[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 conversations in the Hindi language were recorded on 28, 29 and 30 June 2004. Those recordings were subsequently downloaded from the recording device on to compact discs which were used for translation purposes and completion of a transcript in English which was before the jury.
[8] On the Crown’s interpretation the recorded conversations confirmed that Mr Patel intended, through Mr K, to have Mr S killed. The threatening to kill allegations arose from the same conversations.
[9] Before trial the defence challenged the admissibility of Mr K’s evidence on the basis that it had been unfairly obtained by way of entrapment. Over two days Harrison J heard voir dire evidence from Mr K, a detective, and Mr Patel. His Honour ruled that Mr Patel had failed “by a substantial margin” to establish a foundation for excluding Mr K’s evidence. He said that he was satisfied that Mr Patel showed himself throughout as someone who was ready, willing and available to commit the offence of procuring a third party to murder Mr S and that Mr K played no material part in initiating or instigating this activity.
[10] At trial Mr Patel’s wife gave evidence about various threats by her husband to kill her over the alleged affair with Mr S (which she denied). One of those threats, in June 2004, was verified by their daughter (who was 16 years of age when she gave evidence at trial). A private investigator gave evidence that Mr Patel instructed him to undertake surveillance of Mrs Patel who, Mr Patel told the investigator, was having an affair with “a preacher man”.
[11] Mr K gave evidence that he first met Mr Patel at a panelbeating shop when Mr Patel took his taxi in for repair. Subsequently Mr Patel told him that he wanted him to “kill a couple of people”, but Mr K did not take him seriously at that time. Later Mr Patel told him that he had a plan which involved Mr K hitting Mr S over the head with a sledgehammer, taking him up north, torturing him and ultimately dumping his body. He was to be paid $1,500 plus a bonus once the job was done.
[12] According to Mr K, he began to take Mr Patel seriously after being given Mr S’s telephone number and being told by Mr Patel to write down the registration numbers of vehicles parked at a Manakau address. Mr Patel believed Mr S was staying at that address. Mr K then went to the police and agreed to wear a recording device. He acknowledged that he had been rewarded by the police in the past for providing information and that although he had asked the police for money on this occasion they had told him they could not do anything until it was “all over”.
[13] Mr K gave evidence that over the next three days he had a number of conversations with Mr Patel in which Mr Patel explained how he was to lure Mr S to a car park and kill him. He said that he went with Mr Patel to a hardware shop where Mr Patel purchased a sledgehammer which Mr Patel said “should do the job”. The sledgehammer, which was produced as an exhibit, carried Mr Patel’s fingerprints. Mr Patel also purchased some gloves for Mr K to use. The gloves were produced as an exhibit.
[14] The defence case at trial was that the resources of the police and the actions of a trickster (Mr K) had been used to set up Mr Patel. It was denied that Mr Patel had any intention to procure Mr K to kill Mr S or that his actions could be taken seriously. Trial counsel claimed that Mr K was unreliable and that he had only gone to the police to frame the accused so that he would be paid. Mr Patel did not give evidence.
[15] A computer forensic investigator, called by the defence, told the jury that forensic procedures for the handling of digital evidence had not been followed in this instance because the original recordings had not been retained in accordance with best practice. Consequently there was no opportunity to “go back and verify exactly what was on there”. But the witness accepted under cross-examination that there was no evidence to suggest that the original files had been deleted or modified when they were downloaded on to the discs.
[16] The defence also called a professional interpreter/translator. She disagreed with some of the interpretations adopted by the Crown’s interpreter. However, the Crown invited the jury to proceed on the basis that her interpretation was correct.
[17] Mr Patel was found guilty by the jury on all counts.

This Appeal

[18] Mr Sainsbury explained that Mr Patel is passionate about each ground of appeal and feels that he was set up. He said that Mr Patel cannot understand how the intercepted conversations could be properly used against him, especially having regard to the bizarre nature of the conversations and the evidence before the jury confirming that at the time he was depressed and unwell.
[19] Counsel also advised that because he had not been authorised to discuss the matter with trial counsel he did not have any information about the tactics utilised by trial counsel. Thus he was forced to argue the appeal on the basis of the Court record.
[20] We now turn to the specific grounds of appeal.

Recorded conversations wrongly admitted

[21] Having very properly drawn our attention to R v Smith (Malcolm) [2000] 3 NZLR 656 and R v A [1994] 1 NZLR 429, both of which are against the appellant, Mr Sainsbury explained that Mr Patel feels very deeply that the law concerning the admission of intercepted conversations is wrong and should be changed. We understand that Mr Patel is particularly concerned that Mr K, a person with a criminal record and a motive to curry favour with the police, should have been used by the police on this occasion and that Mr K’s criminal record was not brought out by trial counsel.
[22] Alternatively, submitted Mr Sainsbury, the narrative leading up to Mr K going to the police is so bizarre that it does not make sense: Mr K is confronted by a person he has just met who asks whether he might be interested in murdering someone for him; and instead of putting an end to the matter, Mr K “indulges this behaviour” and allows the discussion to go on for days. Given that situation, Mr Sainsbury argued that Mr K’s explanation that he did not think Mr Patel was serious and just went along with it is not plausible.
[23] On Mr Sainsbury’s analysis there are two possible explanations for Mr K’s actions. Either he believed Mr Patel was serious but hoped to make some money out of Mr Patel and then went to the police to extract himself from this situation. Alternatively, he never believed Mr Patel was serious but played along in the hope that he might pick up some money. Either way, submitted Mr Sainsbury, Mr Patel was being led on by Mr K who encouraged continuation of the only topic of conversation – murder.
[24] Notwithstanding Mr Sainsbury’s submissions we are satisfied that the taped conversations were properly before the jury. With the benefit of the voir dire evidence he had heard, Harrison J carefully considered the issue of entrapment and his ruling was entirely consistent with well-settled principles adopted by this Court in Police v Lavalle [1979] 1 NZLR 45 at 48 and utilised in many more recent cases. Indeed, there are strong parallels between this case and R v A, in which conversations concerning the murder of another person between A and an undercover police officer wearing a body microphone were admitted. There is no reason to depart from this well settled approach.
[25] We also reject Mr Sainsbury’s wider arguments based on the “bizarre” circumstances leading up to the taping of the conversations. In terms of ss 7 and 8 of the Evidence Act 2008 evidence concerning the conversations was highly relevant and its probative value clearly outweighed the risk that the evidence would have an unfairly prejudicial effect. The evidence was admissible accordingly. It was for the jury to assess Mr K’s credibility and the weight that should be given to his evidence and the recorded conversations. And to the extent that the failure of trial counsel to cross-examine about Mr K’s previous record has been raised, there is no foundation for allegations of counsel incompetence, given the constraints set out at [19]. In any event the primary evidence the jury had to assess was Mr Patel’s words as recorded. That did not rely on any credibility findings with regard to Mr K.
[26] This ground of appeal fails.

Failure to retain original recordings

[27] Mr Sainsbury claimed that the original recordings should have been retained so that it was possible to check the integrity of the information contained on the compact discs which was used for translation purposes and completion of the transcript that was before the jury. He noted that the expert called by the defence was critical of the police procedure. Mr Sainsbury submitted that without an ability to refer back to the original recording it was impossible to make a comparison that would expose any tampering with the downloaded copy, deliberate or otherwise.
[28] Counsel explained that Mr Patel’s concerns are twofold: first, as a matter of principle where proper forensic copying has not been undertaken the evidence should not be admitted; second, in this particular case the issue concerning integrity of the recordings was apparent on the face of the evidence, in particular exhibit 24, which exposed inconsistencies in dates and times. On the face of exhibit 24, a new recording began before an earlier recording had been completed. If the original recording had been retained these discrepancies could have been checked against it.
[29] No authority was cited by Mr Sainsbury for the very wide proposition that the absence of a forensically secure copy of the original recording rendered the downloaded copy inadmissible. Nor was he able to point to any provision in the Evidence Act that might support that conclusion. We agree with Mr Downs that criminal courts frequently receive evidence that is incapable of verification. For example, an eye witness’s uncorroborated account of events. Subject to statutory safeguards hearsay evidence is also admissible. There is no general principle capable of supporting Mr Sainsbury’s argument.
[30] As this Court indicated in R v Harmer CA324/02 26 June 2003:

[91] ... The particular significance of the missing evidence to the defence will necessarily have to be considered in light of all the available evidence. When, as here, the issue arises on an appeal from a conviction, the ultimate question will be whether the unavailability of the evidence to the defence appears to have given rise to a miscarriage of justice.

[31] To the extent that the evidence touches on the issue raised by this ground of appeal, it dispels any suggestion that the absence of the original recording has given rise to a miscarriage of justice in this case.
[32] When the detective involved in the downloading gave evidence there was no attempt to challenge the downloading process on the basis that the evidence had been modified or tampered with in some way. Nor was he cross-examined about any discrepancies in exhibit 24 which, on the evidence of the defence expert, were explicable on the basis of the enhancement process carried out by the electronic crime laboratory (to reduce the background noise). Significantly, the defence expert said under cross-examination that he had looked at the Sony website concerning the recording device used on this occasion and that after doing so he was assured “that it was not possible to modify the actual content of the audio file itself”. He also said that the content of the file would not change in the process of copying and that there was no evidence that any of the files had been modified or deleted in any way.
[33] We also note that Mr K’s viva voce evidence traversed the recorded conversations with Mr Patel involving the allegation that he had attempted to procure Mr K to murder his wife. It would have been open to the jury to have found Mr Patel guilty without reference to the transcripts on Mr K’s evidence alone, supported as it was by the purchase of the hammer and gloves.
[34] This ground of appeal fails.

Absence of judicial warning about dangers of inferring intent

[35] This ground of appeal was expressed by Mr Sainsbury in this way:

7.3 The Crown interpreter’s translation of the recordings from Hindi into English was not accurate. Insofar as the Crown invited the jury to use the defence translation this point has been dealt with at trial. That said, an issue about the use of translations themselves does arise, especially in a case where the real issue is more the seriousness of what was said rather than what was said. Namely, should the jury have been warned to be cautious abut the dangers of inferring intent from the literal meaning of words spoken in the absence of contextual clues that hearing a voice speak in your own language provides ...

[36] Mr Sainsbury developed this argument on the basis that because there had been an interpretation from a foreign language the jury would not necessarily “get the intonations etc” and that the Judge should have warned them about convicting on the strength of such evidence.
[37] Again there are problems with this ground of appeal. It was not raised with the Judge at the conclusion of his summing-up, presumably because trial counsel did not see it as an issue. More importantly, we do not consider that the Judge was required to direct the jury along the lines suggested by Mr Sainsbury. The Judge carefully directed the jury about the element of intent (both orally and in a hand-out sheet) and about the drawing of inferences. He was not obliged to go further. In reaching that conclusion we have kept in mind that none of the specific provisions for judicial warnings in subpart 6 of the Evidence Act are triggered.
[38] The final ground of appeal also fails.

Result

[39] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington

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