Brooke Christie Rolleston v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeWinkelmann CJ,O'Regan,Ellen France,Williams JJ,Williams J,Glazebrook J
Judgment Date19 October 2020
Neutral Citation[2020] NZSC 113
Date19 October 2020
Docket NumberSC 17/2019; SC 18/2019

[2020] NZSC 113

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Court:

Winkelmann CJ, Glazebrook, O'Regan, Ellen France and Williams JJ

SC 17/2019; SC 18/2019

Between
Brooke Christie Rolleston
Appellant
and
The Queen
Respondent
Between
Brandon James Roche
Appellant
and
The Queen
Respondent
Counsel: (20 June 2019)

E Huda and T D A Harre for Appellant in SC 17/2019

A J Bailey for Appellant in SC 18/2019

M J Lillico and K L Kensington for Respondent

Counsel: (13 November 2019)

E Huda for Appellant in SC 17/2019

A J Bailey for Appellant in SC 18/2019

M J Lillico and M H Cooke for Respondent

Criminal Procedure — appeal against a Court of Appeal decision which refused the appellant's application for an order directing independent counsel to interview all jurors and, in a separate judgment, dismissed the appeals — the appellants were convicted of sexual offending — they appealed their convictions on the basis that one of the jurors was biased because the brother of one of the appellants had bullied the juror when they were in high school together — whether an order should be made directing an inquiry to be undertaken of the jury foreperson — whether the juror should be cross-examined — whether there was actual or apparent bias — Criminal Procedure Act 2011 — Evidence Act 2006 — Juries Act 1981 — New Zealand Bill of Rights Act 1990

The issue was whether an order should be made directing an inquiry to be undertaken by an independent practitioner of the jury foreperson in the appellants' trial; whether the juror could be cross-examined and whether there was still an appearance of bias because there were reasons to doubt the juror's statement.

The Court made an order made directing an inquiry to be undertaken by an independent practitioner of the jury foreperson. If the appellants' allegations were substantiated, it could be inferred the juror had an antipathy to the brother of the appellant that could have influenced his attitude to that appellant. The juror was interviewed by an independent barrister about bullying in high school and his experience of the trial. The juror said he thought Rolleston and a member in the public gallery (the brother) looked familiar but could not place why and had not connected that person with either appellant. He had not recalled being bullied by the brother at school.

The Court then heard the substantive conviction appeals. Cross-examination of a juror would only be granted only where a more invasive form of inquiry was necessary in the interests of justice because the alternatives, an inquiry by independent counsel or by the court itself, were insufficient. It was not the kind of case where cross-examination of jurors was necessary in the interests of justice. There was no real conflict between the witnesses on the essential questions before the Court and there was nothing to suggest that the statement may be unreliable. Cross-examination would not, therefore, be in the interests of justice. The application to cross-examine S was declined. There was no basis upon which to infer apparent or actual bias on the part of juror. Unless a defendant's right to a fair trial before an impartial tribunal was genuinely at risk, jurors should not be exposed to the stress of a forensic inquiry into their actions and motives. As the evidence produced by the inquiry had not suggested anything untoward had occurred in relation to the juror, there was no good reason to impose further on him or his colleagues.

The appeals were dismissed.

  • A Order made directing an inquiry to be undertaken by an independent practitioner of the jury foreperson in the appellants' trial on terms to be settled following receipt of a memorandum of counsel.

  • B The application to cross-examine the foreperson is dismissed.

  • C The appeals are dismissed.

  • D Existing suppression orders in respect of the minutes issued in relation to this matter remain in place but are varied to continue until further order of this Court.

JUDGMENT OF THE COURT
REASONS

Para No.

Winkelmann CJ, O'Regan, Ellen France and Williams JJ

[1]

Glazebrook J

[72]

Winkelmann CJ, O'Regan, Ellen France and Williams JJ

(Given by Williams J)

Table of Contents

Para No.

Introduction

[1]

Facts as found by the trial Judge in light of the verdicts

[2]

Allegation of juror bias

[7]

The Court of Appeal decisions

[13]

The inquiry

[13]

The substantive appeal

[15]

The issues

[17]

The power to order an inquiry

[19]

Section 76 of the Evidence Act 2006

[21]

Intrinsic evidence and the exclusionary rule: s 76(1)

[22]

Extrinsic evidence: s 76(2)

[28]

Application for an inquiry

[32]

Submissions

[32]

The interests of justice

[34]

Other fair trial safeguards

[35]

The test

[42]

Application to this case

[45]

The inquiry

[49]

The substantive appeal

[56]

Application to cross-examine S

[59]

Does the evidence establish actual or apparent bias?

