Montaperto v R
| Jurisdiction | New Zealand |
| Judge | Kós P |
| Judgment Date | 06 May 2021 |
| Neutral Citation | [2021] NZCA 170 |
| Court | Court of Appeal |
| Docket Number | CA656/2018 |
| Date | 06 May 2021 |
[2021] NZCA 170
Kós P, Miller and Courtney JJ
CA656/2018
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal — appeal against a conviction for kidnapping four children and doing an indecent act — information linking the appellant to another high profile crime involving the abduction and murder of a child was passed onto the jury by the jury foreperson before the jury gave its verdict — criminal practice and procedure — juror misconduct — adoption of requirement for Judges to direct jurors to disclose any receipt of extraneous information — sample direction given — Crimes Act 1961 — Criminal Procedure Act 2011 — New Zealand Bill of Rights Act 1990
R M Mansfield for Appellant
S K Barr for Respondent
J-A Kincade QC as counsel assisting
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A The appeal is allowed.
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B The convictions appealed are quashed.
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C No order for a new trial is made.
(Given by Kós P)
The appellant was convicted of kidnapping four children and doing an indecent act 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. 2 In 2008 the jury foreman (whom we refer to as Juror A) contacted the appellant's counsel to say he had received information during the appellant's trial linking the appellant to another crime, the murder of 6-year-old Teresa Cormack in 1987, and that he had passed that information on to other jurors before their deliberations.
In 2018 the Governor-General referred the appellant's convictions to this Court under s 406(1)(a) of the Crimes Act 1961, on the basis that this new evidence could lead this Court to conclude that a miscarriage of justice had occurred.
An inquiry of the jurors was directed by the Court, ultimately by consent, under s 335 of the Criminal Procedure Act 2011. It was undertaken by Mr Stephen Bonnar QC (subsequently, Judge Bonnar). Thereafter we summonsed Juror A to give evidence on this reference, and we appointed Ms Kincade QC as counsel assisting, to advise him. 3
After hearing Juror A's evidence (and his cross-examination by Mr Barr and Mr Mansfield), we were satisfied that a clear case of apprehended jury bias had been established and that the verdicts were therefore unsafe. We delivered an oral judgment at the hearing quashing the convictions. Given the passage of time, and the fact that the appellant had long since served the sentence imposed in 1988, no new trial was ordered. This judgment now sets out the reasons for that decision.
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 four counts of kidnapping contrary to s 209 of the Crimes Act and one count of doing an indecent act with intention to offend contrary to s 126 of that Act.
The convictions arose from an incident in the Hastings suburb of Flaxmere on 21 June 1986. Four children were at a birthday party at a Flaxmere household. In the late afternoon, they left the party to walk to the shops. On the way, they came across a 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 a service station. The children said that the man gave them beer and offered them money in exchange for sex but they refused. The man drove the children back to Flaxmere in the early evening and dropped them off.
The police interviewed the children and took descriptions of the man and the car the man drove. They also interviewed the service station attendant. The investigation focused on locating the driver of a green and white 1962–63 Holden Premier. A number of owners were identified and interviewed, including the appellant, but no one was charged.
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 was interviewed by the police in connection with the Teresa Cormack inquiry and emerged as a suspect. He was not charged in relation to the Teresa Cormack case, but remained a suspect. Ultimately, in October 2002, a man called Jules Mikus was convicted of the abduction, rape and murder of Teresa Cormack.
Police re-interviewed the service station attendant and one of the children about the Flaxmere incident in December 1987. The appellant was arrested and charged on 31 December 1987 in relation to the Flaxmere incident.
In June 1988, the appellant's counsel applied for a change in trial venue because of 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.
The appellant stood trial in the High Court at Wellington in August 1988. The only issue was identification. The Crown case depended on the identification evidence of the four children, supplemented by evidence from the service station attendant. The defence case was that it was a case of mistaken identification. The jury accepted the evidence of the Crown witnesses and returned guilty verdicts on the charges noted at [1] above. On 9 September 1988, the appellant was sentenced to concurrent terms of 3 years' imprisonment on the kidnapping charges and 6 months' imprisonment on the indecency charge.
The appellant appealed his convictions to this Court in 1989. The first ground of appeal was that the Crown had not disclosed police job sheets and other materials containing statements by witnesses. All this was of course before the Criminal Disclosure Act 2011. These documents, once disclosed, demonstrated evidence favourable to the appellant and which might have been of value in cross-examining witnesses.
By way of example, the child witnesses had made undisclosed statements concerning 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 a Flaxmere street as the car that had come into his garage, being sure it was the same vehicle “because of its good condition and the badges on it”. But the job sheet reported that when the police interviewed the owner of that car, who was not the appellant, it was clear that he had not visited the service station on the day of the offence. What is more, 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 as coming in between 5.30 and 6.15 pm, whereas in evidence at trial he said it was at about 8.30 pm. This Court considered the disclosure of statements relating to the child witnesses did not add anything material to the evidence given at trial. The service station attendant's identification was more troubling, but given his evidence and cross-examination, this Court concluded the jury would have had a healthy scepticism about his reliability as an observer witness in any event. The evidence, looked at as a whole, produced “a strong case”.
The second ground of appeal, relating to alleged unfairness in the opening address, was dismissed fairly summarily. On 8 September 1989, the Court of Appeal dismissed this first appeal.
In June 2008 Mr Mansfield was contacted by Juror A. In evidence given before us, Juror A said that he did so because he had read an article in the newspaper in which Mr Mansfield made the suggestion the jurors may have had information linking the appellant to the Teresa Cormack case. It was for that reason he rang Mr Mansfield, to confirm that that was in fact the case. Mr Mansfield referred Juror A to an independent barrister, Mr Bonnar.
Mr Bonnar made an affidavit in March 2012, at that time in support of an intended application for leave to appeal to the Supreme Court. The affidavit was based on 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 states that 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 given by way of evidence. The information was that the appellant “was a prime suspect in the Teresa Cormack murder investigations”. Juror A identified the source of the information 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 other members of the jury. He expressed the view to me that the jury were influenced by this information and used it against [the appellant] although it was not before the Court.
In 2010 Mr Bonnar asked Juror A whether he would be prepared to swear an affidavit. But Juror A did not wish to be involved further or to speak to anyone else about the issue.
On 23 October 2018 the Governor-General referred the question of the appellant's convictions to this Court. 4 The reference records that an application was made on 20 February 2014 for the exercise of the royal prerogative of mercy. This
was made explicitly on the basis of the evidence of Mr Bonnar as to Juror A's disclosuresThe effect of the reference is that the question referred is heard and determined as if it is a fresh appeal against conviction. It is, therefore, an exception to the statutory provision that...
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