Pearson v R

• Jurisdiction: New Zealand
• Judge: Chisholm J)
• Judgment Date: 08 October 2010
• Neutral Citation: [2010] NZCA 459
• Date: 08 October 2010
• Court: Court of Appeal
• Docket Number: CA181/2010

[2010] NZCA 459

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Arnold, Chisholm and Ronald Young JJ

CA181/2010

BETWEEN

Mark Terance Pearson

Appellant

and

The Queen

Respondent

Counsel:

N C H Hewat for Appellant

F Sinclair for Respondent

JUDGMENT OF THE COURT

• A The appeal is allowed.

• B A retrial is ordered.

• C Order prohibiting publication of the judgment and any part of the proceedings in news media or on the internet or other publicly available database until final disposition of retrial. Publication in Law Report or Law Digest permitted, however.

REASONS OF THE COURT

(Given byChisholm J)

Chisholm J)

1 After a jury in the District Court at Napier had retired to consider its verdict on one charge of historical rape faced by the appellant, the trial judge (Judge Rea) received a request from the jury to “clarify” an aspect of his summing up. At the same time he received an indication that the jury had reached a unanimous verdict. The record does not disclose the precise time/s that the question and the indication that there was a unanimous erdict were conveyed by the jury to Court staff.

2 Following discussion with counsel, and with their concurrence, the Judge reconvened and asked the jury to retire and determine whether it wanted him to answer the question or whether it was unanimous in its verdict. Within a few minutes the jury indicated that it was unanimous in its verdict and shortly thereafter a verdict of guilty was announced in open court. The appellant was sentenced to four years' imprisonment.

3 The issue raised by the appellant is whether the Judge should have allowed the jury to deliver its verdict when there was still an unanswered concern about matters of law. Relying on the decision of this Court in R v Hayman1 and the decision of the English Court of Appeal in R v Mitchell, 2 Mr Hewat submitted that, having been put on notice that there was a potential problem, the failure to address that problem rendered the verdict unsafe and it should be set aside. Mr Hewat acknowledged that, as trial counsel, he had agreed to the course of action taken by the Judge but said that, on reflection, he had realised that it was insufficient to address the problem.

Background

4 It was alleged by the Crown that the appellant had raped the complainant on 31 December 1987 while they were holidaying with others in the Marlborough

Sounds. At that time the complainant and her female friend, who was also staying with the group, were aged 16 years. The appellant was 31.

5 On the night in question the complainant and her friend had become intoxicated when they attended a hotel with the appellant. All three were sleeping in the same unlit tent. The complainant alleges that afterreturning from the hotel she fell asleep in the tent. She woke to find the appellant having intercourse with her. The appellant's defence was that in the darkness of the tent he thought that he was having sex with the complainant's friend who, heclaimed, had flirted with him earlier in the evening.

6 The trial was relatively brief and the jury retired at 2:12 pm on the second day. At approximately 4 pm the following question from the jury was delivered to the Judge:

CLARIFY — (3) Points of Law as in Summary.

The Court logbook indicates that the Judge discussed this question (and the jury's indication that it had reached aunanimous verdict) with counsel at 4:01 pm. As already recorded, counsel concurred with the Judge's proposed approach to the matter, and within a short time the jury delivered its verdict without the question having been answered.

Judge's direction to the jury

7 Having reconvened after discussing the matter with counsel the Judge gave the following directions to the jury:

Mr Foreman, ladies and gentlemen, I have asked for you to be brought back into Court. I have received your note which says “Clarify three points of law as in summary”. I am assuming that what you are requesting is for me to tell you again the three things that the Crown needs to prove to establish the case.

I have also been notified that you have a unanimous verdict. Now I don't want you to say anything about that to me but I need to explain this to you and then I'm going to send you back to the jury room to think about it. Once I have been notified as the Judge that you have a unanimous verdict I am not permitted to give you any further directions because you have advised me that you've reached a decision. Now — so the situation is, if you have in fact reached the unanimous verdict I cannot answer this question for you simply because you have advised me through the foreman that the jury is unanimous, it's agreed and once that decision is given in open Court that's the end of the trial.

Now bearing in mind that you have asked this question what I propose to do and I've discussed this with counsel before you came into Court, is to ask you to retire to the jury room in light of what I have said and shortly I will send the Court Attendant in to determine whether you want me to answer this question or whether you are unanimous in your verdict and if you are unanimous in your verdict I am in no position where I can answer your question, I will get you back into Courtand I would take the verdict.

So, can I ask you to return to the jury room and I will send the Court Attendant in to get your response in due course.

8 Although the Judge construed the request from the jury as a request for him to tell them again about the three elements of rape that had to be proved by the Crown, it is possible that the jury was only seeking clarification as to the third element (whether it had been proved that the accused did not believe on reasonable grounds that the complainant was consenting) which was his primary defence. However, nothing turns on that. Either way the question indicates that the jury were seeking clarification on issues of law.

Discussion

9 Obviously the Judge was placed in a difficult situation by what appears to have been the simultaneous delivery of both the question and the contradictory indication that the jury had reached a unanimous verdict. The law on the subject is not entirely straightforward.

10 Hayman , which is relied on by the appellant, seems to be the only New Zealand authority in point. In that case the trial Judge made an enquiry of the jury as to progress after the jury had been deliberating for three and a half hours. In response the jury indicated that they were “struggling” and that they had a problem with the “level of proof”. With the agreement of counsel no immediate action was taken and within a relatively short time the jury reached verdicts which were delivered without any further direction having been provided.

11 On appeal this Court decided that the jury's question should have alerted everyone to the need for a reiteration of the “fundamental precepts” relating to the level of proof. 3 Drawing on the decision of the English Court of Appeal in Mitchell the Court concluded that if the jury subsequently indicates that they might have misunderstood or been uncertain about the effect of theJudge's direction, it matters not that the Judge properly directed the jury during the summing up. In such circumstances a jury should be redirected and a failure to do so ran the risk that a miscarriage of justice might result. 4 The appeal was allowed and a retrial was ordered.

12 For the Crown, Mr Sinclair argued that Hayman can be distinguished. He noted that in this case the question and verdict represented irreconcilable positions which the Judge needed to resolve. Until that step was taken it...