[63]

Result

[71]

Introduction
1

Following a trial by jury in 2017, the appellants Brooke Rolleston and Brandon Roche were convicted of the rape and sexual violation by unlawful sexual connection of the complainant. 1 They appealed their convictions claiming miscarriage due to bias on the part of a juror. The Court of Appeal refused the appellants' application for an order directing independent counsel to interview all jurors 2 and, in a separate judgment, dismissed the appeals. 3 This Court granted the appellants leave to bring a second appeal 4 and appointed counsel to undertake an independent inquiry of the juror the subject of the bias allegation. 5 Once we received counsel's report we proceeded to hear the substantive appeal. We dismissed the appeal with reasons to follow. 6 Here

are our reasons for differing from the Court of Appeal in relation to directing an inquiry and for agreeing with that Court on the substantive appeal
Facts as found by the trial Judge in light of the verdicts
2

The complainant was 15 at the time of the offending. Mr Rolleston was 19 and Mr Roche was 18. The complainant and her 17-year-old brother held a gathering with friends at their home. Details were posted on social media by a friend. The complainant's parents were out of town and unaware of the event.

3

As more people arrived, the gathering got out of hand and the complainant became extremely drunk. Mr Rolleston offered to pay her boyfriend (who was around the same age as the complainant) $20 if he (Mr Rolleston) and the boyfriend could have sex with her. The boyfriend declined firmly. He encouraged the complainant to leave the party with him when his mother came to pick him up at midnight. The complainant refused to go. At that point her boyfriend described her as “so wasted she didn't know what was going on”. The appellants became aggressive towards the boyfriend. They wanted him out of the way. He was intimidated and left. After the boyfriend left, the complainant went to her own bedroom where two of her friends were already in bed, one of them asleep.

4

The appellants came and fetched her. They lifted her out of bed and, as she was too drunk to walk unaided, they helped her down the hall. They took her to an adjoining bedroom and there, they raped and sexually violated her.

5

The appellants admitted having sex with the complainant but said it was consensual throughout. They also argued at trial that even if the complainant had not in fact consented they genuinely believed on reasonable grounds that she had.

6

By their verdicts, the jury demonstrated that they rejected the appellants' version of events. The trial Judge sentenced them on the basis that the complainant was too intoxicated to give true consent, and that the appellants knew this, as would any reasonable person in the circumstances. 7

Allegation of juror bias
7

In the Court of Appeal, the appellants argued their trial miscarried due to juror bias. They applied for a direction that the Court undertake an inquiry into the matter by instructing independent counsel to interview all jurors. Quite properly, neither counsel nor the appellants made any attempt to contact the jurors directly.

8

Three affidavits filed in support of the application set out the following background.

9

The first affidavit was from Dante Rolleston, the younger brother of one of the appellants, Brooke Rolleston. Dante Rolleston attended all but the first day or two of the trial. He said that during the trial, the foreperson of the jury (whom we call S, as the Court of Appeal did) had stared at him “intensely for minutes at a time”. Dante Rolleston thought he must have known S from somewhere but could not be sure. After the trial, he checked his high school yearbook and found S.

10

It transpired that the Rolleston brothers had attended the same high school as S. Dante Rolleston and S were in the same year. Brooke Rolleston was a year ahead. Dante said he had bullied S at school because S was “weird”. Dante said S was prone to staring at him for no apparent reason and this often led to Dante aggressively confronting S about it.

11

The second affidavit was from a teacher at the high school. The teacher confirmed that Dante Rolleston was indeed a bully at school but made no comment about the nature of Dante's relationship with S, if any.

12

The third affidavit was from Brooke Rolleston. His evidence related to the trial. He said that he was too scared during the empanelling process to pay attention to the jurors who were selected, and that he left all of that to his lawyers to handle. He said he did not realise who S was until some days into the trial.

The Court of Appeal decisions
The inquiry
13

In a...

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4 cases
  • Montaperto v R
    • New Zealand
    • Court of Appeal
    • 6 May 2021
    ...Juries Act 1981, s 32B(1). 4 Crimes Act 1961, s 406(1)(a). 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 8 At [20]. 9 At [29] 10 For the avoidance of doubt, the provision of juror inf......
  • Montaperto v R
    • New Zealand
    • Court of Appeal
    • 20 April 2021
    ...going further and enabling evidence about deliberations, 5 6 7 8 9 Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [16]. Rolleston v R [2020] NZSC 113. At [19], citing Criminal Procedure Act 2011, ss 335(2)(b) and At [20]. At [29] “if the Judge is satisfied that the particular circumstances ......
  • Rihari Chance Matthew Biddle v R
    • New Zealand
    • Supreme Court
    • 19 July 2021
    ...bias in relation to 4 5 6 7 At [33]–[35]. Turner v R CA439/95, 25 July 1996. Senior Courts Act 2016, s 74(2)(a) and (b). Rolleston v R [2020] NZSC 113 at [29] and Mr Biddle (there is obviously no issue in relation to Mr Thacker). In those circumstances, we do not consider it is appropriate ......
  • Rihari Chance Matthew Biddle v R
    • New Zealand
    • Supreme Court
    • 19 July 2021
    ...bias in relation to 4 5 6 7 At [33]–[35]. Turner v R CA439/95, 25 July 1996. Senior Courts Act 2016, s 74(2)(a) and (b). Rolleston v R [2020] NZSC 113 at [29] and Mr Biddle (there is obviously no issue in relation to Mr Thacker). In those circumstances, we do not consider it is appropriate ......

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