Brar v The King
[2025] NZCA 265
•23 June 2025 at 4 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA783/2023 |
| BETWEEN | GURINDERPAL SINGH BRAR |
| AND | THE KING |
| Hearing: | 24 February 2025 |
Court: | Palmer, Hinton and Edwards JJ |
Counsel: | T M Cooper KC and S J Bird for Appellant |
Judgment: | 23 June 2025 at 4 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Palmer J)
Summary
On 13 October 2023, in the High Court at Auckland, Mr Gurinderpal Brar was found guilty by a jury of the attempted murder of Mr Harnek Singh after an almost six-week trial. On 28 November 2023, Woolford J sentenced Mr Brar to 13 years and six months’ imprisonment, with a minimum period of imprisonment (MPI) of nine years.[1] Mr Brar appeals his conviction and sentence.
[1]R v Brar [2023] NZHC 3405 [sentencing decision].
We dismiss both appeals. In the circumstances of this trial, where the reliability and credibility of the key Crown witness was obvious and defence counsel did not dwell on it in closing, the Judge was not required to exercise his discretion to direct the jury on unreliability under s 122 of the Evidence Act 2006. Additional evidence that Mr Brar complains was unfairly prejudicial did not cause a miscarriage of justice. The sentence, including the MPI, was within the range available to the Judge and was not manifestly excessive.
What happened?
Woolford J set out the offending in his sentencing notes.[2] In summary, Mr Brar is a member of the Sikh community in Auckland who acquired a close circle of devotees, and inspired devotion and obedience from them.[3] He did not agree with the views of a more liberal member of the community, Harnek Singh, who made broadcasts with which Mr Brar strongly disagreed.[4]
[2]At [3]–[21].
[3]At [3]–[4].
[4]At [5].
In mid‑December 2020, Mr Brar approached two others separately, with plans to kill Harnek Singh.[5] One of them was Mr Jaspal Singh. On 23 December 2020, Mr Brar pointed out Harnek Singh’s car to Jaspal Singh and told him it would happen that night.[6] About 6 pm that evening, Mr Brar met Jaspal Singh and Mr Sarvjeet Sidhu at the gurdwara, or Sikh temple, and gave Jaspal Singh a bag containing knives, bats and stolen licence plates.[7] Later, Jaspal Singh met with Sarvjeet Sidhu and Mr Jobanpreet Singh in Papatoetoe, put stolen plates on the car Jaspal Singh was driving, a black Ford Ranger, and monitored Harnek Singh’s broadcast.[8] Then, as Woolford J stated at Mr Brar’s sentencing:
[11] Shortly after 10 pm, Harnek ended his broadcast, called his wife, and commenced his drive home. Between 10.07 pm and 10.25 pm, Harnek’s vehicle was followed by three vehicles — the Ford Ranger (containing Jaspal, Sarvjeet and Jobanpreet) a Toyota HiAce van (driven by Hardeep Sandhu (Hardeep)) and a Toyota Prius.
[12] Upon arrival at Harnek’s driveway, Hardeep crashed the Toyota HiAce van into the passenger’s side of Harnek’s ute, bringing it to a stop on the entrance to the driveway. The Ford Ranger then pulled up behind the red ute, Jobanpreet and Sarvjeet got out and approached the ute. They had their faces covered and had something in their hands. The pair began hitting the windshield with a bat. Jaspal joined in, and all three began trying to break the driver’s window to Harnek’s ute while Harnek remained in the driver’s seat and pressing the horn. Jaspal struck the driver’s window causing it to break, providing all three (Jobanpreet, Sarvjeet, and Jaspal) with an access point through which they could attack Harnek. All three began “going for it” and stabbing Harnek through the driver’s window with knives. During the frenzied attack, both Sarvjeet and Jaspal injured themselves and stepped back. Jaspal also dropped his knife inside Harnek’s vehicle.
[13] The trio ran back to the Ford Ranger and fled. Jaspal called [Mr Brar] and said, “It’s done” and [Mr Brar] thanked him.
[5]At [6]–[7].
[6]At [8].
[7]At [9]–[10].
[8]At [10].
