCA 57

Court:

Goddard, Lang and Hinton JJ

CA247/2020

CA251/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal — appeal against conviction — communication from juror which revealed a possible connection to one of the appellant's and concerns about his safety — apparent juror bias — discharge of juror — counterintuitive evidence — Juries Act 1981

Counsel:

N P Chisnall for Mr Biddle

N M Dutch for Mr Thacker

B C L Charmley for Respondent

• A The appeals against conviction are dismissed.

• B The appeal against sentence by Mr Biddle is dismissed.

• C The appeal against sentence by Mr Thacker is allowed. The sentences of 11 years and 9 months' imprisonment are quashed and concurrent sentences of 11 years' imprisonment are substituted on each charge.

JUDGMENT OF THE COURT

Table of contents

	Para No
Background	[3]
Mr Biddle's appeal against conviction	[9]
Grounds	[9]
The communication from the juror	[10]
The Crown's theory about gang-related activity	[37]
The counterintuitive evidence	[50]
Mr Biddle's previous convictions	[63]
Result on Mr Biddle's appeal against conviction	[72]
Mr Thacker's appeal against conviction	[73]
The Crown's theory about gang-related activity	[73]
Further grounds of appeal	[76]
The severance argument	[77]
Cross-examination of Mr Biddle	[79]
Result on Mr Thacker's appeal against conviction	[84]
Mr Thacker's appeal against sentence	[85]
Starting point	[88]
Discount for factors identified in the s 27 report	[90]
Result	[97]

REASONS OF THE COURT

(Given by Lang J)

1 Mr Biddle and Mr Thacker stood trial in the District Court at Tauranga on charges of sexual violation by rape. 1 Mr Biddle faced four charges whilst Mr Thacker faced three. The jury found both men guilty on each charge. On 24 April 2020, Judge Mabey sentenced Mr Biddle to 14 years and 9 months' imprisonment and Mr Thacker to 11 years and 9 months' imprisonment. 2

2 Mr Thacker appeals against both conviction and sentence whilst Mr Biddle appeals against conviction alone. Mr Chisnall advised us that Mr Biddle does not pursue his appeal against sentence.

Background

3 All the charges related to the alleged rape of a female complainant. Mr Biddle alone faced a charge laid as a result of an incident that occurred at a Whakatane motel at some stage between the end of December 2010 and December 2012. The complainant and a female friend had been invited to attend a party at the motel. Mr Biddle, who was at that time a patched member of the Tribesmen gang, also attended the party. Several other persons who were also members or associates of that organisation attended the party as well.

4 During the evening the complainant and her female friend were provided with quantities of alcohol and drugs, which they consumed. The Crown contended that Mr Biddle subsequently engaged in sexual intercourse with the complainant whilst she was unconscious as a result of the consumption of alcohol and drugs. This charge was not laid until after an earlier trial on the remaining charges was aborted before it had concluded. The incident that gave rise to the charge relating to the party at the motel came to light during the course of the earlier trial. Mr Biddle defended this charge on the basis that he had engaged in consensual sexual intercourse with the complainant.

5 The remaining charges related to an incident that occurred on the complainant's 18th birthday, in December 2012. Mr Biddle sent her a text message indicating he had a present for her. The complainant then arranged to meet Mr Biddle and did so later in the evening. The complainant got into Mr Biddle's car in which Mr Thacker and a Mr Postlewaite were also passengers. Mr Biddle then drove the vehicle to a nearby beach.

6 The Crown alleged that when they got to the beach Mr Biddle told the complainant to “take [her] shit off” and lie on the ground. He then removed his trousers and penetrated her vagina with his penis despite the complainant telling him to stop and advising him she did not want to have sexual intercourse with him. The Crown contended Mr Biddle then told the other two men to have sex with the complainant. They then had sexual intercourse with the complainant whilst Mr Biddle looked on and masturbated.

