Court rules in Tauranga miscarriage of justice appeal involving 'unfair' trial

Tauranga District Court held the trial of two people who say they are victims of a miscarriage or justice. Photo / File

A Tauranga man and woman jailed for a premeditated baseball attack on her brother say they are the victims of a miscarriage of justice and frightened jury.

However, the Court of Appeal has decided otherwise.

Hayley Kiwi and Kenneth Roberts were convicted of wounding with intent to cause grievous bodily harm following a trial by jury at Tauranga District Court. They were jointly charged with a third offender, Kiwi's boyfriend, who did not appeal.

In the Court of Appeal's decision, released this month, Kiwi and Roberts were found to have set upon and bashed her brother with a baseball bat after a fallout between the siblings. His arm was broken.

The decision stated that on the third day of trial, a jury member recognised a person sitting in the public gallery, believed to have gang connections. While the jury member did not have concerns for her safety and was on "by no means on bad terms" with the person, the issue was raised with the judge and the juror discharged.

The next day, jurors became concerned when they saw Roberts pass a note to a corrections officer, who then gave the note to a man in the public gallery. That man then gave Roberts a thumbs-up sign, prompting concern from the jury for the safety of the discharged juror. However, the note was later found to have concerned Roberts' unwell mother.

All defendants were convicted and sentenced to six years' imprisonment.

Kiwi and Roberts claimed the judge erred by not discharging the jury, resulting in the "miscarriage of justice". They were concerned the jury harboured prejudices against them based on assumptions about possible gang connections and as a result, felt fearful about their safety. They also believed the jury was failing to pay proper attention to the evidence.

The decision said it was suggested by Kiwi's counsel that the jury was so distracted with concerns about the discharged jury member's safety that the trial had become "unfair".

However, Justice David Collins stated in his ruling that Judge Ingram was "ideally positioned to assess whether or not there was a genuine risk of the jury being unable to discharge their duty to ensure the defendants were judged without prejudice or sympathy".

"The approach taken by the judge was entirely appropriate."

Justice Collins said there was nothing to corroborate the claims the jury failed to pay proper attention to the evidence.

"While the two incidents involving the jury constituted unforeseen events, they did not amount to 'something going wrong with or affecting the trial process'. Nor do we accept the submission that Judge Ingram erred when he concluded 'the ends of justice' did not require him to discharge the jury."

The appeals against the convictions and sentencing included a claim from Kiwi that she receive a lesser sentence because she said she was less culpable than her co-offenders but this was found "without merit" and she had been a "principal instigator" of the attack.

Both appeals were dismissed.