IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA642/2018
 [2019] NZCA 415

	
BETWEEN	
PAPA MANU
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
2 April 2019	

Court:	
Williams, Collins and Toogood JJ	

Counsel:	
Q Duff and H G De Groot for Appellant
M J Lillico for Respondent	

Judgment:	
6 September 2019 at 3.00 pm	

JUDGMENT OF THE COURT

A	The application for leave to appeal out of time is granted.
B	The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)
[1]	Mr Manu appeals his conviction in relation to one charge of obtaining by deception.  The conviction followed a trial by jury conducted in the District Court at Manukau before Judge McGuire.  Mr Manu was sentenced to 2 years and 3 months’ imprisonment.  He has not appealed his sentence.
[2]	One ground of appeal is pursued.  It is contended that a miscarriage of justice occurred when a Papadopoulos direction was given by the trial Judge not long before the jury returned its unanimous verdict.  This submission is made in the context of the jury having earlier indicated that it had not reached either a unanimous, or a majority verdict.
[3]	Due to an administrative oversight Mr Manu’s notice of appeal was not filed in time.  No prejudice is caused to the Crown by the delay and we grant leave to appeal out of time in order to enable us to address the merits of the appeal.
Background
[4]	The charge concerned a property that was purchased by a trust established by members of the Ōtāhuhu community in 1989.  Mr Manu lived next‑door to the property.  The trust was unable to maintain the property and defaulted in its obligations to pay rates.  By 2010, the Manukau City Council was owed $22,000 in unpaid rates.
[5]	The Crown case was that Mr Manu told one of the surviving trustees and members of the community that he would take responsibility for paying the trust’s debts on the basis that the trust would repay him.  Instead, Mr Manu took control of the trust and sold the property to a developer.  The sale was settled in January 2011, with the proceeds being paid into a bank account in the name of Mr Manu’s parents.  The rates arrears were paid from the proceeds.  Mr Manu is alleged to have purchased a car from part of the proceeds.  None of the money obtained from the sale of the property was paid to the trust.
[6]	In summary, the Crown case was that Mr Manu lied in order to gain control of the trust, then sold the trust property and benefitted from the proceeds.
[7]	The defence case was that Mr Manu took control of the trust in order to address its financial difficulties and to ensure the property was properly managed and maintained.  He applied his time, money and business acumen towards achieving these goals.  Mr Manu denied ever saying that he would personally pay the rates arrears.  He accepts he took control of the property but says he did so for the benefit of the community.
[8]	In his summing up, the Judge provided the jury with standard directions to the effect that their verdict was to be unanimous, but that there was a possibility for a majority verdict after they had been retired for several hours.  The Judge informed the jury that if a majority verdict became a relevant consideration, then he would provide them further directions at that time.
[9]	The key events concerning the appeal occurred after the Judge had summed up to the jury.  The following chronology sets out what happened:
21 June 2018	12.55 pm	Jury begins its deliberations	
21 June 2018	5.11 pm	Note received from jury “split 9-3 not conclusive yet as to making a false statement”
	
21 June 2018	5.18 pm	Jury sent home for the night	
22 June 2018	10.00 am	Jury continues its deliberations	
22 June 2018	11.25 am	Note received from the jury “We would like to hear the Judges direction as we are still split on a decission”
	
