Hastie v R Sc

JurisdictionNew Zealand
JudgeChambers J
Judgment Date23 July 2012
Neutral Citation[2012] NZSC 58
Docket NumberSC 120/2011
CourtSupreme Court
Date23 July 2012
Michael Andrew Keith Hastie
and
The Queen

[2012] NZSC 58

Court:

Elias CJ, Tipping, McGrath, William Young and Chambers JJ

SC 120/2011

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against conviction and sentence based on Judge's failure to give jury a Papadopoulos direction –jury advised judge that it was unanimous on some counts and it had reached a 9:3 stalemate on other counts — Judge gave direction on reaching majority verdicts — jury returned with unanimous verdicts on two counts and majority verdicts on remaining –whether a Papdopoulos direction should have been given — consideration of what normal procedure should be for judge when faced with an indication that jurors are having difficulty in reaching a unanimous result.

Counsel:

S W Hughes QC for Appellant

C L Mander for the Crown

The appeal is dismissed.

JUDGMENT OF THE COURT
REASONS

(Given by Chambers J)

Majority verdicts
1

After a retirement of a little over ten hours, the jury sent the following note to Judge Roberts, the trial judge: 1

We are unanimous on two counts but are unable to come to a consensus decision on the other six counts and are stalemate at 9 to 3. We are unsure where to proceed from here. We have made progress to get to this point from last night. Can we have some direction please?

2

As it happened, the Judge was seeing counsel in chambers at the time he received the note. He told counsel the contents of the note. Mrs Hughes QC, counsel for the accused, Michael Hastie, submitted to the Judge that he should take verdicts on the two counts on which the foreperson had indicated the jury was unanimous and should discharge the jury from delivering verdicts on the other six counts. The Judge, while obviously having some sympathy with that submission, did not accept it. Instead, he decided to explain to the jury what was required for majority verdicts. In accordance with normal trial practice, the Judge had briefly alluded to the possibility of majority verdicts in certain circumstances in his summing-up. But he had not at that stage given any details about the triggering circumstances. Nor had he indicated how big “a majority” was required. He now filled in the details as follows:

Mr Foreman, ladies and gentlemen, I have your communication and I have discussed it with counsel prior to bringing you back into Court.

You have told me that you are unanimous on two counts, and essentially that you are unable to come to a consensus on the other charges and you have nominated for me the divisions you have at the moment. I gather the bottom comments are a plea — we've made progress to get this far can we have some direction please. But what you've left unsaid is, you want out.

It's not unreasonable and I'm grateful to you all for applying yourself so diligently to this task. Regrettably there's a process we have to work through.

Now I indicated to you when I commenced speaking to you that there had been a change in the law which now authorised Judges to seek, if it was possible, majority decisions. While I alerted you to that prospect I haven't yet directed you, and while in anticipation you have probably spelt out your division for me, I need to go through the process with you.

I gather that you realise that by this stage we're getting near the end of it, but we've reached a point where I must tell you now it is possible for you to deliver a verdict that 11 of you agree to. In other words, if only one of your number is in disagreement then you may proceed to verdict. If you don't have 11 people agreeing you won't be in a position to render a verdict, and if you get to that stage no doubt I'll be alerted.

I must, however, tell you before you render verdicts on a majority basis, that is 11 to 1, as a group you must be agreed that it is not probable you can reach a unanimous verdict, that is, 12 of you. The requirement is so important that your foreperson will be asked in Court to confirm that as a group it is unlikely you will achieve a unanimous verdict.

Now with the knowledge that I am telling you I will accept verdicts of 11 to 1, I will ask you to retire. Now I qualify this by telling you that I will not keep you for any great period. I expect, however, in the time that I allow, that you will address that one outstanding issue for me. I will call you back into Court at a time in the not too distant future so that if you are truly locked, with no possibility of rendering the majority verdict, I will discharge you.

Thank you ladies and gentlemen.

3

The jury then retired. Within 30 minutes they returned to deliver their verdicts. They unanimously found Mr Hastie not guilty on two counts and delivered majority guilty verdicts on the other six counts.

4

Mr Hastie appealed against his conviction and sentence. The ground of appeal against conviction was the Judge's failure to give a Papadopoulos direction, 2 or alternatively, the Judge's failure to discharge the jury on those counts on which, at 2 pm, they had indicated they were “stalemated”. Mr Hastie also appealed against his sentence. The Court of Appeal dismissed the appeal. 3 This Court subsequently gave leave to appeal on the issue of whether the direction set out at [2] above was appropriate and, if not, whether that gave rise to a substantial miscarriage of justice. 4

5

We intend exploring this issue at two levels. First, was what the Judge did in this case appropriate? Next, what should judges generally do when faced with an indication that jurors are having difficulty in reaching a unanimous result?

Was what the Judge did in this case appropriate?
6

The Court of Appeal concluded that what the Judge did in this case was appropriate:

[29] In our view it was entirely within the Judge's discretion to give a direction on majority verdicts without at the same time giving a

Papadopoulos direction. Indeed, that would in our view be the preferable course. A Papadopoulos direction is a powerful direction and judges tend to use it sparingly. It would be usual for a majority verdict direction to be given and then for the jury to be given further time to deliberate, before considering whether or not to give a Papadopoulos direction.
7

We agree. We think the Judge did the right thing. He provided the jury with information about majority verdicts but did not put any pressure on the jury to reach one. In accordance with standard practice, the Judge had mentioned the possibility of non-unanimous verdicts in his summing-up, but had not fleshed out the details. He had said:

You may be aware that over recent times the issue of unanimous verdicts has been changed slightly. I am asking you, though, for the moment notwithstanding the change in the law on that aspect, to strive initially for a unanimous verdict. That is a verdict on which each and every one of you agree on all counts. … Whatever the verdict might be it must be, for the moment, the unanimous verdict of you all. We...

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12 cases
  • B (Sc12/2013) v R
    • New Zealand
    • Supreme Court
    • 19 Diciembre 2013
    ...32 B(CA862/2011) v R [2012] NZCA 602 [ B v R (CA)]. 33 B (SC 12/2013) v R [2013] NZSC 37. 34 R v Papadopoulos [1979] 1 NZLR 621 (CA). In Hastie v R [2012] NZSC 58, [2013] 1 NZLR 297 this Court said that it would be rare for a Papadopoulos direction to be given before a majority verdict dir......
  • Stewart v R
    • New Zealand
    • Court of Appeal
    • 23 Mayo 2016
    ...quarters of an hour later. The order in which the Judge gave those two directions correctly accords with what the Supreme Court said in Hastie v R. 15 In our experience, verdicts often follow reasonably soon after a Papadopoulos direction is given, and jurors appreciate that “views honestly......
  • Ropiha v R
    • New Zealand
    • Court of Appeal
    • 19 Diciembre 2014
    ...decision to provide the Papadopoulos and majority verdict directions at the same time engaged the risk recognised by the Supreme Court in Hastie v R, that the combination would put illegitimate pressure on the jury to return a compromise verdict, one which would therefore not be safe. 19 Th......
  • Sharma v R
    • New Zealand
    • Court of Appeal
    • 30 Septiembre 2019
    ...is not possible, then the Judge could consider a Papadopoulos direction.6 3 4 5 6 See R v Papadopoulos [1979] 1 NZLR 621 (CA). Hastie v R [2012] NZSC 58, [2013] 1 NZLR At [14]. At [15]. [24] In the present case, the jury were given the majority verdict direction at 4.30 pm on Friday, 5 Octo......
  • Request a trial to view additional results

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