Subsequently, Jaspal Singh and Sarvjeet Sidhu turned up at Mr Brar’s house who told them to go to Mr Sukhpreet Singh’s house nearby.[9] The next morning Mr Brar arrived there and was played GoPro footage of the attack.[10] Mr Brar was “happy and proud of what they had done”.[11] A month later, Mr Brar purchased Harnek Singh’s car and arranged for the Toyota HiAce to be disposed of.[12]
[9]At [14].
[10]At [15].
[11]At [15].
[12]At [16].
Harnek Singh’s injuries were extensive. He was stabbed about 40 times, two arteries were severed and only immediate and extensive medical intervention saved his life. The Crown submits he will suffer significant long-term effects and is unlikely to make a full recovery.
Jaspal Singh pleaded guilty to attempted murder on 22 March 2022. Sarvjeet Sidhu and Hardeep Sandhu pleaded guilty to attempted murder on 30 August 2023, within a week before the trial started. Mr Brar, Jobanpreet Singh, Mr Gurbinder Singh and Mr Jagraj Singh were tried for the attempted murder of Harnek Singh, and Sukhpreet Singh was charged as being an accessory after the fact to the attempted murder. Mr Brar, Jobanpreet Singh and Sukhpreet Singh were found guilty.[13] The charges against Gurbinder Singh and Jagraj Singh were dismissed under s 147 of the Criminal Procedure Act 2011 during the course of the trial.[14]
[13]Sentencing decision, above n 1; R v Singh [2024] NZHC 491; and R v Singh [2023] NZHC 3407.
[14]R v Singh [2023] NZHC 2747; and R v Singh [2023] NZHC 2741.
Mr Brar’s defence was that he played no part in the events and his co‑defendants were alienated from Harnek Singh and did not worship Mr Brar. The only evidence of Mr Brar’s procurement of the attack on Harnek Singh was from Jaspal Singh. Jaspal Singh had left a knife at the scene, with his own blood on it, so had little choice but to plead guilty. Jaspal Singh clearly disliked, and was financially indebted to, Mr Brar and received a 30 per cent downwards adjustment to his own sentence for the full admission of his involvement.
Conviction appeal
Under s 232(2)(c) of the Criminal Procedure Act, we must allow an appeal if satisfied that “a miscarriage of justice has occurred for any reason”. A miscarriage of justice is defined by s 232(4) to mean:
… any error, irregularity, or occurrence in … the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
Unreliability warning
Mr Brar’s main ground of appeal is that the Judge should have given the jury a direction under s 122 of the Evidence Act about the evidence of Jaspal Singh who was an incentivised witness. That section states:
122Judicial directions about evidence which may be unreliable
(1)If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—
(a)whether to accept the evidence:
(b)the weight to be given to the evidence.
(2)In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:
…
(c)evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
…
(e)evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.
(3)In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—
(a)if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b)if the Judge is of the opinion that there is any other good reason not to comply with the request.
(4)It is not necessary for a Judge to use a particular form of words in giving the warning.
…
In CT v R, the Supreme Court held that the trial judge there did not give adequate directions to the jury to overcome the risk of unfairness arising from the effect of delay in relation to s 122(2)(e).[15] It stated that “[w]here the judge considers the evidence may be unreliable for that reason (or for the other reasons identified in s 122(2)), consideration of a warning is required and its absence may lead to unfairness in the trial”.[16] Although s 122 “does not mandate the giving of a warning”, the Court cautioned against a general view that s 122 warnings are “generally unnecessary or inappropriate”.[17] In R v R, also in relation to delay, the Supreme Court reiterated “basic propositions”, particularly:[18]
…
(a)The 10-year threshold is already a high one, so where evidence about a defendant’s conduct crosses it, trial judges must carefully consider whether delay may have created a risk of unreliability such that a s 122 warning may be appropriate to prevent a potential miscarriage. There is no room in the scheme of s 122 for the view that such warnings are generally unnecessary or inappropriate.
(b)“[T]he whole premise” of s 122 is that it is not always appropriate to leave it to counsel to point out the risks associated with particular types of evidence. Judges must take responsibility for identifying such risks and, if necessary, warning juries about them. That is because the risks will be more apparent to the judge than to the jury.
…
The Judge’s directions
[15]CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [40].
