The jury, documents not introduced in evidence and natural justice

In this series, the New Zealand Centre for Human Rights Law, Policy and Practice at Auckland University’s Faculty of Law analyses and discusses cases from the past year from a human rights perspective.


After Mr Guy’s conviction (on a charge of sexual violation) it was discovered that, unknown to the judge or to the counsel of either party, the jury had erroneously been provided with two documents that had not been introduced in evidence.

While it is not known whether members of the jury actually looked at the documents (they had been taken out of the envelope but were still within plastic sleeves), the appeal proceeded on the basis that they had.

Late last year, the Supreme Court addressed Mr Guy’s claim that this irregularity made for an unfair trial and resulted in a substantial miscarriage of justice for purposes of section 385(1) of the Crimes Act 1961.

Section 385(1) states that:

“(1) … the Court of Appeal or the Supreme Court must 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:

provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

It was common ground for all the judges that the fact the jury had access to material that had not been part of the evidence at the trial did not necessarily lead to a finding that the trial was unfair or that there had been a miscarriage of justice [see para 83]. From this baseline, however, the Court’s reasoning diverged widely.

Elias CJ and Glazebrook J (for the majority)

The majority’s approach rested on two points:

  • that the material “bore on the critical issues in the case” and therefore constituted a fundamental breach of the principles of natural justice; and
  • that this breach was itself a miscarriage of justice and therefore made for an unfair trial.

In relation to the first point, they applied Lord Bingham’s test in Randall v The Queen [2002] UKPC 13, [2002] 1 WLR 2237, which asks whether a defect is “so gross, or so persistent, or so prejudicial, or so irremediable” as to undermine the integrity of a trial. Numerous principles of natural justice were implicated by the error, including:

  • the requirement, implicit in the presumption of innocence affirmed by section 25(c) of the New Zealand Bill of Rights Act 1990 (NZBORA), that a criminal charge be established only on evidence produced at trial; and
  • the right to trial by jury, affirmed in section 24(e) of the NZBORA, and to a fair and public hearing in section 25(a).

While recognising there may be cases where “the provision of extraneous material to the jury is immaterial”, the majority stressed that here the material “bore on critical issue” of the trial.

It was not whether the jury obtained any new information adverse to the defence not already in evidence at the trial, but the fairness of the trial process itself. The natural justice principles were significant. Quoting Lord Morris in Ridge v Baldwin [1964] AC 40 (HL) at 114, it was stressed that “the importance of upholding [them] far transcends the significance of any particular case”.

Citing R v Matenga, to apply the proviso in section 385(1) of the Crimes Act, the Court would have to be “satisfied that the trial was fair and thus that there was no breach of the right guaranteed to the accused by s 25(a) [of the NZBORA]”. Because the trial was unfair, they continued, there is no question that the proviso was inapplicable. They noted [at para 64]:

“The errors were indeed radical enough to leave us with the view that the appellant was deprived of a proper trial. This was a case where what went wrong with the procedure was fundamental, breaching natural justice and undermining the fairness of the trial. Where the integrity of the trial has been compromised by departure from the essential requirements of the elements of a fair trial, so that the accused has been denied the right to a fair and public trial, there is no room for the application of the proviso to s.385(1). The errors mean that the conviction is unsafe.”

McGrath and William Young JJ (minority)

Relying on R v Matenga, McGrath and William Young JJ held that the appropriate question in deciding the meaning of “miscarriage of justice” was whether making the transcripts available to the jury “could … have affected the result of the trial”. They agreed with the Court of Appeal that there was no reason to think the jury’s approach would have differed if the transcripts had not been made available to them.

But, unlike the Court of Appeal, they deemed the question of whether or not the evidence would be admissible “something of a distraction” and did not address it further. They held that the trial was not unfair as they did not consider that the issue raised any separate concerns other than that of miscarriage of justice. McGrath and William Young JJ followed the Court of Appeal in considering it unnecessary to address the section 385(1) proviso, given their finding that the material would not have altered the verdict.

O’Regan J

In contrast, O’Regan J held that the material was capable of affecting the result of the trial. (Elias CJ and Glazebrook J agreed with this but did not consider that satisfying this threshold was necessary for their conclusions.) Acknowledging the strength of the Crown’s case and similar material already available to the jury, O’Regan J found that the mere possibility the jury’s approach may have been affected was enough and, on the facts, could not be ruled out.

However, he differed from Elias CJ and Glazebrook J on the implications of this. Citing a slightly different formulation of the test in Matenga – whether the guilty verdict was “the only reasonably possible verdict, on [the] evidence” – he considered its application inappropriate when the case turned on assessment of the honesty and reliability of witnesses, as it did here.


The appeal was allowed, the conviction dismissed and a new trial ordered.

This case summary was prepared by the New Zealand Centre for Human Rights Law, Policy and Practice at the Faculty of Law, Auckland University, and is reproduced here with permission.

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