The jury charged with deciding whether Auckland eye surgeon Philip Polkinghorne murdered his wife is expected to begin deliberating soon.
Today the jurors will start their deliberations into whether Auckland eye surgeon Philip Polkinghorne murdered his wife. Open Justice reporter Ric Stevens examines the dynamics of how 11 ordinary New Zealanders will decide his fate.
If you are reading this, you have an interest in and you may have an opinion on the case of Philip Polkinghorne - the man who is accused of murdering his wife Pauline Hanna at their home in Remuera at Easter 2021.
Today, however, the considered opinions of only 11 people matter – the eight women and three men who make up the jury in the case.
They will be the ones deciding whether Polkinghorne is guilty or not guilty.
At the start there were 12 jurors in the High Court at Auckland. That was when the trial was expected to run for six weeks.
In the seventh week, and with no clear end in sight, one of the 12 approached the judge and said they had an inescapable personal commitment coming up.
“What we don’t ever want to do is have a juror or a jury under stress to reach a verdict in a particular time frame,” the judge said.
“The reality is if I sent you out on Wednesday you’ll be thinking we have to get a verdict on Thursday and that’s exactly the kind of pressure we don’t want to put on you.”
Justice Graham Lang does not want jurors to be under stress to deliver a verdict in a particular time frame. Photo / NZME
Which raises the obvious question – how long will the jury take?
Well, Justice Lang has already indicated it might be days. He has also said he wants the decision to be made without having regard to the pressures of time.
In other words, it will take as long as it takes.
The shortest deliberation ever
Incidentally, New Zealand holds a Guinness World Record for the shortest jury trial outcome ever.
On July 22, 2004, Nicholas McAllister was acquitted of cultivating cannabis plants by a jury in the Greymouth District Court.
It deliberated for only one minute. Jurors left the courtroom at 3.28pm and returned at 3.29pm to announce he was not guilty.
In the Polkinghorne case, the first significant point in time will come after four hours of deliberations.
That is the earliest point at which the judge can allow a majority verdict, or discharge the jury with a “hung verdict” if they are unable to agree.
A majority verdict does not mean it is held by most jurors. It means the full panel minus one. In most trials, this is 11 jurors. In Polkinghorne’s case, at least 10 jurors will have to agree.
If the jury cannot agree, they will be discharged and possibly a new trial ordered, but no one – not the judge, not the Crown prosecutor, not the defence counsel or the police – will want that to happen.
Nor, probably, will the jurors. They have invested eight weeks of their lives into this case and will want to see a resolution, one way or the other.
It is unlikely that the judge will consider a mere four hours a “reasonable” period to remain in deliberation, as specified in the Section 22 of the Juries Act 1981 which sets out the grounds for a discharge. He would be justified in sending them back for another try.
Who are the jurors?
So, who are these people who will decide Polkinghorne’s fate?
We will probably never know. It is an offence under Section 32B of the Juries Act 1981 to publish or broadcast a juror’s identity, unless that person gives consent or if there is a valid legal reason to do so.
But, broadly, the jurors will be ordinary New Zealanders, just 11 of the 300,000 who receive a jury summons each year, with their names drawn from the electoral roll.
That is an important point of juries – that they are made up of normal, everyday people.
Section 24 of the New Zealand Bill of Rights Act 1990 guarantees the right of a trial by jury for any offence punishable by more than two years in prison, but the concept is much older than that.
The idea that a person should be judged by their “peers” dates back more than 800 years in the laws of England, on which much of the New Zealand legal system is based. Back in fact to the Magna Carta of 1215.
The legislation which established the jury system in New Zealand was adopted directly from the colonial power, Britain, in 1841, one year after the signing of the Treaty of Waitangi.
Those “peers” who get to sit in judgment usually go through several screenings before taking their places in the jury box.
Once they have answered the summons and reported to the courthouse (the law provides it could be up to 45km from their home), their names go into a barrel to be drawn, not unlike a raffle.
Police and Crown lawyers at Philip Polkinghorne's home on the day jurors toured the scene where Hanna was found dead. Photo / Jason Dorday
Those who are selected then get a chance to let court staff know if there is any reason why they cannot serve on this trial - an example would be if they know the defendant or one of the witnesses.
Then they have to survive the routine “challenges” from prosecution and defence lawyers trying to ensure a cross-section of people are going to be on the jury. For a single defendant on a single charge, there are up to four challenges for each side.
Juries are ‘vetted’
The prosecution’s challenges can be informed by a “jury vetting” process.
Crown prosecutors receive information about any criminal convictions of people on the jury panel from the police. They can use this in determining whether or not to challenge those people from becoming jurors.
The challenges come as the prospective jurors are walking towards the jury box. At the moment where they take their seat, it’s too late and, for better or worse, they are on the team.
Jurors are paid, but the money they receive is not even the minimum wage. The money is not intended to replace their normal income and many employers, who are required by law to give people jury leave (and not require them to take annual leave), “top up” their workers’ earnings to their usual wage.
For the first five days, jurors receive $31 for every half day. From day six, this rises to $40, with extra payments if they have to stay into the evening.
Jurors can also claim expenses for travelling to and from court and for such things as parking costs or childcare.
‘Beyond reasonable doubt’
An enormous amount of evidence has been heard from 80 witnesses in the Polkinghorne case, much of it in salacious and bewildering detail.
But the jurors themselves have a fairly simple issue to decide – whether the Crown prosecutors have proven that Polkinghorne is guilty of murder “beyond reasonable doubt”.
In other words, the jurors must be as certain as they can possibly be that Polkinghorne killed his wife, and that she did not die by her own hand, as the defence counsel have argued.
But the defence does not have to prove anything. In this case, it does not have to prove that Hanna died by suicide.
To succeed, it only has to raise a reasonable doubt in the jurors’ minds that this is a case of murder.
The defence case is that Pauline Hanna, pictured, died by suicide. Photo / Supplied
All the defence evidence about Hanna and her life in the months, weeks and days before her death has been towards that end - to suggest another explanation, to raise possible doubts.
In making their decision, jurors are guided by the judge’s summing up, which will tell them where they should focus their attention, and to put any sympathy or prejudice they have to one side.
Usually, jurors also get a “question trail”, providing a sort of flow-chart which helps them in their deliberations.
These are particularly useful in complicated trials involving multiple defendants and various charges, and can be quite lengthy documents in themselves.
The question trail in the Polkinghorne case is relatively short.
The jurors will have a mass of information available to them as they go about making their decision.
They have been allowed to take their own notes. They will also have transcripts of the proceedings and access to the exhibits produced in court, including photographs.
They have been able to visit the scene at Polkinghorne’s Remuera home where Hanna was found dead.
Through the foreperson that they chose, the jurors will also be allowed to ask questions of the judge. It is not uncommon to see juries return to the courtroom to be given further guidance from the bench.
Before the defence closing address even finished on Wednesday, the jurors had already sent a note to the judge asking to listen again to Polkinghorne’s 111 call.
But he urged again that jurors put it out of their mind if it didn’t happen in the courtroom.
Jurors are also not allowed to talk to witnesses.
They are not allowed to post messages about the trial on their own social media. Not only would this potentially identify them as being jury members, it would invite comment which might prejudice them in their thinking.
They are not even allowed to discuss the case individually or in small groups with other jurors. They have to be all together in the jury room.
And, now that they are deliberating, the jury room becomes a closed bubble. The jurors’ cellphones and other devices such as iPads or laptops will have been taken from them as they go in.
It used to be the case that juries were “sequestered” if they were going to deliberate overnight. They would be taken to a hotel and kept under the supervision of a court official.
That is no longer the case. It changed when the 1981 Juries Act came into effect.
In the normal course of events, jurors will be allowed to go home each night, unless the judge decides that they need to be sequestered in the interests of justice.
When they come to a decision, the jurors will return to the court. They do not have to explain to anyone what has happened in the jury room, and they do not have to give a reason for the verdict that is about to be given.
Registrar will ask question
The court registrar will ask them if they have come to a verdict on which they all agree. The foreperson will respond on their behalf.
The registrar will then ask: “On the charge of murder, do you find the defendant guilty or not guilty?”
Philip Polkinghorne appears in the High Court at Auckland during the fourth week of his murder trial. Photo / Jason Oxenham
If Polkinghorne is found not guilty, he will be free to go. He will walk out of the courtroom door a free man.
If he is found guilty, he will leave the room by another door - one that leads to a cell.
A third possibility is that the jury will find Polkinghorne not guilty of murder, but guilty of manslaughter - this might be the result if they find he killed Hanna, but did not mean to do so.
However, neither the Crown nor the defence addressed this possibility in their final closings. Given the scenarios presented in the trial, it is a much less likely option.
Another possibility is that the jury will reach an impasse and will find themselves unable to reach a unanimous or majority decision in a “reasonable” amount of time.
This is the “hung jury” scenario. The current jury will be discharged and a new trial may take place at a future date.
In that case, the prosecution and defence will go back to square one. All the evidence will need to be reheard before a new panel.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay. His writing in the crime and justice sphere is informed by four years of front-line experience as a probation officer.
