Human Rights Committee

Communication No. 1998/2010

Views adopted by the Committee at its 112th session(7–31 October 2014)

Submitted by:	A.W.K.(represented by counsel, Frank Deliu)
Alleged victim:	A.W.K.
State party:	New Zealand
Date of communication:	2 August 2010 (initial submission)
Document references:	Special Rapporteur’s rule 97 decision, transmitted to the State party on 3 May 2011 (not issued in document form)
Date of d ecision :	28October 2014
Subject matter:	Fairness of criminal proceedings
Substantive issues:	Right to fair hearing; right to effective remedy; right to interpreter; right to know the nature and cause of charges; opportunity to present a defence; right to counsel; right to face accusers; right to appeal conviction
Procedural issues :	Substantiation of claims
Articles  of the Covenant :	2 (para.3); 14 (para.1); 3 (a), (b), (d), (e) and (f); 5
Article s of the Optional Protocol:	2

Annex

Decision of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (112th session)

concerning

Communication No. 1998/2010 *

Submitted by:	A.W.K.(represented by counsel, Frank Deliu)
Alleged victim:	A.W.K.
State party:	New Zealand
Date of communication:	2 August 2010 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 28 October 2014,

Adopts the following:

Decision on admissibility

1.1The author of the complaint, dated 2 August 2010, is A.W.K., a national of New Zealand. He claims to be a victim ofviolations by New Zealand of his rights under article 2, paragraph 3, read alone; and article 14, paragraphs 1,3 and 5, of the International Covenant on Civil and Political Rights, with regard to procedural aspects of his trial and the appeals he filed against his criminal conviction for importing methamphetamine drugs and possessing them for supply purposes. The author is represented by counsel, Frank Deliu.

1.2On 26 April 2012, the Committee, acting through the Special Rapporteur on new communications and interim measures, granted the request of the State party to separate the consideration of the admissibility of the communication from the consideration of its merits. On 8 June 2012, pursuant to rule 92 of its rules of procedure, the Committee, acting through the same special rapporteur, denied the author’s request for interim measures, namely, for the State party to release him on bail from prison. The author remains incarcerated in New Zealand.

Factual background

2.1On 16 June 2006, the author was convicted of having imported and possessed methamphetamine drugs in July 2004. On 8 September 2006, he was sentenced to 17 years of imprisonment for those offences. On 14 April 2008, the Supreme Court granted his appeal and ordered a retrial. The drugs in question were destroyed at the request of the New Zealand police after the conclusion of the first trial in 2006. Thus, when the author attempted to have the drugs independently retested before his second trial, he was unable to do so. The author was incarcerated between June 2006 and April 2008, when he was granted bail pending the second trial.

2.2The author chose to represent himself during the second jury trial, which took place before the Auckland High Court. The author submits that during the retrial, the judge committed a number of errors, resulting in violations of his rights under article 14 of the Covenant. In that regard, the author alleges that after several hours of jury deliberations, the foreperson of the jury sent a note to the judge stating that the jury had “finished deliberating” and had “reached a decision”. The judge then requested clarification. She received a second note stating that the jury was unable to “reach a unanimous verdict” and that “any further effort would result in bullying”. The judge then consulted with the parties and gave the jury what is known as a “Papadopoulos direction”, instructing them to retire again and to see if they could reach a unanimous verdict. The instruction was given at 2.25 p.m. and the jury came back with a guilty verdict at 3.20 pm. While the foreperson was delivering the verdict, she appeared distressed and started crying. On 1 May 2009, the author was sentenced to 14 years and six months of imprisonment. When the author applied for permission to interview the jurors in order to obtain evidence of the bullying, he was denied permission by the appellate courts.

2.3The author appealed his conviction and sentence to the Court of Appeal, raising, inter alia, the fair trial issues summarized above.The sole issue of substance addressed at appeal was whether the judge’s conventional Papadopoulos direction resulted in an unsafe verdict by the deadlocked jury. The Court found that the judge was clearly correct to clarify the first communication (stating: “We have finished deliberating and reached a decision”), because it hadnot confirmed that the jury had reached verdicts. The Court noted that the decision to give a Papadopoulos direction was within the discretion of the trial judge, and that the Supreme Court had confirmed that a good deal of latitude was given to trial judges in the exercise of that discretion.The Court found that the judge had correctly approached the decision.Italsoobservedthat the note provided by the jury did not indicate that there had been bullying, but merely that the members of the jury were unable to agree at that time and that there was a risk of intimidation were they to continue.In analysing the issue of whether the judge erred by failing to add to the conventional Papadopoulos direction by warning the jurors not to engage in bullying or intimidation of other jurors, the Court concluded that the judge had not erred in that respect, because she had made it clear that the direction was given in response to the jury communications, and she had cautioned that no juror should give in for the sake of agreement. The jury’s communications did not indicate that problems had arisen within the jury, they had not been deliberating for long in the circumstances, they had not been sequestered overnight and jurors often become distressed when a verdict is delivered. In this case, there was no evidence of dissent, and the only evidence of distress was that the wailing of the author’s mother triggered the foreperson’s tears after the verdicts were delivered; nothing that happened after the jury’s two communications suggested that the jury’s deliberations had gone awry.The appeal was dismissed on 28 September 2009. The author further appealed the second instance decision to the Supreme Court of New Zealand, which dismissed his application for leave to appeal on 2 March 2010.

The complaint

3.1The author asserts that his right to a fair hearing, as set forth in article 14, paragraph 1, of the Covenant, was violated because of procedural errors committed by the judge presiding over his second trial. The author submits that after receiving the first note, in which the jury stated that it had finished deliberating and had reached a decision, the judge should not have made further inquiries of the jury and should have instead brought the jury into open court to ask for its verdict, which would have resulted in a mistrial; that once the judge learned of the jury’s “bullying” concerns, she should have immediately discharged the jury; that the judge failed to ask the jury for clarification as to what was meant by “bullying” and to ask whether it had already occurred; that the judge did not give the jury a direction that they could hold their vote; that she failed to ask the foreperson why she was distressed; and that she failed to poll the jury to ensure that the verdict was indeed unanimous and not coerced. The author argues that the judge’s oversight of procedural standards compromised his fundamental right to substantive justice.

3.2The author further asserts that his rights under article 14, paragraph 3 (b), of the Covenant were violated because he was denied adequate facilities for the preparation of his defence. Specifically, the author maintains that the methamphetamine drugs that he was convicted of possessing and importing were destroyed without a court order after the conclusion of his first trial in 2006, and that he was therefore unable to have the drug evidence independently retested before his second trial. He submits that he was unable to mount a defence without access to the drug evidence, and suggests that the police could have kept a small sample of the drugs but failed to do so. The author further states that he provided evidence to the High Court of New Zealand that the shipment which he was convicted of importing and possessing was not a toxic substance.

3.3The author also submits that, in violation of article 2, paragraph 3, of the Covenant, the State party denied him a realistic prospect of obtaining an effective remedy, because the appellate courts denied him permission to interview the jurors in order to obtain evidence of the bullying, as jury members are protected by the secrecy of the legal system. The author’s submission includes an audio recording of part of the author’s 2009 hearing before the Court of Appeal, and a video recording of a focus group discussion conducted on behalf of the author, in which members of the public were asked to comment on the issues raised by the author in respect of the jury.

The State party’s observations on admissibility and the merits of the communication

4.1In its observations dated 14 April 2011, the State party adds to the factual background of the communication, observing that the author’s offending was serious, as he was convicted of importing approximately 8.9 kilograms of methamphetamine that was dissolved in liquid contained in lava lamps. The methamphetamine, a Class A illegal drug, had a total value, depending on the intended manner of sale, of between 2.5 million and 8.9 million New Zealand dollars. The author received a sentence of 14 and a half years of imprisonment, with a parole ineligibility period of seven and a half years. The State party also notes that the author’s conviction was confirmed by the Court of Appeal in September 2009, that an application for leave to pursue a further appeal was denied by the Supreme Court in March 2010, that a second application for leave made on other grounds after the filing of the present communication was denied in March 2011, and that the first trial in 2006 was set aside and a retrial was ordered because the first trial was wrongly allowed to continue after the withdrawal of two jurors. The domestic courts found that the trial judge, consistent with New Zealand criminal procedure law and practice, considered a number of factors when deciding to give a Papadopoulos direction. Concerning the crying by the jury foreperson, the Court of Appeal noted that jurors commonly become distressed when a verdict is delivered, and described the incident as follows: “The only evidence of distress is that the wailing of the appellant’s mother triggered the foreperson’s tears after the verdicts were delivered.” The Supreme Court similarly commented that the tears were apparently induced by the author’s mother’s cries, and added that the foreperson’s willingness to deliver the verdicts very much suggests that she was not a victim of bullying.

4.2The State party considers that the communication contains a number of factual errors. Concerning the author’s assertion that the trial judge failed to make a contemporaneous record of what occurred, such a record was in fact reflected in the report issued in a timely manner by the trial judge on 14 September 2009 in response to an inquiry by the Court of Appeal. Additionally, although the author asserts that the trial proceeded “without any drugs evidence” and that the seized methamphetamine was “the main” or “the only real piece of hard evidence”, the charges against the author were pursued at both trials on the basis of expert analytical evidence as to the seized substance, while the methamphetamine itself was never introduced as evidence. Although the author asserts that he provided proof that the shipment of drugs showed no toxicity, the certificate he provided at trial was not accepted by the jury. Although he asserts that the seized methamphetamine was destroyed without a lawful order, because the seized drugs were never used as evidence, they remained in the custody of the Customs Service and/or the Police and, for that reason, no court order was required to authorize its destruction following the trial. In spite of the author’s assertion that the destruction was “flagrant”, the drugs were destroyed for security reasons, as outlined in the trial judge’s two rulings.

4.3The State party also considers that the author’s claim under article 14, paragraph 1 of the Covenant, relating to the adequacy of the judge’s Papadopoulos direction in response to the difficulties expressed by the jury, is inadmissible because it is insufficiently substantiated. The Committee does not revisit jury instructions or national court determinations absent arbitrariness or manifest injustice, neither of which is present in this case. Moreover, the claim rests upon the author’s factual claim that the jury had been subjected to or was at risk of bullying, and this contention was rejected by domestic courts without manifest injustice. The State party observes that the direction was upheld on appeal in accordance with domestic trial procedure, and that the communication advances no adequate basis on which the Committee ought to revisit questions of the application of domestic law.

4.4The State party further considers that the author’s claim under article 14, paragraph 3 (b), of the Covenant, concerning the alleged prejudice caused by his inability upon retrial to obtain an independent analysis of the seized drugs, is inadmissible for failure to exhaust domestic remedies. The State party argues that the author could have appealed this issue before domestic courts but did not do so. In his complaint, the author states that although he raised this appellate point, he did not “actively pursu[e] it, to preserve it for an eventual complaint to [the Committee]”. The State party further considers that the claim is inadmissible for lack of substantiation. The claim rests on the contention that the seized substance was not in fact methamphetamine or that the author could not adequately pursue this point at trial, and this contention was rejected by domestic courts without manifest injustice.

4.5On the merits, the State party considers that each of the author’s three claims under article 14, paragraph 1, of the Covenant has no substance. Firstly, the author’s allegation that the jury was subject to or was at risk of bullying was rejected by successive decisions of domestic courts, and the communication contains no sufficient basis on which to question those decisions. Secondly, the author’s allegation that the trial judge erred by giving a formal Papadopoulos direction is unfounded, because domestic criminal procedure allows such a direction in appropriate circumstances, and the appellate courts determined that the circumstances were appropriately addressed by the formal direction. Finally, the author’s allegation that the confidentiality of jury deliberations prevents him from establishing that bullying occurred has no merit, because jury confidentiality is an essential element of the jury trial system and has been repeatedly upheld as consistent with fair trial rights by the European Court of Human Rights; the New Zealand courts can in appropriate but exceptional circumstances inquire into jury deliberations, but such circumstances were not present in this case.

4.6The State party also considers that the author’s claim under article 14, paragraph 3, of the Covenant has no merit because New Zealand criminal procedure law makes robust provision for instances in which evidence sought by the defence is unavailable. Specifically, and consistently with the Committee’s approach, New Zealand criminal procedure law provides for the assessment of whether there is unacceptable prejudice to the defence and, if so, provides that prosecutions can be stayed if necessary. In this instance, the trial judge determined, in accordance with the law, that the defence was not prejudiced and could properly advance the contention that the seized substance was not methamphetamine at trial. The author was able to challenge that analytical evidence, and he did so, but without success. The author was also able to appeal the trial judge’s determinations, but he did not do so.

4.7Concerning the author’s claim that an effective remedy is warranted under article 2, paragraph 3, of the Covenant, the State party considers that the author contradicts himself on this issue. Specifically, the author states that he seeks a retrial, and yet simultaneously states he should not be subjected to further retrial. The State party further considers that it would not be appropriate to release the author without the possibility of retrial, because he has been convicted by a trial jury of a grave offence, and the conviction has been upheld twice on appeal. The State party also notes that the communication raises no issue of undue delay, and infers that this is due to what the submission describes as a “myriad of interlocutory and related proceedings”, as well as repeated appeals.

4.8Regarding the audio recording submitted by the author, the State party notes that the appropriate permission was not sought or obtained, and that the recording was therefore not authorized and has no official or authoritative character. Regarding the video recording of the focus group, the State party notes that the author’s counsel sought to adduce the recording before the Supreme Court, which commented that it had “no probative value” and that it was “a completely artificial exercise divorced from the evidence and circumstances of the trial”.

The author’s comments on the State party’s submission

5.1By submission dated 28 June 2011, the author repeated his assertions that the trial judge’s failure to conduct a diligent investigation as to whether the jury was deciding the case according to facts in evidence and nothing else constituted a breach of his rights under article 14, paragraph 1, of the Covenant. The author stresses that the judge gave a template Papadopoulos direction that did not properly address the issue of bullying that was made clear by the jury’s second note. He maintains that the jury foreperson was “clearly distressed” during the reading of the verdicts.

5.2Regarding his claim under article 14, paragraph 3 (b), of the Covenant, the author argues that he was denied equality of arms due to his inability to have the drug evidence tested. He further submits that the State party’s courts unfairly placed the burden of proof on him to show evidence that the seized substance was not methamphetamine, and that he was therefore placed in an “extraordinary dilemma” because the drug evidence had been destroyed. The author acknowledges that the toxicity report he presented was not accepted by the trial jury, but asserts that this rejection was due to the fact that he was not permitted to present his own evidence as to the seized substance. The author further submits that the State party does not cite any legal authority in support of its observation that it is entitled to destroy property such as the drug evidence without a legal order. Regarding the State party’s observation that the drugs were destroyed for security reasons, the author maintains that he had an appeal pending when the drugs were destroyed, that the drugs were destroyed about two years after they were seized and were therefore “secure enough for a couple of years”, and that it would have sufficed to keep only a minute sample for independent testing.

5.3The author maintains that the communication is admissible because he does not dispute the substantive trial issues but instead seeks redress for procedural defects that amounted to a denial of the fair trial process to which he was entitled. In the alternative, the author submits that the circumstances of the trial judge’s direction are exceptional and warrant close scrutiny by the Committee. The author also maintains that he exhausted domestic remedies with regard to the drug destruction issue because he unsuccessfully raised it in the trial court, during the 2009 Supreme Court appeal and again in 2010 before the Supreme Court.

Further comments by the author

6.1In a submission dated 22 December 2011, the author introduced additional claims under articles 14, paragraph 3, and 2, paragraph 3. In that regard, the author argues that he is originally from China and his native tongue is the Cantonese dialect. He is not fluent in the English language, has only an intermediate level of education, and is a non-professional individual with no legal training. During his retrial in 2009, he had no counsel to represent him and because of his lack of English abilities, he had an interpreter appointed for him by the Court. However, his interpreter did not interpret the opening statement and closing submissions from the prosecution, the judge’s summation to the jury and some of the witness testimony and judicial rulings. The only real interpretation was done when there were direct communications with him, and even when there was interpretation it was often in a whisper and was not “contemporaneous”. His attempts to communicate with the amicus curiae appointed by the Court were also not properly interpreted, and he was not provided with “transliterated” copies of the written evidence against him. The author also encountered the following procedural obstacles: the trial judge repeatedly refused to release to him a copy of the audio recording of his trial; his appeal to the Supreme Court was dismissed in 2011 with an intimation that he may have to revert to the Court of Appeal; and the Court of Appeal originally refused to accept his further appeal paperwork for filing, and it was only through the insistence of counsel that he was able to file the new papers. When the Court of Appeal did finally allow access to the audio recording in early 2011, it was only on the basis that counsel and an expert could attend the trial.

6.2The author further argues that the Court of Appeal initially questioned why the author needed an interpreter at his further appeal hearing, and did not provide him one, requiring him to pay for his own interpreter (and because the Minute was not timely provided to the author, he was unable to obtain his own interpreter). The Court of Appeal dismissed his appeal on the merits, even though the only hearing held was a jurisdiction hearing. The author alleges that he was unable to present evidence on the merits, and that the Supreme Court Registry refused to accept his paperwork for filing a final appeal. In the light of the foregoing facts, the author submits that the State party’s courts grossly abused his rights, because he was denied the high standard of interpretation to which he was entitled during his retrial; the courts refused to give him a hearing on the merits and instead frustrated his efforts at both the trial and appellate levels; he was not informed of the nature and the cause of the charge against him in a language which he understood; he was unable to present a defence because he was acting pro se and did not understand the key issues in the trial due to the poor interpretation; he was in essence denied the right to counsel because he was his own lawyer and was denied suitable interpretation; and he was denied the right to face his accusers because he was unable to understand what they were saying.

6.3Regarding the exhaustion of domestic remedies, the author states that he did not in his 2009 and 2010 appeals raise any issue related to the quality of interpretation at his retrial because he only became aware of this as a potential appellate issue after those appeals had closed. He then sought leave to further appeal to the Supreme Court, but in early 2011, this was declined with the intimation that the Court of Appeal might be the proper avenue to seek to further appeal. After the Court of Appeal Registry initially refused to accept his paperwork for filing, he was finally given a hearing on an application for a further appeal, but this was declined in November 2011. His appeal of this decision was not accepted by the Supreme Court Registry.

The State party’s further observations on admissibility

7.1On 13 April 2012, the State party submitted further observations on the admissibility and merits of the communication. With regard to the author’s new claims (in the submission dated 22 December 2011) relating to the adequacy of interpretation provided during his retrial, the State party notes that this point was not raised in the initial communication or in the author’s earlier appeals in the New Zealand appellate courts prior to mid-2010. The State party considers that the point was raised before the Court of Appeal and was thoroughly considered, and is inadmissible under articles 2 and/or 3 of the Optional Protocol due to the absence of any substantiated suggestion of arbitrariness, manifest error, denial of justice or partiality. Specifically, the State party cites the Court of Appeal decision stating that “Mr. [W.] has not pointed to any aspect of the conduct of the defence that was affected by any of the alleged failings on the part of [the interpreter.] In particular, he does not say that he did not understand what the Crown case against him was.” The State party also cites the portion of the decision relating to the assessment made by the amicus curiae barrister appointed to assist A.K.W.: “From his closing address it is clear that Mr. [W.] understood that the case against him was circumstantial and that the Crown had asked the jury to draw certain inferences on the basis of particular facts. Mr. [W.] pointed out the dangers of drawing inferences and challenged the inferences that the Crown had asked the jury to draw. In doing so, he referred to the various counts against him, to particular submissions made by the Crown, to specific evidence, including exhibits, and asked why the police had not investigated further.”

7.2The State party also quotes the decision recording the view of the trial judge, who instructed the jury as follows: “In this case Mr. [W.] has been assisted by an interpreter because English is not his first language. It is very important that the accused be able easily to follow the proceedings and the evidence given in court. You must not draw any inference adverse to Mr. [W.] because of the use of the interpreter. However, sometimes something can be lost in translation even when, as here, we have had the benefit of an excellent interpreter in Ms. Law. … You will need to make allowance for the fact that Mr. [W.] throughout the trial asked questions in cross-examination through the interpreter and that he made his opening statement and closing address to you through the interpreter.” Finally, the State party considers that the decision indicates that the author had no concern about the quality of the interpretation, quoting the following excerpt: “Mr. [W.] has had considerable experience with interpreters in the criminal justice context. In particular, he was assisted by an interpreter in relation to his retrial from at least October 2008 and Ms. Law had been interpreting for him from at least 20 February 2009 (and perhaps earlier, the record is unclear). If he considered that he did not understand what was happening at any particular point, or that significant parts of the trial were not being translated for him so that he could not follow what was happening, we would have expected Mr. [W.] to have raised his concerns with Ms. Law and, if he did not receive a satisfactory response from her, with [the amicus curiae] or the Court. … He did not raise then any deficiencies in her interpretation at trial. We do not accept Mr. [W.’s] explanation that he did not understand his rights in relation to an interpreter at that stage, given his experience of the criminal justice system and his confidence that he could represent himself both before and during the trial despite his language difficulties.” The State party considers that domestic law robustly provides for the right to an interpreter, and that the Court of Appeal decision fully considered that this right was not denied to the author.

7.3The State party considers that the author’s new claims raised in his submission dated 22 December 2011 are inadmissible as manifestly ill-founded and/or incompatible with the Covenant, because they seek to reopen specific factual findings of the New Zealand Court of Appeal. The State party further considers that these claims are an abuse of the right of submission, as they were not raised in the communication only because the author had not thought to do so.

Further comments by the author

8.By submissions dated 27 December 2012 and 22 March 2013, the author submitted new information concerning his application for a prerogative of mercy, which was denied by the Ministry of Justice on 20 December 2012. The author asserts that no reasons were provided for the decision, and that he is unable to obtain justice in New Zealand.

Issues and proceedings before the Committee

Consideration of admissibility

9.1Before considering any claim contained in a communication, the Human Rights Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol to the Covenant.

9.2The Committee notes, as required by article 5, paragraph 2 (a), of the Optional Protocol, that the same matter is not being examined under any other procedure of international investigation or settlement.

9.3The Committee notes the author’s arguments that the State party violated his rights under article 14, paragraphs 1, 3 and 5, of the Covenant (a) because the judge presiding over his retrial committed a number of procedural errors relating to the Papadopoulos direction she gave to the jury; (b) because the State party, by destroying the drug evidence that was the basis for his conviction while he had a pending appeal of his conviction and sentence, denied him the possibility to have the evidence independently tested; (c) because the State party provided ineffective interpretation services to him during criminal proceedings; and (d) because he was denied the right to appeal his conviction. The Committee takes the view that these allegations relate essentially to the evaluation of the facts and the evidence carried out by the New Zealand courts, and to the application of domestic legislation. The Committee recalls that it has repeatedly held that it is not a final instance competent to re-evaluate findings of fact or the application of domestic legislation, unless it can be ascertained that the proceedings before the domestic courts were arbitrary or amounted to a denial of justice. In the present case, the Committee considers that the author has failed to substantiate, for purposes of admissibility, that the conduct of the domestic courts amounted to arbitrariness or a denial of justice. Accordingly, these claims are inadmissible under article 2 of the Optional Protocol.

9.4The Committee further notes that according to the author, the State party violated his right to an effective remedy under article 2, paragraph 3, of the Covenant because the appellate courts denied him permission to interview the jurors in order to obtain evidence of the alleged bullying, and because he was denied the right to file an appeal before the Supreme Court. The Committee recalls that article 2, paragraph 3, of the Covenant can be invoked by individuals only in conjunction with other articles of the Covenant, and cannot, in and of itself, give rise to a claim under the Optional Protocol. The Committee therefore considers that the author’s contentions in this regard are inadmissible under article 2 of the Optional Protocol.

9.5In the light of the foregoing, the Committee considers that the communication is inadmissible under article 2 of the Optional Protocol.

10.The Human Rights Committee therefore decides:

(a)That the communication is inadmissible under article 2 of the Optional Protocol;

(b)That this decision shall be transmitted to the State party and to the author of the communication.