Privy Council Appeal No. 46 of 1998

 

Keith Douglas Ramstead Appellant

v.

The Queen Respondent

 

FROM

 

THE COURT OF APPEAL OF NEW ZEALAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the  2nd December 1998

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Present at the hearing:-

Lord Browne-Wilkinson

Lord Steyn

Lord Hoffmann

Lord Hobhouse of Woodborough

Lord Millett

  [Majority Judgment Delivered by Lord Steyn]

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1. The central question is whether a conviction ought to be quashed because a trial judge, contrary to established principle, failed to disclose to counsel a note in the form of a rider to proposed verdicts before the jury announced their verdicts.

 

The criminal trial.

2. Between 23rd September 1996 and 24th October 1996 the appellant, a cardiothoracic surgeon, was tried in the High Court at Wellington before a judge and a jury.  The trial related to the deaths of three patients who died during the course of surgery performed by the appellant. The indictment contained three counts of manslaughter and three statutory charges of making false statements as to the causes of the death of the three patients.  At the end of the prosecution case the judge discharged the appellant on one count of making a false statement.  On the manslaughter charges the issues before the jury were breach of duty and causation.

 

3. Shortly before 6.00 p.m. on 24th October, after the jury had deliberated for over 24 hours over three days, the jury sent two notes to the judge.  One note recorded the jury’s intended verdicts viz. not guilty verdicts on two manslaughter charges; guilty on one manslaughter charge (count 5, which involved the death of a Miss Muncie); not guilty on one charge making a false statement; and the note further recorded the failure of the jury to arrive at a verdict on the other charge of making a false statement.  In the second note the jury stated:-

 

“With respect, the Jury wish to make the following comment:

 

4. We have discussed the charges requested by your Honour, and even though we have come to decisions, we would respectfully ask that the following be considered.

 

5. In all cases, due care, skill and knowledge were breached but we were unable to establish these failures as an essential cause.”

 

6. For convenience their Lordships will call the second note “the rider”.

 

7. Without informing counsel the judge invited the foreman of the jury to see him in his chambers.  The judge subsequently recorded that he asked the foreman “if the verdicts he had given me were unanimous, notwithstanding the second note, and he confirmed they were”.  The judge then said that the foreman should read out the second note after delivering the verdicts.  The foreman said he wanted to consult the jury on this point.  The foreman left the judge’s chambers in order to consult the jury.  He returned and told the judge that the jury did not want the note read out, and “that it was for [the judge] to do with as [he] thought fit”.

 

8. The judge returned to court.  The jury were brought into court and they announced their verdicts as foreshadowed in the first note.  The jury confirmed that the verdicts were unanimous.  The judge discharged the jury.  The judge then proceeded to sit in chambers and for the first time revealed to counsel the existence of the second note.  The judge adjourned the proceedings for a week for legal argument on the effect of the rider.  In the meantime no conviction was formally entered.

 

9. On 1st November 1996, one week later, the judge explained in open court what had occurred in regard to the rider.  In his explanation the judge twice said that he did not enter a conviction on 24th October because he considered the rider was “inconsistent” with the verdict of guilty of manslaughter on count 5.  Having heard argument the judge still regarded it as possible to read the rider as referring in respect of causation to all three of the manslaughter cases.  But he observed that “it is possible to read it in conjunction with the plainly unanimous verdict and consistent with it”.  He explained this meaning by the following interpolation:-

 

“In all cases, due care, skill and knowledge were breached but we were unable to establish these failures as an essential cause IN ALL CASES.”  (The capitals were inserted by the judge.)

 

10. He concluded that “an interpretation consistent with the formal verdict, open on the wording of the note and consistent with the evidence is to be preferred”.  Relying on a contextual interpretation the judge ruled that the appellant was properly convicted.  The judge sentenced the appellant to six months’ imprisonment, suspended for six months.

 

The appellant’s appeal to the Court of Appeal.

11. The appellant appealed to the Court of Appeal.  A full court of five judges heard the appeal on 14th April 1997. By a unanimous reserved judgment the Court of Appeal dismissed the appeal on 12th May 1997.  The Court of Appeal concluded in regard to the rider that “… there is no ambiguity, nor any reasonable possibility of error or confusion.  The three verdicts mean what they say”. About the meaning of the rider the Court of Appeal observed:-

“The phrase ‘in all cases’ applies to the breach of duty - the breach was proved in all three cases.  It also applies to causation - causation was proved not in all three cases, but only in one of them.”

 

12. The Court of Appeal observed that the judge should not have summoned the foreman of the jury for a discussion in his chambers and that the judge should have disclosed the rider to counsel.  But the Court of Appeal concluded that the irregularities caused no prejudice.  In giving the judgment of the Court of Appeal Henry J. observed:-

 

“Two important factors bear on the consequences which should attach to the failure to adopt the normal procedures in this unusual case.  First, as we have already held in relation to the first ground of appeal, there can be no doubt that the jury reached a unanimous decision that the evidence established to the requisite standard that in the case of Miss Muncie the appellant had failed to exercise the degree of care, skill and knowledge required of him by law, and also that the failure was an essential cause of death.  It must follow, that even had counsel been made aware of the contents of the rider and had been given the opportunity of addressing the Judge, a verdict of guilty on count 5 would still have resulted. In the circumstances the Judge was bound to conclude that the intended verdict was not compromised, and once delivered should be accepted.  A guilty verdict would be the inevitable result of any enquiry of or further instruction to the jury, unless the Judge was persuaded to an erroneous interpretation of the Jury’s intimation to him.”

                                                                    

13. The Court of Appeal further emphasised that both counsel had an opportunity to address the judge before the formal verdict of guilty was entered.

 

The appeal to the Privy Council.

14. Counsel for the appellant argued that at the very least the note was ambiguous and that, if that is so, the Court of Appeal’s decision cannot stand.  The Solicitor-General rightly conceded that if the note raised a doubt as to whether the law had been properly applied by the jury, the conviction must be quashed.  But he argued that in all the circumstances the Court of Appeal came to the only realistic conclusion.

 

The trial judge’s errors.

15. The applicable law was not in dispute.  It is a cardinal principle of criminal procedure that once a jury have retired there must be no secret communication between the jury and anyone, not even the judge: Reg. v. McCluskey (1993) 98 Cr.App.R. 216, at page 222.  Any communication between the judge and the jury had to take place in open court in the presence of the entire jury, both counsel and the appellant.  It was therefore a material irregularity for the judge to discuss the proposed verdicts of the jury and the rider with the foreman of the jury in his chambers.

 

16. The law regarding the practice to be adopted when a judge receives a note from a jury who have retired to consider their verdict is well established.  The position was summarised by Lord Lane C.J., in Reg. v. Gorman [1987] 1 W.L.R. 545, at 550-551, as follows:-

 

“First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court. …

 

17. Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel.  This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.

 

18. Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures … then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.”

 

19. It is important to take account of the reason for these procedures given by Lord Lane.  He said that at page 551:-

“… the object … is this: first of all to ensure that there is no suspicion of any private or secret communication between the court and the jury, and secondly, to enable the judge to give proper and accurate assistance to the jury upon any matter of law or fact which is troubling them”:

 

See also Reg. v. Pearson [1996] 3 N.Z.L.R. 275, at page 279.

 

20. In agreement with the Court of Appeal their Lordships have no doubt that the judge should have shown the rider to counsel before the jury were asked to announce their verdicts.  Moreover the judge should have invited counsel’s submissions on the rider in the absence of the jury.  It is sufficient to say that the case plainly did not fall within any of the narrow exceptions where a note from a jury need not be disclosed or be disclosed in full. And, as the Court of Appeal in effect held, the note would have been disclosable even if it had been unambiguous and supportive of a verdict of guilty.  The fact is that it had a bearing on the issues in the trial.  It follows that the judge’s failure in this respect constituted a material irregularity.

 

21. So far their Lordships have not differed in any way from the Court of Appeal about the procedural position.  But their Lordships regard it as important to put these procedural rules in context.  Subject to the narrowest exceptions a jury verdict is final.  That attribute of a jury verdict is a matter of paramount importance: upon it hinges the effectiveness of the system of trial by jury.  For that reason the procedures regarding the taking of jury verdicts are necessarily formal acts which must be complied with in order to ensure the integrity of the system.  These procedures form part of the body of procedural rules which are designed to ensure that a defendant receives a fair trial.  A substantial failure to comply with these rules may lead to the quashing of an otherwise true verdict.  Fortunately, the applicable rules are simple and ought to cause no difficulties in practice.

 

The interpretation of the rider.

22. The Court of Appeal concluded that the rider was unambiguous.  The reasoning was that  the phrase “in all cases” applied to breach of duty, which was proved in all three cases, as well as to causation, which was not proved in all cases, but only in one of them.  The Court of Appeal did not conclude that as a matter of language the note was clear.  What the Court of Appeal regarded as the relevant contextual scene led it to this conclusion. In any event it would be difficult to say that the language of the rider was clear.  Even after hearing oral argument the trial judge thought that the language was ambiguous. The Solicitor-General at one stage suggested that the comma after “all cases” conclusively demonstrated the correctness of the interpretation of the Court of Appeal. In context the comma will simply not bear such weight. Their Lordships are satisfied that the language of the rider is at least capable of indicating doubt about causation in all three cases.

 

23. But, as their Lordships have observed, the Court of Appeal relied on the context as establishing the interpretation which is consistent with a guilty verdict on count 5.  First, the Court of Appeal emphasised that the judge correctly directed the jury on causation.  This is a perfectly logical reason.  One would not prima facie expect a correctly directed jury to commit the error inherent in the argument advanced on behalf of the appellant.  There are, however, countervailing considerations. The trial was long and complex.  It involved conflicting expert evidence.  Despite the judge’s clear direction the jury asked a question on the second day of their retirement which revealed both that the jury was troubled about causation and confused as to the law to be applied.  They asked: “Is it what caused death or actions leading up to death”?  The judge directed the jury that the cause had to be an essential cause.  At midday on the third day of the retirement the jury asked the following:-

 

“Do we have to reach a verdict on

 

a.   major cause of death

 

b.  did not show reasonable knowledge, skill and care, or both.”

 

24. The judge answered this question satisfactorily, using again the phrase “essential cause”.  But the question revealed a fundamental confusion in the minds of the jury on causation on the third day of their deliberations.  In these circumstances it is unsafe to assume that because the directions of law in the summing up were correct the jury could not have been confused.

 

25. In the second place the Court of Appeal considered the distinct circumstances of the three manslaughter cases. In regard to count 5 upon which there was a guilty verdict the Court of Appeal observed that “there was strong evidence to support a finding of causation of death”.  The Court of Appeal regarded the two verdicts of not guilty and one of guilty as “readily understandable”.  On the other hand, causation was undoubtedly also in issue in the case where there was a guilty verdict.  The Court of Appeal did not say that a verdict of guilty was inevitable on the evidence.  And the Solicitor-General was unable to make such a submission.  Indeed their Lordships were informed that the Crown did not invite the Court of Appeal to apply the proviso.  In these circumstances the state of the evidence, taken together with the confusion of the jury about causation, does not enable one confidently to place on the rider the meaning contended for by the Crown.

 

26. The Court of Appeal relied on a third circumstance viz. the clear and unambiguous announcement in open court of a guilty verdict on count 5.  The difficulty about this reason is that the jury note foreshadowing the verdicts was accompanied by a rider which was ambiguous and possibly reflective of a continuing confusion about causation.  And, if that is so, the announcement in open court a few minutes later of an unambiguous guilty verdict on count 5 cannot eliminate the doubt that has arisen.

 

27. Their Lordships differ from the full court with great reluctance.  But their Lordships are driven to the conclusion that viewed against its contextual scene the rider was ambiguous and that there was a real possibility that the jury were still confused at the end of the trial about the element of causation.

 

The disposal of the appeal.

28. Their Lordships are satisfied that there was a miscarriage of justice within the meaning of section 385(1) of the Crimes Act 1961.  If the judge had disclosed the rider to counsel before the jury announced the verdicts counsel for the appellant would probably have invited the judge either to give a further direction to the jury or to put a specific question to the jury about count 5 before asking them to retire for further consideration.  Such an application may well have been upheld.  What the outcome would have been if the judge had granted such an application is a matter of speculation.  It is sufficient to say that the basic requirement of showing that if the irregularity had not occurred the jury would still inevitably have convicted is not satisfied: Anderson v. The Queen [1972] AC 100, at page 107D.  The conviction must therefore be quashed. In the second place, and as an independent ground of their decision, their Lordships consider that, in any event, there has been such a substantial departure from established procedures as to amount to a denial of a fair trial under the general law.  In respect of count 5 upon which he was convicted the defendant has not had the substance of a fair trial.  On this ground too the conviction must be quashed.

 

29. Their Lordships will humbly advise Her Majesty that the verdict of guilty of manslaughter ought to be quashed.

 

______________________

 

Dissenting judgment delivered by

 Lord Hobhouse of Woodborough and Lord Millett

 

30. On 12th May 1997 the Court of Appeal of New Zealand gave judgment dismissing the appeal of Keith Ramstead against his conviction for an offence of manslaughter contrary to section 177 of the Crimes Act 1961.  The function and duty of the Court of Appeal was defined by section 385 of the Act.  That section provides that:-

 

“(1)On any appeal against conviction the Court of Appeal shall allow the appeal if it is of opinion -

 …

(c)That on any ground there was a miscarriage of justice;

...

and in any other case shall dismiss the appeal; …”

 

31. Sub-paragraphs (a), (b) and (d) were not relied on before them nor was the proviso.  It was therefore incumbent on the Court of Appeal to examine and evaluate all that occurred at the trial, including all relevant facts and circumstances, and form a judgment as to whether there had or had not been a miscarriage of justice.  If, in their judgment, they conclude that there was, they are required to allow the appeal; if they do not so conclude, they must dismiss the appeal.

 

32. This exercise of judgment was carried out by a court of five judges presided over by Richardson P.  The judgment of the court was delivered by Henry J.  The court emphasised that it was an unusual case and recognised and stated that irregularities had occurred at the trial.  They never­theless concluded after a careful examination of what had occurred, that there had been no miscarriage of justice.  They also rejected the submission that the appellant had not received a fair and public trial or that there had been an infringement of section 25(a) of the New Zealand Bill of Rights Act 1990.  It has been submitted on appeal to their Lordships' Board that the assessment of the Court of Appeal was wrong and that what occurred did, contrary to their assessment, amount to a miscarriage of justice.  No point of principle is involved.  The submission is simply that a different assessment is to be preferred to that made by the Court of Appeal.  It might be thought that this was the type of decision which should rest with the Court of Appeal. It has been said many times that it is not the function of the Judicial Committee to act as a second Court of Appeal. (See Badry v. Director of Public Prosecutions [1983] 2 AC 297, Buxoo v. The Queen [1988] 1 W.L.R. 820, Gayle v. The Queen (unreported) 12th June 1996 (Appeal No. 40 of 1995), Stafford v. The State (unreported) 30th July 1998) (Appeal No. 7 of 1998).  However in this case the decision of the Court of Appeal has nevertheless been the subject of an appeal to their Lordships’ Board and, as will be appreciated, has led to a difference of opinion whether the appeal should be allowed.

