Waitokia v The Queen

In the case of Waitokia v The Queen, the appellant, Mr Waitokia, challenged his conviction on the grounds that the trial judge failed to give a warning to the jury about the potential unreliability of the evidence provided by Mr Stevenson, a key witness. The evidence at issue was central to the conviction, and the appellant argued that the trial judge should have exercised their discretion under section 122 to warn the jury of the need for caution in accepting and weighing this evidence. The crux of the appeal was whether the trial judge had a duty to issue a warning under section 122 and, if so, whether the failure to do so was a ground for setting aside the conviction.

The court was tasked with interpreting section 122 and determining the circumstances under which a trial judge must give a warning to the jury about potentially unreliable evidence. The appellant's counsel argued that the trial judge should have issued a warning about Mr Stevenson's evidence, given its critical importance and the apparent unreliability due to factors such as his consumption of alcohol and drugs, inconsistencies in his testimony, and the risk of his recall being influenced by others. The court considered the discretionary nature of the warning under section 122, the necessity for such a warning in this case, and the distinction from previous cases where warnings had been deemed necessary.

The court found that the trial judge had discretion under section 122 to warn the jury about unreliable evidence, but this discretion was not absolute. The court held that the trial judge had adequately highlighted the issues with Mr Stevenson's evidence during their summing up, effectively drawing the jury's attention to the potential unreliability of the witness's testimony. The judge's detailed comments and quotations from the cross-examination and closing arguments made it clear to the jury that they needed to be cautious in considering Mr Stevenson's evidence. The court concluded that the trial judge's extensive comments served the same purpose as a formal warning under section 122, and thus, there was no error in the trial judge's handling of the evidence.

The appeal was dismissed, and the conviction was upheld. The court determined that the trial judge's extensive commentary on the reliability of Mr Stevenson's evidence adequately informed the jury, making a formal warning under section 122 unnecessary.