IN THE SUPREME COURT OF NEW ZEALAND
SC 53/2007
[2008] NZSC 29
ALEX KWONG WONG
v
THE QUEEN
Hearing: 14 April 2008
Court: Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ
Counsel: F C Deliu and E Orlov for Appellant
A Markham for Crown
Judgment: 18 April 2008
JUDGMENT OF THE COURT
A The appeal is allowed and the convictions are quashed.
B A re-trial is ordered.
REASONS
(Given by Blanchard )
[1] At the end of the hearing the Court announced that the appeal would be
allowed and a re-trial ordered, with reasons to follow. These are the reasons of the
Court.
[2] The single issue on the appeal is whether at the trial of Mr Wong, who has
been found guilty by a jury on charges of drug dealing and money laundering,
“exceptional circumstances” existed in terms of s 374(4A) of the Crimes Act 1961
entitling the Court to proceed with 10 jurors when the defence did not consent to that
course.
[3] Mr Wong’s appeal against his convictions was determined by the Court of
Appeal before this Court’s decision in Rajamani v R1 was delivered. We held that
whether exceptional circumstances exist is not a matter of discretion. It is, we said, a
matter of fact requiring judicial assessment. The discretionary power vested in the
trial Court to proceed with 10 jurors exists only if there are exceptional
circumstances.2 This Court observed that subs (4A) was inserted into the Act in
1997 prompted by the expectation of a trial which was going to involve 40 mainly
sexual counts with 27 complainants and which was likely to last five months. We
noted that the explanatory note to the Bill spoke of the need to ensure that “lengthy
or difficult trials” could be completed with 10 jurors and spoke of an ability to do so
“in certain limited circumstances”. The phrase “exceptional circumstances” was to
be construed against that background.
[4] The reduction to 10 jurors in Rajamani occurred in the second week of a
murder trial where there were 37 witnesses for the Crown, one being from Australia.
Most of the witnesses had already been heard.
[5] This Court said that at two weeks, the length of the trial, and hence of the
potential re-trial, could not possibly be regarded as exceptional. Nor could the
number of witnesses. Finding those circumstances exceptional would set the
standard significantly too low.3 There had been a miscarriage of justice because
Mr Rajamani had been deprived of his right to be tried by not less than 11 jurors.
That was a substantial miscarriage and the proviso to s 385 could not be invoked to
save the murder conviction.
1 [2007] NZSC 68.
2 At para [4].
3 At para [9].
[6] Turning to the present case, the trial of Mr Wong and two others4 was
scheduled for two weeks but ran substantially over time, in large part because of a
number of applications to the Judge by trial counsel for the accused. Juror
difficulties arose in the fourth week. A juror was discharged on the Tuesday of that
week because she had to sit examinations that day and again on the Saturday. No
objection was taken by the parties. While Crown counsel was part way through a
closing address which had been interrupted overnight, a second juror was verbally
abused, intimidated and spat at by a man near the Court. That incident had no
connection with Mr Wong’s trial and seems to have been a random action by
someone who had a connection with an unrelated trial in the same building. The
juror was very upset and the Judge took the compassionate step of discharging her.
[7] Defence counsel then applied for the whole jury to be discharged because it
was contended that there was a risk that its members had somehow been
contaminated by this incident and its effect on the discharged juror. Unsurprisingly,
the Judge saw no such risk and, over the objections of the defence, ruled that the trial
should continue with 10 jurors. The verdicts were returned on the Friday of the
fourth week of trial.
[8] What was in contemplation when subs (4A) was introduced into the Crimes
Act was a few very long trials with some special complicating factors. The right to a
jury trial has long been a fundamental right. It is now confirmed in s 24(e) of the
New Zealand Bill of Rights Act 1990. It is a right of such importance that
Parliament should not be taken to have intended to abridge it more than is necessary
to prevent confidence in the system being undermined by the need to abort very long
trials when jurors are unable to continue. However, the exact number of jurors who
must participate in the unanimous decision of a jury has been altered by Parliament
from the traditional 12. Section 374 permits a reduction to 11 members and, under
subs (4A), in certain circumstances to 10. The legislature chose not to specify any
particular length of trial which could be continued with only 10 members. The
subsection, instead, empowers the Judge to exercise a discretion to continue with 10
members if that is considered by the Judge to be in the interests of justice. But it has
restricted the exercise of that discretion to circumstances which are “exceptional” – a
4 Both were acquitted. A fourth accused was tried separately and acquitted.
term which is frequently encountered in different statutory contexts but here must be
read bearing in mind the importance of the right being affected. It is, as Lord
Bingham of Cornhill said in R v Kelly,5 a phrase which describes a circumstance
which is such as to form an exception, which is out of the ordinary course, or
unusual, or special or uncommon:
To be exceptional, a circumstance need not be unique, or unprecedented, or
very rare; but it cannot be one that is regularly, or routinely, or normally
encountered.
[9] For subs (4A) to apply, the circumstances need not be rare but in combination
they must be distinctly out of the ordinary, although they need not approach those
envisaged in the case which was the genesis of the legislative amendment in 1997,
which was indeed a very rare situation. Administrative inconvenience is not the
touchstone. There will always be significant inconvenience whenever a trial is
terminated because jurors have to be discharged. The better approach is to ask,
adapting a suggestion made by Mr Deliu in argument, whether there really is an
exceptional reason for completing the particular trial, rather than beginning again
before another jury.
[10] In endeavouring to support the trial Judge’s decision, counsel for the Crown,
Ms Markham, submitted that this was a lengthy and complex trial (four weeks with
several accused, interpreters and 41 witnesses, of whom 30 were heard orally).
There was a considerable quantity of technical information including telephone and
accounting records and financial information. The accuracy of casino records was
also in dispute. Because of its complexity, the trial was held in the largest of the
courtrooms in the Auckland High Court. Ms Markham suggested that rescheduling
would have appeared more likely to cause difficulties than in most cases. The trial
ran substantially over time. It was said that a two week trial running two weeks over
time is exceptional in itself. The juror difficulties occurred only at the very end of
the trial, in the fourth week. At least one Crown witness was overseas, although it
was accepted that there was no risk of non-attendance at any re-trial. No concerns
were ever raised about the representativeness or impartiality of the jury, other than
the unsubstantiated suggestion of contamination.
5 [1999] 2 All ER 13 at p 20 (CA).
[11] We find ourselves, however, in agreement with counsel for the appellant that
the circumstances in this case were not exceptional. The four week length of
Mr Wong’s trial was not out of the ordinary. It is not uncommon for trials to be of at
least that length. A re-trial will not be of particular difficulty for the court system to
accommodate. The trial Judge of course did not know at the time of her ruling that
the other accused would be acquitted, but even if it had been necessary to re-try all
of them, it could have been anticipated that the second trial would not be as long as
the first trial, since the defence applications which were a cause of substantial delay
had been resolved. It was not a case in which the interests of complainants had to be
given any weight. There was no real likelihood of witnesses becoming unavailable.
The overseas witness was a former police officer and there could be no reason to
think that he would be unwilling to testify again. The trial had required the use of
interpreters but it could not be suggested that the need to resort to interpretation at a
re-trial would cause especial difficulty. The language concerned is now quite
commonly spoken in urban New Zealand. It was not, and could not be, suggested
that the reasons why each juror was discharged could be regarded as exceptional
circumstances. The substantial overrun in the length of the trial was in part the cause
of the loss of the jurors but did not lead to a trial of unusual length.
[12] Weighing up the various factors which have been mentioned, we are of the
view that there cannot properly be said to have been exceptional circumstances
relating to Mr Wong’s trial, and that accordingly it was not open to the trial Judge to
exercise her discretion to continue the trial with 10 jurors. A substantial miscarriage
of justice has therefore occurred.
Solicitors:
Crown Law Office, Wellington