Stewart v R
| Jurisdiction | New Zealand |
| Judge | Wild J |
| Judgment Date | 23 May 2016 |
| Neutral Citation | [2016] NZCA 217 |
| Docket Number | CA27/2016 |
| Court | Court of Appeal |
| Date | 23 May 2016 |
[2016] NZCA 217
Wild, Courtney and Gilbert JJ
CA27/2016
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeals against conviction and sentence — the appellant faced jury trial on eight charges — after dismissing a juror on the first day, the judge had dismissed a second juror two days later under s22(1A) Juries Act 1981 — the juror had wanted to attend a concert and when questioned by the Judge, indicated that her disappointment in not attending might prevent her from giving full attention and consideration to the trial — the jury retired overnight and commenced its deliberations the following morning — a majority verdict direction was given after six hours of deliberation)- a Papadopoulos direction was then given some three quarters of an hour later and shortly thereafter the jury returned verdicts of guilty on three charges and not guilty on the remaining five charges — what process should trial judges take when dismissing jurors — whether the second juror was discharged for a proper reason — whether the combination of proceeding with 10 jurors, the delay before commencing deliberations and the majority and Papadopoulos directions had resulted in a miscarriage of justice — whether the sentence was excessive and the 50% minimum period of imprisonment inappropriate.
M J Phelps for Appellant
A Markham for Respondent
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A The appeal is dismissed.
(Given by Wild J)
At the end of a trial in the Napier District Court in November 2015 before Judge Mackintosh, the jury found Mr Stewart guilty on three charges and not guilty on five others. Mr Stewart had previously pleaded guilty to five other charges and been discharged on four. The 17 charges all related to domestic violence against Mr Stewart's partner. The charges, and their disposition, are summarised in the schedule to this judgment.
Judge Mackintosh subsequently sentenced Mr Stewart to four years and eight months imprisonment with a minimum period of imprisonment (MPI) of 50 per cent. 1
Mr Stewart appeals against his conviction and sentence.
As to Mr Stewart's conviction, Mr Phelps submits justice miscarried for Mr Stewart at his trial as a result of the combination of the following factors: the jury was reduced to 10; the Judge gave majority verdict and then Papadopoulos directions; 2 and the jury returned its verdicts shortly after the latter direction. Mr Phelps contended there is a real risk the Papadopoulos direction “inappropriately put pressure on minority jurors to yield to majority demands”. He submitted this must particularly be so, given there were only 10 jurors and because “there had been considerable disruptions to the flow of the trial”.
At the hearing, the Court raised with counsel whether, in terms of s 22 of the Juries Act 1981, the second juror had been properly discharged. We invited and have received further submissions on that point. Accordingly, the issues on the conviction appeal are whether a miscarriage of justice occurred in Mr Stewart's trial either because the second juror was not properly discharged, or for the reasons advanced by Mr Phelps, or both.
The challenges on the sentence appeal are to the Judge's sentencing starting point, the discount she allowed for the guilty pleas at trial, and to the imposition of a MPI.
Mr Stewart's trial began on 6 November 2015. Counsel informed us a Friday start was unusual, but it appears it was possible because the jury panel had been summonsed for a fortnight.
After the Judge's opening remarks, a juror told the Judge she knew the appellant's mother. Although counsel for the appellant (Mr Phelps) asked the Judge to discharge all the jury and start the trial afresh with a new jury on the following Monday morning, the Judge decided to dismiss just the one juror. No issue is taken about that decision on this appeal.
The trial resumed on Monday 9 November. Shortly after 2 pm one of the jurors provided a note to the Judge advising she had a longstanding commitment to attend a concert with family in Auckland the following evening, Tuesday 10 November. The juror told the Judge she had booked air tickets, including to fly from Napier to Auckland departing at 1.10 pm the following day.
The Judge gave defence counsel the opportunity to take instructions. Having done so, Mr Phelps indicated that the appellant did not consent to the Judge discharging this second juror and continuing with 10. Mr Phelps invited the Judge to declare a mistrial and discharge the jury. At that stage it appears the Judge and counsel were unaware the Court could proceed with 10 jurors without the consent of the parties: s 22(1A) Juries Act. 3
After exploring the situation further with counsel, the Judge asked the juror to come back into Court. The Judge told the juror she was prepared to adjourn the trial at, say, 4 pm the next day and to resume at about 10 am on the following day, Wednesday 11 November, if the juror could alter her flights to accommodate those times. The juror's response is not recorded (“response too quiet to pick up”). But it is apparent the juror agreed to do that because the Judge then asked:
Q Yes and just so that for everybody, I think it's important that I just ask you that, I wouldn't like you to feel that this, that because of the situation you had now been compromised in your role as a juror. Are you still, you still feel you can be impartial on the trial and give it the attention that it deserves both for, of course, for the sake of Mr Stewart because it's a very important matter to him and also for the Crown?
After a further exchange with counsel the Judge again spoke to the juror:
Q All right well are you, I think it's probably preferable since the trial is going and time is marching on that we continue on with the trial and then perhaps when we adjourn for the evening you can make your inquiries and then we can have a discussion about it first thing tomorrow morning and you can let us know, if you've been able to change them or not. Can I just also ask you just for everybody's, if you were unable to go to Auckland I wouldn't like you to feel that you have put yourself in a situation also that because of the disappointment of that you weren't sort of, you weren't able to give your sort of full attention and consideration to the trial.
A I would give my full attention so that's not an issue.
Q That's not an issue for you?
A No.
Q All right, okay. Thank you. Thank you very for that [juror]. Thank you.
The Judge spoke again to the juror before the Court adjourned for the day on Monday, but the juror had not had the opportunity to try to alter her flights. It was left on the basis the Judge would deal with the matter the following morning.
The Judge recorded all of this in a ruling: 4
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[6] Whilst I appreciate that it is not desirable to have jurors flitting around the countryside during the course of their deliberations the reality is now that they are entitled to go home and to go about their own lives during the course of their deliberations. There is no requirement now for them to be kept together 24/7 as it was in the past. So what she does in her own time really is no business of the Court so long as she does not talk to anybody [about] the case or anything that she does do, compromise her ability to continue in her deliberations.
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[7] So with that in mind I have had her back into Court and discussed the option of changing her flights. She is open to that. She has also said that in the event that it got to the point where she was unable to change her flights and unable to go that that would not compromise her ability to be a fair and impartial juror, essentially saying that notwithstanding the disappointment she would continue on and do her best as a juror.
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[8] So at this stage I am not prepared to declare a mistrial. I am going to continue with the trial. We will continue to hear the evidence giving the juror an opportunity to change her travel arrangements and that that is unable to be done just at the moment, but to avoid wasting any further time we will box on and in the event that she is unable to do so then I can give a decision at that point on Mr Phelps' application for a mistrial.
By the time the Court resumed on the Tuesday morning, the Judge had looked at s 22 of the Juries Act and was aware she could discharge a second juror, providing one of the s 22(2) criteria was met, and continue with 10 jurors without the consent of the parties. She outlined the correct position to counsel.
Mr Phelps raised the question as to whether the s 22(1) threshold for discharge was met:
… whether in these circumstances someone wanting to get to a family concert constitutes the juror being incapable of performing or continuing to perform.
The Judge then requested the juror to come into Court and the transcript records the following:
THE COURT:
… I just wondered how you got on overnight, and what, if you were able to make alternative arrangements?
JUROR:
(inaudible 09:51:46)
THE COURT:
Yes, right.
JUROR:
(inaudible 09:52:01)
THE COURT:
So the whole family get-together's been planned around you, has it? Are people coming from overseas? No.
JUROR:
(inaudible 09:52:12)
THE COURT:
Right. Okay. I suppose by not going, do you think that, that actually would have any effect on you doing your job as a juror?
JUROR:
(inaudible 09:52:36).
THE COURT:
Hard to say?
JUROR:
It's hard to say (inaudible 09:52:42).
THE COURT:
All right, so just so everybody can hear (inaudible 09:52:54), so I have asked her that question. She said it's hard to say. Whilst yesterday you gave the answer quite quickly, last night you went home and discussed the matter with your family and has that changed your...
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