 

33. At the outset it is important to record that the law of New Zealand is not the same as that of England.  There is an express statutory power which gives the trial judge a discretion to discharge the accused and thereby acquit him of the offence charged not­withstanding the verdict of the jury.  This power is contained in section 347 of the Crimes Act 1961, which provides:-

 

“(3)The Judge may in his discretion, at any stage of any trial, whether before or after verdict, direct that the accused be discharged.

 

 (3A)Every direction under this section shall be given in open Court.

 

 (4)A discharge under this section shall be deemed to be an acquittal."

 

34. Thus, in the law of New Zealand, the return of a verdict of guilty by the jury does not conclude the question; there still remains a statutory discretion which the trial judge can and should in appropriate cases exercise so that the defendant is, notwithstanding the verdict of the jury, acquitted of the rele­vant charge.  An example of the exercise of this power is to be found in Rex. v. McGinity [1926] N.Z.L.R. 129.  In that case Stout C.J. was faced with a verdict of guilty accompanied by a rider which expressly negatived any finding of mens rea on the part of the defendant.  The Chief Justice discharged the defendant.

 

35. No question of fact arose on the appeal to the Court of Appeal (or on the appeal to their Lordships' Board) concerning what actually occurred during the final stages of the trial.  The judge failed to ensure that a contemporaneous record was made of what occurred in his room.  But no question has been raised on behalf of the appellant at any stage that the judge has not conscientiously and accurately narrated to the parties both in chambers and in open court a proper account of all that occurred.  This is not a case where the irregularities have created a situ­ation where there is any inability adequately to ascertain, or any dispute about, what was in fact said by either of the persons involved.  Cases which give rise to such an uncertainty or dispute fall into a different category.

 

36. The relevant narrative is conveniently summarised in the majority judgment prepared by Lord Steyn.  It therefore suffices for us to identify the salient features. The appellant was tried on an indictment containing six counts.  These counts related to three distinct operations which the appellant had carried out on dif­fer­ent dates on different patients.  Nothing turns upon the inclu­s­ion in the indictment of counts 2, 4 and 6 and no further reference need be made to them.  Counts 1, 3 and 5 each charged an offence under section 177 of the Crimes Act 1961. The ingredients of the offence were in each case an alleged failure by the appellant to use reasonable knowledge, skill and care when administering surgical treatment to a named patient and that such want of knowledge, skill and care caused the death of the relevant patient.  Therefore, in relation to each of the three operations, the jury had to consider and decide whether and if so in what respects the appellant was at fault and, if they found that he was at fault, to decide whether they were satisfied that that fault caused the death of the patient.  These were not easy factual issues to decide. The trial took many days.  The jury deliberated for three days before deciding upon their verdicts.  (Even then, they were still unable to agree upon one of the other, for present purposes, irrelevant counts.)  It is accepted by the appellant that in all respects relevant to the present appeal the judge's summing up was impeccable and gave the jury appropriate and accurate directions on the law.  The jury were expressly directed to consider each count separately and were directed not to draw any conclusions about what had occurred during one operation from what had occurred during another.

 

37. After they had retired the jury twice returned and asked questions.  These were dealt with in open court. No complaint is made of the procedure followed or of the answers given by the judge.  It is a fair inference that some members of the jury were having difficulty in applying the law to the facts and in making up their minds with the necessary precision upon what findings of fact they were prepared to make.  On the second occasion they asked two ques­tions, one directed to fault, the other to causation.  Both were intel­li­gent questions; neither in our judgment provides any basis for an inference that the jury were not approaching their deliberations in a careful and conscien­tious manner in accordance with the directions which they had been given by the judge, nor that they were proving themselves unable to deal properly with the question of the guilt or innocence of the appellant on each of the relevant charges.  Indeed we would draw the opposite inference.  On causation the judge directed the jury that the breach of duty, while it need not be the only cause of the patient’s death, must have been an essential cause.

 

38. It was against this background that late on the third day the judge received two notes from the jury.  The first listed the four verdicts which the jury had agreed to return: these included not guilty verdicts on counts 1 and 3 and a guilty verdict on count 5.  The second note contained three sentences.  The first sentence expressed a wish to comment.  The second sentence stres­sed that the jury had reached their decisions (which was what they had also said in their first note) but asked that something be considered.  The third sentence contained what they were asking should be considered.  It does not make it clear whether it is to be a public statement or something which they would ask the judge to be aware of, for example, when sentencing.  A natural reading of the second note would be that the jury were intending to add a rider when they announced their verdicts in open court. A natural reading is also that their purpose in so doing was to explain how it was that they had arrived at different verdicts on counts 1 and 3 in contrast with the verdict they were returning on count 5.  It would be reason­able to suppose that there might be a further purpose, to make it clear that they had not exonerated the appellant from the allegations of fault which had been made against him on counts 1 and 3.

