Rolleston v R; Roche v R

• Jurisdiction: New Zealand
• Judge: Winkelmann CJ,O'Regan,Ellen France,Williams JJ,Williams J,Glazebrook J
• Judgment Date: 19 October 2020
• Neutral Citation: [2020] NZSC 113
• Year: 2020
• Court: Supreme Court
• Docket Number: SC 17/2019; SC 18/2019

Between

Brooke Christie Rolleston

Appellant

and

The Queen

Respondent

Between

Brandon James Roche

Appellant

and

The Queen

Respondent

[2020] NZSC 113

Court:

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

SC 17/2019; SC 18/2019

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

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

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

• 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 preliminary determination, the Court of Appeal declined to direct that the jurors be interviewed by independent counsel. 8 The Court found that the connection between S and the appellants was too tenuous to give rise to a reasonable possibility of juror bias, and therefore of an unfair trial. 9 The essence of the Court's reasoning may be found in the following passage from the judgment:

[29] At its highest, the application turns on the possibility that S recognised Mr Dante Rolleston, remembered being verbally bullied by him at school at least three years earlier, harboured a grudge as a result and visited the sins of Mr Dante Rolleston on both Mr Brooke Rolleston and Mr Roche. Further, that S told the rest of the jury about being bullied and that influenced their attitude towards both appellants and therefore their deliberations.

14 The Court considered such scenario was inherently implausible. Brooke Rolleston apparently did not recognise S during the empanelling or when S was elected foreperson, and since S never raised the issue with the trial Judge, the Court inferred S did not recognise Brooke Rolleston either. 10 This meant that the appellants would have to establish that S was sufficiently distracted from the trial to pick out Dante Rolleston from a packed public gallery, remembering who he was and what he did at school three years earlier. He had then to associate Dante Rolleston with his brother Brooke. Having got that far, he then had to use his position as foreperson to influence other jurors without any of them raising any concerns. And S would also have to have chosen to ignore the trial Judge's instruction that he base his verdict only on the evidence, excluding any prior knowledge of, and any feelings of prejudice or sympathy towards, the appellants. 11

The substantive appeal

15 A differently constituted Court then dealt with the substantive appeal. 12 In the absence of an independent inquiry, the appellants argued that the evidence still demonstrated apparent bias even if actual bias could no longer be established.

16 The Court rejected this argument, relying essentially on the logic of the preliminary...