And then there were ten …

Again the New Zealand Supreme Court has worked its way around the statutory prohibition on reviewing a judge’s exercise of discretion to continue a trial with only 10 jurors: Wong v R [2008] NZSC 29 (18 April 2008). The earlier occasion on which the Court did this was Rajamani v R (blogged here 24 August 2007).

The statutory prohibition on appellate review of the exercise of this discretion is in s 374(8) of the Crimes Act 1961, and the discretion to continue a trial with 10 jurors is in s 374(4A):

“(4A) The Court must not proceed with fewer than 11 jurors except in the following cases:
(a) If the prosecutor and the accused consent:
(b) If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case—
(i) The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:
(ii) The Court may proceed with fewer than 10 jurors only if the prosecutor and the accused consent.

“(8) No Court may review the exercise of any discretion under this section.”

Repeating the approach in Rajamani, namely distinguishing between the “assessment” of whether the facts amounted to exceptional circumstances, a matter that could be reviewed on appeal, from the judge’s “consideration” that the trial should continue with 10 jurors, a discretion that could not be reviewed on appeal because of subsection (4A)(8), the Court held that exceptional circumstances did not exist here.

This was a 4 week trial, a length not out of the ordinary, although the retrial would be shorter because certain defence applications had been resolved, interpreters were needed, there were 41 witnesses (30 giving oral evidence), there were no complainants to consider (this being a drug trial), there was no real likelihood of witnesses being unavailable, and it would not be particularly difficult for the system to accommodate a retrial.

No one will say so, but this is an example of the Court rendering ineffective an unjust legislative provision. The Court has no power to declare a statute invalid, or to refuse to apply a statute, and there is not even a statutory power to declare that a statute is inconsistent with the Bill of Rights, although such a power is asserted (Hansen v R illustrates this, blogged here 20 February 2007). Section 374(8) could plainly be unjust, as a decision to continue a trial with 10 jurors without the consent of the defence would, if wrong, be a substantial miscarriage of justice; it is essential that a wrongful continuation of such a trial be able to be corrected on appeal. Therefore the Court interprets the wide terms of subsection (8) narrowly, by limiting “any discretion” to the decision that is made once exceptional circumstances exist.

This approach to the phrase “exceptional circumstances relating to the trial” in subsection (4A)(b), treating it as an assessment of facts, not as a discretion, is also applicable to the other phrase in (b), “the interests of justice”. If the judge incorrectly assesses (or, in the terms of the subsection, has regard to) the interests of justice, that too should be able to be corrected on appeal. Since the position that the court “considers” to arise from its assessments, in (4A), will be consistent with those assessments, there is really nothing in (4A) that cannot be reviewed on appeal.

It could be said that there is a residual discretion in the appellate court to intervene wherever necessary to prevent a substantial miscarriage of justice. This is how it was put in R v Hookway [2007] NZCA 567 at para 136. But this jurisdictional approach is less powerful, in this context, than the interpretative one, because it is at the mercy of what the statute leaves as “residual”. That itself is a matter of interpretation.

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