 

39. The judge was however concerned to find out whether they proposed to read out the 'rider' at the time that they delivered their verdicts in open court.  What then followed was, as the Court of Appeal has emphatically stated, irregular.  The judge should not have asked to see the foreman in his room.  Any point arising from the two notes which the judge had received should have been dealt with in open court in the presence of the whole jury and of the appellant and his representatives.  The judge was however presented with a problem in that indications of intended verdicts should not be communicated by the jury and the jury should, without any prior indication, deliver their verdicts in open court in response to the clerk of the court or the judge.  Similarly, the proposed rider was something which should have been announced, if at all, in open court after the jury had delivered their verdicts.  The judge had a problem in deciding how to get the procedure back on to the rails.  There was a further potential complication, as he immediately appreciated but did not raise with the jury or its foreman at that stage, arising from the terms in which they had expressed themselves in the third sentence of the second note.  Read literally (though arguably ungrammatically), it was capable of being read as saying that in all of the three cases, that is to say on counts 1, 3 and 5, the view of the jury was the same - that although fault had been proved causation of death had not.  At first glance, this is what the third sentence might be thought capable of meaning.  However, the profound irrationality and improbability of this reading would soon strike the reader.

 

40. Faced with the notes, the judge, understandably, but unequi­vo­c­ally wrongly, without informing the parties, asked to see the foreman in his room.  He only asked the foreman two questions.  The first was whether the four verdicts set out in the first note were unanimous.  The foreman answered that they were.  The second question was whether the jury were intending to issue a rider which would have to be announced in open court after they had delivered their verdicts.  The foreman said he must consult the other members of the jury.  Having done so, he informed the judge that the jury did not wish to deliver a formal rider.  That is the totality of what occurred between the judge and the foreman.  It included no direction or advice from the judge to the foreman.  It was confined to procedural enquiries.  It included a reference to the returning of the verdicts but these were verdicts which the jury had through the notes and their foreman already indicated were their final verdicts.  The judge said nothing which could rationally be thought in any way to influence or affect the verdicts which the jury were to return.

 

41. The jury were then brought back into open court and returned their verdicts with the judge taking the additional precaution of publicly ensuring that they were unanimous.  He did not, before taking the verdicts, tell the parties of the notes which he had received or invite further submissions; nor did he invite submissions upon whether the right course to adopt might be to give the jury further directions on causation and require them to retire again before returning their verdicts.  This failure of communication by the judge to the parties and his failure to give the appellant the opportunity to make submissions was a further irregularity.  The judge clearly took the view that the jury required no further directions from him prior to verdict and that the appropriate course was to deal with any question that arose under section 347.

 

42. Thereafter there was no further irregularity.  The parties were that same evening, albeit in chambers, given full informa­tion about all that had occurred and had passed between the judge and the foreman.  The case was then adjourned for a week so that the parties' representatives could consider their position and prepare their submissions.  The case was then re-listed in open court and full argument heard.  The judge gave  a reasoned ruling and decided not to exercise his discretion to discharge (acquit) the appellant under section 347.  A conviction on count 5 was therefore entered against him.

 

43. The appellant appealed to the Court of Appeal.  He took a number of points in the Court of Appeal including the two with which their Lordships' Board are concerned.  The Court of Appeal clearly considered them carefully and rejected them in a reasoned judgment of the court.  They rejected the appellant's submissions on the effect of the second note, saying:-

 

"The phrase 'in all cases' applies to the breach of duty- the breach was proved in all three cases.  It also applies to causation - causation was proved not in all three cases, but only in one of them." (p.8)

 

44. They held that there had been irregularities.  They confirmed the well established principles concerning jury notes and communications between the court and the jury after they have retired.  They stressed the importance of observing these principles.  They then said:-

 

“We turn now to the issue - did the failure in question result in a miscarriage of justice requiring the interven­tion of this Court?  This must be considered in the light of our finding on the first ground of appeal.” (p.9)

 

45. Having concluded that the irregularities had not resulted in any miscarriage of justice nor any absence of a fair trial, the Court of Appeal dismissed the appeal.

 

46. On the appellant’s appeal to their Lordships’ Board his grounds of appeal and submissions focused on the same two aspects of what had occurred at the trial.  The two points raised by this appeal are therefore what is the correct view to take of the import of the second note and what was the significance of the irregularities for the fairness of the trial and the allegation of miscarriage of justice.  These two points can be characterised as respectively the substantive and the procedural points for that is in truth their character.

 

Ground 1: The Substantive Point, The Second Note.

47. The correct assessment of the import of the second note is fundamental since, as is recognised, if the judge got it wrong it means that the procedure he adopted of taking the jury's verdicts without giving them a further direction on the law was wrong and he was further not right to decline to exercise his discretion under section 347.  Therefore if the judge was wrong on this point, the appellant ought to have been acquitted and, it follows, his appeal allowed.  That is why this point is a question of substance.