22 June 2018	12 noon	Majority verdict direction given	
22 June 2018	12.15 pm	Note received from jury “What is the time period to reach before recognising we will not reach a unanimous verdict.  We have not reached a unanimous verdict and the split is 8-4”	
22 June 2018	12.41 pm	Papadopoulos direction given	
22 June 2018	12.48 pm	Note received from jury “We have reached a unanimous verdict.  We had almost reached a decision and have voted again upon return to the jury room”	
22 June 2018	1.00 pm	Unanimous guilty verdict returned.	
[10]	Judge McGuire spoke with counsel in chambers before adjourning on the evening of 21 June 2018 and before he gave the majority and Papadopoulos directions.  No objection was raised about the Judge giving either the majority, or the Papadopoulos directions.  Indeed, it would appear from the transcript of the discussions between the trial Judge and counsel at approximately 12.40 pm on 22 June 2018 that both Crown and defence counsel were content for the Judge to give a Papadopoulos direction at that time.
[11]	The jury asked several questions during the course of its deliberations about aspects of the evidence, the appointment of a new trustee, the transmission of trust property to a person who was not a trustee and the steps that needed to be taken to retire trustees.
[12]	No issue is taken with the way in which the Judge directed the jury on a majority verdict.
[13]	The Papadopoulos direction was in the following terms:
You have told me that you have not been able to reach a verdict so far and I take that to be both a unanimous verdict and a verdict that is a majority verdict, 11 to one.
That sometimes happens and that is no reflection on any of you.  I have the power at this stage, given the length of time you have been deliberating, 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 will have 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 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 your 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 to try to reach a collective decision of all of you.  One of the strengths of our jury system is that each of you takes into the jury room your individual experience and wisdom, and you are expected to pool your views on 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 the end be it unanimous or majority, 11 to one, 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 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 it may well be that there is a new trial before another jury.
Therefore I am asking you, as is usual in cases like this, to be good enough to retire again and see whether or not you can reach a unanimous or 11 to one verdict in the light of what I have said.
Summary of appellant’s submissions
[14]	In his comprehensive submissions, Mr Duff, counsel for Mr Manu, challenged the appropriateness of Judge McGuire giving a Papadopoulos direction at 12.41 pm, just seven minutes before the jury delivered a note saying it had reached a unanimous verdict.
[15]	The essence of Mr Duff’s submissions can be distilled to three key points.
[16]	First, it was submitted there is a real risk that some members of the jury would have felt pressured into acquiescing to a guilty verdict after hearing the Papadopoulos direction.  This submission was based on the contention that the Papadopoulos direction was given when the jury were either truly deadlocked or moving towards an acquittal.
[17]	Second, the Judge did not fully evaluate the necessity for a Papadopoulos direction.  This submission is based on comments made by the Judge before he gave the majority direction at 12.00 noon.  Before giving that direction, Judge McGuire said that he was inclined “to give the jury both a Papadopoulos direction and also a majority direction”.  This, in Mr Duff’s submission, showed the Judge was not making an appropriate assessment as to whether or not a Papadopoulos direction was required.  
[18]	When the majority direction did not produce a verdict, the Judge said at about 12.35 pm that he would give a Papadopoulos direction and that if this did not resolve matters within 20 minutes he would discharge the jury.
[19]	The “rapid turnaround” by the jury after receiving the Papadopoulos direction was said by Mr Duff to further underscore the submission that jury members were rushed and pressured into giving its unanimous verdict.
[20]	Third, Mr Duff drew attention to the contents of the Papadopoulos direction in which Judge McGuire told the jury that within their oath “there is scope for discussion, argument and give and take”.  It was submitted that the words “give and take” could have conveyed to the jury that they could legitimately “trade” positions as a means of achieving unanimity.  
Analysis
[21]	We note that before giving the majority direction Judge McGuire raised the possibility of giving both a majority direction and a Papadopoulos direction.  We do not think anything can be read into those comments.  The Judge followed the orthodox sequence by first giving a majority direction and then, 40 minutes later, he gave a Papadopoulos direction.
[22]	In Hookway v R, the Supreme Court reiterated that:
… whether a Papadopoulos direction should be given is ultimately a matter for the trial Judge’s discretion and that a substantial degree of latitude should be given to trial Judges in this respect.
[23]	We can see no basis upon which it is appropriate to conclude that the trial Judge erred by issuing the Papadopoulos direction when he did so.  Our reasons for reaching this conclusion can be reduced to three points.
[24]	First, the jury had deliberated for approximately seven hours.  Although there was just one charge for the jury to consider, the jury were clearly engaged in detailed consideration of the evidence and issues raised by the circumstances of the case.  The jury asked several questions, which showed they were conscientiously considering the evidence and issues.  There were a number of conflicts of evidence that the jury needed to resolve.  At the foremost of those conflicts was whether Mr Manu had made any representation that he would pay the rates arrears.
[25]	Judge McGuire was ideally positioned to assess whether or not it was necessary to give a majority direction and subsequently a Papadopoulos direction.  He fully appreciated the efforts that the jury were making and his decision to give first, a majority direction and then subsequently, a Papadopoulos direction did not cause a miscarriage of justice.
[26]	Second, nothing in the notes received from the jury, or any of the surrounding circumstances provides an evidential foundation for the submission that the jury were truly deadlocked or trending towards an acquittal.  That aspect of Mr Duff’s submissions was correctly characterised as “speculative” by Mr Lillico for the Crown.
[27]	Third, the final note from the jury significantly undermines all the submissions that were made by Mr Duff concerning the Judge’s decision to issue a Papadopoulos direction.  That note announced the jury had reached a unanimous verdict, but also stated that the jury had almost reached a verdict before the Papadopoulos direction had been given.  In these circumstances, the suggestion advanced on behalf of Mr Manu that the jury would have felt pressured into reaching a decision is without foundation.  The jury was “almost” at a point of having reached a decision before the Papadopoulos direction was given.
[28]	Finally, we do not think that the Judge’s reference to “give and take” in his Papadopoulos direction was fatal.  We record that in B (SC12/2013) v R, the Supreme Court criticised references to “give and take” saying:
[108]	The “give and take” referred to relates to the exchange of views or opinions.  We think it would assist juries if this were made clear, as is done in Canada.  Accordingly, the penultimate sentence of the extract quoted … should be amended by deleting the words “give and take” and adding the following italicised words: 
So within the oath there is scope for discussion, argument and listening with an open mind to the opinions of others.
(Footnote omitted, emphasis in original.) 
[29]	B (SC12/2013) v R was decided in the context of inconsistent verdicts where the jury had considered multiple charges.  The phrase “give and take” was considered unwise in the Papadopoulos direction given in that case as it could encourage a trade‑off between verdicts.  
[30]	It would in future be preferable for Judges to not refer to “give and take” in single charge trials as really, what the jury is being asked to do is listen with an open mind to the views of other jury members, and not engage in some form of trade.  Notwithstanding this concern, we do not think in the circumstances of this case that the reference to “give and take” would have risked a miscarriage of justice, primarily because the jury’s final note showed they had “almost” reached a decision before receiving the Papadopoulos direction.  In these circumstances, any potential defect in the direction it was unlikely to have had any impact.
Result
[31]	The application for leave to appeal out of time is granted.
[32]	The appeal is dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent