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The Queen v Bradbury; The Queen v Nelson [2007] NZCA 84 (20 March 2007)

Last Updated: 29 March 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA303/06
CA369/06
[2007] NZCA 84

THE QUEEN

v

MICHAEL WILLIAM BRADBURY
MARCUS IVAN ANDERSON

Hearing: 7 March 2007

Court: Chambers, Gendall and Heath JJ

Counsel: R A A Weir for Appellant Bradbury
S K Ellis for Appellant Anderson
M F Laracy for Crown

Judgment: 20 March 2007 at 4.30 pm

JUDGMENT OF THE COURT

Each appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

The issue

[1] Section 374(2) of the Crimes Act 1961 empowers a trial Judge to discharge a jury if no verdict has been returned and the jury has been deliberating for more than four hours. In practice, that power is rarely exercised at a time proximate to the expiration of that period. The preferable course, if the Judge considers any communication were required, is to ascertain whether the jury are making progress and, if necessary, to provide some direction that may assist them in their deliberations.
[2] If the trial Judge learns that a jury is undecided it is open for him or her to give a direction to the jury on the desirability of reaching unanimous decisions. This is known as a Papadopoulos direction, taking its name from R v Papadopoulos [1979] 1 NZLR 621 (CA).
[3] Some have criticised a Papadopoulos direction as one which may, inappropriately, put pressure on minority jurors to yield to majority demands. Often, the complaint is made that the direction could lead to an unsafe verdict. That type of submission was considered by this Court in R v Accused (CA87/88) [1988] 2 NZLR 46 (CA) in which, at 58-59, the direction was approved, albeit in a slightly different form from that given at first instance in Papadopoulos.
[4] The present appeals raise different questions about the Papadopoulos direction. Counsel for the appellants contend that whenever a jury has been in deliberation for more than four hours and has indicated to the trial Judge that it is undecided (whether or not deadlocked) the trial Judge is obliged to give a Papadopoulos direction.
[5] Mr Weir submitted that, by making arrangements for an overnight retirement and continuation of deliberations the next morning, the Judge put improper pressure on the jury which would have been avoided had a Papadopoulos direction been given.

Background to the appeal

[6] Mr Bradbury and Mr Anderson were tried before Judge MacLean and a jury in the District Court at Hamilton on charges of cultivating cannabis and possession of equipment or material capable of being used for the purpose of such cultivation.
[7] Mr Bradbury faced two charges of cultivation, one jointly with Mr Anderson. He was also charged, jointly with Mr Anderson, with one count of possession of equipment. Mr Anderson faced one cultivation charge and one possession charge. The accused were found guilty on all counts by the jury. They appeal against the convictions entered in consequence of the jury verdicts.
[8] The trial commenced on 12 June 2006. The Judge summed up to the jury on 27 June 2006. By the time the jury retired to consider its verdicts one juror had been discharged, leaving eleven jurors to deliberate.
[9] Jury escorts were sworn at 1.05 pm on 27 June 2006. A dinner break was taken around 6 pm. At about 9.10 pm the Judge initiated an informal inquiry, through the jury escort, about progress. Shortly after that inquiry, the jury passed a communication to the Judge in the following terms:

Jury undecided. 10/11

While we do not know in what form that communication was made available to counsel for the accused, the state of a jury’s voting is not something that is required to be disclosed: see Ramstead v R [1999] 1 NZLR 513 (PC) at 517, approving observations made by Lord Lane CJ in R v Gorman [1987] 1 WLR 545 (CA) at 550-551.