 

48. That the third sentence of the second note is capable of being thought to be ambiguous is not in dispute.  As pointed out in the judgment of the majority, the trial judge on more than one occasion said that it had raised uncertainty in his mind.  Straining the grammar, it is capable of being construed as making no distinction between the first, third and fifth counts.  The third sentence does after all start with the words “In all cases”.  The question is whether such a literal construction of this note is either realistic or appropriate.

 

49. Like the Court of Appeal, and the judge after he had time to consider the matter and hear argument upon it, we have no doubt whatsoever that what the jury were doing was explaining why they were returning verdicts of not guilty on counts 1 and 3 even though they were returning a verdict of guilty on count 5.  In evaluating a jury note it is incumbent upon an appellate court to put itself in the position of those who are responsible for originating the note and those who were expected to read it.  To adopt a stark linguistic approach to the construction of the note is not only unrealistic, it is wrong.  To condemn such realism as the adoption of a “contextual” construction is to apply to jury notes an artificial method of construction which is not accepted in any other field: in statutory construction the consideration of the purpose of the legislation is to be taken into account; for commercial documents the first step is to inform oneself of the surrounding circumstances in which the document came into existence (Reardon Smith Line Ltd. v. Yngvar Hansen-Tangen (trading as H.E. Hansen-Tangen) [1976] 1 W.L.R. 989).

 

50. Further, to adopt the con­struc­tion contended for by the appellant is not only irrational but attributes a high degree of irrationality to the jury.  His submission involves attributing to the jury a lack of comprehension and ability to cope with the issues raised by the trial for which there is, in our judgment, no basis.  To attribute, merely on the strength of this note, such irrationality and incomprehension to this jury discloses a lack of confidence in the system of jury trial.  The system is built upon having respect for the verdicts of properly instructed juries.  We are not willing to subscribe to the view that one should infer that juries have acted irrationally unless there is clear evidence that that has occurred.  Still less are we willing to agree that the Court of Appeal in New Zealand failed to understand what had happened.

 

51. In our judgment the import and significance of the jury’s second note in the present case is clear and coherent: we are satisfied that its meaning and purpose are plain and unambiguous.  It was not intended to qualify the verdicts in any way; it recon­ciles and explains the different verdicts on the three counts and does so in terms which fully accord with the directions on the law which the judge had given the jury.  The jury were confirming their verdict on count 5 by inviting the judge to consider the note, which, in view of the fact that they said that they did not want it to be treated as a rider, can only have meant that he should do so when passing sentence.  The purpose of the note is self-evident.  The jury were seeking to explain the reasoning which had led them to acquit the appellant on two of the counts of manslaughter and to convict him on the third, and they wanted  the judge to know this.

 

52. In the context of the trial it is obvious why the jury were concerned that the judge should understand their reasoning.  They did not want it to be thought that they had acquitted the appel­lant of any want of skill and care in relation to the other two patients or that the appellant had fallen below the high standards of his profession in only a single case.  The truth was very different. The jury were satisfied that the appellant had been negligent in all three cases, and his negligence may well have caused the deaths of all three patients; but they could not be sure that his negligence was the essential cause of death in two of the cases.  In short, they were explaining the basis on which they had acquitted the appellant on two of the counts, not why they had convicted him on the third, which needed no explanation.

 

53. We pause to consider a submission of the appellant that his acquittal on count 1 was against the weight of the evidence.  It did not impress the Court of Appeal which had more material on which to evaluate its merits.  We do not have such material.  But, in any event, the submission is clearly tactical.  Suffice it to say that each of the three deaths and their causation had to be considered separately and, as regards the case of the appellant concerning the death of Miss Muncie, the subject of  the fifth count, we have a statement of the factual issues which it raised in the appellant's printed case as presented to their Lordships' Board.  From this it appears that the real issue on the fifth count was, on the evidence, what the appellant had done, specifically where he placed the critical clamp.  That factual issue having been resolved, he appears to have raised no serious separate issue of causation.  In paragraphs 59-64, the appellant's printed case sets out what was “The Defence Case” at the trial.  This does not raise any question of causation but is solely directed to fault.  The Board is entitled to take the appellant's printed case at face value. It strongly confirms the rationality of the jury’s verdicts and of the second note.

 

54. In our judgment the considered view of the judge was correct and the appellant’s submissions as to the import of the note are to be rejected as unrealistic and opportunistic.

 

55. Since we conclude that the second note was not ambiguous, it is not necessary for us to refer more than briefly to the argument, which appears to have found favour with the majority of their Lordships, that any ambiguity suffices to justify an appellate court in rejecting a verdict.  Both parties to this appeal adopted the statement of the law by the New Zealand Court of Appeal in Reg. v. Sorby [1976] 2 N.Z.L.R. 516, 520 approving and following Reg. v. Bern (1895) 14 N.Z.L.R. 321, 330-331.  The test to be applied on a general verdict of guilty which is accompanied by some form of explana­tory statement is that:-

 

“The verdict will be regarded and accepted as one of guilty unless: ‘… there should be something in the explanatory words expressly negativing a component part of the offence, or something inconsistent with the verdict of guilty, or something raising a doubt as to whether the law has been properly applied by the jury, so as to make the verdict unsatisfactory’.”

