Evidence Act 2006, s 76 – appeal against conviction – post-verdict correspondence between jury foreperson and defence counsel – alleged improprieties in juror deliberations – miscarriage of justice – applications to obtain and admit evidence
A v R  NZCA 470.
On 3 June 2022, after a 10-day trial before Grice J in the High Court at Wellington, a jury found A guilty by majority verdicts of two charges of sexual violation by rape and one charge of kidnapping. He was acquitted of five other sexual charges relating to the same complainant.
On 14 June 2022 (11 days after the verdicts), the jury foreperson sent an email to defence counsel in which he expressed concern about the jury’s decision-making process. He also attached a poem written for A, which inferentially suggested the jury had made the wrong decision, stating “I did what I could, but it wasn’t enough”.
Defence counsel responded on 16 June 2022, advising that his professional obligations precluded him from discussing the jury’s decision but suggesting the foreperson contact the trial judge or registrar if he had concerns.
Despite this, the foreperson responded with further email correspondence containing specifics of the jury’s deliberations, alleging the jury had been improperly influenced by prejudice, undue pressure and predetermination. He also asserted that during deliberation, a fellow juror had talked about ‘horse trading’ to sort out the verdicts.
A filed an appeal against conviction, alleging improprieties in the jury’s deliberations resulting in a miscarriage of justice. In support of his appeal, A sought to admit evidence of jury deliberations as fresh evidence on appeal. In the first instance, he asked the court to direct that an amicus curiae be appointed to interview the foreperson.
Applicable principles: Evidence Act 2006, s 76 – is proposed evidence ‘intrinsic’ or ‘extrinsic’ to jury deliberations process? – are the circumstances so exceptional that there is a sufficiently compelling reason to allow the evidence to be given (s 76(3))? – principle of finality – need to maintain public confidence in the administration of justice.
Held: The application for a direction that an amicus curiae be appointed to interview the foreperson is declined. The application to adduce further evidence of jury deliberations on appeal is also declined.
The foreperson was simply expressing to defence counsel his view about the dynamics that operated within the jury. There is no particularisation of what prejudices might have been in play or how they might have operated to improperly influence the result.
The assertion of bias is general and invites the court to embark on a fishing expedition. There is no suggestion the juror’s alleged comment regarding ‘horse trading’ was taken seriously or acted upon by other jurors. The mixed verdicts suggest the jury undertook a discriminating and evaluative process in reaching its decision on each charge.