[10] Following receipt of that communication, Judge MacLean heard from counsel in the absence of the jury. Mr Ellis, the only counsel before us who appeared at trial, informed us that he requested the Judge, on behalf of Mr Anderson, to discharge the jury but did not seek a Papadopoulos direction. Nor, he confirmed, was a request made by counsel for Mr Bradbury for a Papadopoulos direction to be given. Unsurprisingly, the Judge declined to discharge the jury.
[11] Judge MacLean addressed the jury, at 9.32 pm, in response to its communication:

[1] Mr Foreman, ladies and gentlemen, I just record that about 20 minutes ago I caused a message to be conveyed through to you via the Registrar just to enquire as to how you were going and whether there was anything we could help you on and we got a message back that you were unable to agree on a verdict.
[2] You must be, I imagine most of you, getting pretty tired. You have been out for quite a few hours now. I think, and I have had a general discussion with counsel but the decision is mind, that it is unfair on any of you and to the trial to put any pressure on you at this stage. You have obviously been working hard on it. What we will do is I will leave it to you Mr Foreman, you carry on as long as you like but when the point comes that exhaustion sets in and you are ready to pack it in for the night just get a message to us. The staff will make arrangements for your accommodation overnight and any necessary logistic arrangements and then you can sleep on it and come at it afresh in the morning.
[3] It is in your hands. If the message comes back within a minute that we had had it for the evening, can we retire, that is fine. If you want to go for another half an hour, whatever, no time constraint on you. You call the shots.

[12] The jury retired at 9.34 pm. A further communication was received from the jury almost immediately in the following terms:

Jury not able to reach a decision as at 9.42 pm.

[13] The Judge heard from counsel, in the absence of the jury, at 9.48 pm, adjourning at 9.52 pm without recalling the jury. Arrangements were made for the jury to be accommodated overnight. They returned to deliberate the following morning. Unanimous verdicts were returned on all charges after about two hours deliberation the following day.
[14] Had a Papadopoulos direction been given, the jury would have been required to deliberate further into the night; quite possibly removing the option of an overnight retirement if accommodation could not be secured at that late hour.

The form and purpose of a Papadopoulos direction

[15] In Papadopoulos both counsel had requested the trial Judge, despite reservations he had expressed, to direct the jury on the desirability of reaching a unanimous verdict. The direction was given at 6.40 pm, after the jury had retired to consider its verdicts at 10.55 am on the seventh day of the trial.
[16] Following a dinner break, the jury returned a verdict of guilty at 9.50 pm. No complaint was made, in Papadopoulos, about the form of the direction. The real issue concerned the impression conveyed by members of the jury when verdicts were returned. The nature of the concerns was highlighted by a request for a poll, with which R v Papadopoulos (No 2) [1979] 1 NZLR 629 (CA) dealt.
[17] The nature and purpose of a Papadopoulos direction was discussed in R v Accused(CA87/88). One of the points raised on appeal was whether the Papadopoulos direction, given by the Judge in response to a jury’s question, was inappropriate. A Court of seven heard the appeal.
[18] In delivering the judgment in R v Accused(CA87/88) Cooke P identified "three cardinal points" on which such a direction ought to be based. His Honour said:

First, jurors have a responsibility to accept their duty of endeavouring to give a verdict according to the evidence. The duty can be an unpleasant one and a natural human tendency of some jurors not to face it is a well-recognised risk. The Judge has a discretion under s 374(2) of the Crimes Act 1961 to discharge a jury without their giving a verdict, after they have remained in deliberation for such period as he thinks reasonable, being not less than four hours. The Court is then required by s 374(6) either to direct that a new jury be empanelled during the sitting of the Court or to postpone the trial on such terms as justice requires.
The legislation has been in this mandatory form since the enactment of s 13 of the Crimes Amendment Act (No 2) 1980. Previously ss 153 and 164 of the Juries Act 1908, which were repealed by the 1980 legislation, had used more discretionary language, although it had been held that the prosecution was entitled to a new trial as of right (R v Aves [1937] NZLR 110). The statute now makes it clear that a new trial will normally follow as of course once a jury has been discharged for failure to agree, subject only to the Attorney-General's right under s 378 of the Crimes Act to direct a stay of proceedings. We think that it will normally be advisable for a trial Judge to tell a jury, after they report difficulty in agreeing, that if he decides to discharge them a new trial will ordinarily follow. Otherwise they or some of them may be unsure or under the illusion that the proceedings against the accused will be at an end in a stalemate. The Judge could properly omit this intimation if there was special reason to think that the Attorney-General might enter a stay - for instance, after more than one disagreement.
The second cardinal point is that collective deliberation and exchange of views is of the essence of the jury system. It is right to remind members of a jury that they have a duty to listen to and weigh dispassionately one another's views, and that an honestly held view can be honestly changed as a result.
The third cardinal point is that no juror should change his or her mind merely for the sake of conformity or out of submission to pressure by other jurors; in the end no juror should vote against his or her conscientious view based on the evidence. This is an elementary and essential bulwark of the jury system.

[19] Having regard to those "cardinal points" a form of direction was approved which varied, in some respects, the terms of the Papadopoulos direction: cf Papadopoulos at 623. The direction approved is set out in R v Accused(CA87/88) at 58:

Members of the Jury:
I have been told that you have not been able to reach a verdict so far. That sometimes happens, and it is no reflection on any of you. I have the power after you have been in retirement for four hours to discharge you from giving a verdict, but not unless and until I am satisfied that it should be done. Judges always hesitate to discharge a jury, because it usually means that the case has to be tried again before another jury and experience has shown that juries are often able to agree in the end if given more time.
Each of you has sworn or affirmed that you will try the case to the best of your ability and give your verdict according to the evidence. It is important that you do you best to accept that responsibility and not pass it over to another jury. You are here as representatives of the community with the responsibility on behalf of the community of trying to reach a collective decision of all of you.
One of the strengths of the jury system is that each member takes into the jury room his or her individual experience and wisdom and is expected to judge the evidence fairly and impartially in that light. You are expected to pool your views of the evidence and you have a duty to listen carefully to one another. Remember that a view honestly held can equally honestly be changed. So, within the oath, there is scope for discussion, argument and give and take. That is often the way in which in the end unanimous agreement is reached.
But of course no one should be false to his or her oath. No one should give in merely for the sake of agreement or to avoid inconvenience. If in the end you honestly cannot agree, after trying to look at the case calmly and objectively and weighing carefully the opinions of others, you must say so. If regrettably that is the final position, you will be discharged and in all probability there will have to be a new trial before another jury.
Therefore I am asking you, as is usual in such cases, to be good enough to retire again and see whether you can reach a unanimous verdict in the light of what I have said.

Competing submissions

[20] Mr Weir, for Mr Bradbury, submitted that the two communications from the jury indicated that they were deadlocked. In those circumstances, he submitted that the Judge, rather than permitting an overnight retirement, ought to have discharged the jury or, at least, to have given a Papadopoulos direction.
[21] Further, Mr Weir submitted that a Papadopoulos direction would have brought home to the jury what was described in R v Accused(CA87/88) at 58, as the "third cardinal point", namely, that "no juror should change his or her mind merely for the sake of conformity or out of submission to pressure by other jurors".
[22] Mr Ellis, for Mr Anderson, supported the argument advanced by Mr Weir.
[23] Ms Laracy, for the Crown, submitted that there is no basis to find a miscarriage of justice. Any suggestion that the jury was under undue pressure to reach a verdict was, in her words, "purely speculative".

Analysis of competing submissions

[24] The first issue concerns the nature of the two jury communications. We do not accept that the communications can fairly be read as indicating deadlock. The first communication came in response to the trial Judge’s question about progress in deliberations. It cannot be read as anything other than frank advice to the trial Judge about the existing state of jury deliberation. The second told the Judge that, as at a certain time, they were unable to agree.
[25] There was no suggestion in the first note that the inability to decide could not be resolved. Indeed, on the disclosed voting information, the jury were close to verdicts.
[26] The second communication can only be read as a direct response to the remarks the Judge made to the jury after he received their first communication. Read in context, the second communication was an indication, from the jury, that they did not wish to continue to deliberate into the night.
[27] Indecision does not equate to deadlock. The term "deadlock" suggests that the jurors cannot agree, whereas expression of an inability to decide at a given time is suggestive of the need for further time to reflect. Communication of a state of indecision does not preclude the reasonable possibility of subsequent agreement.
[28] In this case the Judge had four options after receiving the first communication. First, he could have indicated to the jury that they could retire for the night and deliberate afresh in the morning. Second, he could have invited the jury to deliberate longer into the night without arranging overnight accommodation. Third, he could have coupled that course with a Papadopoulos direction. Fourth, he could have discharged the jury.
[29] While all these options were open to him, by far the preferable course was the first. And this is exactly what the Judge did. As it happened, unanimous verdicts were returned at 10.57 am on 28 June 2006.
[30] On any view, it would be wrong in principle to require a trial Judge to take a particular course of action, at any stage of the deliberation process, once informed that a state of indecision exists. A Papadopoulos direction is but one of the tools available when a trial Judge is dealing with issues arising during the deliberation phase. We are aware, from our own trial experience, that such issues can raise difficult problems with which a Judge is required to deal quickly and with little time for reflection. The Judge has the advantage of understanding the atmosphere and trial dynamics at the relevant time. A good deal of latitude must be given to trial Judges when dealing with issues of this type.
[31] On the facts of the present case, it is clear that the course adopted by Judge MacLean was open to him. We go further. All three members of the Court would have adopted precisely the same course themselves.
[32] There is no basis on which it can be contended that a Papadopoulos direction must have been given. Nor is there any reason to suggest the jury’s verdicts were unsafe.

Result

[33] The appeals against convictions are dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	Section 374(2) of the Crimes Act 1961 empowers a trial Judge to discharge a jury if no verdict has been returned and the jury has been deliberating for more than four hours. In practice, that power is rarely exercised at a time proximate to the expiration of that period. The preferable course, if the Judge considers any communication were required, is to ascertain whether the jury are making progress and, if necessary, to provide some direction that may assist them in their deliberations.
[2]	If the trial Judge learns that a jury is undecided it is open for him or her to give a direction to the jury on the desirability of reaching unanimous decisions. This is known as a Papadopoulos direction, taking its name from R v Papadopoulos [1979] 1 NZLR 621 (CA).
[3]	Some have criticised a Papadopoulos direction as one which may, inappropriately, put pressure on minority jurors to yield to majority demands. Often, the complaint is made that the direction could lead to an unsafe verdict. That type of submission was considered by this Court in R v Accused (CA87/88) [1988] 2 NZLR 46 (CA) in which, at 58-59, the direction was approved, albeit in a slightly different form from that given at first instance in Papadopoulos.
[4]	The present appeals raise different questions about the Papadopoulos direction. Counsel for the appellants contend that whenever a jury has been in deliberation for more than four hours and has indicated to the trial Judge that it is undecided (whether or not deadlocked) the trial Judge is obliged to give a Papadopoulos direction.
[5]	Mr Weir submitted that, by making arrangements for an overnight retirement and continuation of deliberations the next morning, the Judge put improper pressure on the jury which would have been avoided had a Papadopoulos direction been given.

[6]	Mr Bradbury and Mr Anderson were tried before Judge MacLean and a jury in the District Court at Hamilton on charges of cultivating cannabis and possession of equipment or material capable of being used for the purpose of such cultivation.
[7]	Mr Bradbury faced two charges of cultivation, one jointly with Mr Anderson. He was also charged, jointly with Mr Anderson, with one count of possession of equipment. Mr Anderson faced one cultivation charge and one possession charge. The accused were found guilty on all counts by the jury. They appeal against the convictions entered in consequence of the jury verdicts.
[8]	The trial commenced on 12 June 2006. The Judge summed up to the jury on 27 June 2006. By the time the jury retired to consider its verdicts one juror had been discharged, leaving eleven jurors to deliberate.
[9]	Jury escorts were sworn at 1.05 pm on 27 June 2006. A dinner break was taken around 6 pm. At about 9.10 pm the Judge initiated an informal inquiry, through the jury escort, about progress. Shortly after that inquiry, the jury passed a communication to the Judge in the following terms:

[13]	The Judge heard from counsel, in the absence of the jury, at 9.48 pm, adjourning at 9.52 pm without recalling the jury. Arrangements were made for the jury to be accommodated overnight. They returned to deliberate the following morning. Unanimous verdicts were returned on all charges after about two hours deliberation the following day.
[14]	Had a Papadopoulos direction been given, the jury would have been required to deliberate further into the night; quite possibly removing the option of an overnight retirement if accommodation could not be secured at that late hour.

[15]	In Papadopoulos both counsel had requested the trial Judge, despite reservations he had expressed, to direct the jury on the desirability of reaching a unanimous verdict. The direction was given at 6.40 pm, after the jury had retired to consider its verdicts at 10.55 am on the seventh day of the trial.
[16]	Following a dinner break, the jury returned a verdict of guilty at 9.50 pm. No complaint was made, in Papadopoulos, about the form of the direction. The real issue concerned the impression conveyed by members of the jury when verdicts were returned. The nature of the concerns was highlighted by a request for a poll, with which R v Papadopoulos (No 2) [1979] 1 NZLR 629 (CA) dealt.
[17]	The nature and purpose of a Papadopoulos direction was discussed in R v Accused(CA87/88). One of the points raised on appeal was whether the Papadopoulos direction, given by the Judge in response to a jury’s question, was inappropriate. A Court of seven heard the appeal.
[18]	In delivering the judgment in R v Accused(CA87/88) Cooke P identified "three cardinal points" on which such a direction ought to be based. His Honour said:

[20]	Mr Weir, for Mr Bradbury, submitted that the two communications from the jury indicated that they were deadlocked. In those circumstances, he submitted that the Judge, rather than permitting an overnight retirement, ought to have discharged the jury or, at least, to have given a Papadopoulos direction.
[21]	Further, Mr Weir submitted that a Papadopoulos direction would have brought home to the jury what was described in R v Accused(CA87/88) at 58, as the "third cardinal point", namely, that "no juror should change his or her mind merely for the sake of conformity or out of submission to pressure by other jurors".
[22]	Mr Ellis, for Mr Anderson, supported the argument advanced by Mr Weir.
[23]	Ms Laracy, for the Crown, submitted that there is no basis to find a miscarriage of justice. Any suggestion that the jury was under undue pressure to reach a verdict was, in her words, "purely speculative".

[24]	The first issue concerns the nature of the two jury communications. We do not accept that the communications can fairly be read as indicating deadlock. The first communication came in response to the trial Judge’s question about progress in deliberations. It cannot be read as anything other than frank advice to the trial Judge about the existing state of jury deliberation. The second told the Judge that, as at a certain time, they were unable to agree.
[25]	There was no suggestion in the first note that the inability to decide could not be resolved. Indeed, on the disclosed voting information, the jury were close to verdicts.
[26]	The second communication can only be read as a direct response to the remarks the Judge made to the jury after he received their first communication. Read in context, the second communication was an indication, from the jury, that they did not wish to continue to deliberate into the night.
[27]	Indecision does not equate to deadlock. The term "deadlock" suggests that the jurors cannot agree, whereas expression of an inability to decide at a given time is suggestive of the need for further time to reflect. Communication of a state of indecision does not preclude the reasonable possibility of subsequent agreement.
[28]	In this case the Judge had four options after receiving the first communication. First, he could have indicated to the jury that they could retire for the night and deliberate afresh in the morning. Second, he could have invited the jury to deliberate longer into the night without arranging overnight accommodation. Third, he could have coupled that course with a Papadopoulos direction. Fourth, he could have discharged the jury.
[29]	While all these options were open to him, by far the preferable course was the first. And this is exactly what the Judge did. As it happened, unanimous verdicts were returned at 10.57 am on 28 June 2006.
[30]	On any view, it would be wrong in principle to require a trial Judge to take a particular course of action, at any stage of the deliberation process, once informed that a state of indecision exists. A Papadopoulos direction is but one of the tools available when a trial Judge is dealing with issues arising during the deliberation phase. We are aware, from our own trial experience, that such issues can raise difficult problems with which a Judge is required to deal quickly and with little time for reflection. The Judge has the advantage of understanding the atmosphere and trial dynamics at the relevant time. A good deal of latitude must be given to trial Judges when dealing with issues of this type.
[31]	On the facts of the present case, it is clear that the course adopted by Judge MacLean was open to him. We go further. All three members of the Court would have adopted precisely the same course themselves.
[32]	There is no basis on which it can be contended that a Papadopoulos direction must have been given. Nor is there any reason to suggest the jury’s verdicts were unsafe.