Brar v The King

Case [2025] NZCA 265

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA783/2023
 [2025] NZCA 265
BETWEEN

GURINDERPAL SINGH BRAR
Appellant

AND

THE KING
Respondent
Hearing:

24 February 2025

Court:

Palmer, Hinton and Edwards JJ

Counsel:

T M Cooper KC and S J Bird for Appellant
E J Hoskin for Respondent

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

  1. 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].

  2. 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?

  1. 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].

  2. 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…

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AGLC
Brar v The King [2025] NZCA 265
Case
[2025] NZCA 265
Decision Date

CaseChat Overview and Summary

The appeal before the Court was brought by Mr Brar, who sought to challenge his conviction on several criminal charges. The primary issue raised by Mr Brar was that the trial judge failed to provide a direction to the jury under section 122 of the Evidence Act concerning the evidence given by an incentivised witness, Jaspal Singh. The Act mandates that judges must consider giving a warning to the jury if evidence may be unreliable, particularly if it is given by a witness who may have a motive to provide false evidence or if it pertains to conduct alleged to have occurred more than ten years prior. The absence of such a warning, according to Mr Brar, led to a potential miscarriage of justice.

The legal issue before the court was whether the trial judge's omission to issue a section 122 warning about the potentially unreliable evidence of Jaspal Singh constituted a material irregularity that warranted a new trial. Mr Brar argued that the judge should have warned the jury of the need for caution due to the potential unreliability of Jaspal Singh's evidence, given his incentive arrangement and the significant passage of time since the alleged events. The Court needed to determine if the judge's failure to provide such a warning was an error that affected the outcome of the trial.

In assessing the appeal, the Court examined the trial judge's summing up to the jury and noted that while the judge did not give a section 122 warning, he did draw attention to potential issues with the credibility and reliability of Jaspal Singh's evidence. The Court concluded that although the judge did not explicitly use the language of section 122, he effectively conveyed the same considerations to the jury. The judge's comments highlighted the importance of the jury assessing the credibility and reliability of Jaspal Singh's evidence, which aligned with the spirit of section 122. Consequently, the Court found that the trial judge's approach did not result in a material irregularity that would necessitate a new trial. The appeal was dismissed.

No further orders were made by the Court beyond the dismissal of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.… 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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