KAMAL GYANENDRA REDDY v R [2020] NZCA 16

KAMAL GYANENDRA REDDY v R [2020] NZCA 16 [13 February 2020]NOTE: HIGH COURT ORDER PROBHIBITING PUBLICATION OFDETAILS OF THE UNDERCOVER POLICE OPERATION REMAINS INFORCE. SEE [2016] NZHC 1294 AND [2016] NZHC 1384.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA347/2016[2020] NZCA 16BETWEEN KAMAL GYANENDRA REDDYAppellantAND THE QUEENRespondentHearing: 28 November 2019Court: French, Brown and Gilbert JJCounsel: P E Dacre QC and R L Thomson for AppellantM J Lillico and P D Marshall for RespondentJudgment: 13 February 2020 at 3 pmJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Following a trial by jury in the Auckland High Court in 2016, Mr Reddy wasfound guilty of the murder of his former partner, Mubarak Pakeeza Yusuf, and herthree-year-old daughter, Juwairiyah Kalim, known as Jojo. Mr Reddy was sentencedto life imprisonment and ordered to serve a minimum period of imprisonment of21 years.1 Mr Reddy appeals against his conviction, but not his sentence.[2] Ms Yusuf, a Fijian national who was aged 24 at the time she was killed, wasnot reported missing until January 2013, more than six years later. Mr Reddy wasinitially spoken to by police as a witness, but he later became the prime suspect.Having been informed he was a suspect and of his rights, Mr Reddy declined to makeany further statement.[3] Considering there was insufficient evidence to charge Mr Reddy at that stage,the police initiated a "Mr Big" undercover operation in April 2014. The so-calledMr Big technique involves an elaborate police subterfuge whereby the target is luredover time into becoming a member of a fictional criminal syndicate that offersan attractive lifestyle and other benefits.2 Membership requires mutual commitmentto core values of honesty, loyalty and trust. Targets are encouraged to disclose anypast offending that might create risks for the organisation so that appropriate steps canbe taken to mitigate or eliminate those risks, including by using the syndicate'shigh-level contacts with purportedly corrupt police officers who can make these sortsof problems go away.[4] During the police operation, which ran for approximately six months,Mr Reddy's principal contact was with "Cole", an undercover police officer.The operation culminated in a meeting on 14 October 2014 between Mr Reddy and"Billy", an undercover police officer who was portrayed as Mr Big, the head ofthe syndicate. In the second part of this meeting, Mr Reddy confessed he had strangledMs Yusuf with the cord of an iron and suffocated Jojo with a pillow. He said he hadburied their bodies under a bridge at a motorway construction site on Auckland'sNorth Shore. He said the only other person who knew about this was his uncle, BalKrishna Naidu, who was the leading hand at the construction site at the time the bodieswere buried and who had suggested the site.1 R v Reddy [2016] NZHC 1367.2 R v Wichman [2015] NZSC 198, [2016] 1 NZLR 753 at [16].[5] The following day, Mr Reddy took Cole to the place he said he had buriedthe bodies and was photographed by Cole standing on the precise location. Two dayslater, on 17 October 2014, as directed by Billy, Mr Reddy persuaded Mr Naidu to takeCole and him to the spot where the bodies were buried. Mr Naidu took them tothe bridge and pointed to the same location. The police subsequently excavatedthe site and located the remains of Ms Yusuf and Jojo. The size and depth of the grave,the arrangement of the bodies, the way they had been weighted down with stones,the clothing and other details fitted the description Mr Reddy had given. Mr Reddywas then arrested and charged with the murders the following day.[6] The Crown case at trial was primarily based on Mr Reddy's admissions to Billyand Cole, the discovery of the bodies and the evidence of Mr Naidu. There was,however, other circumstantial evidence, which we need not detail, further implicatingMr Reddy.[7] Mr Naidu's evidence was that Mr Reddy arrived at his house in the early hoursof the morning on the night of the murders. Mr Reddy told him he had killed hisgirlfriend and her daughter and their bodies were under a blanket in the back of hiscar. Mr Reddy asked for Mr Naidu's help to find a place to bury the bodies. Mr Naidusaid he drove Mr Reddy to his work site where a motorway overbridge was beingconstructed and suggested two locations, one on either side of the bridge. Mr Reddyphoned Mr Naidu a day or two later and told him which of these locations he had usedto bury the bodies. Mr Naidu said he went to that location and saw that the groundhad been freshly dug. Mr Naidu subsequently pleaded guilty to the murders asan accessory after the fact. He received a discount at sentencing for his cooperationwith the police.[8] Mr Reddy elected to give evidence at his trial. Contrary to what he initiallytold police, Mr Reddy denied ever having been in a relationship with Ms Yusuf,although he admitted he had known her for some time. He said that while he was ata shopping centre in Auckland in late 2006, he ran into her by chance. He said shewas with a man whom she introduced as her boyfriend "James". He said Ms Yusufgave him their address and he visited them once. He said he later went back tothe address for a second visit, but only James was home so he left. Mr Reddy said thatJames came to his house the following night and told him he had killed Ms Yusuf andJojo and was looking for a place to conceal their bodies. James told him he knew ofa place where a well-known construction company, which he named, was carrying outroadworks. Mr Reddy said that his uncle worked for that company and he would askhim if he knew of a suitable place. Mr Reddy said Mr Naidu showed him two potentialburial sites and Mr Reddy relayed this information to James by telephone. Mr Reddysaid that James later told him where he had buried the bodies. Mr Reddy denied havingany other involvement. Despite considerable efforts, "James" has never been locatedand no independent evidence to prove his existence has been found.Grounds of appeal[9] Mr Reddy advances five grounds in support of his appeal. First and foremost,he contends that expert evidence should have been called identifying Mr Reddy'spersonal characteristics which may have disposed him to make an unreliableconfession so the Judge or the jury could assess the extent to which the policeoperation targeted those characteristics and whether the confession was reliable.Mr Reddy applies to admit further evidence in support of this ground, beingan affidavit from himself and a report from Dr Jansen, a consultant psychiatrist.The second ground concerns the adequacy of the trial Judge's directions to the juryregarding the risks associated with admissions obtained employing the Mr Bigtechnique. Grounds three and four relate to the lack of any direction concerningdemeanour. The fifth and final ground concerns the Judge's refusal to give the jurya reliability warning under s 122 of the Evidence Act 2006 in respect of Mr Naidu'sevidence. Mr Reddy contends that such a warning was required because Mr Naiduhad a strong motive to give false evidence given his involvement and the sentencediscount he received in return for his cooperation with the police.Ground one — application to exclude Mr Reddy's admissions as being unreliable[10] This ground of appeal is founded on Mr Reddy's application to adduce furtherevidence in support of the appeal. Based on information obtained from Mr Reddy,Dr Jansen identifies the following characteristics which may have disposed him tomake an unreliable confession:(a) Alcohol — Dr Jansen states that at the time Mr Reddy made hisconfession, he was suffering from an alcohol use disorder. Dr Jansenunderstands from Mr Reddy that he was taken by police to a pubthe night before he confessed and drank sufficient alcohol to becomedrunk. Mr Reddy said he drank more alcohol on the morning ofthe confession. Dr Jansen says this would have affected Mr Reddy'smental state by lowering his defences, increasing his disinhibition andcausing general vulnerability. Dr Jansen observes that intoxication isa recognised factor that can contribute to a false confession duringa police interrogation.(b) Mental impairment — Dr Jansen identifies the possibility thatMr Reddy was suffering from depression and anxiety at the time of hisconfession. He notes that this is a common condition affecting peoplewho suffer from alcohol use disorder. Dr Jansen states that mentalimpairment is a recognised factor that can contribute to a falseconfession during a police interrogation.(c) Diminished capacity — while he does not consider Mr Reddy haddiminished capacity in the formal sense, Dr Jansen has the impressionMr Reddy would be likely to score towards the lower end of the IQscale. Mr Reddy told him he has a poor memory and he notes that thereis research indicating that persons who have a poor memory are morelikely to make false confessions.(d) Fear of violence — Dr Jansen records that although no verbal threatswere made, Mr Reddy claimed he was "at real risk of serious violenceif he did not do what they wanted him to do, which was to confess toa murder". Dr Jansen observed that fear of violence is anotherrecognised factor that can contribute to a false confession duringa police interrogation.(e) Duress and coercion — based on Mr Reddy's claims, Dr Jansenunderstands that his fear of violence made him feel he was subject toduress and coercion and was then forced to do something against hisbetter judgment. Dr Jansen notes that the interview with Billy wasconducted in two parts with a break in the middle for lunch. The lunchbreak discussions while Mr Reddy was alone with Cole werepunctuated by long periods of silence as is apparent from the videorecording. Dr Jansen considers these silences may have added toMr Reddy's perception of intimidation.(f) Misunderstanding the situation — Dr Jansen notes that English isMr Reddy's second language, and this may have led him tomisunderstand the situation.(g) Inducements — Dr Jansen understands Mr Reddy has a long-standingissue with low self-esteem and he considers this may have rendered himmore vulnerable to seeking approval from an authority figure bymaking a false confession.(h) Personality — Dr Jansen administered a test known as the Gudjonssonsuggestibility scale which seeks to measure how much an interrogatedperson yields to leading questions and shifts their responses whenadditional interrogative, interpersonal pressure is applied. Mr Reddy'sperformance was found to be well outside the normal range. He scoredonly 1 for free recall out of a possible 40, well below the normal rangeof 17 to 29. His "shift score", after Dr Jansen told him he had madea lot of mistakes and would need to try again, was 11, well abovethe normal range of 0 to 5.5. Dr Jansen states that these results indicatethat Mr Reddy's personality makes him prone to respond tointerrogative pressure.[11] Mr Reddy's affidavit is tendered as offering factual support for Dr Jansen'sopinion.[12] Mr Dacre QC, for Mr Reddy, who was not trial counsel, submits that a reportsuch as that now available from Dr Jansen should have been obtained andan application made to the Judge to exclude the admissions under s 28 of the EvidenceAct or, at least, have the evidence placed before the jury to assist their assessment ofthe reliability of the admissions. Mr Dacre nevertheless acknowledges there is nobasis to advance a complaint of trial counsel error. For reasons we now explain,this was an appropriate, indeed inevitable, concession.[13] Mr Reddy was represented at trial by very experienced counsel, Mr Krebs andMr Gotlieb. Prior to the commencement of the trial, counsel retainedProfessor Gudjonsson, an eminent psychologist in London who has specialistexpertise on the topic of false confessions, to consider the particular circumstances ofthe undercover operation conducted in this case and advise on the associated risks thatit may have resulted in a false confession. Professor Gudjonsson provided a report butnoted he had little knowledge of Mr Reddy's idiosyncratic vulnerabilities apart fromhim being an immigrant from Fiji to New Zealand with English being his secondlanguage. The Crown objected to the admissibility of Professor Gudjonsson'sproposed evidence and accordingly counsel made an application pre-trial to determineits admissibility.[14] Following receipt of Professor Gudjonsson's report and the exchange ofsubmissions as to its admissibility, counsel obtained a report from Dr Kirker,an experienced clinical psychologist in Auckland, who assessed Mr Reddy for anyparticular vulnerabilities. Dr Kirker concluded his report as follows:Found to have at least below average and possible borderline intellectualfunctioning. However, based on TOMM scores and observed inconsistentperformance across test items suboptimal effort/malingering by Mr Reddycannot be ruled out and thus findings on test of intellectual functioning maynot be valid. Furthermore he does not have a history of significantly impairedadaptive or occupational functioning.[15] Following further discussions with Professor Gudjonsson, it was agreed itwould not be in Mr Reddy's interests to call the evidence because it would be likelyto undermine his credibility and the defence case. It would be preferable to addressthe issue of the reliability of the confession by seeking judicial directions to the juryalong the lines proposed by the Crown in their submissions. Mr Reddy accepted thisadvice.[16] For the reasons that follow, we are satisfied that the application to adducefurther evidence must be declined and this ground of the appeal must fail.[17] The test for the admission of fresh evidence in a criminal appeal was set out bythe Privy Council in Lundy v R and requires consideration of whether the evidence isfresh, credible and cogent.3[18] The evidence is plainly not fresh. Evidence of the type proposed fromDr Jansen was obtained prior to the trial and an informed and objectively reasonabledecision was made not to adduce it. That strategy having proved unsuccessful, itwould be wrong in principle, and contrary to the public interest in the finality ofproceedings, to allow Mr Reddy the opportunity of re-running his defence onan ostensibly different basis with embellished or supplemented evidence.4[19] Further, without intending any criticism of Dr Jansen, the proposed evidenceis not cogent for two principal reasons.[20] First, we accept Mr Lillico's submission for the Crown that Dr Jansen'sevidence does not meet the substantially helpful criterion for admissibility under s 25of the Evidence Act in that it addresses matters within the common knowledge ofthe jury and does little more than offer reinforcement in the guise of expert evidencefor submissions made by counsel at the trial. Such evidence was recently held by thisCourt in Lyttle v R to be inadmissible.5 For example, it is a matter of commonknowledge that an unreliable confession could be induced by some form ofimpairment such as alcohol consumption, low intelligence or other mental impairment.Equally, it is common knowledge that false confessions can be the product of duress,coercion, fear of violence or inducements. The prospect of a misunderstandingthrough English being Mr Reddy's second language was also obvious. The relevantrisks were all explored in the evidence at trial and were a focus of counsel'ssubmissions to the jury. The jury would have no difficulty understanding these risksand making their own assessment of the reliability or otherwise of Mr Reddy's3 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].4 R v Bain [2004] 1 NZLR 638 (CA) at [22]; R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730at [66].5 Lyttle v R [2019] NZCA 226 at [44].admissions. There were no common myths that needed to be dispelled withthe assistance of expert evidence. The proposed evidence is therefore not admissibleunder s 25 of the Evidence Act.[21] Secondly, Dr Jansen's proposed evidence is based on assumed facts providedby Mr Reddy that are not consistent with the defence he ran at trial and, in manyinstances, are demonstrably wrong. For example, Mr Reddy told Dr Jansen he metBilly in a pub the night before he made his confession. He claimed he consumeda substantial amount of alcohol which the undercover policemen paid for. He said hewas "really drunk" when he was taken home by Cole. Despite the central focus at trialon the reliability of the confession, Mr Reddy made no mention of being impaired byalcohol at the time of his meeting with Billy on 14 October 2014. The account he gaveto Dr Jansen is not only new and unsupported by the evidence Mr Reddy gave atthe trial, it is contradicted by police recordings of the operation. These show that onthe night before Mr Reddy made his confession, Cole met him at the ferry terminal atapproximately 10.25 pm following Mr Reddy's arrival in Wellington. They went toan unlicensed coffee shop and remained there for approximately four minutes beforeCole took Mr Reddy back to his accommodation, arriving there at 10.56 pm. They didnot go to a pub, no alcohol was consumed at the coffee shop, and Billy was not present.[22] Mr Reddy also told Dr Jansen that on the morning of the confession he drankthree "big cans" of bourbon and cola with the highest alcohol content. However, ata subsequent interview, Mr Reddy told Dr Jansen that, having thought more about it,he now recalled having consumed four cans of bourbon and cola, not three. Mr Reddysaid he drank that morning because he was told by Cole there would be no work forhim that day. Mr Reddy made no mention of any of this in his evidence at trial andthe contemporaneous operation recordings do not support his new claims.[23] Dr Jansen's opinion is also partly based on Mr Reddy having low intelligenceand a poor memory. However, Dr Jansen did not carry out an IQ test and he relied onMr Reddy's self-report about his memory. It appears Dr Jansen has not seenDr Kirker's report which raised serious doubts about the validity of the resultsobtained in psychological tests undertaken by Mr Reddy, possibly due to lack of effortor malingering. Mr Reddy is a qualified motor mechanic and has run his own business.There was no suggestion at the trial that Mr Reddy had a poor memory or lowintelligence. Mr Krebs states he received comprehensive instructions from Mr Reddy,ultimately comprising over 400 pages. Mr Krebs describes these instructions as beingthorough, consistent and coherent. He states that Mr Reddy appeared to have a verygood grasp of the facts of the case and the issues that needed to be addressed.There was no indication of any mental impairment.[24] One further example will suffice to illustrate the serious difficulty withthe factual foundations offered by Mr Reddy to support Dr Jansen's evidence.Mr Reddy told Dr Jansen that at the time he made his confession, he understood hislife was in danger. This was said to be based on an incident that occurred the previousday when Mr Reddy and Cole ostensibly met with some gang members regardingthe sale of drugs and guns. Mr Reddy told Dr Jansen that he was "really scaredbecause [he] saw the guns they were carrying with them and [he] thought that Colecould shoot [him]".[25] The contemporaneous operation recordings of this incident demonstratethe falsity of Mr Reddy's new claim that Cole, a person he had worked closely withfor over six months, who had never threatened him, and who he had come to trust,might shoot him:"Gang member" to Reddy: "Kam was it?"Reddy: "Kam, yeah"."Gang member": "Nice to see you brother, we'll see you next time eh?"Cole to Reddy after returning to the car: "All good?"Reddy: "All good".Cole: "Happy?".Reddy: "Yeah man".Cole: "You okay with them?".Reddy: "Yeah, I am okay".Cole: "Be honest with me though, eh".Reddy: "Nah, nah, I am okay".Reddy: "It's been planned eh, everything's been planned eh, so smooth,everything going smooth. I like to plan. I like to do these jobs again".[26] Mr Reddy was asked at the trial to explain why he confessed to Billy and Colethat he committed the murders. Mr Reddy's response was that he was fearful of Jamesand he made the confession to fix James' problems. At no point did he claim to havemade a false confession because he feared Cole and thought he might shoot him.[27] Mr Reddy's application to adduce further evidence in support of the appealmust be declined. In summary, the proposed evidence from Mr Reddy is not fresh,credible or cogent. Dr Jansen's evidence is not admissible because it is notsubstantially helpful. The admissions were plainly admissible and could not properlyhave been excluded under s 28 of the Evidence Act. It was for the jury to assesswhether to accept the admissions as being reliable. This ground of the appeal fails.Ground two — inadequate directions regarding Mr Big technique[28] Asher J commenced his summing up to the jury by giving conventionaldirections on the onus and standard of proof, unanimity and the need to guard againstprejudice or sympathy. The Judge then provided the specific directions regardingthe admissions which are criticised as being inadequate. It is therefore appropriate toset these directions out in full:[13] And while I am on prejudice and sympathy, there are two matters inparticular I want to discuss with you. The first is the confession, as it has beencalled by both sides of Mr Reddy to Billy and Cole, which has been the focusof a lot of the evidence in this trial and a number of the submissions that youhave heard.6[14] Now you must approach the issue of the truthfulness of the confessionwith caution. It is correct, as has been pointed out to you, that there have beencases some of which you may have been aware of, where there have been falseconfessions that have led to miscarrriages of justice. People on occasionsmake false confessions because of confusion, pressure or perceived rewards.So a false confession is a possibility.6 The second matter referred to by the Judge concerned Mr Naidu's evidence. The Judge'sdirections regarding Mr Naidu's evidence form the basis of ground five of the appeal.[15] It is your responsibility as the jury to determine whether Mr Reddy'sconfession is reliable. In assessing whether a confession is true or false youare entitled to consider the special characteristics and vulnerability ofa defendant, the precise circumstances of the obtaining of the confession, andyou must consider carefully the following factors:a) First, the length of the operation and the number and nature ofthe interactions with the Police.b) Second, the relationship between the undercover officers andthe defendant.c) Third, the nature and extent of any inducements or benefitsoffered to the defendant and the presence of any threats.d) Fourth, the conduct of the interrogation itself, and finallye) The personality and characteristics of the defendant.[16] There may be markers of reliability or unreliability in the confessionitself, and you will need to consider:a) First, its level of detail.b) Second, whether it led to the discovery of additional evidence.c) Third, whether it reveals information that the defendant would notlikely have known unless he committed the offence.[17] You must not reason that, just because a defendant has engaged ina criminal scenario, that he is a bad person or any more likely to be involvedin the murders.[18] In considering his guilt you must put to one side any feelings oropinions you might have about him being ready to be involved in fictitiouscriminal activity as I have said. It would be illogical and wrong to think hewas more likely to be guilty of murder because he was prepared to getinvolved in the offered criminal scenarios.[29] Mr Dacre submits these directions were inadequate in the context of a Mr Bigoperation and further directions ought to have been given along the following lines:(a) The context for this confession is an elaborate scheme orchestrated bythe police to induce the accused to make admissions;(b) The Mr Big or crime boss strategy deliberately enrols the defendantin a series of simulated dubious enterprises or crimes. The scenariosprovide many incentives for the defendant's eager participation inan apparently thriving criminal organisation, including materialrewards, status, security, advancement and protection;(c) Therefore, the confessions made in Mr Big scenarios are especiallyhazardous;(d) Consider there (sic) the nature of this Mr Big sting and howthe following factors may have influenced the defendant'sconfessions;(e) Beware of the risk of prejudice to your deliberations which is createdby the evidence of the defendant's enthusiasm for committing baddeeds or crimes at the behest of the criminal organisation created bythe police;(i) You may think the accused is more likely to have committedthe offence because of his bad general disposition;(ii) You may be distracted by the evidence of his supposedmisconduct from considering whether the Crown has provedits case beyond a reasonable doubt for the actual charge hefaces, rather than the artificial criminality of the Mr Big sting.(f) Consider how hard it is for any defendant who has been depicted assomeone who readily engages in acts encouraged by a criminalorganisation to overcome the force of the prejudices that may be builtup;(g) You must consider only the evidence and guard against the temptationto substitute such prejudices for proof of facts.[30] The leading authority in New Zealand on the admissibility of confessionsobtained in police operations of this type is the Supreme Court's decision inR v Wichman.7 Because that was a pre-trial appeal, the scope of the required directionswas not directly in issue. However, William Young J, writing for the majority,commented that risks of unreliability not warranting exclusion under s 28 (or unders 8 because of unfair prejudice) should be addressed by the Judge giving appropriatewarnings as to possible unreliability and directions as to illegitimate reasoning andthe burden and standard of proof.8 The majority did not suggest that any special formof directions was required in this type of case. In her dissenting judgment,Glazebrook J suggested the jury might be directed that there are documented caseswhere false confessions have led to miscarriages of justice and studies have shownthat people can place too much reliance on confession evidence even where there arecircumstances suggesting unreliability. Glazebrook J appended to her judgmentspecimen directions (similar to Mr Dacre's suggested directions) sourced froma recent article by way of example, but she did not specifically endorse these.97 R v Wichman, above n 2.8 At [70].9 At [533].[31] The nature and content of the required directions will always depend onthe facts and circumstances of the particular case. It would be unwise to attempt anyform of prescription. Three topics will generally need to be covered. First, the juryshould be told there are documented cases where miscarriages of justice resulting fromfalse confessions have occurred. The possibility of a false confession must beconsidered. Secondly, all material risks concerning the reliability of the defendant'sadmissions should be identified. This will include reference to any inducementsoffered or pressure applied as part of the Mr Big operation and any particularvulnerabilities the defendant may have. Thirdly, the jury should be cautioned againstillegitimate reasoning. This includes the need to guard against placing undue weighton the defendant's admissions and any prejudice arising out of the defendant'swillingness to participate in the simulated criminal offending.[32] While not determinative, we note that the specific directions the Judge gaveconcerning the confession were discussed with counsel and approved by them inadvance. We are satisfied the directions were adequate and there was no risk ofa miscarriage of justice arising from them. We will now outline our reasons in relationto the three topics indicated above.[33] The Judge told the jury they should approach the question of the truthfulnessof the confession with caution noting there have been cases where false confessionshave led to miscarriages of justice. The Judge explained some of the reasons whypeople do on occasion make false confessions, including because of confusion,pressure or perceived rewards. The Judge instructed the jury that they needed toconsider the possibility that Mr Reddy's confession was false. The first topic wascovered sufficiently.[34] We reject Mr Dacre's submission that the Judge needed to go further and statethat confessions obtained employing the Mr Big technique are "especially hazardous".No such generalisation can be justified. The reliability of a confession obtained ina Mr Big type operation obviously depends on the particular circumstances in whichit was made. We do not consider the suggested direction would be appropriate or evenhelpful. What does it mean? Especially hazardous compared to what? The Judge'sduty is to assist the jury to carry out its task in a properly reasoned way, examiningthe evidence and the competing arguments dispassionately without any predispositionone way or the other. The jury's attention must be directed to the details ofthe operation, including any inducements offered or threats made, and any relevantpersonal characteristics of the defendant. The jury should also consider anyindependent indicators of reliability, including whether there is other evidence tosupport the accuracy of the admissions.[35] In his summing up to the jury, the Judge identified the factors which could bearon the reliability of Mr Reddy's admissions. These included the length ofthe operation, the number and nature of the interactions with police andthe relationship between the undercover officers and Mr Reddy. The Judge directedthe jury to consider carefully the nature and extent of any inducements or benefitsoffered to Mr Reddy and any threats made to him. The Judge instructed the jury tofocus particularly on the conduct of the meeting between Mr Reddy and Billy whenthe admissions were made. Finally, the Judge directed the jury to consider Mr Reddy'spersonality and any other characteristics that could be relevant to the reliability of hisadmissions. The Judge also assisted the jury by drawing attention to those factors thatmight bear on the reliability or unreliability of the confession such as its level of detailand whether it led to discovery of other evidence. When summarising the Crown anddefence cases, the Judge briefly reminded the jury of the key contentions in the closingaddresses they had just heard. Mr Dacre did not identify any factor overlooked bythe Judge that might have been material to the reliability assessment. The second topicwas covered extensively by counsel in their closing addresses and we are satisfied itwas dealt with adequately by the Judge in his summing up.[36] The further directions proposed by Mr Dacre set out at [29(e) to (g)] aboveconcern the third topic — the need to guard against illegitimate reasoning andprejudice. Again, we are not persuaded there was any error or deficiency on this aspectof the Judge's summing up. The Judge gave the jury a clear and firm direction not toplace any weight on Mr Reddy's preparedness to engage in the criminal activitysimulated by the police. The Judge told the jury they "must not" reason from this thatMr Reddy was a bad person or any more likely to be involved in the murders.The Judge instructed the jury that any such reasoning would be "illogical and wrong"and "must be put to one side". These succinct directions could not have been clearer.[37] All three topics were adequately addressed by the Judge in his summing up.Accordingly, this ground of appeal fails.Ground three — failure to give a general demeanour direction[38] Mr Dacre submits that the credibility of Messrs Reddy and Naidu was plainlyalways going to be a crucial aspect of the case. In those circumstances, he contendsthe Judge ought to have given a general instruction on demeanour in his openingremarks to the jury. At the very least, he says such an instruction was required inthe Judge's summing up.[39] While it may be good practice to do so, there is no inflexible rule that a generaldirection on demeanour must be given to the jury in every case where credibility isan issue. The need for such a direction depends on whether there is a risk thata witness's demeanour might inappropriately influence the jury's assessment ofthe witness's veracity or reliability.10 Whether such a direction was required inthis case can most conveniently be dealt with under the next ground where we considerMr Reddy's contention that there should have been a tailored demeanour directiongiven the way the trial unfolded.Ground four — failure to give a tailored demeanour direction[40] Mr Dacre says the Crown solicitor put at the forefront of her closing addressthe issue of Mr Reddy's demeanour at the time he confessed. Mr Dacre saysthe submission was to the effect that Mr Reddy "broke down and confessed tomurder". In these circumstances, Mr Dacre contends a tailored direction ondemeanour should have been given to the jury.[41] Mr Dacre clarified at the hearing that the direction needed to cover two matters.First, he says the jury ought to have been told that the police had orchestratedthe situation and knew what was going on whereas Mr Reddy did not and was unawarehe was being recorded. The jury did not need to be told this. They could not havebeen in any doubt about it. Secondly, Mr Dacre says the jury should have been directed10 Taniwha v R [2016] NZSC 121, [2017] 1 NZLR 116 at [43].to go back and review the video because Mr Reddy's demeanour is recorded. The juryshould have been told there are all sorts of reasons why people may be pleased to havesaid something. For example, Mr Reddy may have thought he was being threatenedand now feels safe and secure from further harassment. It may not be because he hasfinally unburdened himself of a dark secret, as the Crown suggested. Mr Dacre saysthe jury should have been alerted to the fact that Mr Reddy comes from a differentculture and language issues mean it could be dangerous to read anything into hisdemeanour.[42] We do not accept that the issue of Mr Reddy's demeanour featured prominentlyin the Crown closing. The only such reference in counsel's lengthy closing address(131 paragraphs) was in a single paragraph. This was confined to a submission basedon Mr Reddy's body language at the time he made his confession:[102] What you saw was not a man compelled to make a false confession.What you saw was a man who decided to unburden himself of a terrible secretto people he wrongly believed he could trust, who might be able to help him.He may have been the subject of a deception, but that's the nature ofundercover policing. It was his decision to tell Billy and Cole what happenedand when he spoke, he spoke the truth. You saw the confessions yourself, howthe details just came slowly pouring out. You saw how his body languagechanged, how he started to relax as he spoke. How he eventually even daredto lean back in the chair after he'd shared his secret. There was no fear.There was no intimidation, just visible relief I suggest that he'd finally toldsomeone this dark secret.[43] Mr Krebs presented the contrary argument, relying also on Mr Reddy's bodylanguage at the time he made his confession:[58] When you look at Billy's interview with him, the afternoon interviewthat the Crown rely on as the confession, remember all the positive andencouraging reinforcement that Billy uttered as this narrative came out fromMr Reddy about what he said he'd done, "oh you're a thinker", that sort ofcomment, "oh well done for digging the hole so deep", all of this positivereinforcement. So it's perhaps hardly surprising by the time the interviewcame to an end, Mr Reddy was sitting back on the couch and pouring out asmany details as he could think of, all of which he told you were lies. He toldyou he was concerned when [the detective] was in Wellington and there wasthe encounter on the pedestrian crossing, but you could see by the end of thisinterview with Billy, as my learned friend said, he was very relaxed. He musthave thought perhaps that he had persuaded Billy and that everything wasgoing to be all right.[59] Context is everything. When you assess that particular interview youneed to look at it and look at the detail in connection with everything whichhad preceded it, all of the scenarios, and in particular that brutal interview withCole over the lunch time period. The grooming process. The softening upprocess, and the eventual lies to Billy.