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CHB Mail - 2021-10-14

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Review of judge’s directions unlikely

NEWS

Gianina Schwanecke

Asystemic review of cases determined by a recently retired Napier judge appears unlikely, despite several previous decisions being overturned in the Court of Appeal due to improper directions being given to the jury. Judge Tony Adeane was appointed to the bench as a District Court judge in December 993, serving all of his tenure in Hawke’s Bay and Gisborne. He retired in May this year after reaching the compulsory retirement age of 70 and is estimated to have presided over more than 630 jury trials. However, questions have now been raised in relation to his delivery of instructions to jury members leading to convictions being overturned. The issues related to Wanhalla v The Queen, a 2007 direction by the Court of Appeal to trial judges on how to sum up to jurors on the burden and standard of proof in criminal cases — known as the Wanhalla direction. The court noted there was no single formula but it was easier if trial judges used a “single, safe and approved formula”. “It is sufficient to make it clear that the concept involves a high standard of proof which is discharged only if the jury is sure or feels sure of guilt.” In a December 2016 trial, Judge Adeane summed up along the lines of the onus of proof being on the Crown, that the defendant did not have to prove anything, that it was for the Crown to establish the charge, that to do this the Crown had to prove the charge beyond reasonable doubt and this meant that the jury had to be sure the defendant was guilty. On appeal, the Court of Appeal concluded that this summing up was insufficient in light of the Wanhalla formulation. Chief District Court Judge Heemi Taumaunu noted the Court of Appeal did not deliver the reasons for its decision in the 2016 trial until May 2018. “Judge Adeane has also advised me that in all jury trials he presided over subsequent to his being corrected by the Court of Appeal . . . he gave the Wanhalla direction and that he is not aware of any appeal taken on the point in relation to those trials.” Judge Taumaunu said he was not aware of any calls for or need for any systemic review, or any related formal complaint, in relation to jury trials conducted by Judge Adeane. However, he was aware of an application that had been made to the court by a lawyer seeking a list of every jury trial presided over by Judge Adeane since 2007 where the defendant was convicted of any charge after a jury trial. “Where judicial error is alleged in relation to summing up directions given to juries, the available conventional remedy, as was exercised in the [2016] case, involves appeal to the higher courts.”

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