It is unusual for an appellant (the accused at trial) to be able to establish three grounds on appeal, each of which would have individually shown a real risk of a miscarriage of justice to which the proviso could not be applied. This happened in yesterday’s decision by the Supreme Court of New Zealand (one of the few superior courts to be working at this time of year – the northern hemisphere judges are, presumably, sweltering in the August heat of their vacations) in Rajamani v R [2007] NZSC 68 (23 August 2007).
The three grounds were: the judge incorrectly decided to continue the murder trial with only 10 jurors; the judge incorrectly directed the jury on the law of provocation, and the judge incorrectly directed the jury on the use to which hearsay evidence could be put.
10 jurors: what is a discretion?
The 10 jurors point required the Court to distinguish between discretion and assessment of facts. There could be no appeal against the judge’s exercise of a discretion in this matter, because that is prevented by s 374(8) of the Crimes Act 1961. That section permits the continuation of a trial with 10 jurors in limited circumstances, called exceptional circumstances. Whether there were exceptional circumstances was not, as the Court of Appeal had thought, a matter of discretion: rather, it was a matter of fact requiring judicial assessment (para 4). If that fact (exceptional circumstances) is found to exist, then the exercise of discretion comes into play, for the judge has to decide whether it is in the interests of justice to proceed with 10 jurors.
The proposition here is that the interests of justice are determined by the exercise of judicial discretion, whereas the judgment whether circumstances are exceptional is a matter of fact. Subtle, no?
Applied to the facts here, however, the distinction is (faintly) discernable. The exceptionality of the circumstances involved consideration of facts such as the duration of the trial (only 2 weeks here), the number of witnesses (not particularly large here), and the possible unavailability of a Crown witness (whose evidence “may be thought unhelpful” to the defence – para 9) if the trial had to be started again. The evaluation of these facts against the requirement of exceptional circumstances is judicial assessment, not discretion.
If there had been exceptional circumstances (long trial, many witnesses, potential loss of significant evidence if another trial required), then the judge can only order continuation with 10 jurors (in the absence of consent by the parties) if, as a matter of discretion, it is in the interests of justice to proceed. It seems that what this means is that the judge must decide the same matter that would have to be decided on an appeal against conviction: whether proceeding with 10 jurors created a real risk of the loss of an opportunity of a more favourable verdict. This would involve an assessment of the strength of the respective cases, and as such is more of an exercise of discretion than a determination of fact. Again, however, the distinction is subtle, since assessment of the likely verdict is really a judgment of fact.
Provocation
The provocation aspect of the case does not involve the creation of new law, and simply illustrates how errors can arise (three here), and the significance of their combined effect can differ as between the Court of Appeal and the Supreme Court.
Hearsay
The hearsay point is interesting. The Crown adduced hearsay evidence that the victim had told other people that she was afraid of the accused. It was agreed (why, I’m not sure) that this was relevant only on the issue of whether the victim was afraid of the accused. The Crown did not suggest that it was admissible on the issue of the accused’s intent and whether he acted with a degree of pre-meditation that was inconsistent with provocation.
Although not cited in the Supreme Court’s judgment, the position here was like that in R v Baker [1989] 3 NZLR 635, (1989) 4 CRNZ 282 (CA), where hearsay evidence of the victim’s fears of the accused was admissible to disprove the accused’s statement which had been that she had invited him to her place to kill stray cats. In that case, evidence of her hearsay statements was admissible on the issue of whether the accused was lying (ie on the issue of the accused’s state of mind). One would have thought that in Rajamani the hearsay statements would have been admissible on the issue of the accused’s loss of self-control.
It was held that the judge had not merely misdirected the jury on the proper use of the hearsay evidence, but he had directed them to use it wrongly. This was itself a substantial miscarriage of justice.
The Court refrained from commenting on the application of the hearsay provisions of the Evidence Act 2006, which would govern the use of this evidence at the retrial. So will I.
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