Naiker v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeSimon France J
Judgment Date11 May 2016
Neutral Citation[2016] NZCA 250
Docket NumberCA562/2015

[2016] NZCA 250

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Harrison,, Simon France and Woolford JJ

CA562/2015

BETWEEN
Vijendra Kumar Naiker
Appellant
and
The Queen
Respondent
Counsel:

I M Brookie for Appellant

Z R Johnston for Respondent

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.

The issues were: 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.

Held: In relation to the failure to report, the complaint was made by the juror who over heard the conversation promptly. It was difficult to know how the other jurors who were a party to the conversation might have acted given time.

Generally, the process followed by the Judge was entirely correct and there was no basis to interfere on appeal with the assessment of the trial Judge. No criticism had been made about the directions given to the remaining jurors at the time the foreperson was discharged and during the summing-up.

It was important to note that the “information” was in fact an unsolicited opinion from someone unknown to the remaining panel. One should not lightly assume a jury engaged with a trial and having listened to evidence for many days would care in any way what someone unknown to them and wholly unconnected to their process would think. The case was far removed from situations where inadmissible prejudicial evidence came to the jury's attention.

The circumstances surrounding the testimony of R and Neru were obviously ripe for a warning about reliability. Equally, the circumstances necessitating a warning were obvious and were squarely before the jury. This was important when considering whether a judge's warning under s122 EA met the needs of the case. The EA expressly stated that no particular wording was required.

The words used by the Judge did not follow the firm tones approved in Hudson v R but what was said was sufficient for the case. It was a case where the motivations to give untrue evidence were very much uncontested.

Concerning the one witness who had previously lied on oath, the Judge's direction was the clearest example of the Judge himself directing caution. Otherwise most of the comments were more qualified in the sense they occurred in the context of the Judge discussing competing submissions, and they consisted of the Judge emphasising that if the jury accepted the defence propositions about the context in which evidence was being given then caution about the evidence was required.

This was sufficient to bring home to the jury the issues and the implications. To go further risked the Judge advising the jury not to accept the evidence, and the circumstances of this case did not merit that level of warning. The Judge plainly had not reached the view that the witnesses should not be relied upon, and so any cautionary comments needed to reflect that.

The rationale behind s122 EA meant it was not always appropriate to leave it to counsel to point out the risks, and the Court should itself make comment ( CT v R). However, equally it was the circumstances of the case that dictated the s122 EA requirements. What was said here met the needs of this case.

Appeal dismissed.

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

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...

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