Naiker v The Queen - [2016] NZCA 250

IN THE COURT OF APPEAL OF NEW ZEALAND

CA562/2015
[2016] NZCA 250

BETWEEN	VIJENDRA KUMAR NAIKER Appellant
AND	THE QUEEN Respondent

Hearing:	11 May 2016
Court:	Harrison, Simon France and Woolford JJ
Counsel:	I M Brookie for Appellant Z R Johnston for Respondent
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Naiker v The Queen

Details

AGLC: Naiker v The Queen [2016] NZCA 250
Case: [2016] NZCA 250
Decision Date: 9 June 2016 at 11.30 am

CaseChat Overview and Summary

The case of Naiker v The Queen involved Vijendra Kumar Naiker, who appealed his conviction for arson. Naiker was found guilty by a jury in the Auckland District Court, after they concluded that he had arranged for the burning of his business premises to claim insurance. Naiker’s appeal to the Court of Appeal of New Zealand was based on two grounds: first, that outside information received by a juror would have led to the trial being abandoned, and second, that the judge's direction to the jury regarding the reliability of two key witnesses under section 122 of the Evidence Act 2006 was inadequate.

The first issue centred on whether the trial should have been abandoned due to a juror receiving an outside text message from their employer stating, "clearly arson, defendant guilty". The juror did not disclose this message immediately, but later shared it with other jurors. This was reported to the judge, who dismissed the juror but did not discharge the entire jury. Naiker argued that the outside information warranted a mistrial, but the Court of Appeal found the judge's handling of the situation to be correct, noting that the jury had been diligent and focused, and that the outside message was an unsolicited opinion from someone unknown to the jury.

The second issue was whether the judge’s warning to the jury about the reliability of two key witnesses, who were co-defendants with reduced sentences and had a history of dishonesty, was sufficient. Naiker's counsel argued that the warning was insufficient, but the Court of Appeal found that the judge's comments, while not as strong as in some previous cases, were adequate given the uncontested motivations of the witnesses to give false evidence. The court concluded that the judge's directions sufficiently cautioned the jury about the reliability of the witnesses, meeting the needs of the case.

Ultimately, the appeal was dismissed, and Naiker's conviction for arson was upheld.

Orders