Masina v The Queen

[2017] NZCA 291

IN THE COURT OF APPEAL OF NEW ZEALAND

CA299/2016
[2017] NZCA 291

BETWEEN	TUPE TACO MASINA Appellant
AND	THE QUEEN Respondent

Hearing:	29 June 2017
Court:	Miller, Lang and Mander JJ
Counsel:	L B Cordwell for Appellant Z R Johnston for Respondent
Judgment:	7 July 2017 at 4.00 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. The appellant and a co-accused were convicted after trial in the Manukau District Court on a number of charges of theft and aggravated robbery, involving the taking or attempted taking of cash registers from small shops.  The trial issue was identification, resting on circumstantial evidence collectively tending to identify the men.

2. The question on appeal against conviction is whether the verdict was rendered unsafe by a juror’s knowledge of the defendants.

3. On the morning of the third day of trial a juror, MA, handed a note to the court attendant indicating that she worked for a company involved in the monitoring of defendants on electronically monitored (EM) bail and recognised the names of the defendants.  The note stated that:

   I … wish to inform you (the Jury Service and Court), that I may be in conflict of interest with this case, that I am part of the Jury for.  That is, the case against the defendants.

   Since I have been in the Jury and attending this case, in the last day or two (being 11th & 12th April), I have noticed that in some way that I recognize the defendants named, mainly due to the job I am employed at.

   I work at 3M Monitoring (First Security) where we electronically monitor all offenders & defendants in conjunction with the Department of Corrections, nationwide.

   I confirm that, at some point in time, I have monitored these defendants who were on Electronic Bail.  In some part, I may have knowledge of where they live, and possibly their movements, where we view their Tracker Bracelets.  I also at some point in time could have been in conversation & discussions with the Department of Corrections, regarding the defendants.

   I bring this to your attention, as I do not wish to hinder the court process, and if necessary wish to be removed from this case.

   Can you please confirm to me whether I am in conflict with this case, and if I may remain on the case or not.

4. The court attendant immediately separated MA from the remainder of the jury.  Following the procedure in R v N (CA373/04), Judge Winter brought MA into court and questioned her in the presence of counsel.[1]  The substance of her answers was that she had first realised she might know the defendants the night before;  she had spoken to her supervisor; she had not told any other jury member of the detail of her job or that she monitored people on bail (she had given them her employer’s name and they thought she monitored alarms); and she had not spoken to the other jurors about her knowledge of either defendant.

   [1]R v N (CA373/04) (2005) 21 CRNZ 621.

5. The Judge discharged MA and heard counsel on whether to continue with the trial.  The appellant’s counsel suggested that the juror had hesitated in answering a number of the Judge’s questions, that she did not seem particularly sure in her answers, and that she appeared from her behaviour to have known of the defendants earlier than the day before.  The Judge was satisfied with MA’s answers.  He continued with the trial.

6. On appeal, it is suggested that the Judge ought to have asked: whether MA had participated in any discussions with the jury about the evidence they already heard; exactly how much detail she had given to the other jurors about her employment, and why they thought she worked for an alarm company; whether she had told the other jurors that she had sent a letter to the Court staff raising a potential conflict; and whether she would have been seen by any of the jurors in an upset state before writing to the Registrar.  It is also said that the Judge ought to have considered whether MA may have given non-verbal clues to the other jurors before seeing the Judge.  Mr Cordwell argued that he ought to have gone so far as to ask questions of the other jurors to decide whether they were affected in any way by the presence of MA over the previous two days.  The Judge is criticised for appearing to accept her answers to his questions at face value. 

7. We do not accept that it was necessary in the circumstances for the Judge to go further than he did.  The correct process was followed.  MA’s answers were clear and sufficient.  It is entirely speculative to suggest that other jurors were made aware of any prejudicial information.  As Ms Johnston submitted, for that to happen the jurors would have had to be given reason to think that MA had written a letter asking to be discharged, that she did so as a result of her job, that her job included monitoring EM bail, that the defendants must be on EM bail, and that being on EM bail reflected badly on the defendants. 

8. It follows that there is no reason to suppose that a fair-minded and informed member of the public would reasonably think the remaining jurors would fail to discharge their task impartially.[2]  Accordingly, no question arises of this Court interfering in the trial Judge’s exercise of his discretion whether to discharge the jury.[3]

[2]R v Tainui [2008] NZCA 119 at [26].

[3]T v R [2006] NZSC 3, [2006] 2 NZLR 577 at [16].

1. The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent