IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA364/2018
 [2019] NZCA 143

	
BETWEEN	
JASON PHILLIP DEHAAR
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
25 February 2019	

Court:	
Clifford, Mallon and Whata JJ	

Counsel:	
R A Barnsdale for Appellant
E J Hoskin for Respondent	

Judgment:	
7 May 2019 at 10.30 am	

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)
[1]	Mr Dehaar was found guilty at trial, alongside two co-defendants, of one charge of kidnapping.  During the trial Judge Cocurullo received a note from the jury that two of their number were “uncomfortable” with the way Mr Dehaar’s counsel was looking at them.  The Judge refused an application to discharge the jury.  Mr Dehaar says his trial miscarried accordingly and appeals on that basis.  Mr Dehaar also challenges his sentence.  He says it was disproportionately high compared to that of one of his co-offenders.
Background
[2]	The complainant, Mr Singh, offered to help Ms Cole (one of Mr Dehaar’s co‑defendants) get some money by drug dealing.  Ms Marenga (the other co‑defendant) was the source of the drugs.  Mr Singh gave Ms Marenga the money but did not receive any drugs.  A day later, Ms Marenga, Mr Dehaar and one of their associates picked up Mr Singh and drove him to an unknown address.  Mr Singh’s phone was taken from him and he was asked to empty his pockets.  Ms Marenga then took Mr Singh into the garage and punched him multiple times in the head while Mr Dehaar looked on.  They left Mr Singh in the garage overnight.
[3]	The next day Mr Singh woke up and was taken to Mr Dehaar’s truck.  Mr Dehaar was driving.  Ms Marenga was there too with another friend.  They stopped at an unknown location.  Ms Cole was there.  Ms Cole and Ms Marenga then both kicked and punched Mr Singh multiple times while Mr Dehaar was present.  
[4]	They then took him to Ms Cole’s address and into her garage.  Inside the garage, Ms Marenga again punched the victim to the head while Ms Cole and Mr Dehaar were present.  He was told that he would go missing if he did not pay them $5,000.  Ms Marenga then asked him for his banking details while threatening him with a stick that had a ball and chain attached.  Mr Singh was told to call family members and ask them for $5,000.  
[5]	Mr Dehaar, Ms Marenga and Ms Cole then made Mr Singh go with Mr Dehaar in his truck to go to the homes of family members to ask for money.  A stop at a dairy gave Mr Singh the opportunity to escape, which he took. 
[6]	Mr Dehaar was initially charged with kidnapping, blackmail and injuring with intent.  The blackmail charge was dismissed on a s 147 application at the end of the Crown case because there was no evidence that Mr Dehaar expressly threatened the safety of the complainant.  The injuring with intent charge appears to have been withdrawn by the Crown at an earlier stage.  
[7]	The trial issue on the remaining kidnapping charge was whether Mr Dehaar knew that Mr Singh was not consenting to Mr Dehaar driving him around to obtain the money that had been demanded or whether instead Mr Dehaar was helping him.  The jury’s verdict means that they were sure it was the former.
Did the trial miscarry because the Judge refused to discharge the jury?
[8]	The Judge issued a ruling addressing advice received by the Court that a few of the jurors were feeling “uncomfortable” at the way Mr Weir, Mr Dehaar’s counsel, was looking at them.  The Judge noted:
[2]	The extent of that uncomfortableness is not widely known and on the basis of the written report, it is not clear as to the extent of how they were perceiving the mannerisms and/or conduct of Mr Weir.  It is unclear for example whether they found the mannerisms intimidatory but certainly the written report from Mr Crier which is the primary information I am using expresses it in terms of “feeling uncomfortable”.  I have in the presence of the crier just confirmed that the term reported to the crier was that a few of the jurors felt uncomfortable at the way Mr Weir was looking at them.
[3]	I have clarified that because, in chambers advising each counsel of the issue, I gave sufficient time upon which each counsel could take instructions and I now have applications from each of the defendants to abort the trial.  The Crown position is that it does not consent and has some concern about particularly Mr Dehaar’s position.
[4]	I gave opportunity for submissions.  Mr Curran’s position is that his client’s trial is tainted given the perception the jury has — the defence may have a sense of cohesion between them.  He says that his client is prejudiced from a fair trial and that the application to abort should be granted.  Mr Weir for Mr Dehaar raises the same arguments and makes the point that shortly if the trial proceeds, he will need to close in his submissions to the jury against the backdrop of them feeling somewhat uncomfortable about his mannerisms before the Court.
[5]	I should add that Mr Weir upon my raising the matter with counsel, immediately indicated that there was no intention of his to be untoward in any glancing or looking at the jury.  He shares as indicated, Mr Curran’s position, in addition to now having to close to this jury, as to whether Mr Dehaar can achieve a fair trial here.  Mr Burroughs for Ms Cole raises essentially the same argument and believed in effect his case is tainted by again the cohesion between [the] defence and its strategies and says that in all the circumstances his client’s right to a fair trial is compromised as well.
[9]	The Judge rejected the defendants’ submissions that the jury was not impartial because of the perception they had of Mr Weir’s mannerisms.  He noted:
[8]	This jury as the record will show had set out to them at the start of this trial rather full-ish directions as to how they were to go about their task.  That included a focus upon the evidence.  To be unemotional and objective but also if they had any issues to raise them with me.  Without any final determination, I would have thought the foreperson, in the way the matter has been raised, shows complete integrity with the jury that of a matter that concerned them they saw fit to raise it with me.
[10]	The Judge noted that this was not a situation of a defendant’s unwanted behavioural mannerism disturbing the jury.  He said the focus was whether to continue would enable a fair trial to each defendant.  He concluded that this was not a situation where any of the defendants’ rights to a fair trial had been compromised such that he should discharge the jury.  He observed:
[14]	In my view what has occurred here is well able to be overcome by indicating the way I have already proposed that the matter is dealt with so that the jury can be advised that what they perceived was singularly an unintended mannerism (quite clearly I accept Mr Weir’s response in respect of that) and ask them to see it for what it is — that quite clearly it will not continue and that the trial should proceed on.
[11]	The Judge therefore refused to discharge the jury.  The Judge then gave the following direction:
Can I indicate to you Mr Foreperson members of the jury that I have raised the aspect of one of the lawyers’ mannerism in looking over to you and have received which I completely accept that it was [not] in any way intended and it was a mannerism that in fact he had not realised what was occurring all right?  And I am well satisfied that that is the position and well satisfied that of course it will not continue and so I wanted to let you all know that.  That I had raised the matter and indicated to you all that it had been resolved in that way and I have had a brief discussion with counsel about that and I accept counsel’s position it was not intended in any way towards you and I needed to indicate that to you.  All right?
Argument
[12]	Mr Barnsdale submits that the Judge made an insufficient inquiry into why the jurors were, he says, “feeling intimidated by Mr Weir” and whether the affected jurors felt capable of performing their duty.  He further says there was no clear direction to the jury to put aside any feelings of ill will they may have about Mr Weir.  He contends that a direction of this kind was vitally important in a case where the jurors’ impression of Mr Dehaar was critical to their assessment of his guilt.
Assessment
[13]	The central issue on appeal is whether there has been a miscarriage of justice because the trial continued after some of the jury expressed discomfort about the way Mr Weir was looking at them.  The short answer to this issue is no.  
[14]	Section 22 of the Juries Act 1981 empowers the discharge of a jury if a “casualty or emergency” makes it in the Court’s opinion “highly expedient for the ends of justice to do so”.  “Casualty” simply means “mishap”.  We agree with the Judge that there was no proper basis to discharge the jury in the circumstances that arose.  Two of the jury indicated they felt “uncomfortable” about the way Mr Weir was looking at them.  This falls well short of suggesting members of the jury would abdicate their duty to base their verdicts on the evidence. 
[15]	Jurors undoubtedly form views about counsel every day.  Rarely does the trial Judge hear about them.  He did in this case, and told them that whatever they perceived, it was not intentional.  He also gave them the orthodox direction to assess the guilt or innocence of the defendant fairly and impartially on the evidence given in Court as part of both his opening address and summing-up.  There was no need for the Judge to do more given the obvious irrelevance of counsel’s mannerisms to their task. 
[16]	Finally, it was not highly expedient to discharge the jury even if the juror’s perception of Mr Weir was a “casualty”.  The combination of directions given was sufficient to mitigate the risk of unfairly prejudicial reasoning. 
[17]	The appeal against conviction is dismissed. 
Sentence
[18]	The appeal against sentence was not pursued in argument before us.  We simply note, as Mr Barnsdale observed in his written submissions, that the starting point sentence of two years seven months for the kidnapping was well within range.  In addition, this starting point was not disproportionate to Ms Marenga’s starting point of three years six months, even accounting for the fact she was also convicted of charges of injuring with intent to injure and blackmail.  Mr Singh spent the longest time subject to restraint with Mr Dehaar.  We accept that Ms Cole’s starting point of two years four months is relatively light, especially as she was also convicted on one charge of blackmail and injuring with intent to injure.  But this disparity is not such as to warrant a different sentence for Mr Dehaar. 
Outcome
[19]	The appeals against conviction and sentence are dismissed. 

Solicitors: 
Crown Law Office, Wellington for Respondent