Chen v Police - [2021] NZHC 2386

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-550

[2021] NZHC 2386

BETWEEN
ZIANG CHEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 August 2021 (further material received 8 September 2021)

Appearances:

K T Cheung for Appellant H Reid for Respondent

Judgment:

13 September 2021

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

This judgment was delivered by me on 13 September 2021 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Auckland

CHEN v NEW ZEALAND POLICE [2021] NZHC 2386 [13 September 2021]

[1] Following a Judge alone trial in the District Court Judge E M Aitken found Mr Chen guilty on two charges of breaching a protection order and two charges of assaulting his former partner.1 On 9 December 2020 the Judge declined an application by Mr Chen for an order discharging him without conviction and sentenced him to 12 months supervision. 2

[2] Mr Chen appeals against conviction on the basis that the Judge erred in her assessment of the evidence and, in any event, ought to have granted him a discharge without conviction.

Approach

[3] There is no dispute regarding the approach an appellate court must now take to a first appeal against conviction. In Sena v Police the Supreme Court confirmed that conventional appellate principles apply to such appeals.3 This requires an appellate court to reach its own decision regarding the correctness of the judgment subject to appeal. The onus is on the appellant, however, to demonstrate error on the part of the Court below. As always, an appellant court will exercise “customary caution” when assessing any challenge to findings based on credibility where the trial Judge has the advantage of seeing and hearing the witnesses.4

Preliminary issues

[4] Before I consider the arguments relating to the charges, I deal with two preliminary issues.

Pre-determination

[5] The first relates to an argument that the Judge made remarks at a relatively early stage of the hearing suggesting she had pre-determined the case against Mr Chen. The Judge made the remarks whilst counsel for Mr Chen was cross-examining the complainant on the first afternoon of the hearing. The cross-examination related to

1      New Zealand Police v Chen [2020] NZDC 13167.
2      New Zealand Police v Chen [2020] NZDC 25613.
3      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
4 At [38].

visits the complainant had made to Mr Chen’s workplace, a restaurant. On these occasions she had accosted both Mr Chen and his work colleagues. This led to Mr Chen’s employer arranging for a trespass notice to be served on her on 19 June 2017 prohibiting her from returning to the restaurant. During this evidence the following exchange occurred:

Judge: So are you saying that he tried to break up with her, that his evidence will be in February and again in March is that what we, is that the gist of what I’m going to hear?

Ms Cheung: A…

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 Chen v Police

Details

AGLC: Chen v Police [2021] NZHC 2386
Case: [2021] NZHC 2386
Decision Date: 13 September 2021

CaseChat Overview and Summary

The appeal against conviction in this case was dismissed. The appellant, Mr Chen, was convicted in the District Court of two charges of breaching a protection order and two charges of assaulting his former partner. He appealed against conviction on the basis that the trial Judge erred in her assessment of the evidence and, in any event, ought to have granted him a discharge without conviction. The Court found that the Judge was correct to find Mr Chen guilty on all four charges. The Judge had assessed the evidence given by both the complainant and Mr Chen and was entitled to draw the inferences she did. Furthermore, the Judge was correct to conclude that the direct and indirect consequences of conviction were not out of all proportion to the gravity of the offending. The appeal against conviction was therefore dismissed.

Orders