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Rape case inquiry after claims foreperson 'bullied' by defendant's brother at school

Author
Anna Leask, NZ Herald,
Section
Christchurch,
Publish Date
Wednesday, 26 June 2019, 1:27PM
The Christchurch District Court sits within the Justice Precinct in Christchurch. (Photo / NZ Herald)
The Christchurch District Court sits within the Justice Precinct in Christchurch. (Photo / NZ Herald)

The Supreme Court has ordered an inquiry into a jury foreman after claims made that he went to school with the brother of a convicted rapist whose trial he sat on.

It has been further claimed that the foreman was bullied by the rapist's brother at school - and was "biased" and used his position to "influence" other jurors on the case. 

Brooke Rolleston and Brandon Roche, both 20, were convicted in the Christchurch District Court last year after a jury found them guilty of the January 2016 rape and sexual violation by unlawful sexual connection of the teenage girl.

Judge Alistair Garland sentenced Rolleston to 11 years and two months' imprisonment and Roche to 10 years and nine months' imprisonment.

The pair appealed their convictions after claiming they did not receive a fair trial because of apparent juror bias.

They also alleged their sentences were manifestly excessive.

The Court of Appeal rejected their bid.

The pair then took their case to the Supreme Court, which today released its decision. 
It has made an order "directing an inquiry to be undertaken by an independent practitioner of the jury foreperson".

Terms of the inquiry are yet to be settled.

In their earlier appeal, Rolleston and Roche argued that they did not receive a fair trial because the jury foreman was biased.

It was claimed that the foreman went to school with Rolleston's younger brother.

As a preliminary step to their original appeal, the convicted rapists applied for orders 
directing an independent practitioner to interview the jurors from their trial.

Affidavit evidence was filed from Rolleston, his brother, and a teacher who had contact with the brother.

In his affidavit Rolleston discussed the process of jury selection, acknowledging that his then-lawyer took him through a list of names of potential jurors which he "briefly perused".

"He said he did not recognise anybody from the list, nor did he recognise anybody actually selected as a juror," the Court of Appeal decision stated.

"He explained he was scared and did not pay sufficient attention to the jurors, relying on his lawyer."

However "at some stage" during the Crown case, Rolleston realised he knew the foreperson, who had been a year behind him at high school.

Rolleston "did not think to bring this to the attention of his lawyer or anyone else".

His younger brother confirmed he was in the same year at high school with the foreperson, who cannot be identified for legal reasons, from 2011 to 2014.

In his affidavit Rolleston's brother described himself as a school bully who "abused other students verbally and physically" at school.

The foreman was one of his victims.

"I had many aggressive exchanges with [the foreperson]," the brother stated.

"That is because he was weird in that he would stare at me intensely for minutes at a time.

"His staring led me to ask him why he was staring and whether he had a problem with me.

"When he did not respond, I verbally abused him in front of other students both, male and female.

"This was a regular occurrence."

Rolleston's brother told the Court of Appeal that he attended the trial from either the second or third day, sitting in the public gallery.

He claimed the foreman "caught his eye because he was staring at him intensely for minutes at a time".

He thought he knew the foreman but was not sure.

"After the trial had concluded, he went to his high school and looked at the 2012 yearbook which confirmed his suspicion," the Court of Appeal decision stated.

The application for the Court of Appeal order, and the appeal itself, were both declined.

The Court of Appeal judges said the foreman "was not a person who would necessarily be disqualified from sitting as a juror".

"While he could have been excused from jury service if the trial Judge had been satisfied he was personally concerned with the facts of the case or closely connected with one of the parties or witnesses, it was not clear the juror would have been discharged even had the juror recognised Mr Rolleston or his brother," they said.

They said Rolleston and Roche placed reliance on the possibility that the foreman recognised the former's younger brother, "remembered being verbally bullied by him at school at least three years earlier, harboured a grudge as a result and visited the sins" of himself on the then-defendants.

"Further, that [the foreperson] told the rest of the jury about being bullied and that influenced their attitude towards both appellants and therefore their deliberations," the decision said.

"The juror was not 'closely connected' with Mr Rolleston.

"They were not in the same class at school and there was no suggestion of any issue between the juror and Mr Rolleston, who was in the year above him.

"Mr Rolleston had not recognised (the foreperson), neither when empanelled nor when selected as the foreperson.

"Despite the trial Judge having instructed the jury panel that any selected juror should inform him if they knew one of the defendants, the juror had not raised any concern during the trial and there was no indication that he recognised Mr Rolleston, either by name or by sight."

The Court of Appeal judges said the link between the foreman and Rolleston - via his brother - was "tenuous".

"This Court concluded that the allegation of bias, even at its highest' would not meet the test for a miscarriage of justice on the basis of an unfair trial.

"There would need to be some evidence that the jury improperly judged Mr Rolleston because of what his brother had done when he was a schoolboy.

"That very tenuous linkage did not provide a sufficient evidential basis for alleging the juror was biased against either or both appellants.

"Because of that finding, the application to interview [the foreperson] and the other 11 jurors was declined ... follows that there remains no evidential basis for the allegation that [the foreperson] was biased against Mr Rolleston or, by association, his fellow defendant, Mr Roche.

"Unfounded speculation of this type could not lead the reasonably informed and fair-minded observer to apprehend or suspect that [the foreperson] might not have discharged his duty as a juror in an impartial manner.

"In the absence of that being a real possibility, the test for apparent bias must fail."

During the trial Rolleston and Roche denied the offending.

When interviewed by the police, both men admitted having simultaneously engaged in sexual acts with the complainant but maintained it was consensual.

*An earlier version of this article incorrectly stated the foreman was the bully at school. In fact, the convicted rapist's brother admitted bullying the foreman at school.

 

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