[44] The jury watched the video. We have also viewed it for the purposes of thisappeal. There was no dispute that Mr Reddy appeared to relax after confessing toBilly. The possible explanations for this were made clear to the jury by counsel intheir respective closing addresses. The jury were well placed to make their ownassessment of this in the context of all the evidence. We do not consider there was anyrisk the jury was inappropriately influenced by Mr Reddy's demeanour at the time heconfessed. We are not persuaded that the Judge was required to give a direction aboutdemeanour.Ground five — failure to give a reliability warning concerning Mr Naidu'sevidence[45] When he was first spoken to by the police in 2013, Mr Naidu denied knowingMr Reddy. In 2014, he acknowledged that he did know him but maintained he hadnothing to do with the burial of the bodies. In 2015, Mr Naidu provided a thirdstatement which formed the basis of his evidence at the trial. Mr Naidu freely admittedin cross-examination that he lied to the police in his earlier statements andacknowledged that he gave his eventual statement to obtain a reduced sentenced:Mr Gotlieb: Mr Naidu, the short answer to you giving this statement onthe 9th of July 2015 is that you were going to get a lightersentence if you did that, is that correct?Mr Naidu: Yes.[46] When discussing the directions the Judge should give in his summing up tothe jury, Mr Gotlieb sought a warning under s 122 of the Evidence Act concerningMr Naidu's evidence. The Judge declined to give a warning because he consideredthis was unnecessary and would unfairly prejudice the Crown case.11 The Judge'sreasons are encapsulated in the following passages of his judgment:[12] There are a number of indicia of reliability in relation to Mr Naidugiving evidence. While he did lie in his first two statements, it can be seenwhy he might do so out of self-interest. By the time of his third statement he11 R v Reddy (No 3) [2016] NZHC 996.knew of Mr Reddy's confession, which made further denials pointless.It made sense for him to now tell the full truth.[13] Most of what Mr Naidu ultimately said in his third statement iscorroborated, and now accepted by the defence. The fact that Mr Reddy didvisit him, and did go to the site with him, and that a burial place was shown,are all admitted. The only matter at issue is whether Mr Reddy in hisconversation on the night with Mr Naidu, said that he had killed his girlfriendand her daughter. Mr Reddy contends that he did not say this to him, but saidto Mr Naidu that he had found their bodies. This is contrary to his confessionto undercover officers, which corroborated Mr Naidu's evidence on this pointas well.[14] Mr Naidu was strongly cross-examined by Mr Gotlieb on whether thiswas right, and whether he was influenced by the inducement of a lowersentence. In the light of this, there is no counterintuitive point that the juryneeds to be reminded of. The possibility of Mr Naidu making a false statementto get a lighter sentence will be well understood by the jury. [15] Weighing this, I have concluded that two factors, Mr Naidu'spreviously untruthful statements and the undoubted incentive he had to giveevidence pleasing to the Police, mean that the issue of reliability has to beformally brought to the jury's attention. A full expression of caution is not,however, required and could be misconstrued as a judicial expression of doubtabout his evidence. (Footnote omitted).[47] In his summing up, the Judge directed the jury concerning Mr Naidu'sevidence as follows:[19] I would also like to say a word about Mr Naidu's evidence. You haveheard strong submissions from the defence about the reliability of his evidenceand the fact that he, it is asserted by the defence, had a motive to lie. You havealso heard what the Crown have said about his evidence. You will considerthe submissions from both sides. You should take into account, in assessingMr Naidu's evidence, the full history of his involvement, including the twoearlier statements where he gave different evidence and where he now admitshe lied to the Police, and the fact that he had an incentive to co-operate withthe Police.[20] But ultimately the decision as to whether you find his evidencereliable, in particular his evidence about what Mr Reddy said to him onthe night before they went to [the burial site] about what he had seen or done,is a matter for you to assess.[48] We agree with the Judge's assessment that a formal warning was not requiredin all the circumstances and could have been misconstrued as a judicial indication thatMr Naidu's evidence should not be accepted. We cannot see any flaw in the Judge'sreasoning, which is consistent with this Court's decision in B (CA58/2016) v R.12We consider the Judge's directions on this issue were entirely appropriate.Result[49] The application to adduce further evidence is declined.[50] The appeal against conviction is dismissed.Solicitors:Crown Law, Wellington for Respondents12 B (CA58/2016) v R [2016] NZCA 432. See also Williams v R [2017] NZCA 176, (2017) 28 CRNZ471 at [46]; approved in Swain v R [2018] NZCA 259 at [84].