 

56. The relevant jury note must therefore be such as to raise a doubt whether the law has been correctly applied by the jury.  It is clear on the authorities that the doubt must be a real doubt not just a fanciful or theoretical one.

 

57. A mere ambiguity does not without more suffice.  We were helpfully referred by the respon­dent to cases from Aus­tralia and Canada illustrative of this point.  In Myerson v. The King (1908) 5 C.L.R. 596, the High Court of Aus­tralia stressed that the evaluation must include, and attach proper weight to, the fact that the jury has returned a verdict.  The verdict is the primary expression of the findings of the jury.  Griffith C.J. said at page 602-603:-

 

“Having, then, [in the verdict] a clear finding that the accused was guilty of conspiring with the other accused to defraud his creditors, and having only this ambiguous expression in the rider to qualify it, I think it is a case for the application of this principle that a clear state­ment or finding of fact is not to be cut down by the subsequent use of ambiguous words.”

 

58. Similarly, in English law, a verdict of guilty is not to be considered unsafe unless it is actually inconsistent with another verdict returned by the same jury; a mere possibility of inconsistency does not suffice.  (Reg. v. Durante [1972] 1 W.L.R. 1612, Reg. v. McCluskey (1994) 98 Cr.App.R. 216).  Here again the authorities show respect for the integrity of the jury system which is fundamental to the criminal trial.

 

59. Whether a rider shows that there was a miscarriage of justice raises the same question.  If the third sentence of the second note raises a mere ambiguity, it does not suffice to show that the jury had misunderstood the law nor does it suffice to cast doubt upon their verdict nor does it justify the conclusion that there was a miscarriage of justice.  It does not displace the inference of the rationality of the verdict of a properly directed jury.

 

60. It follows also that the second note did not require the judge to give a further direction to the jury before they were allowed to return their intended verdicts.  It was a legitimate exercise of the discretion of the judge not to give the jury any further direction before accepting their verdicts.  Similarly it did not provide a basis for the judge later to exercise his discretion to discharge the appellant and enter an acquittal on count 5.  The judge was justified in the conclusion at which he arrived.  Once one accepts the conclusion of the judge as to the correct understanding of the second note, all the rest follows. He took the right view of it at each stage.  The first ground of appeal therefore fails.

 

Ground 2: The Procedural Point, Irregularity.

61. Irregularities occurred.  The prior communication by the jury of their verdicts before they were delivered in open court was itself an irregularity but, rightly, no point is taken upon this.  (It however added to the practical difficulties of the judge).  The judge should not have seen or spoken with the foreman in his room; any such communications should have taken place in open court. (Reg. v. Gorman (1987) 85 Cr.App.R. 121)  The judge should have told counsel of the existence of the notes and of the terms of the second note before taking the jury's verdicts so that the parties were given an opportunity, if they were so minded, to submit to him that the jury should receive a further direction before being permitted to return any verdict. 

 

62. It must however be stressed that nothing which passed between the judge and the foreman in his room affected or could have affected in any way the verdicts which the jury had already indicated they had decided to return and did subsequently return.  What passed related solely to the judge's inquiries whether the jury were ready to deliver unanimous verdicts - they said they were - and whether they wished to deliver a formal rider in open court - they said they did not.  That is all.  He did not engage in any discussion.  (cf. Reg. v. Davis (1960) 44 Cr.App.R. 235, where the communi­cation was "relative to the issue which the jury had to consider", pages 239 and 241).

 

63. With respect to the majority judgment, it elides the distinction between an irregularity and a material irregularity.  The Court of Appeal are required by statute to consider whether a miscarriage of justice has occurred. It is only irregularities which have led to a miscarriage of justice which permit the Court of Appeal to allow an appeal against conviction.  Of course a conviction entered after an unfair trial will ordinarily involve a miscarriage of justice (or, in the English terminology, be unsafe). But in every case an exercise of evaluation has to be undertaken by the appellate court.  The conduct of criminal trials cannot be categorised in black and white terms.  The common place task of a criminal court of appeal is not to assess whether the criticisms which have been made of the trial are wholly without foundation (they may be) but whether they amount to an unfairness sufficiently substantial in the context of the trial as a whole to lead to the conclusion that there has been a miscarriage of justice (or that the verdict is unsafe).  Not every summing-up is impeccable: not every exercise of discretion is wholly beyond criticism.  The judge has the conduct of the trial and the mere ability to criticise him no more invalidates the outcome than the ability to criticise the verdicts of the jury; it is still necessary to ask whether there has been a miscarriage of justice (or whether the verdict was unsafe).

 

64. This equally applies to irregularities.  They may be of a minor character or have a character of which a more serious view must be taken.  Some irregularities may be so fundamental as necessarily to invalidate the verdict (as, for example, the improper acceptance of a verdict which is not unanimous).  The irregularity which occurred in the present case was not in that extreme category.  (Reg. v. Pearson [1996] 3 N.Z.L.R. 275; Rex. v. Ion (1950) 34 Cr.App.R. 152; Reg. v. Beard (1987) 85 Cr.App.R. 395). Although the irregularity involved the failure to observe the extremely important principle that communications with the jury should be in open court, it was a situation where the consequences of such failure might or might not be significant to the outcome of the trial.  It is still necessary to consider whether the irregularity was material - hence the phrase "material irregularity" - and whether the trial was fair. 

 

65. What then was the materiality of the irregularities that occurred?  The appellant states in his printed case (paragraph 21):-

 

"The procedure followed by the learned trial judge caused a grave and serious miscarriage of justice because:

 

21.1The appellant was denied the opportunity to submit that the trial judge should not accept the jury's verdict of guilty in relation to count 5.

 

21.2The appellant was denied the opportunity to persuade the learned trial judge to direct the jury to return a verdict of 'not guilty' if the jury believed causa­tion was not established.

 

21.3The appellant was denied the opportunity to submit the learned trial judge direct the jury to reconsider its verdict before the verdicts were announced and the jury discharged."

 

66. The Court of Appeal expressly addressed the appellant's submissions.  They said (pages 11-12):-

 

"The end result in the present case is that there was transparency, because nothing was withheld from the appellant or his advisers prior to the Judge accepting the verdict as properly reflecting a finding of guilt.  The second hallmark of fairness has also been met, because the appellant was heard on the very matters now under consider­ation, with full knowledge of all that transpired.  Before finality of the trial process was reached all relevant matters were, as they should have been, known to the appellant and moreover were in the public arena.

 

Mr. Collins [for the appellant] identified three conse­quences flowing from the absence of counsel from the discussions between the Judge and the foreman, which he contended demonstrated a miscarriage of justice.  The first was a denial of opportunity to submit that the fore­shadowed verdict on count 5 should not be accepted.  The second was a denial of the opportunity to submit that a verdict of not guilty on that count should be directed.  Both these matters were in fact the subject of submission, and rejected by the Judge.  The third was a denial of the opportunity to persuade the Judge to direct the jury to reconsider the verdict.  As we have already held, when taken in proper context there is no ambiguity and the result of further direction and consideration would inevitably have led to confirmation of the verdict.  In effect, under this head of argument what is being claimed is the right to a direction to the jury to reconsider a properly reached decision.

 

In these peculiar circumstances, without in any way compromising established principle, we are satisfied that there is no cause for concern either that there was any risk of a miscarriage of justice, or that objectively justice to this appellant was not seen fairly to be done in the totality of the trial process.  For the same reasons we see no breach of section 25(a) of the New Zealand Bill of Rights Act 1990.  Section 25(a) adds nothing to the present situation.  The general law required the trial to be fair; it also required the trial to be in public.  If either of those precepts were breached, the Court could intervene, and would if necessary grant remedial relief to ensure the interests of justice were met.  The provision gives express statutory recognition to estab­lished rights, but does not graft anything new onto them.  It cannot be said the appellant was subjected to a hearing which was other than fair and public.  There is accordingly no reason to impugn the verdict on this ground of appeal."

 

We agree.

 

67. Of the three consequences relied upon by the appellant before this Board, the first two were not established in fact.  The appellant did in fact submit to the judge that he should not accept the guilty verdict on count 5.  This was the question under section 347.  It is not right to say that in the law of New Zealand the jury verdict is final: the judge still has the statutory discretion under section 347. The appellant failed because he was wrong on the substantive point not because he did not have the opportunity to argue that he was right.

 

68. As regards the third, the loss of the opportunity to submit to the judge that he should give the jury a further direction on causation and require them to retire again before any verdict would be accepted, this was a matter within the discretion of the trial judge.  It is correct that the appellant was denied the opportunity to make this submission before the verdicts were taken and the jury discharged.  But he did later have the opportunity to, and did, make full, and fully informed, submissions about the import and significance of the second note.  If his submission had been correct, he would have procured his acquittal but it was not.  Addressing the same argument at an earlier stage would have simply led to the same conclusion.

 

69. The conduct of the trial was a matter for the judge; the appellant had no right to demand that he take a particular course.  The judge was entitled to take the view that the jury had already received clear and adequate directions and were ready and entitled to deliver their verdicts. Further, because, after hearing the argument which on this hypothesis we are to assume that he heard before not after verdict, he took the correct view on the substantive question, he was also entitled to take the view that no further direction to the jury was required and that the jury could deliver their verdicts without further retirement.  The time at which he heard the argument did not affect the outcome.  If he was wrong on the substantive question, the appellant is entitled to succeed without relying on the proce­dural point.  If the judge was right on the substantive point, the procedural point does not on a proper analysis assist him.

 

70. It follows that in our judgment the appeal should fail and the judgment of the Court of Appeal be upheld.

 

© CROWN COPYRIGHT as at the date of judgment.