7 Each defendant was charged with raping the complainant and being a party to the rapes committed by the other two men. Mr Postlewaite defended the charges on the basis that he had not been present at the scene whilst Mr Biddle and Mr Thacker contended that all the sexual activity that occurred on the beach was consensual.

8 The complainant did not tell anyone about the incident on the beach for a considerable period. Eventually, however, she told her partner what had happened and then told her mother.

Mr Biddle's appeal against conviction

Grounds

9 Mr Biddle appeals against conviction on the following grounds:

• (a) The trial Judge erred in responding to a communication received from a juror early in the trial. The communication indicated that the juror likely had knowledge of, and a connection to, Mr Biddle's family.

• (b) The Crown led inadmissible and unfairly prejudicial evidence about gang-related issues.

• (c) The Crown was permitted to use counterintuitive evidence for an improper and unfairly prejudicial purpose.

• (d) The trial Judge erred in permitting the Crown to cross-examine Mr Biddle about his previous convictions.

The communication from the juror

10 On the first day of the trial, the Judge took the morning adjournment after the jury had been selected. During the adjournment, the Judge received communications from two jurors. He did not advise counsel of the receipt or nature of these communications before responding to the jury. When Court reconvened, the following exchange occurred in relation to the first communication:

THE COURT ADDRESSES THE JURY:

I have received a question from one of your number Madam [Foreperson], the simple answer is no. The juror will know what the question is and my answer is no. Is that sufficient for her to ask the question? That's you sir is it?

JUROR

Yes.

THE COURT:

I beg your pardon. The answer is no, I don't think you need to have any concerns at all but thank you for raising it. Thank you.

11 Mr Dutch, who appeared for Mr Thacker at the trial, was the only counsel appearing on the appeal who had also appeared as trial counsel. He advised us that all counsel remained unaware of the nature of this communication until they received the following minute from the Judge the next day: 3

[1] This trial commenced on 2 December 2019. The jury was duly empanelled and put in charge, but during the morning session I received two communications from jurors.

[2] The first was a written communication from [MH], a young male juror. I was provided with his written enquiry which states:

I may know Rihari Biddle's family. If he is from Opotiki/Coastal area then I am a close friend to many of his family members. Would being in this trial affect me after the trial ends because of this reason?

[3] That note was received during the morning adjournment. When the jury returned to the courtroom I addressed them all saying that I had received a note from one of them. It was obvious it came from a young Māori gentleman in the front row of the jury as he indicated to me he had written it. It seemed to me that the other jurors were unaware of its content.

[4] I addressed [MH] by saying that the answer to his question is “no”. He was obviously satisfied with that and said or did nothing further.

12 On Mr Biddle's behalf, Mr Chisnall contends the Judge ought to have raised the juror's concerns with counsel before responding to the communication. Mr Chisnall contends that, although the failure to do so may not necessarily have caused an unfair trial in its own right, it nevertheless constituted a significant procedural failure.

13 Mr Chisnall contends the juror's communication raised an obvious concern as to whether he should remain on the jury. He says it also raises an issue as to whether, in failing to discharge the juror, the Judge relied on incomplete information. He says the ultimate outcome has been that a fair-minded member of the public would reasonably apprehend or suspect that the jury could not discharge its task impartially. 4

14 Mr Chisnall also says the wording of the communication left open the possibility that the juror's personal knowledge of Mr Biddle's family may have had a bearing on the manner in which he approached his task when considering the verdicts. He therefore contends a miscarriage of justice has occurred because the trial became unfair once the Judge permitted the juror to remain on the jury panel after receiving the communication on the first day of the trial. 5

15 Mr Chisnall reminded us of the following observation made recently by this Court in R v R: 6

[59] Whatever the circumstances, and whatever the restriction those circumstances may place on the appropriateness of making inquiries of jurors themselves, what the cases make clear is that where an irregularity involving the jury is discovered during a trial, the actions the judge takes must:...