Naiker v R

• Jurisdiction: New Zealand
• Judge: Simon France J
• Judgment Date: 11 May 2016
• Neutral Citation: [2016] NZCA 250
• Docket Number: CA562/2015
• Court: Court of Appeal
• Date: 11 May 2016

BETWEEN

Vijendra Kumar Naiker

Appellant

and

The Queen

Respondent

[2016] NZCA 250

Court:

Harrison,, Simon France and Woolford JJ

CA562/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction on the grounds that the trial should have been abandoned because one of the jurors had received an outside communication which he had passed on to other jurors, and that the Judge's warning under s122 Evidence Act 2006 (EA) (Judicial directions about evidence which may be unreliable) about the reliability of two witnesses was deficient — p the employer of one of the juror's researched the case, and texted the juror along the lines of “clearly arson, defendant guilty” — the juror mentioned the text in conversation with some of the other jurors — another juror overheard this and immediately reported it — the s122 EA directions were given in respect of former co-defendants who pleaded guilty to arson and received reduced sentences because of their willingness to testify at the appellant's trial — they allegedly had been and still were interested in a reward that had been posted — the Judge told the jury that when assessing credibility, the jury needed to take motivations into account if the jury considered they did exist — one witness had previously lied on oath — the Judge directed the jury that “it is a matter you need to consider and it is something that is a caution in relation to his evidence” — whether the failure by the jurors to report the message indicated that they would not follow the Judge's directions — whether the warnings given under s122 EA were adequate.

Counsel:

I M Brookie for Appellant

Z R Johnston for Respondent

The appeal against conviction is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Simon France J)

Introduction

1 Vijendra Naiker was found guilty of arson following a trial in the Auckland District Court before Judge David Sharp and a jury. The jury was satisfied he had paid others to burn down his business premises. Mr Naiker appeals his subsequent conviction on the grounds that the trial would have been abandoned because of outside information being received by jurors, and that Judge Sharp's direction pursuant to s 122 of the Evidence Act 2006 about the reliability of two witnesses was deficient. 1

Facts

2 For the purposes of the appeal very little need be said about the facts. It was alleged that Mr Naiker's business was in difficulty and that he arranged for the building to be set on fire so as to obtain the insurance. The alleged sequence was that Mr Naiker approached an acquaintance, Mr Ken Reddy, to organise the arson. Mr Reddy then recruited his son-in-law, Mr Oli Neru. It was Mr Neru who actually lit the fire.

3 Both Mr Neru and Mr Reddy pleaded guilty to arson. They received reduced sentences because of their willingness to testify for the Crown at Mr Naiker's trial, which they did.

Issue one — outside communication with the jury

4 At the outset of the trial, one of the jurors requested that confirmation be sent by the Court to his employer that he was indeed on the jury. There is a standard form for this procedure which includes the name of the case. This form was sent to the juror's employer.

5 It seems that the employer took it upon himself to research the case, and then at some point to text his employee about it. The exact content of the message is unknown because it was deleted from both phones. However, it was something like “clearly arson, defendant guilty”.

6 The sequence of events following receipt of this message is again not certain, but it seems that for some days the juror (by then the foreperson) said nothing. However, near the end of the trial — prior to the start of the day's proceedings — he was in conversation with some of the other jurors and mentioned the text message to them. Another juror overheard this and reported it, via the crier, to the Judge.

7 The Judge spoke to the juror who overheard the conversation, and then to the foreperson. We have the benefit of a transcript of those discussions. The foreperson said that he may have told the other jurors to whom he spoke that his boss had “gone and done his own research” and then sent the text message. The context for the conversation was that the jurors were discussing the different ways people find out things and the foreperson gave the message from his boss as an example.

8 Judge Sharp dismissed the foreperson but declined an application by Mr Naiker for the entire jury to be discharged. 2 In reaching this position, the Judge observed:

[16] The text message was short, it came from a person with no basis to claim knowledge about the evidence in trial. The message did not specifically include any reasoning or basis for the view expressed although by inference it is possible that a juror could conclude it was the product of some research. The opportunity for discussion of the text was short and another juror promptly reported it.

It was also noted that the trial issue was not whether there had been an arson. That was uncontested. Finally, in...