Chow v R
[2013] NZCA 360
•12 August 2013 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA695/2011 [2013] NZCA 360 |
| BETWEEN | WAN YEE CHOW |
| AND | THE QUEEN |
| Hearing: | 23 April 2013 |
Court: | Arnold, Harrison and White JJ |
Counsel: | M M Wilkinson-Smith and M Kan for Appellant |
Judgment: | 12 August 2013 at 10.30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Arnold J)
Table of Contents
Para No
Introduction [1]
Background [3]Mr Chow’s background [14]
Mr Taylor’s evidence [17]
Application for an extension of time [19]
Basis of conviction appeal [24]Fitness to plead[25]
Assistance received by Mr Chow [33]
(i) Disclosure material not translated[35]
(ii) Interpretation and accommodations at trial inadequate [45](a) The standard to be applied [50]
(b) Assessment [52]
Failure of Crown witness to appear[59]
Errors by trial counsel[70]
Sentence appeal [76]
Decision [81]
Introduction
Following a jury trial before Courtney J in November 2006, Mr Chow was convicted of murdering Mr Ah Yam Tam. He was sentenced to life imprisonment with a mandatory minimum period of imprisonment of 17 years.[1] He now seeks an extension of time to appeal against both conviction and sentence.
[1]R v Chow HC Auckland CRI-2006-032-356, 15 February 2007 [R v Chow (sentencing)].
To give context to the factual outline which follows, we note at this point that Mrs Wilkinson-Smith advanced the conviction appeal on the following basis:
(a)Mr Chow may have been unfit to plead.
(b)The interpretation assistance provided to Mr Chow was insufficient to enable him to understand and follow the evidence given the language and other difficulties that he faced.
(c)A mistrial should have been declared given the unavailability of a key witness.
(d)There were material failures by trial counsel.
Background
The Crown alleged that on 6 July 2005 Mr Chow drove from Wellington to Auckland with an associate, Mr Taylor, in Mr Taylor’s car. Mr Chow told Mr Taylor that he wanted to go to Auckland to collect some money that was owed to him for some paua. The day before they left, they went to a Chinese restaurant in Wellington where Mr Taylor had a meal while Mr Chow talked to someone at the restaurant. The Crown suggested that the killing of Mr Tam was arranged with this person in exchange for $10,000. (Mr Taylor’s evidence was that Mr Chow had told him that he was to go to the restaurant after they returned from Auckland to receive $10,000.)
During the trip to Auckland, Mr Chow made a number of calls on Mr Taylor’s cell phone. After arriving, they visited a restaurant in Avondale where Mr Chow said he was given some money for petrol. Following that, the two men went to the central city and parked on a street at the back of a karaoke bar on Symonds Street, which was partly owned by Mr Tam. Mr Tam lived above the premises with his fiancée. Mr Chow had known Mr Tam for over 10 years. Mr Tam had employed Mr Chow briefly at a restaurant on Anzac Avenue, which Mr Tam partly owned, and Mr Chow had stayed in one of the apartments behind the karaoke bar for several weeks.
After driving by the karaoke bar, Mr Chow and Mr Taylor went to a street opposite the restaurant. Mr Chow parked there and watched the entrance to Mr Tam’s restaurant on Anzac Avenue. He saw Mr Tam arrive at the restaurant. Mr Chow and Mr Taylor then drove back to the karaoke bar before returning to their previous position opposite the restaurant.
Mr Tam and his fiancée were working at the restaurant. Later, between 3.30 and 4 am on 7 July 2005, Mr Chow directed Mr Taylor to drive back to the karaoke bar and park in a street behind the block where the karaoke bar was located. Mr Chow told Mr Taylor to wait in the car and went to the boot. Mr Taylor became concerned, left the vehicle and saw Mr Chow putting on dark clothing and removing a handgun and bullets from a bag in the boot. Mr Taylor got back in the car and waited while Mr Chow hid behind the bar.
At about 4.30 am Mr Tam, who was returning home from the restaurant with his fiancée, drove into the car park behind the karaoke bar. As he got out of his car, Mr Tam saw the figure of Mr Chow approaching and asked who he was. Mr Chow then fired a single shot into Mr Tam’s chest, ran back to his car and returned to Wellington with Mr Taylor.
The murder was witnessed by Mr Tam’s fiancée. She was still in the car when Mr Tam got out. She heard the central locking system activate. She looked out of a car window to see a man with a covered face come close to Mr Tam. She saw Mr Tam being shot. She knew Mr Chow. Based on the height and build of the person, she said in evidence that he “looks like the shape and everything, really like Golo [Mr Chow]”. She then smashed a window to get out of the car.
Mr Taylor heard a bang before Mr Chow returned to the car and said they were returning to Wellington. They immediately drove back to Wellington. The two men disposed of a handgun and ammunition. They wrapped the ammunition up in a plastic shopping bag and buried it, along with the handgun, in a bucket. The police later recovered these items with assistance from Mr Taylor. The pair’s fingerprints were found on the plastic shopping bag and the recovered ammunition was linked to the bullet taken from Mr Tam’s body.
The sole issue at trial was identity – was it Mr Chow who murdered Mr Tam? As Mrs Wilkinson-Smith acknowledged, the Crown advanced a strong prima facie case against Mr Chow. That case rested on a number of factors, including:
(a) the evidence of Mr Taylor;
(b) the evidence of Mr Tam’s fiancée;
(c)Mr Chow’s experience as an employee of Mr Tam and his knowledge of Mr Tam’s premises and movements;
(d)evidence that Mr Chow had been seen in suspicious circumstances on or near Mr Tam’s premises both before and on the night in question; and
(e)Mr Chow’s apparent involvement in the disposal of the handgun and ammunition (as indicated by the presence of his fingerprints on the plastic bag in which the bullets were wrapped).
The Crown also relied on a notebook found in Mr Chow’s residence, which contained a sketch of a handgun above which was written “10,000”. The notebook contained Chinese writing. Mr Taylor said that Mr Chow owned such a notebook, but that he did not know whether Mr Chow made the sketch. Mr Chow’s brother, Mr Leung Yin Chow (known as Mr Stanley Joe), has filed an affidavit in the appeal in which he says that Mr Chow had nothing to do with the sketch and that another individual (whom he named) drew it. On the Crown’s case, the material in the notebook supported Mr Taylor’s evidence that Mr Chow was to be paid $10,000 by a person from the restaurant when the pair returned from Auckland. In closing, prosecuting counsel suggested that the $10,000 might have been blood money for Mr Tam’s death, although he acknowledged that there was no certainty about this.
Mr Taylor was granted immunity from prosecution and gave evidence against Mr Chow. Mr Chow was represented by Mr Peter Kaye, with assistance from Mr Hugh Leabourn. Mr Chow denied (and continues to deny) that he committed the murder. Mr Kaye cross-examined Mr Taylor on the basis that it was he who had shot Mr Tam. The motive suggested was that Mr Taylor was afraid of Mr Tam because he had heard that Mr Tam had been paid $10,000 by one of Mr Taylor’s debtors to cause Mr Taylor “trouble”. The defence also suggested that another Crown witness had a motive to kill Mr Tam. This witness was a former partner of Mr Tam’s fiancée, who had previously threatened to kill both Mr Tam and his fiancée.
Mr Chow did not give or call evidence, although Mr Leabourn had prepared a preliminary brief of evidence for him. In it Mr Chow acknowledged that he did drive to Auckland with Mr Taylor as alleged. He said, however, that he did not go to the karaoke bar with Mr Taylor but rather met a friend at a “prostitutes’ place”, which he named, and was there until Mr Taylor picked him up at 5.30 am on the morning of the murder. He denied having anything to do with the handgun or its burial. Mr Joe offered to assist Mr Kaye by providing details of a person who could give evidence for Mr Chow. Mr Kaye made enquiries and located two potential alibi witnesses. Mr Kaye annexed a file note of his interview with one of them to his affidavit. The witness confirmed that he and Mr Chow had gone to a “massage parlour” on the night in question. Although an alibi notice was given, Mr Chow subsequently gave written instructions that none of the two potential alibi witnesses or his brother Mr Joe was to be called by the defence.
Mr Chow’s background
Given the issues raised by the appeal, we should briefly outline Mr Chow’s personal background. Mr Chow, now 61, was born in China and raised in a small village. He received limited formal education and has been assessed in New Zealand as having a low level of intellectual ability. Mr Chow suffered considerable hardship in China, both because he was intellectually slow and because he was imprisoned in re-education camps during the Cultural Revolution and was harshly treated. He continues to have nightmares about what occurred there.
Mr Chow came to New Zealand in 1986 or 1987, following members of his extended family. He was married for a period and has adult children in New Zealand and Australia. Mr Chow has not assimilated well, unlike some of his siblings and his children. His first language is Cantonese and he has a limited understanding of English.
Prior to the present incident, Mr Chow had some experience of the New Zealand criminal justice system. He was convicted for his participation in violent offending that occurred in 1989 and 1990 in relation to the recovery of debts. The total effective sentence was seven years’ imprisonment, which was upheld on appeal.[2] In 1998, Mr Chow was convicted on two charges of demanding money with menaces, again in relation to an alleged debt. This Court upheld a sentence of four and a half years’ imprisonment.[3] Finally, in 2001 Mr Chow entered a plea of guilty to doing a dangerous act (leaving two uncovered buckets of petrol in a restaurant) with reckless disregard for the safety of others. His purpose was apparently to cause a fire at the restaurant, at the behest of an unknown principal. This Court imposed a sentence of four years’ imprisonment on a Solicitor-General’s appeal.[4] In addition, the way in which he dealt with the police when they sought to interview him in the present case suggests some familiarity with criminal justice processes.
Mr Taylor’s evidence
[2]R v Chow CA20/92, 7 April 1992 [Chow (1992)].
[3]R v Chow CA134/98, 11 August 1998 [Chow (1998)].
[4]R v Chow CA347/01, 14 February 2002 [Chow (2002)].
Mr Taylor’s account of how the murder occurred formed the basis for the Crown’s case. By way of background to those events, Mr Taylor said that he had known Mr Chow for about five years (at the time of the killing). He said that they were reasonably close and visited each other regularly, that Mr Chow often slept at his house and that they did business deals together, both legitimate and illegitimate (the illegal supply of paua seems to have been one of their significant business activities). They sometimes travelled by car to Auckland together for business reasons. Mr Taylor said that they always communicated in English (he knows no Cantonese), although he accepted in cross-examination that Mr Chow was “pretty hopeless” at speaking and writing English and needed to be helped. Mr Taylor said that he had seen Mr Chow write in English a couple of times. When asked about a handwritten note that the Crown alleged came from Mr Chow,[5] he replied: “Possibl[y] either he wrote or his brother wrote it for him.”
[5]The note read: “Steven I like to see you I know you been looking for me Wun”.
Besides disposing of the handgun and ammunition with Mr Chow, Mr Taylor said he disposed of another gun and ammunition after the murder. He said that they belonged to Mr Chow and were in a van which he (Mr Taylor) owned. It was parked at a neighbour’s property. When the neighbour, Ms Milner, learnt that there was a gun and ammunition in the van, she required Mr Taylor to remove them from her property. She helped him dispose of them on the Paekakariki Hill Road, together with a black balaclava. Mr Taylor said he had picked the balaclava up from Mr Chow’s house at the request of Mr Joe. Mr Taylor said that Mr Joe had rung him, told him that he had found the balaclava when emptying Mr Chow’s house to put his things in storage while he was in custody awaiting trial and asked him to get rid of it because the police had missed it in their search. The police later recovered this material, with the assistance of Mr Taylor and Ms Milner.
Application for an extension of time
The delay in filing the appeal was significant: four and a half years. Mrs Wilkinson-Smith submitted that an extension of time should nevertheless be granted. She attributed the delay to a combination of Mr Chow’s limited intellectual ability and his language difficulties. She submitted that the issues raised in the appeal, which relate to Mr Chow’s understanding of what happened at trial, were such that the interests of justice required that an extension of time be granted.[6]
[6]R v Knight [1998] 1 NZLR 583 (CA) at 587.
Mr Chow filed an affidavit in support of the application in which he explained the delay by saying it arose from his inability to speak English and contact a lawyer so that he could progress matters. He said that it was not until Mrs Wilkinson-Smith came to see him in 2011 accompanied by a Cantonese‑speaking lawyer that he was able to progress matters.
For the Crown, Mr Mander did not oppose the granting of an extension but abided the decision of the Court.
It appears that Mr Kaye did provide some assistance to Mr Chow in relation to an appeal. Mr Kaye’s file indicates that he filed an appeal against sentence on Mr Chow’s behalf on 15 March 2007, on the basis that the minimum non-parole period was manifestly excessive. He also sent the complete file to Mr Chow at Auckland Prison in Paremoremo at Mr Chow’s request. He wrote again to Mr Chow about a week later as Mr Chow had indicated that he also wished to appeal his conviction. Mr Kaye expressed the view that he could not see any basis for a conviction appeal. He wrote to Mr Chow again on 3 October 2007. The Court of Appeal had returned a notice of appeal filed by Mr Chow. Mr Kaye attached a blank notice of appeal and offered to assist Mr Chow with completing it. He does not recall hearing anything further from Mr Chow. (This may have been because there was, according to Mr Leabourn, a souring of the relationship between Mr Chow and Mr Kaye after the verdict.)
The period of delay is lengthy. There is, of course, a strong public interest in finality of litigation. Against that, Mr Chow did indicate in a timely fashion that he wished to appeal and attempted to file a notice of appeal which covered both conviction and sentence. He was unsuccessful in achieving that and did not take up Mr Kaye’s proffered assistance. Although we are sceptical of Mr Chow’s claimed inability to make progress in light of his experience of the appellate process, Mr Kaye’s offer and the assistance available to him in prison, we consider that the interests of justice require that an extension of time be granted. Mr Chow undoubtedly has communication difficulties and the matters raised in the appeal are ones which we consider should be addressed on their merits.
Basis of conviction appeal
We have set out at [2] above the basis for the conviction appeal. We now address the individual grounds of appeal.
Fitness to plead
Mr Chow was assessed for his fitness to plead by Dr Crawshaw in 2001 in relation to the third set of offending referred to in [16] above. We do not have a copy of that report, but it apparently concluded that Mr Chow was fit to plead.
No fitness to plead assessment was undertaken prior to Mr Chow’s trial in 2006 for the present offending. He has, however, recently been assessed by Dr Jeremy Skipworth under s 38(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, at Mr Chow’s request.
Dr Skipworth considered that Mr Chow was intellectually limited but was unsure whether his level of intellectual functioning amounted to a “mental impairment” for the purposes of the Act.[7] Assuming it did, Dr Skipworth summarised his conclusions as follows:
40In my opinion Mr Chow understands the charge, he can plead to the charge and understands the principle of the right of challenge. His ability to understand and follow the course of the proceedings would require the presence of an interpreter, and sufficient (more than usual) time to make sure he was following what was going on.
41His understanding of the effect of the evidence would be limited by his intellect, but he clearly states his preferred plea, and I understand that he gave these instructions to counsel along with his version of the facts which he also recounted to me during the current assessment.
42In summary, although Mr Chow’s cognitive limitations and language problems would have presented challenges to both his counsel and the court at his trial, I did not form the opinion that at that time he was unfit to stand trial. However, I am aware that the determination of fitness to stand trial is ultimately one for the court, not the Health Assessor.
[7]“Mental impairment” forms part of the definition of “unfit to stand trial” in the Criminal Procedure (Mentally Impaired Persons) Act 2003, s 4.
In relation to Mr Chow’s ability to communicate with counsel for the purposes of conducting a defence, Dr Skipworth said:
38.Communication with others is the area of greatest disability for Mr Chow. First, an interpreter is required who speaks his dialect of Cantonese. Second, his intellectual limitations mean that more time is required to explain things to him, and to understand what he is saying. At times it is necessary to redirect questions to him several times and at others he needs to be cut off if his stream of thoughts goes off on a tangent. However, notwithstanding these difficulties, I found that with careful questioning through a competent interpreter communication was reasonably uncomplicated. I was not concerned that there may have been miscommunication between us.
Dr Skipworth indicated that his findings were likely to have applied at the time of Mr Chow’s murder trial.
Mr Chow was also assessed by Ms Eve Yee Han Graham, a registered clinical psychologist who speaks Cantonese. Her report, dated 17 September 2012, was completed for Dr Skipworth and was undertaken to assess Mr Chow’s current cognitive status using neuropsychological tests. The results suggested that Mr Chow’s cognitive functioning was in the borderline range when compared to others of the same age. Ms Graham assessed Mr Chow as having an intelligence quotient (IQ) in the range 70–80.
In addition, Mr Chow was interviewed on several occasions in 2011 by Dr Wendy Bevin, a psychiatrist working in the forensic prison team at Auckland Prison. Although she had the assistance of an interpreter, Dr Bevin found it difficult to assess Mr Chow and arranged for a Cantonese-speaking psychiatrist, Dr Sai Woh Wong, to see him. Dr Wong provided Dr Bevin with a report dated 20 December 2011. This was not intended to be a forensic report but rather “a language and culturally relevant clinical assessment in order to assist [the forensic prison] team with Mr Chow’s management”. Dr Wong noted that in forming his views he had considered various psychiatric, neurological and other reports prepared over the period 1992–2003, one of which was the fitness to plead assessment carried out by Dr Crawshaw.
Dr Wong did not consider that Mr Chow had a psychotic illness. He acknowledged on the basis of the earlier material that he may have had post‑traumatic stress disorder in the past. He said that Mr Chow suffered from a long-standing intellect deficit “likely in the borderline range” and suffered impairments in relation to memory and social judgement, although he recommended further testing to confirm these points. In relation to his fitness to plead, Dr Wong expressed the concern that Mr Chow’s poor social judgement and digressive speech patterns would affect his ability to communicate effectively with his lawyers, to the point that specialised assistance may be necessary particularly in the context of a serious charge. He recommended that culturally appropriate neuropsychological testing be undertaken and suggested Ms Graham as one of the people who could carry out such testing.
Mrs Wilkinson-Smith’s argument was to the effect that the Crown cannot discount the possibility that Mr Chow as unfit to plead in 2006, not by reason of mental illness but because of an intellectual disability, and to place Mr Chow on trial without assessing his fitness to plead was a fundamental procedural error, giving rise to a nullity. We do not accept this submission. The evidence from health professionals relating to assessments made in 2011 and 2012 about Mr Chow’s fitness to plead does not raise a reasonable possibility that Mr Chow was unfit to plead in 2006 (or, indeed, is presently unfit to plead). We consider that the real issue concerns the level of assistance he received at trial given his intellectual, communication and other difficulties. We now turn to that issue.
Assistance received by Mr Chow
Section 24(g) of the New Zealand Bill of Rights Act 1990 (NZBORA) provides that everyone charged with an offence “shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court”. Further, s 25(a) confirms a right to a “fair and public hearing” and s 25(e), a “right to be present at the trial and to present a defence”. In addition to these NZBORA provisions, s 80 of the Evidence Act 2006 provides that a defendant in a criminal proceeding is entitled to “communication assistance” to enable him or her to understand the proceeding.[8] Mrs Wilkinson-Smith argued that what occurred at Mr Chow’s trial fell below these requirements given his need for special assistance in terms of language and comprehension.
[8]Discussed in Bae v R [2012] NZCA 455 at [20]–[21].
The effect of Mrs Wilkinson-Smith’s submissions was that Mr Chow’s rights were breached in two important respects:
(a)Material provided by the Crown on disclosure was not translated for him.
(b)The quality of the interpretation provided to Mr Chow was inadequate and he was not given sufficient time to assimilate what was occurring. Because the interpretation at trial was simultaneous, the interpreter did not have a sufficient opportunity to check that Mr Chow understood what was occurring.
Counsel argued that, as a consequence of these deficiencies, Mr Chow was deprived of his right to a fair trial. Mrs Wilkinson-Smith emphasised that she was not submitting that had things been done differently, there might have been a different result. Rather, because of his difficulties of communication and comprehension, Mr Chow had not been able to participate fully in his trial and so had not had a fair one.
Disclosure material not translated
Mr Chow’s trial was scheduled to take two weeks, commencing 6 November 2006. On 6 November immediately before the trial was due to commence, Mr Kaye sought an adjournment. Courtney J recorded the grounds as follows:
Mr Kaye has explained that Mr Chow has only recently realised the enormity of what is before him and despite previous lack of interest in the disclosure documents now wishes to have further time to properly study the documents.
The Judge noted that there were 10 Eastlight folders of documents and they would need to be translated into Cantonese for Mr Chow to consider them adequately, so that the trial date would then be lost. Unsurprisingly, the Crown opposed the application.
Courtney J refused the adjournment. She said:
[3] In considering this application I take into account the following factors. First, Mr Kaye has acted for Mr Chow since just before depositions in May 2006. He has met several times with Mr Chow in the presence of an interpreter for the purposes of discussing the case against Mr Chow. He has discussed the contents of the disclosed documents with Mr Chow.
[4] The Crown will not provide a translated set of documents and for the defence to do so will inevitably take some time and presumably require a further grant of legal aid to cover the costs. In addition there is much in the disclosed documents which will not be directly relevant to the trial, being enquiries that in the end led nowhere.
[5] I am not prepared to adjourn this trial. I am satisfied that Mr Chow has had adequate opportunity with experienced counsel to fully consider the case against him and to give proper instructions to his counsel.
[6] I am, however, prepared to allow Mr Chow a further short amount of time so that he and his counsel can review the documents in the presence of an interpreter. What I therefore propose is that the trial commences this morning to the extent that a jury is empanelled and I will adjourn the trial after that until 10 am, Wednesday 8 November 2006.
This is what then occurred. We have no more detail than that. Both Mr Kaye and Mr Leabourn have filed affidavits in the proceeding. Mr Kaye deposes that he has no independent memory of this trial and so must rely on his file for his recollection. Mr Leabourn does not mention the adjournment.
Mrs Wilkinson-Smith relied on the decision of Robertson J in Alwen Industries Ltd v Collector of Customs.[9] There the High Court accepted that s 24(g) of NZBORA meant that written translations of briefs of evidence and documentary evidence may have to be provided to an accused unable to speak or understand English.[10] The Judge emphasised that a flexible approach was required, in the sense that what would have to be provided in a particular case would depend on the circumstances. Ultimately, the objective is to enable the accused to understand the proceedings so that he or she is able to instruct counsel and prepare a defence.[11]
[9]Alwen Industries Ltd v Collector of Customs [1996] 3 NZLR 226 (HC).
[10]At 232.
[11]Ibid.
In his affidavit evidence, Mr Kaye said:
5.I was aware prior to trial that Mr Chow required the assistance of a Cantonese interpreter and therefore arranged for an interpreter to be present in our pre-trial meetings. Mr Chow on occasions assured me when I was alone with him that he understood what I had said and if I gave him my advice he would nod in acknowledgement. However, he was a man of few words and there were certainly no lengthy conversations in the English language. All of this caused me to have reservations about his ability to speak English and that is the reason why I required the assistance of Mr Lee [the interpreter].
6.Despite the difficulties in taking instructions from Mr Chow, I was satisfied in the end with the way we undertook the task and, from memory, we were able to obtain complete instructions from him with the assistance of an interpreter.
It seems from what Courtney J said in her ruling that Mr Kaye discussed the contents of the disclosed documents with Mr Chow, in the presence of an interpreter, in the course of their pre-trial conferences.[12] He was then given two days (by way of the adjournment) to discuss the documents with Mr Chow, again with the assistance of an interpreter.
[12]See [36] above.
Mrs Wilkinson-Smith has not been able to point to any actual prejudice arising from this process. She did not attempt to identify any documentation of which Mr Chow was not aware and about which he might have been able to provide assistance to his lawyers in advancing his defence. Rather, her argument was one of principle.[13]
[13]In Alwen Industries Ltd, above n 9, at 232 the Court made it clear that the documents which should have been interpreted need to be identified. The Court said: “Some cases may require translations of only the most critical evidence, and in most other cases oral translations will suffice. There are obviously degrees of language difficulty just as there are degrees of importance of documents used in a proceeding.”
However, as we understand the decision of the Supreme Court in Abdula v R, to which we will return in more detail below, an accused’s rights in this context will not have been breached unless “there was a real risk of an impediment to the conduct of the defence”.[14] The issue in this case was identity: was Mr Chow the person who carried out the shooting? Mr Taylor said that he was. And there was other evidence supporting that conclusion, as noted at [10]–[11] above. Given that the issue was identification, it is difficult to see how the documentary material would have provided much assistance. Courtney J said in her ruling granting the adjournment that she considered much of it to be irrelevant.
[14]Abdula v R [2011] NZSC 130, [2012] 1 NZLR 534 at [43].
Mr Chow was represented by two very experienced criminal defence counsel, who had the assistance of an interpreter. Although both counsel found Mr Chow somewhat uncommunicative, they did discuss the contents of the documents with him. If counsel had had real concerns about Mr Chow’s ability to advance his defence because there were no written translations of the documents, we have no doubt that they would have raised it with the Judge. In this connection, we note that the cross-examination of the Crown witnesses indicates a good grasp of the detail, as one would expect of experienced counsel, so they were able to take instructions.
Against that background, we do not accept that it has been shown that the failure to provide written translations of the disclosed documents created a real risk of an impediment in the conduct of Mr Chow’s defence.
Interpretation and accommodations at trial inadequate
This ground of appeal raises two interrelated points concerning the interpretation services provided and whether some additional accommodation was needed given Mr Chow’s intellectual difficulties. As a preliminary point, we note that three of the Crown witnesses gave their evidence in Cantonese, most importantly Mr Tam’s fiancée. On the face of it, it seems unlikely that Mr Chow could have had any difficulty understanding their evidence, especially given the time it would have taken to translate counsel’s questions into Cantonese and the witnesses’ answers into English. However, Mr Chow does appear to suggest that some of the witnesses used the “Tai Shan” dialect, which he did not understand. We return to this point below. Other witnesses gave evidence in Mandarin or English and their evidence was translated into Cantonese for Mr Chow. Again, in relation to the witnesses giving evidence in Mandarin, there would have been delays inherent in the interpretation process which would have slowed the pace of their evidence and allowed Mr Chow time to assimilate what was being said.
Two interpreters were involved. The first was Mr Luke Lee. He obtained a law degree from a university in Taiwan in 1967 and has provided interpretation services in Cantonese, Mandarin, Taiwanese and Hakanese in various District Courts in Auckland since 1992. He has been a Justice of the Peace since December 2006. In the present case, he provided interpretation services for Crown witnesses who gave their evidence in Cantonese or Mandarin. He also provided interpretation services to Mr Chow after the trial.[15] He said that he may have provided interpretation assistance to Mr Chow and counsel prior to trial but he no longer has his diaries for the relevant period and has no particular memory of the trial.[16]
[15]See [53] below.
[16]Mr Kaye indicates in his affidavit evidence that Mr Lee provided pre-trial interpretation services.
The second interpreter was Ms Kin Leng Redvers-Hill, a Mandarin/Cantonese interpreter. She holds certificates in Healthcare Interpreting and in Legal Interpreting. The bulk of her work has been in the health sector, but she has experience in a variety of legal contexts. She interpreted for Mr Chow at the trial. Like other participants, she had difficulty recalling the details given the passage of time. She said she sat next to Mr Chow and spoke into his right ear, providing a simultaneous interpretation from English or Mandarin into Cantonese.
Mr Chow has some understanding of English. He and Mr Taylor spent a great deal of time in each other’s company and they communicated only in English. In their evidence both Mr Taylor and Ms Scott (Mr Taylor’s former girlfriend) referred to things that Mr Chow had said in English. For example, Mr Taylor referred to Mr Chow asking him if he wanted to go to Auckland with him, offering to pay for petrol and objecting to Ms Scott accompanying them. He also said he had telephoned Mr Chow. Ms Scott referred to Mr Chow conducting a conversation on a mobile phone in Cantonese and afterwards saying to Mr Taylor “that they would get their money, that a guy was coming down to Wellington and staying at a motel or something”. Mr Taylor’s neighbour, Ms Milner, said in her evidence that she saw Mr Chow at Mr Taylor’s place on quite a few occasions. She said she would speak to him but he did not respond much. She had the impression that he understood English better than he could speak it.
Clearly, however, Mr Chow had limited ability to communicate in English. Mr Taylor acknowledged this.[17] Ms Scott also referred to the “language barrier” Mr Chow faced and said that Mr Taylor sometimes helped Mr Chow in dealing with Government departments. On the evidence, it is plain that Mr Chow could not have followed a trial conducted wholly in English and that he required the assistance of an interpreter.
(a) The standard to be applied
[17]See [17] above.
As we have said, the Supreme Court considered the right conferred by s 24(g) of the NZBORA to the assistance of an interpreter in Abdula v R. The Court summarised the standard of compliant interpretation as follows:[18]
[42] The authorities clearly establish that deficiencies in interpretation at a criminal trial may or may not give rise to a breach of the rights of a person charged at common law and under the Bill of Rights Act. In New Zealand, the focus must be on the right to the assistance of an interpreter under s 24(g), and the right to be present at the trial and present a defence under s 25(a) and (e) of the Bill of Rights Act. The common law illuminates the content and scope of those rights. The standard that must be attained for interpretation to be adequate in New Zealand is one which complies with those rights.
[43] That standard must reflect the accused person’s entitlement to full contemporaneous knowledge of what is happening at the trial. Interpretation will not be compliant if, as a result of its poor quality, an accused is unable sufficiently to understand the trial process or any part of the trial that affects the accused’s interests, to the extent that there was a real risk of an impediment to the conduct of the defence. This approach maintains and demonstrates the fairness of the criminal justice process which is necessary if it is to be respected and trusted in our increasingly multicultural community. Trial judges should at all times be alert to the quality of interpretation; certain omissions and irregularities may thereby be sufficiently avoided or mitigated. Where compliance is challenged, the cumulative effect of deficiencies in the interpretation must be evaluated, in the overall context of the trial, to determine whether its standard was, nevertheless, such that there was compliance with the accused’s rights. That is a matter for judicial assessment in every case.
[44] The consequence of a breach of the right to the assistance of an interpreter under s 24(g) is a breach of the right to a fair trial under s 25(a). We do not accept as correct the Crown’s submission that, once a breach of the right to assistance of an interpreter is shown, the court must exercise a judgment as to whether the accused nevertheless had a fair trial. Rather, a properly established breach – the failure to meet the required standard – necessarily makes the trial unfair. In those circumstances, it is axiomatic that a substantial miscarriage of justice will have occurred. There can accordingly be no resort to the proviso under s 385(1) of the Crimes Act 1961.
[18]Footnotes omitted and emphasis added.
The Court said that the standard, while high, is not one of perfection[19] and that the onus is on an appellant to show that the interpretation provided fell below the required standard.[20] To succeed on an argument that the standard was below what was required, an appellant must show a real risk of an impediment to the conduct of his or her defence.
(b) Assessment
[19]At [40]–[41] and [59].
[20]At [54] and [59].
There has been no challenge to the qualifications of either interpreter, nor any suggestion that they or the witnesses could not be heard.[21] As far as we can determine from the record, no concern about interpretation was raised during the course of the trial and there is no indication that Courtney J identified any unresolved concerns. What, then, are the deficiencies said to arise from the interpretation process adopted in this case?
[21]As was the case in Bae, above n 8.
In relation to Mr Lee, Mr Chow said that he was an educated man and his Cantonese was very formal. He said that Mr Lee used words that Mr Chow would not have used himself (especially when Mr Lee used formal language) and that he did not always understand what Mr Lee was talking about. He thought that Mr Lee came from a different region and used a different Cantonese dialect. When asked about this in cross-examination, Mr Lee indicated that his Cantonese was the same as the interpreter before us was using. He emphasised that Cantonese is a single language, although there are different accents, as in the case of English. He accepted, however, that there may be differences in specialised words used by professional groups such as lawyers or doctors. Mr Lee said that he had translated for Mr Chow on at least five occasions in 2010 and there had been no difficulties of communication. In addition, as previously noted, it appears that Mr Lee translated for Mr Chow at the pre-trial conferences with counsel. In these circumstances, we think it unlikely that Mr Chow had any significant difficulty understanding Mr Lee’s Cantonese.
In relation to Ms Redvers-Hill, Mr Chow said she did not interpret everything. She would ask him if he understood. If he did not, she would interpret. But he never volunteered that he did not understand, even when that was the case, for cultural reasons.[22] This was put to Ms Redvers-Hill in cross-examination before us. She answered:
As I recall, right through the time that I was assisting Mr Chow I was actually going more by his body language as to whether I should ask for clarification from him as to whether he actually understand what I’m trying to say or what I’m interpreting. There was a lot of information that I had to interpret for him and I suppose it would be fair for him to say that I may have missed out on certain bits as far as he’s concerned. But at the same time I was very conscious that I was practically the only one sitting next to him who was assisting him with whatever was occurring at the time of the trial. And that’s why I was so conscious of trying to get more feedback from him as to whether he actually understood what I was trying to interpret for him.
…
[B]ecause he wasn’t saying very much a lot of the times I was also preoccupied with interpreting whatever was being said. So, unless he interrupted me, I was very limited in how much I understood what he understood of what I was saying.
[22]Mr Chow said that he would not interrupt proceedings because he was a “low class” person and that he would “just go along with the process”.
In re-examination Ms Redvers-Hill agreed that, when interpreting, she was alert to see whether the person for whom she was translating had understood her and said that if she had had any concerns in that respect, she would have drawn it to the attention of counsel or the trial Judge.
In relation to Mr Chow’s comment about the Tai Shan dialect, Ms Redvers‑Hill explained her understanding that this was a dialect spoken by a number of immigrants from the “earlier part of the century” from China (presumably the 20th century) and, more recently, by migrants from the villages surrounding the city of Guangzhou. She said that she would have some difficulty understanding the dialect, although speakers of it would understand her. She also said that she did not recall any witness speaking in the Tai Shan dialect. Had any witness spoken in the dialect, it seems probable that Ms Redvers-Hill would have indicated to the Judge or counsel her difficulty in understanding it and would have checked with Mr Chow as to his understanding.
Coupled with his limited understanding of English, Mr Chow has intellectual challenges and takes longer than most people to process information. Mrs Wilkinson-Smith cross-examined Dr Skipworth on this point:
QHad you assessed Mr Chow pre-trial, I take it that you would have recommended additional time for Mr Chow to follow the proceedings?
AI would have recommended a range of strategies to accommodate Mr Chow’s cognitive impairments.
QWithout any accommodation being made other than an interpreter sitting beside him, how confident would you be of Mr Chow’s ability to follow the proceedings in the course of the murder trial?
AWell, that’s a tricky question for me because I don’t know what the nature of the evidence and the discussions between counsel and Mr Chow were at the time. In some trials the need to follow proceedings and to be in discussion with counsel is much more important than in other cases and clearly counsel were aware at the time of the fact that Mr Chow had difficulties communicating.
QWell, [D]octor, if in your view accommodation should be made to allow Mr Chow to follow proceedings, isn’t there a danger that without those accommodations he would not follow the proceedings?
AYes, there is, which is why I would have made those recommendations. The extent to which they needed to be implemented would of course be informed by counsel’s approach at the time.
QIn terms of fitness to plead criteria, if the trial was conducted at a speed he could not follow that would then potentially impact his ability to understand the substantial effect of the prosecution evidence, wouldn’t it?
AIt would certainly be one area of information for him about that but there would be – a lot of that information would be known before trial and certainly in my discussion with Mr Chow he had a good understanding of the case against him.
Mr Chow must demonstrate that there was a real risk to the presentation of his defence by virtue of the interpretation and other deficiencies that he alleges occurred. We consider that he has failed to do that, for the following reasons:
(a)Mr Chow has stood trial in New Zealand previously, so the environment was not a new one for him. His interactions with the police in this case illustrate a degree of familiarity with the system.
(b)The issues in the trial were not complex. The critical point was Mr Taylor’s credibility. Mr Chow’s defence depended upon his being able at least to raise a reasonable doubt about Mr Taylor’s evidence. As we have said, the cross-examinations of the Crown witnesses do show a good grasp of the detail on the part of counsel, and Mr Kaye conducted a forceful cross-examination of Mr Taylor.
(c)Mr Chow said in his draft brief of evidence that he was at a “prostitutes’ place” at the time of the murder. When Mrs Wilkinson‑Smith cross-examined Mr Kaye about Mr Chow’s limitations, she put it to him that he had had to construct the defence with limited instructions. Mr Kaye responded that he needed instructions to enable him to cross-examine significant Crown witnesses and that he must have been able to obtain sufficient instructions for those purposes. In addition, he said that he must have received sufficient instructions on the topic of alibi to enable him to interview potential witnesses and make an assessment of them. Counsel received written instructions from Mr Chow that he would not give or call evidence. We have no doubt that Mr Chow was given a proper explanation before he gave those instructions.
(d)Given that three witnesses gave evidence in Cantonese and four in Mandarin (the remaining witnesses being English speakers), the interpretation processes necessary to deal with their evidence would have slowed proceedings significantly, thus giving Mr Chow more time to assimilate what Ms Redvers-Hill was saying. The delays inherent in the process may also have given Ms Redvers-Hill a better opportunity to observe whether Mr Chow was following proceedings.
(e)Mr Chow said that he did not understand what was happening at the trial. Ms Redvers-Hill said that he did not appear to have any great interest in what was happening. His counsel found him generally uncommunicative in their dealings with him. But there is no indication that Mr Chow raised the concerns he now expresses with anybody at the time. He explains this on the basis that he was a “low class person” who would not raise such matters.[23] But he knew that his counsel were there to act in his interests and that he could raise any concerns with them. He was critical of Mr Kaye for not giving him enough time to digest information and asking for quick responses. Again, however, no specifics are given. There is no indication that if Mr Chow had been given more time, his defence would have been conducted any differently or anything new would have emerged.
Failure of Crown witness to appear
[23]See n 22 above.
Mr Taylor’s former partner, Ms Scott, was to be called as a Crown witness. Ms Scott’s evidence was significant to the defence and Mr Kaye had cross-examined Mr Taylor on the basis that she would be giving evidence. She attended Court in Auckland on Friday 10 November 2006 in response to a summons. Because the evidence ran on that day, Ms Scott was permitted to return home to Wellington over the weekend, on the basis that she would return to Auckland on Tuesday 14 November. Ms Scott did not board her flight to Auckland and subsequent efforts by the police to contact her were unsuccessful. On Wednesday 15 November Courtney J issued a warrant for Ms Scott’s arrest and adjourned the trial to give the police an opportunity to locate her. They were unable to do so, however. As a consequence, Ms Scott’s witness statement was simply read into evidence.
Mrs Wilkinson-Smith submitted that Ms Scott’s evidence was important to the defence case because it called into question Mr Taylor’s credibility and reliability. In her statement, Ms Scott said the following:
(a)Sometime in late June or early July 2005, before Mr Tam’s death, Mr Taylor had showed her a bag containing a gun, ammunition, clothing and black gloves. This tended to contradict Mr Taylor’s evidence that Mr Chow had brought the gun and ammunition to his house the day before the pair went to Auckland. He said the gun and ammunition were on a kitchen table when Ms Scott was at his house.
(b)Mr Taylor had told her that someone in Auckland owed him money.
(c)Mr Taylor referred to “hits” which she took to be a reference to killing someone.
She also described the relationship between the two men as she understood it. She said that Mr Taylor called himself Mr Chow’s “soldier” and said that Mr Chow was the “boss” and told Mr Taylor what to do. She said she thought the relationship was the other way round because Mr Taylor treated Mr Chow “like a dog” and could be “quite horrible” to him, although she said he helped Mr Chow to deal with the language barrier by acting as his advocate with Government departments.
Mrs Wilkinson-Smith said that Ms Scott’s failure to appear was prejudicial given the way the defence was being conducted. She submitted that the trial should have been further adjourned to allow Ms Scott to be found or the jury discharged and a new trial ordered.
Mr Kaye cross-examined Mr Taylor vigorously. He put the matters referred to above to him:
(a)Mr Taylor was adamant that the incident with Ms Scott and the gun occurred the day before he and Mr Chow left on the trip for Auckland, not a week or two before as Ms Scott had suggested. More important than the timing, however, was whose gun it was. Mr Taylor said it belonged to Mr Chow even when pressed under cross‑examination by Mr Kaye. Ms Scott’s evidence did not go to ownership.
(b)Mr Taylor accepted that a person in Auckland owed him money, but denied any suggestion that the murder was connected to that.
(c)Mr Taylor denied that he had spoken to Ms Scott about “hits”.
Mr Kaye did not directly explore the nature of the relationship between Mr Chow and Mr Taylor. Mr Taylor was clear in his evidence that the trips to Auckland related to Mr Chow’s business activities, rather than being for Mr Taylor’s purposes. Mr Kaye did explore the nature of Mr Taylor’s relationship with Mr Tam and put it to him a number of times that it was he, not Mr Chow, who had shot Mr Tam. Mr Taylor was vehement in his denials. On behalf of the Crown, Mr Mander submitted that Ms Scott’s failure to appear meant that Mr Chow “obtained the benefit of her unchallenged evidence being read, which went to [Mr] Taylor’s credibility and to the issue of who was in charge …”.
The evidence before the Judge was that the police had attempted to find Ms Scott after she failed to catch her flight from Wellington to Auckland but had been unsuccessful. There was nothing to indicate that the police might have been successful if a longer adjournment had been granted.
The Judge did, of course, have the power to discharge the jury if “a casualty or emergency makes it, in the court’s opinion, highly expedient for the ends of justice to do so”.[24] The failure of an important witness to appear has been held to fall within this language.[25]
[24]Juries Act 1981, s 22(3)(a).
[25]See the discussion in Pickering v R [2012] NZCA 311, [2012] 3 NZLR 498 at [19]–[24].
The Crown intended to call Ms Scott, although when she did not appear, there was a suggestion that she might be called by the defence. Ultimately, her witness statement went in by agreement, as part of the Crown case. We do not see that Mr Chow’s case was likely to have been advanced significantly had Ms Scott been available for cross-examination. As she did not accompany the men on the trip to Auckland, her evidence was limited in its scope. While she gave evidence about the handgun, there is no indication that she could have said anything which would have assisted in establishing its ownership. Similarly, she gave evidence about the relationship between Mr Chow and Mr Taylor, describing what Mr Taylor told her (that Mr Chow was in charge) and giving her contrary impression. Again, there is no indication that Ms Scott could have added to what was said in her witness statement in a way that would have assisted Mr Chow on this point.
Moreover, it appears that, at the time, Mr Chow’s counsel did not think that having Ms Scott available to give oral evidence would significantly assist Mr Chow’s case. Had they thought it would, they would no doubt have raised the matter again with the Judge.
For these reasons, we do not consider that a miscarriage of justice has resulted from Ms Scott’s failure to appear.
Errors by trial counsel
The errors alleged relate to:
(a)the failure to seek a mistrial following Ms Scott’s non-appearance; and
(b)the failure to lead evidence of Mr Chow’s lack of ability to write English and his limited intellect.[26]
We have already addressed the first point, and so we focus on the second.
[26]Mrs Wilkinson-Smith also argued that counsel had erred in failing to apply to have the trial aborted and a retrial ordered when Ms Scott failed to appear.
The Supreme Court set out the approach to be taken in cases of alleged trial counsel error in R v Sungsuwan.[27] In R v Scurrah this Court summarised the approach of the majority of the Supreme Court[28] as follows:[29]
[17] The approach appears to be, then, to ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice ...
[18] On the other hand, where counsel has made a tactical decision which was reasonable in the context of the trial, an appeal will not ordinarily be allowed even though there is a possibility that the decision affected the outcome of the trial. This reflects the reality that trial counsel must make decisions before and during trial, exercising their best judgment in the circumstances as they exist at the time. Simply because, with hindsight, such a decision is seen to have reduced the chance of the accused achieving a favourable outcome does not mean that there has been a miscarriage of justice. Nor will there have been a miscarriage of justice simply because some other decision is thought, with hindsight, to have offered a better prospect of an outcome favourable to the accused than the decision made.
[19] This analysis will be sufficient to deal with most cases.
[20] But there will be rare cases where, although there was no error on the part of counsel (in the sense that what counsel did, or did not, do was objectively reasonable at the time), an appeal will be allowed because there is a real risk that there has been a miscarriage of justice.
[27]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730, especially at [70] per Gault, Keith and Blanchard JJ.
[28]The Court unanimously held that there was no miscarriage of justice on the facts. The majority comprised Gault, Keith and Blanchard JJ. Elias CJ and Tipping J each wrote separate reasons.
[29]R v Scurrah CA159/06, 12 September 2006.
Mrs Wilkinson-Smith submitted that the failure to lead evidence of Mr Chow’s inability to write in English was relevant because of the significance given by the Crown to the two pieces of writing – the note[30] and the sketch and number[31] – which were claimed to have originated from Mr Chow.
[30]See [17] above and n 5.
[31]See [11] above.
As we have noted, evidence was given of Mr Chow’s general ability to speak and write English. In particular, Mr Kaye pursued that issue with Mr Taylor in cross-examination and elicited that his ability to read and write English was very limited and that he needed to be helped. Ms Scott in her witness statement also said that Mr Chow had limited ability to communicate in English. Mr Kaye specifically raised the two documents with Mr Taylor. Mr Joe has proffered explanations for the documents in his affidavit on the appeal, but there is no indication that he did so at the time.[32]
[32]Mr Joe’s explanation for the note referred to at [17] and n 5 above was that he wrote it and left it for Mr Chow. His explanation for the handgun sketch is given at [11] above.
Mrs Wilkinson-Smith also put to Mr Kaye that Mr Chow’s position was that evidence of his limited intellect should have been presented to rebut the suggestion that he planned the murder as a contract killing. Mr Kaye replied that he could not remember the detail sufficiently to respond. He went on to say:
But, you know, I’m not an idiot and if that type of position had confronted me I’m sure I would have dealt with it properly.
In the result, we do not consider that any material counsel error has been demonstrated.
Sentence appeal
In sentencing Mr Chow, Courtney J noted that the only issue requiring argument was the minimum period of imprisonment (MPI) to be imposed. The Crown submitted that s 104 of the Sentencing Act 2002 applied, so that an MPI of 17 years had to be imposed unless the Judge considered that it would be manifestly unjust to do so. The basis for the Crown’s argument was that Mr Tam’s murder involved a high level of planning and premeditation and was carried out for financial gain, bringing it squarely within s 104(b). Courtney J accepted this submission. She considered that the evidence established that Mr Chow had carried out the killing for a payment of $10,000.[33] This was consistent with the pattern that emerged from his previous offending.
[33]R v Chow (sentencing), above n 1, at [12].
Mrs Wilkinson-Smith submitted that the combination of Mr Chow’s limited intellectual ability, his history of torture during the period of his incarceration in China during the Cultural Revolution, limited culpability concerning the planning of the killing as opposed to its execution and his inability to communicate in English made the imposition of a 17 year MPI manifestly unjust. She relied on the reasoning in two cases. The first was R v Harrison-Taylor where a 17 year MPI imposed under s 104 was considered to be manifestly unjust. In that case, a mother murdered her eight month old child.[34] She was sentenced to life imprisonment with an MPI of 12 years on the basis that her personal circumstances meant that a 17 year MPI was manifestly unjust. Her personal circumstances were that she suffered from a personality disorder, was stressed and was suffering from exhaustion and chronic pain.[35] Moreover, she was assessed as having a low risk of re-offending.[36] Ellen France J accepted the expert evidence, which left her in no doubt that the combination of factors so affected the mother’s culpability that a 17 year MPI was excessive.[37] In the present case, the expert evidence does not provide significant support for the view that Mr Chow’s intellectual and other limitations go to his culpability in the same way.
[34]R v Harrison-Taylor HC Auckland CRI-2004-092-1510, 12 September 2005 at [46].
[35]At [19].
[36]At [7].
[37]At [46].
The second case relied on was R v Mahomed.[38] There, a father was convicted of murdering his 11 week-old daughter. Harrison J adopted a starting point of 17 years for the MPI, which he increased to 19 years to reflect aggravating features.[39] The Judge then allowed a discount of two years to take account of the father’s intellectual incapacity and other factors. This produced a final MPI of 17 years.[40] The Judge accepted that the father’s intellectual incapacity may have played a part in the father’s decision to inflict fatal harm on his daughter.[41] Again, Mahomed is distinguishable from the present case in this respect.
[38]R v Mahomed HC Auckland CRI-2008-092-748, 15 December 2009.
[39]At [45].
[40]At [51].
[41]At [50].
Finally, R v Williams provides helpful guidance on the application of s 104.[42] There the Court held that the 17 year MPI cannot be departed from lightly as the Court was bound to give effect to the legislative policy underlying it.[43] Mitigating factors relevant to the offence were likely to be more significant than the personal circumstances of the offender in this context.[44] The Court said:
[67] We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.
[42]R v Williams [2005] 2 NZLR 506 (CA).
[43]At [66].
[44]Ibid.
In our view, the Judge was entitled to sentence on the basis that Mr Chow had carried out a contract killing for money. Accordingly s 104 applied. There is little in the nature of mitigating factors in relation to the offence. While Mr Chow’s personal circumstances are undoubtedly unfortunate, we note that on the three occasions that Mr Chow has previously been before this Court for serious offending, the Court has not permitted him a discount on sentence to reflect these personal factors although on each occasion it was aware of them.[45] We consider that the 17 year MPI was properly imposed.
Decision
[45]Chow (1992), above n 2, at 3; Chow (1998), above n 3, at 7–8; and Chow (2002), above n 4, at [15].
The application for an extension of time to appeal is granted. The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent