Wharton v R

• Jurisdiction: New Zealand
• Judge: Randerson J
• Judgment Date: 21 September 2011
• Neutral Citation: [2011] NZCA 476
• Docket Number: CA614/2010
• Court: Court of Appeal
• Date: 21 September 2011

BETWEEN

Lawrence Paul Wharton

Appellant

and

The Queen

Respondent

[2011] NZCA 476

Court:

Randerson, Potter and Ronald Young JJ

CA614/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction following jury trial in the District Court — convictions obtained on a majority verdict — whether trial judge failed to comply with the provisions of s29C Juries Act 1981 (criminal cases) relating to the taking of majority verdicts resulting in a miscarriage of justice — whether the failure to give jury directions on majority verdicts resulted in any material risk of miscarriage of justice.

Counsel:

C B Wilkinson-Smith for Appellant

P J Shamy and N M Robson for Respondent

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Randerson J)

Introduction

1 On 12 August 2010 the appellant was convicted of two counts of indecent assault and two counts of sexual violation following a jury trial in the District Court. 1

2 The convictions were all obtained on a majority verdict of 11 to 1. The sole ground of the appellant's appeal against his conviction is that a miscarriage of justice

arose from the failure of the trial Judge, Judge McAuslan, to comply with the provisions of s 29C of the Juries Act 1981 relating to the taking of majority verdicts

The background facts

3 For the most part, the circumstances in which the verdicts were obtained are not materially disputed. The chronology of events we shortly set out has been derived from transcripts of the audio record, a helpful summary of events kept by prosecuting counsel and a report which we requested from the trial Judge after the hearing. We have since received further submissions from counsel. There are some areas of uncertainty as to exactly what occurred, but these do not prevent us reaching a conclusion on the material facts.

4 This was a short trial. It commenced on 9 August 2010, counsel made their closing addresses on 11 August, and the Judge summed up on 12 August. Thereafter, the relevant events are:

10.54am	The jury retires.
2.36pm	The jury is given a redirection on,“reasonable doubt”.
3.55pm	The Judge receives a message from the jury to the effect that they are “in the middle between yes and no” The Judge discusses this response with counsel and the appellant present. The Judge points out to counsel that the jury has been deliberating for five hours by this stage and she seeks the views of counsel as to whether the jury should be discharged. The transcript shows that counsel were in agreement with a written inquiry made by the Judge to the jury to the following effect: “We are conscious you have been deliberating for some hours. Do you think if given more time you could reach unanimous verdicts” It appears from the transcript that this note was given to the jury. Mr Tantrum's note indicates that the jury's response is “probably not able to reach decision” The audio record of the jury's response has Madam Crier stating to the Judge “Madam Foreperson said I don't think so” (The Judge is confident these communications would have been in writing but copies of them are not available).
4.05pm	At the request of the appellant's trial counsel (not Mr Wilkinson-Smith) the Judge agrees to allow a further half hour to see whether the jury could reach a unanimous verdict. The Court adjourns until 4.30pm.
4.25pm	The Judge's notes record that the jury is asked again if they had reached a unanimous verdict and records that the jury replied “not at this stage, no” (Again, the Judge says these communications would have been in writing but no copies are available).
4.30pm	The jury returns to the Court. Madam Foreperson communicates to the Court that a unanimous verdict has not been reached. The Judge then informs the jury that she intends to discharge them. She notes that the jury had indicated they had not reached a unanimous verdict and, if given more time, the situation was not likely to change. The Judge then states again that the jury had indicated “more time would not assist” At that point, the Foreperson interjects and corrects the Judge's statement that the jury had said more time would not assist. According to the audio record, the Foreperson says “I'm sorry Ma'am, we said that given more time it would assist.” The Judge's own note reads “4.30 — about to discharge them when Foreperson says not correct if given more time would be unanimous.” The audio record shows that the Judge then asks the Foreperson for clarification. After discussion, the Foreperson sets out the jury's position in a note to the Judge (a copy of which is not available).
4.34pm	The jury retires and the Judge informs counsel (by reference to the Foreperson's note) that the jury is not split down the middle as had been previously advised. Rather, they are “11 to 1” The Judge recalls that the majority was in favour of guilty verdicts but the transcript shows she decided it was not appropriate to disclose this to counsel or the appellant at that juncture. Counsel then agree with the Judge that they are “squarely within majority verdict territory? and that the verdict should be taken at that point.
4.36pm	The Court adjourns for a short period to enable the Judge to obtain the written material necessary to assist the Registrar in the ritual for taking majority verdicts.
4.39pm	The Court resumes and the Registrar proceeds to take the verdicts.

5 The same ritual was followed by the Registrar for each of the four counts in the indictment. We set out, by way of example, the ritual followed for count 1:

COURT REGISTRAR:	Members of the jury, have you reached a unanimous verdict, that is one where all 12 of you agree on count one?
MADAM FOREPERSON:	No.
COURT REGISTRAR:	Members of the jury is it probable that you can reach a unanimous verdict, that is one on which all 12 of you agree? 2
MADAM FOREPERSON:	No.
COURT REGISTRAR:	Has the jury reached a verdict on count one which all of you except for one juror agrees?
MADAM FOREPERSON:	Yes we have.
COURT REGISTRAR:	Do 11 of you find the accused, Lawrence Wharton, guilty or not guilty of the count?
MADAM FOREPERSON:	Yes, we have.
THE COURT:	Guilty or not guilty.
MADAM FOREPERSON:	He's guilty.

6 It is common ground that no direction was given to the jury on the subject of majority verdicts other than the advice in the summing up to which we refer below.

Statutory context

7 Section 29C of the Juries Act 1981 provides:

29C Criminal cases

• (1) In this section, majority verdict means, in relation to a jury that, at the time of its verdict, consists of a certain number of jurors, a verdict agreed to by all except 1 of them.

• (2) The Court may accept a majority verdict in a criminal case if-

  • (a) the jury, having retired to consider its verdict, has deliberated for at least 4 hours; and

  • (b) the jurors have not reached a unanimous verdict; and

  • (c) the foreperson of the jury has stated in open Court-

    • (i) that there is no probability of the jury reaching a unanimous verdict; and

    • (ii) that the jury has reached a majority verdict; and

  • (d) The Court considers that the jury has had a period of time for deliberation that the Court thinks reasonable, having regard to the nature and complexity of the trial.

• (3) If the case involves 2 or more charges, or 2 or more persons charged, the Court may accept a majority verdict in relation to 1 or some of the charges or persons charged, in which case nothing in this section applies to the other charges or the other persons charged.

• (4) Nothing in this section-

  • (a) prevents the Court from taking a poll of the jury; or

  • (b) affects section 339 of the Crimes Act 1961 (which relates to criminal cases where part of the charge is proved).

• (5) If, in terms of section 339 of the Crimes Act 1961, the crime charged, as described in the enactment creating the crime or as charged in the count, includes the commission of any other crime, the Court may accept a majority verdict on the crime charged instead of a unanimous verdict on the included crime.

Grounds of appeal — discussion

8 Mr Wilkinson-Smith accepted that the requirements of s 29C(2)(a) and (b) were met. The jury had deliberated for at least four hours and had not reached a unanimous...