[16]At [43].
[17]At [50].
[18]R v R [2023] NZSC 132, [2023] 1 NZLR 507 at [49] (footnotes omitted).
In summing up the case for the jury, the Judge did not give a s 122 warning. Relevantly, he stated:
[132] Counsel for [Mr] Brar says that Jaspal Singh has been motivated by the 30 per cent discount on his sentence to make up false evidence against him. This has been referred to through the trial as a deal with the Police, but I should advise you that the extent of any discount for co-operation with the authorities is entirely a matter of discretion for the sentencing Judge.
…
[144] Counsel [for Sukhpreet Singh] also questions the motivations of Jaspal Singh to implicate both [Mr] Brar and Sukhpreet Singh in light of the money he owes and the favourable treatment he received from the sentencing Judge.
…
[149] … Ultimately what you make of all the evidence, including the evidence of various witnesses that you have seen and heard, is entirely up to you. You are entitled to decide whether you think their evidence is credible. You will also need to consider whether their evidence is reliable. Credibility and reliability are different concepts. Credibility is honesty and sincerity. Reliability can be different. A witness can be entirely honest, but they may be mistaken. These are matters for you to decide. You may accept all, part only, or none of what a witness has said. It is entirely a matter for you.
Submissions on unreliability warning
Ms Cooper KC, for Mr Brar, submits the Judge’s directions were insufficient. Jaspal Singh’s evidence was crucial to the Crown’s case. It was the only direct evidence about Mr Brar’s alleged instructions to him and the others, at a meeting at the gurdwara that night. The Judge should have said more about Jaspal Singh’s lenient sentence. The incentive for Jaspal Singh to falsely implicate Mr Brar was still live at the time of the trial because the Crown could revisit the sentence by an appeal, depending on his evidence. He would also have hoped for more favourable treatment from the Parole Board. The jury may not have known about these incentives.
Ms Hoskin, for the Crown, submits Jaspal Singh’s evidence was so obviously central to the Crown’s case, and the need for caution in relation to it was so obvious, no s 122 warning was required. No one at trial suggested the incentive was still live and the hope for more favourable treatment from the Parole Board is entirely speculative.
Unreliability warning
Section 122(1) empowers a trial judge to warn a jury of the need for caution in deciding whether to accept potentially unreliable evidence. Section 122(2)(c) requires a trial judge to consider whether to give such a warning where evidence is given by a witness who may have a motive to give false evidence prejudicial to a defendant.
We do not consider an unreliability warning was required here. The need for the jury to exercise caution in considering Jaspal Singh’s evidence, and the issues of his reliability and credibility, were made plain to the jury by the Crown at the outset of the trial and through three defence counsel’s cross-examination of Jaspal Singh over around one and a half days. The Crown referred to the issue in closing and said:
Now, of course, a lot of things said to him to question his motivations, his general integrity, and you make of them what you will. You know there’s nothing unusual about people receiving discounts for their cooperation with a prosecution, and he received those discounts and he was very upfront about that, saying his lawyer had done a good job. He pleaded guilty and he reckoned the others should too.
The closing submissions for Mr Brar focussed particularly on reasons why the jury should consider Jaspal Singh’s evidence to be “an unreliable account and one that is not creditworthy”. Counsel submitted directly and at length that Jaspal Singh’s evidence was false when considered in detail against other evidence. And Mr Brar’s counsel mentioned an incentive on Jaspal Singh to give false evidence because of the sentence discount.
The sentencing discount Jaspal Singh had already received was clearly before the jury. The prosecutor explained it in the Crown opening and explained it would be for the jury “to assess whether that means anything to you when assessing Jaspal Singh’s truthfulness”. The Judge’s summing up contained the standard directions on reliability and credibility, and referred to the arguments by two defendants about the sentence discount as a motivation to implicate them. No counsel requested the Judge to give a warning under s 122(1). In these circumstances, a s 122 warning would not have materially assisted the jury.
The Crown could potentially have appealed Jaspal Singh’s sentence if he had not subsequently given evidence at trial. But there is nothing to indicate that the nature of the evidence as given would have been a basis to revisit the extent of the discount on appeal.
We agree that, in the absence of evidence about the effect on parole, the Judge would not have been justified in speculating about that. This is not a case such as Shar v R where the Judge told the jury there was “no foundation” to suggest a witness might “get more favourable consideration for parole” by cooperating when it had been suggested there was.[19]
[19]Shar v R CA239/04, 28 February 2006 at [20].
Neither do we consider this case is similar to others on which Ms Cooper relies. A direction was required in each of Kahia v R and Bamber v R because the jury needed to be told that the relevant co-defendant had a motive to lie by sticking to the account that resulted in their immunity from prosecution.[20] Immunity, which was not otherwise adequately explained to the jury in either case, is likely to be more difficult for a jury to understand than a sentence discount which has already been given.
[20]Kahia v R [2022] NZCA 381 at [107]; and Bamber v R [2024] NZCA 222 at [60].
To summarise, the Judge was not required to exercise his discretion to direct the jury on unreliability under s 122 of the Evidence Act. In essence, the Judge’s directions in his summing up were sufficient because the need for caution in relation to Jaspal Singh’s evidence was obvious and the Judge did not need to emphasise it more. It is not dispositive that trial counsel never sought a warning under s 122 but that also indicates that there was no concern by five defence counsel about the issue at the time.
The absence of a s 122 warning does not constitute an error. If it did, it would not have created a real risk that the outcome of the trial was affected or rendered it unfair or a nullity. We dismiss this ground of appeal.
Prejudicial evidence
Mr Brar’s second ground of appeal, said by Ms Cooper to support the primary ground, is that propensity and/or bad character evidence led at trial from three Crown witnesses had too prejudicial a combined effect. We do not consider there is anything in this. In particular:
(a)Mr Baljinder Singh, the first Crown witness, gave evidence that he was threatened via a phone call coming from India. This evidence was unprompted by counsel, was stopped following an objection by Mr Brar’s counsel, and its prejudicial effect is unclear. Arguably, it assisted Mr Brar, by making clear Baljinder Singh’s dislike of Mr Brar.
(b)Mr Avtar Singh, the second Crown witness, gave evidence that he used a box cutter to protect himself against being attacked with baseball bats. This evidence only emerged in the Crown’s re-examination of the witness after the subject had been raised in defence cross-examination. The Crown was concerned about the risky subject matter of the questions and the Judge warned defence counsel he was on dangerous ground and his client would bear the consequences of the line of questioning. Mr Brar’s counsel referred to this evidence in closing.
(c)Harnek Singh, the third Crown witness, gave evidence that Mr Brar led 30–40 people against him in an incident in 2011, that there was another incident in 2015, and that Mr Brar led another incident in 2018 where holy books were stolen. Defence counsel objected to the evidence at the time and the Crown confirmed it would not rely upon it in closing. It was defence counsel who returned to the evidence under cross-examination, eliciting more detail.
In his summing up for the jury, Woolford J stated:
[7] … You must determine whether the evidence proves their guilt to the required standard. [Counsel for Mr Brar] submitted that there was a lot of prejudice against his client through the introduction [of] marginally relevant evidence of little worth. Please guard against any such prejudice. Set your face against it.
The evidence complained of was not extensive, amounting to around one page or less for each incident of a 1,126 page transcript of evidence overall. After the evidence was given, only defence counsel referred to it again. That is understandable because some of it could be seen to be useful for Mr Brar, showing that others disliked him, and were therefore motivated to frame him for the attack. The most prejudicial evidence was that of Harnek Singh. But after that evidence was given, which was after the evidence of the other two witnesses complained of, Mr Brar’s trial counsel confirmed that Mr Brar was content to continue with the trial nevertheless. There was no application to abort the trial.
We consider the Judge’s generic direction was sufficient. Going into the detail of particular pieces of evidence would simply have called the jury’s attention to them. The evidence complained of did not create a real risk the outcome of the trial was affected or constituted an unfair trial or a trial that was a nullity. It did not cause a miscarriage of justice.
We dismiss this ground of appeal.
Sentence appeal
The sentence
In sentencing Mr Brar, Woolford J considered he was the ringleader in the offending.[21] He had regard to the aggravating factors of premeditation and planning, extreme violence, targeting the head and neck, multiple attackers, the use of knives, gravely serious injuries, and religious or ideological motivation.[22] He set a starting point at the maximum sentence of 14 years’ imprisonment and adjusted that downwards by six months for the time Mr Brar had spent on electronically-monitored bail.[23] He had regard to a report under s 27 of the Sentencing Act 2002, Mr Brar’s lack of previous convictions and to letters attesting to Mr Brar’s service to the community but made no adjustment for those matters.[24] He noted that Mr Brar exhibited no remorse and no empathy for the victim, and accepted no responsibility for the offending.[25] The end sentence was 13 years and six months’ imprisonment, with an MPI of nine years.[26]
[21]Sentencing decision, above n 1, at [46].
[22]At [44]–[45].
[23]At [46] and [55].
[24]At [52]–[54].
[25]At [34] and [41].
[26]At [59].
Under s 250(2) of the Criminal Procedure Act, we must allow the appeal if satisfied that there is an error in the sentence and a different sentence should be imposed. Otherwise, s 250(3) requires that we dismiss the appeal. The Court will only intervene and substitute its own view on appeal if the sentence is manifestly excessive.[27] The focus is on whether the end sentence is within the available range.[28]
Previous good character
[27]Ripia v R [2011] NZCA 101 at [15]. See also: Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30] and [35]; and Te Aho v R [2013] NZCA 47 at [30].
[28]Tutakangahau v R, above n 27, at [32]–[36].
Mr Brar’s first ground of the sentence appeal is that he should have been given a discount for his previous good character. The Judge considered defence counsel submissions to this effect, a cultural and pre-sentence report and letters of support. He stated:[29]
[52] Having carefully considered both the submissions and the respective reports, I do not find that a discount is available in respect of your previous good character. While I accept that you have provided service to many in the Sikh community and are a devout practiser of the Sikh faith, it is difficult to reconcile those positive factors with the offending. As I have said, the violent offending in this case is different to that which is usually seen in the courts. Discounts for previous good character are typically awarded in relation to positive contributions to society. It recognises that the “fall from grace” for an offender of previous good character is itself a punishment and assumes that there is greater potential for rehabilitation. While I acknowledge your good works in your congregation, it is unavoidable that your influence on that congregation, and your influence over those within the gurudwara who looked to you for guidance, was also the catalyst for and driving force behind the offending. In this context, no discount can be available. It is a nullity.
[29]Sentencing decision, above n 1 (footnote omitted).
Ms Cooper emphasises that Mr Brar had no previous convictions and had made many positive community contributions, which she submits deserve a sentence discount of 10 per cent. Ms Hoskin submits the Judge did not err in making no adjustment on the basis of good standing where Mr Brar used his position in the offending. In any case, she submits the end sentence was wholly appropriate and warrants no reduction.
Adjusting a sentence to reflect previous good character of an offender is recognised in s 9(2)(g) of the Sentencing Act 2002. It can recognise that a fall from grace is punishment itself and also recognises the potential for rehabilitation.[30] Here, however, it was Mr Brar’s standing in his community that enabled him to engage in this offending, by encouraging his followers to attempt the murder of Harnek Singh. That does not indicate potential for rehabilitation. In these circumstances, Mr Brar is not entitled to an adjustment of the sentence to his benefit for previous good character. The Judge did not err.
[30]Davidson v R [2011] NZCA 356 at [16], citing R v Findlay [2007] NZCA 553.
Mr Brar’s sentence was available to the sentencing Judge and was not manifestly excessive.
MPI
Section 86(2) of the Sentencing Act empowers a court to impose an MPI if it is satisfied that the period otherwise applicable for the purposes of parole is insufficient for all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
Ms Cooper submits the MPI, which was the maximum allowable, was too high, and should have been seven years. Ms Hoskin submits the MPI imposed was available to the Judge and entirely appropriate because all operative purposes in s 86(2) were substantially engaged.
We agree that all the purposes of s 86(2) are engaged, given the nature, motivation and severity of the offending and Mr Brar’s role and lack of remorse or acceptance of responsibility. The imposition of an MPI of nine years on a sentence of 13 years and six months’ imprisonment was available to the Judge.
We dismiss the sentence appeal.
Result
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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