Judges consider listening to a trial recording to assess ‘the vibe’

Judges considering whether a Gisborne jury trial was unfair because of the judge’s comments, are considering listening to a recording of the case to assess “the vibe”.

At the Court of Appeal in Wellington on Thursday, lawyer Chris Tennet said the judge may have been unhappy with the complainant who was a bit out of control, but that did not excuse his attitude to defence lawyer Nicola Wright.

Judge Warren Cathcart “descended into the arena” of the trial to the extent that justice miscarried, Tennet said.

One of the appeal judges, Justice Mathew Downs, said he counted five places in the trial transcript where the judge seemed to have been cross with the complainant, who said she was sexually assaulted, and rebuked her in front of the jury.

But Tennet said that did not excuse what the judge did to the defence lawyer. He was not rude to the prosecutor, Tennet said.

The defendant, John Anthony Berry, stood trial on two charges of having unlawful sexual connection with a woman during a traditional healing session. He was found not guilty of one charge but was convicted on the other and sentenced to two years and eight months’ jail.

For the Crown Sally Carter said the judge had to control the proceedings and ensure defence counsel asked questions appropriately.

It appeared the judge had been a little frustrated, she said.

And the defence lawyer continued to be quite robust in advancing the defence case, she said.

Although it was claimed “the vibe” was plain, the question was what the jury would have made of it, she said.

Carter said Judge Cathcart had made similar comments to both the defence lawyer and the complainant, and it did not cross the threshhold of being unfair to the defendant.

Justice David Goddard, presiding at the appeal, asked if the three Court of Appeal judges should listen to an audio recording of the trial to hear, for instance, where the judge said “Ridiculous” as the jury entered the court.

Justice Christian Whata saw a problem with listening to snippets to get “the vibe”, and Justice Downs said he wanted to see if the issue had been raised in past cases.

Justice Goddard said they would reflect on whether to listen to the audio.

Tennet said Berry also appealed against his sentence. The grounds included that the sentence reflected the view the judge had about evidence relating to the charge on which Berry was found not guilty.

The other Crown lawyer, Amelia Jeffares, defended the sentence. It was very far from being clearly unjust, she said.

Justice Goddard said the court would give its decision later in writing. It was an important case because it was about the fairness of a trial process, he said.