Paea v Rex [2001] TOSC 3; CR 207 2000 (23 January 2001)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY

No. Cr.207/2000

BETWEEN:

LISIATE PAEA
Appellant/Accused

AND:

REX
Respondent/Prosecution

BEFORE THE HON. JUSTICE FORD

COUNSEL: Ms Simiki for the Crown
:Mr Paasi for the Accused

Date of Hearing: 19th January, 2001
Date of Ruling: 23rd January, 2001

RULING

After a jury trial in Vava'u last year the appellant was found guilty of murder and on 20 October 2000 he was sentenced to life imprisonment.

It appears that the appellant filed a notice of appeal on the last day for appealing although the notice has been inaccurately date stamped by the Court staff as having been filed on "31/11/00".

The grounds of appeal are stated to be that the finding of the jury was wrong in fact and law and there follows some 11 particulars in support of the stated ground. Some of the particulars relate to matters of fact. Others do not relate to the jury's findings.

On 19 December 2000, I made a file note as follows:-

"Under section 16 of the Court of Appeal Act the appellant needs leave if he seeks to appeal on any ground other than a question of law alone. His counsel needs to clarify the position. The limitation period has now expired."

It is unclear from the Court file whether my file note was ever passed on to counsel. Mr Paasi says he did not receive any notification from the Court. The file has now been referred back to me because on 10 January 2001 the appellant filed an application for orders, (1) quashing the jury's verdict or (2) quashing the sentence of life imprisonment or, alternatively, (3) releasing the appellant on bail until determination of his appeal. The first two matters are not matters coming within the jurisdiction of this Court and for present purposes I put them to one side.

The Court of Appeal has special powers relating to bail which are set out in Section 26 of the Court of Appeal Act but under section 4B(1)(a) of the Bail (Amendment) Act 1991 this Court has power to grant bail to a person who has been convicted of and sentenced to imprisonment for a criminal offence and who has appealed or applied for leave to appeal, if this Court is satisfied (in the context of this case) that there is a reasonable prospect of the appeal succeeding.

The relevant ground advanced in the present case in support of the bail application consists of affidavits from two members of the jury in which the deponents state that they disagreed with the jury's verdict announced in Court.

The Crown opposes the bail application. Miss Simiki has referred to the decision of the Privy Council in Nanan v The State [1986] 1 A.C. 860 which was an appeal from the Court of Appeal of Trinidad and Tobago. Under the law of Trinidad and Tobago a person can only be convicted of the crime of murder by a unanimous jury verdict. The Judge did not direct the jury that the verdict had to be unanimous but the court clerk did ask the foreman whether the jury had agreed upon a unanimous verdict and he said that they had. The foreman and three jurors subsequently swore affidavits stating that they had not been aware that they all had to be agreed upon the verdict and that eight had been in favour of one decision and four of another. The defendant appealed on the basis that his constitutional right not to be deprived of life except by due process of law (in this case a unanimous jury verdict) had or was likely to be infringed. The Privy Council dismissed the appeal holding (as stated in the head note to the report) that:

"To admit the affidavit evidence of the four jurors in order to establish that they did not agree with the verdict, or that they were acting under the misapprehension that a majority verdict could be returned, would be contrary to the general principle that evidence was not admissable to rebut the presumption that a verdict given in the sight and hearing of all the members of a jury without protest was one to which they had all assented..."

In the present case, there is no suggestion that, as Trial Judge, I failed to direct the jury that a unanimous verdict was required nor is it suggested that there was protest by any member of the jury to the guilty verdict announced in open Court in the sight and hearing of all jury members.

The New Zealand Court of Appeal in R v Papadopoulos [1979] 1 NZLR 621 at 626 set out at some length the principles covering the finality of jury verdicts and the reasons for them and stated at page 626:

"As to the contents of the juror's affidavit, for centuries the Courts have declined to receive affidavits from jurors purporting to disclose what took place during their deliberations in the jury room or the jury box...The rule is essential in the public interest for a number of reasons."

That principle, which has been described as the finality of jury verdicts, has been re-stated, emphasised and explained by courts in other jurisdictions on numerous occasions down through the years.

One of the other authorities Miss Simiki referred to was "The Jury Under Attack", a 1988 publication, where the learned authors noted that the foundation of the rule that evidence will not be admitted from jurors for the purpose of attacking the verdict is the decision of Vaise v Delavel (1785) 1 TR 11, where the court refused to hear evidence that the jury had decided the case by the toss of a coin when they had been unable to agree on a verdict.

Against this powerful line of authority, the appellant's application for bail based on the affidavits from two members of the jury cannot be entertained. The affidavit evidence from the two jurors is inadmissible.

If the appellant wishes to make any fresh application under the Bail (Amendment) Act he will first need to seek appropriate leave and finalise the grounds of his appeal and he will then need to be able to satisfy this Court that there is a reasonable prospect of the appeal succeeding.

Nuku'alofa: 23 January 2001.

JUDGE