A High Court judge twice refused to stop a murder trial despite one juror falling ill and a lawyer's plea that the coronavirus pandemic would see an anxious jury "rush to justice".

Dozens of trials around New Zealand were still being heard when Chief Justice Dame Helen Winkelmann ordered a halt to any new jury trials for at least two months due to Covid-19.

One included the High Court trial of Don Ekeroma, 35, and Benny Fatu, 29, who were both charged with murdering Shannon Baker in December 2018.

However, a day before the Chief Justice's announcement last Wednesday, Ekeroma's lawyer had already asked the case's judge to bring an end to the Auckland trial.


As the trial neared its end, Lester Cordwell made an urgent oral application to Justice Pheroze Jagose for the jury to be discharged.

He did so after health officials had ramped up New Zealand's response to coronavirus and advised Kiwis to begin practising social distancing and seclusion - something impossible for 12 jurors to adhere to.

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Cordwell argued by continuing the trial it would risk a "rush to justice" as the jurors sought to escape the confines of their close hearing and deliberation spaces.

He said in the current climate of increasing personal and family health risks from close contact with others, and official enjoinders for social distancing, it was not in the interests of justice to continue.

The fast-developing environment, and jurors' natural anxiety for personal and family safety, would curtail their focus on their verdicts, he argued.

Justice Jagose briefly reserved his decision but later dismissed it.

However, unknown to Cordwell at the time he foreshadowed his application, a juror had already approached the court's registry the previous day with symptoms "as harbinger of an on-coming cold", Justice Jagose's decision reads.


"The juror had not travelled overseas recently, or been in known close contact with either any suspected Covid-19 sufferer or their close contacts," the judge said.

"My initial view was, without fever symptoms, the juror could and should sit. But the Director-General of Health's Covid-19 guidelines changed later that day, from fever 'and' other symptoms to fever 'or' other symptoms. On that basis, having at least one of those other symptoms, the juror's afflicted presence in the jury risked imposing undue pressure on the other jurors, and I stood the juror down."

Before Cordwell argued his application, Justice Jagose also spoke to the remaining jurors to advise them of their reduced number and the reason for it.

He asked them to consider if they were comfortable with the developing Covid-19 situation and the jury advised him they were content to continue with the trial.

Justice Jagose, however, accepted diverted jurors would not be able properly to participate in the trial and deliberations.

"My discharge of the unwell juror precisely was to ensure that juror's presence was not of such diversionary quality as put the fairness of trial at risk or rendered its verdict doubtful."


But the courtroom Covid-19 debate wasn't over as the health crisis continued to develop almost every hour.

Chief Justice Helen Winkelmann halted all new jury trials for at least two months. Photo / Nicola Edmonds
Chief Justice Helen Winkelmann halted all new jury trials for at least two months. Photo / Nicola Edmonds

After the Chief Justice suspended of all new jury trials, Cordwell renewed his bid to halt his trial last Thursday.

By that time the jury had been deliberating since 10.30am the day before.

Cordwell argued it was probable, if not certain, the jurors would have heard and be discussing the publicity surrounding the Chief Justice's advice.

He also emphasised the Chief Justice herself noted "maintaining prudent hygiene precautions in the environment of a jury trial is unrealistic", which must have impacted on jurors' assessments of their personal safety retained in the jury room.

But Justice Jagose again turned Cordwell's concerns away.


In a second judgment, the judge said: "I do not doubt publicity of the Chief Justice's advice is a topic of jurors' discussion.

"I understand cancellation of larger community events is to diminish the risk of community spread, which is not yet understood to have occurred. I already have invited jurors to advise me if the developing Covid-19 situation gives them any concern for their ability to adhere to their oaths. I am not minded to make any more direct inquiry of them during their present deliberations."

Fatu's lawyer Graeme Newell said his client wished to proceed to a verdict, while Crown prosecutor Brett Tantrum opposed Cordwell's application.

"Mr Newell, in particular, emphasised the jury was not in a vacuum; there was no evidence of community spread; and 'the least possible interference' with a deliberating jury was the preferred approach. I agree," Justice Jagose said.

Ultimately later in the day, Ekeroma and Fatu were both found not guilty of murder but were found guilty of manslaughter.

Last night in a letter to New Zealand's legal profession, the Chief Justice said the country's courts will remain open but proceedings will be prioritised and the number of people allowed in the courthouse will be limited.


The Ministry of Justice is also ordering infrared scanners and once available people will also have their temperatures checked when entering a courthouse. Those who appear to have a fever will be turned away.

Many judicial decisions will now also be made on paper and some hearings conducted by telephone or video, the Chief Justice said.

- Additional reporting by Chelsea Boyle