The Queen v Patel - [2009] NZCA 159

IN THE COURT OF APPEAL OF NEW ZEALAND
CA190/2007
[2009] NZCA 159
THE QUEEN
v
BHIKUBHAI PATEL
Hearing:27 May 2008 and 8 April 2009

Court:Glazebrook, Chisholm and Cooper JJ
Counsel:N J Sainsbury for Appellant

M D Downs for Respondent

Judgment:30 April 2009 at 3.00 pm

JUDGMENT OF THE COURT

Appeal against conviction dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
[1]       Following trial in the High Court at Auckland before Venning J and a jury Mr Patel was convicted on one count of attempting to procure the murder of a person he believed was having an affair with his wife and on six counts of threatening to kill various people including his wife. On the attempting to procure murder count he was sentenced to five years imprisonment and on each of the threatening to kill counts he was sentenced to concurrent sentences of three years.
[2]       Although Mr Patel had been represented by counsel at trial, he was representing himself when his appeal against conviction originally came before us on 27 May 2008. Within a short time it became apparent that there was insufficient information before the Court to enable us to determine the points that Mr Patel was attempting to pursue and that it was desirable for him to be legally represented. Following discussion with Mr Patel we adjourned his appeal.
[3]       At the resumed hearing Mr Patel was represented by Mr Sainsbury and we are grateful to him for his careful presentation of the points that Mr Patel wishes to pursue. Three primary grounds of appeal were advanced:
(a)Evidence of recorded conversations between Mr Patel and Mr K (the person the Crown alleges Mr Patel wished to carry out the murder) was wrongly admitted.
(b)Because the original recordings of the conversations had not been retained the copies downloaded from those recordings should not have been admitted.
(c)The jury should have been warned by the Judge about the dangers of inferring intent from the literal meaning of words spoken in a foreign language.

[4]       It is alleged that these matters gave rise to a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act 1961 (Mr Sainsbury effectively abandoned an attempt to rely on s 385(1)(a)).
Background
[5]       In 1987 Mr Patel, a 53 year old Fijian Indian, emigrated from Fiji to New Zealand with his wife. They later had two children. Mr and Mrs Patel separated in late 2003.
[6]       It was the Crown’s case that Mr Patel believed, wrongly, that his wife was having an affair with Mr S, a Hindu priest. In June 2004, Mr Patel decided that Mr S should be killed and enlisted Mr K to achieve that objective. Although Mr K initially thought Mr Patel was joking, he went to the police once he realised that Mr Patel was serious.
[7]       Arrangements were made by the police for Mr K to wear a recording device so that further conversations between Mr Patel and Mr K could be recorded. Several…

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.

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Details

Case: [2009] NZCA 159
Decision Date: 30 April 2009

CaseChat Overview and Summary

In the case of The Queen v Patel, the appellant, Bhikubhai Patel, was convicted on one count of attempting to procure the murder of a person he believed was having an affair with his wife and on six counts of threatening to kill various people including his wife. Patel appealed against his conviction, arguing that there had been a miscarriage of justice in the trial. The grounds of appeal included the admission of recorded conversations, the failure to retain the original recordings, and the absence of a judicial warning about the dangers of inferring intent from words spoken in a foreign language.

The Court of Appeal considered the arguments and found that the recorded conversations were properly before the jury and were highly relevant and admissible. The Court rejected the argument that the failure to retain the original recordings rendered the downloaded copy inadmissible, finding that there was no general principle supporting this argument. The Court also found that the Judge had adequately directed the jury on the element of intent and was not obliged to go further.

Ultimately, the appeal against conviction was dismissed, and the convictions and sentences imposed by the High Court at Auckland were upheld.

Orders