Naiker v The Queen
[2016] NZCA 250
•9 June 2016 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA562/2015 [2016] NZCA 250 |
| BETWEEN | VIJENDRA KUMAR NAIKER |
| AND | THE QUEEN |
| Hearing: | 11 May 2016 |
Court: | Harrison, Simon France and Woolford JJ |
Counsel: | I M Brookie for Appellant |
Judgment: | 9 June 2016 at 11.30 am |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
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REASONS OF THE COURT
(Given by Simon France J)
Introduction
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
[1]A third ground of appeal based on alleged fresh evidence was abandoned.
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.
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
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.
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”.
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.
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.
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 relation to the capacity of directions to address the situation the Judge recorded:
[21] I have observed the jury closely over the preceding period of eight days, they have as a group appeared focussed and given the appearance of diligently considering the evidence. Where exhibits have been referred to, they all have studied the documents referred to in a way that leads me to conclude they are taking matters very seriously and are looking at the evidence closely. This fortifies me in deciding that with clear directions the trial can fairly continue.
[2]R v Naiker [2015] NZDC 16132.
It is common ground that the situation was covered by s 22 of the Juries Act 1981, the statutory touchstone being the “interests of justice”. Mr Brookie contends that the circumstances gave rise to sufficient concern that the interests of justice required a mistrial. He noted that it was a retrial and that the employer’s message was conveyed with the added information that it was the product of research. This would leave the jury thinking there was material out there that they were not necessarily receiving.
Further, the collective conduct of the jury was submitted to not give confidence they would follow instructions. It is noted that the recipient juror had the message for some days without disclosing it, and that it was not the jurors who were party to the conversation who reported the matter. Rather it was left to another juror who overheard matters and became concerned. However, in relation to that we observe that the complaint was made quite promptly. It is difficult to know how the other jurors who were a party to the conversation may have acted given time.
Generally we consider the process followed by the Judge to be entirely correct and we see no basis to interfere on appeal with the assessment of the trial Judge. No criticism is made about the directions given to the remaining jurors at the time the foreperson was discharged and during the summing-up. We add only one observation: it is 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 is far removed from situations where inadmissible prejudicial evidence comes to the jury’s attention. The ground of appeal is rejected.
Issue two — the adequacy of the warning under s 122 of the Evidence Act 2006
The two key Crown witnesses were originally co‑defendants who had pleaded guilty and received a much reduced sentence. They allegedly had been and still were interested in a reward that had been posted. One of the witnesses was also proved to have previously lied on oath.
The circumstances were obviously ripe for a warning about reliability. Equally, the circumstances necessitating a warning were obvious and were squarely before the jury. We consider this is important when considering whether a judge’s warning under s 122 meets the needs of the case, and always recalling that the statute expressly states that no particular wording is required.
Mr Brookie’s submission is that sterner and clearer words were required. The Judge had indicated prior to summing up that a s 122 warning would be given, and Mr Brookie raised the adequacy of what was said immediately following the summing-up. The Judge declined to say more.
We accept the words used by the Judge did not follow the firm tones approved in Hudson v R[3] but in our view what was said was sufficient for the case. It was a case where the motivations to give untrue evidence were very much uncontested. The Judge told the jury that when assessing credibility the jury needed to take these motivations into account if the jury considered they did exist. Later the Judge repeated the jury needed to decide if there were incentives at play and, if so, they “must” consider that when assessing the evidence.
[3]Hudson v R [2011] NZSC 51; [2011] 3 NZLR 289.
Concerning the one witness who 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”.
This last 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. In our view 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.
In CT v R the Supreme Court noted that the rationale behind s 122 means “it is not always appropriate” to leave it to counsel to point out the risks, and the Court should itself make comment.[4] However, the judgment equally emphasises that it is the circumstances of the case that dictate the s 122 requirements.[5] For the reasons we have given we consider that what was said here met the needs of this case.
Conclusion
[4]CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [50].
[5]At [57].
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent