Dong v The Queen
[2020] NZCA 336
•10 August 2020 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA737/2017 [2020] NZCA 336 |
| BETWEEN | HAOMIN DONG |
| AND | THE QUEEN |
| Hearing: | 30 July 2020 |
Court: | Collins, Peters and Whata JJ |
Counsel: | Appellant in person |
Judgment: | 10 August 2020 at 12.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Introduction
On 22 September 2017, a jury in the District Court at Blenheim found Mr Dong guilty of wounding Ms Luo with intent to cause her grievous bodily harm. The jury found Mr Dong not guilty of threatening to kill Ms Luo and not guilty of assaulting her with a weapon. Mr Dong was sentenced to three years and two months’ imprisonment by Judge Zohrab, the trial Judge.[1]
[1]R v Dong [2017] NZDC 25346 [Sentencing notes].
Mr Dong appeals his conviction. Two grounds of appeal were advanced by Mr Kan, standby counsel who was asked by the Court to assist Mr Dong in progressing his appeal. In addition, Mr Dong put forward on his own behalf a wide‑range of arguments, which we will summarise at [4].
The grounds of appeal put forward by Mr Kan were:
(a)That the guilty verdict was unreasonable.
(b)That trial counsel erred by not calling Mr Dong’s wife as a defence witness.
The grounds of appeal put forward by Mr Dong were:
(a)The police investigation was “one-sided, hasty and unreasonable”.
(b)The District Court “deliberately covered up … the truth of the incident”, in particular:
(i)evidential interviews of prosecution witnesses were not produced at Mr Dong’s trial;
(ii)the jury were not informed about Mr Dong’s ill-health;
(iii)prosecution witnesses collaborated;
(iv)Mr Dong was denied the opportunity to make a final statement before the jury delivered its verdict;
(v)the trial Judge did not provide Mr Dong with the entire trial record, which prevented Mr Dong from defending himself and appealing the sentence; and
(vi)the trial Judge allowed “violations and incorrect practices”, which resulted in the jury “thinking that the injury [to Ms Luo] was intentional”.
Extension of time to appeal
Mr Dong’s notice of appeal was filed 11 days out of time. No prejudice arises from this omission. We grant an extension of time to allow Mr Dong to file his appeal.
Background
In September 2015, Mr Dong and his wife, were living at a home in Blenheim. Three other Chinese nationals were living at the same place. Those persons were Ms Luo, Ms Cai and Ms Cai’s daughter, Ms Wu. Mr Dong, who at the time was 63 years old was described by the trial Judge as being “in charge of the house on behalf of the landlord”.[2]
[2]At [2].
At about 4.30 pm on 20 September, Mr Dong and his wife were in their bedroom. He was peeling garlic with a short-bladed knife with a brown handle. Ms Luo went to use the toilet but found there was no toilet paper. She then went to Mr Dong’s bedroom and kicked on the door and remonstrated about the absence of toilet paper.
There was a dispute at trial over what happened next. Mr Dong maintains Ms Luo entered his bedroom and began attacking his wife. He says that he attempted to restrain Ms Luo and in doing so, he accidentally stabbed her in the arm with a knife. The wound inflicted was five centimetres deep and two centimetres long.
The Crown case, which was accepted by the jury and which the trial Judge endorsed when sentencing Mr Dong, was that Ms Luo did not attack Mrs Dong but instead went back towards the kitchen. Mr Dong emerged from his bedroom and attacked Ms Luo and in the process, deliberately stabbed her with a long-bladed knife with a black handle. At the time of the attack Mr Dong had a spanner in his other hand. Mrs Dong and Ms Cai separated Mr Dong and Ms Luo, after which Ms Luo went to a neighbouring property to get assistance.
Mr Dong was arrested a few hours after the attack. He declined to make a statement to the police after he received advice to that effect from his counsel, Mr Harrison.
Police initially took “notebook statements” from Ms Cai, Ms Wu and Mrs Dong. Arrangements were made for formal statements to be taken with the assistance of an interpreter. This involved Ms Cai, Ms Wu and Mrs Dong going to the Blenheim Police Station at the same time. Ms Cai said that while the three witnesses were waiting to be interviewed, Mrs Dong offered her money to say that Ms Luo had attacked Mr Dong first and that he was only acting in self-defence.
Mrs Dong said to the police that Ms Luo attacked Mr Dong and that he responded by defending himself and Mrs Dong.
Mr Dong was charged with:
(a)wounding with intent to cause grievous bodily harm. This related to the knife wound inflicted on Ms Luo’s arm.
(b)threatening to kill Ms Luo. This related to remarks that were attributed to Mr Dong by Ms Luo just prior to him attacking her.
(c)assault with a weapon. This related to the spanner that Mr Dong held in one of his hands at the time that he attacked Ms Luo.
(d)male assaults female. This related to the use of force by Mr Dong against Ms Lou. This charge was withdrawn by the prosecution at trial.
Mr Harrison and Ms Millar acted for Mr Dong when his trial commenced two years later on 18 September 2017. The proceedings in both the District Court and before us were translated for Mr Dong, who has very limited understanding of English.
After the cross-examination of Ms Cai in the District Court, the prosecution sought leave to introduce evidence about Ms Dong’s offer to pay Ms Cai to change her evidence. Judge Zohrab dismissed that application but observed that if Mrs Dong gave evidence, then Ms Cai might be able to be recalled to give rebuttal evidence.[3] Ms Wu then explained to the officer-in-charge that she had heard Mrs Dong offering to bribe Ms Cai. The next morning the prosecution again sought to introduce evidence of Mrs Dong’s offer to Ms Cai, but Judge Zohrab again refused that application.[4] The Judge continued to leave open the possibility that Ms Cai and Ms Wu would be recalled if Mrs Dong gave evidence and was cross-examined on her offer to bribe Ms Cai.
[3]R v Dong [2017] NZDC 21213 [Ruling No 3].
[4]R v Dong [2017] NZDC 21356 [Ruling No 4].
Mr Harrison and Ms Millar had briefed Mrs Dong as a defence witness. When they learnt of the allegation that Mrs Dong had attempted to bribe Ms Cai, the defence lawyers spoke to Mr Dong about the risks of Mrs Dong giving evidence. In particular, they were concerned that if Mrs Dong was questioned about having attempted to bribe Ms Cai, then her responses might reflect very adversely on the defence case. Mr Dong accepted Mr Harrison’s advice that his wife not give evidence. Mr Dong provided written instructions to Mr Harrison and Ms Millar in which he confirmed his decision not to call his wife as a witness.
Mr Dong gave evidence and set out his version of events, which we have summarised at [8]. His evidence was also consistent with the statement Mrs Dong had given to the police, namely that it was Ms Luo who attacked Mr Dong and that he only acted in defence of himself and Mrs Dong.
Was the verdict contrary to the weight of the evidence?
Mr Kan submitted that:
(a)The guilty verdict was inconsistent with the two not guilty verdicts.
(b)The not guilty verdicts reduce the “range of evidence” that was available for the jury to consider in relation to the wounding charge, and that having regard to the “reduced range of evidence available”, the guilty verdict was unreasonable.
We consider the verdicts are able to be reconciled because:
(a)The threatening to kill charge was based on Ms Luo saying Mr Dong shouted “I will kill you” as he rushed at her holding a knife and a spanner. Ms Luo’s evidence about the threat made by Mr Dong was however, not corroborated by other evidence. Ms Cai did not hear anything being said by Mr Dong and Ms Wu heard an argument but not the details of what was said. Ms Wu also heard Ms Dong saying “no” and “please don’t”.
(b)The assault charge was based on the evidence that Mr Dong approached Ms Luo with a knife and a spanner. Ms Luo, however, was uncertain about being struck with the spanner and if so, where she was hit with that implement. Ms Cai did not see Mr Dong strike Ms Luo with the spanner and Ms Wu also appeared to be uncertain as to whether or not Mr Dong had struck Ms Luo with the spanner.
The evidence advanced in support of the threatening to kill and assault charges was equivocal. It is therefore not surprising that the jury decided not to convict Mr Dong in relation to those two charges.
There was, on the other hand, sufficient evidence for the jury to be satisfied beyond reasonable doubt that Mr Dong wounded Ms Luo with intent to cause her grievous bodily harm. That evidence can be distilled to the following three points:
(a)The wound Ms Luo suffered was clearly consistent with having been inflicted with a knife.
(b)Mr Dong said at the time of the incident he was holding the brown‑handled peeling knife. That knife was found in Mr Dong’s bedroom next to a partially peeled piece of garlic. There was no forensic evidence that linked the peeling knife to the attack. A larger black-handled knife was, however, found hidden in a bag in Mr Dong’s bedroom. A forensic examination of the blade of that knife disclosed DNA that came from Ms Luo.
(c)Ms Luo, Ms Cai and Ms Wu, all gave evidence that was consistent with Mr Dong having attacked Ms Luo in a violent way near to or within the kitchen.
A properly instructed jury could reasonably conclude Mr Dong had rushed out of his bedroom and attacked Ms Luo with the black-handled knife causing a deep wound to her arm. The jury was also entitled to conclude this wound was inflicted intentionally and that Mr Dong was guilty on that charge.
Was there an error by trial defence counsel?
Mr Harrison and Ms Millar gave evidence. They were cross-examined by Mr Dong, who disputed having given instructions not to call Mrs Dong as a witness.
The written instructions provided by Mr Dong to Mr Harrison and Ms Millar were lost after Mr Harrison forwarded his file to another lawyer. We are, however, satisfied that those instructions were given by Mr Dong. Our reasons for saying so are:
(a)In a ruling issued during the trial Judge Zohrab recorded Mr Harrison’s statement to the Judge that he had instructions not to call Mrs Dong as a witness.[5] It is difficult to comprehend why Mr Harrison would have conveyed this information to the Judge if it were not accurate.
(b)Mr Harrison and Ms Millar are experienced lawyers, who gave evidence that Mr Dong gave written instructions not to call his wife as a witness. We do not accept they would both be mistaken about such a fundamental matter.
[5]At [4].
Mr Kan suggests that there was “no guarantee” Judge Zohrab would have allowed Mrs Dong to be cross-examined about her attempt to bribe Ms Cai. We disagree. Although Mrs Dong would have been cautioned about the risk of self‑incrimination, it is likely the Crown would have, at the very least, questioned her about bribing Ms Cai. Had she denied this allegation, it is also likely the Crown would have been permitted to call rebuttal evidence. This evidence is very likely to have reflected adversely on Mrs Dong’s credibility and veracity.
Mr Harrison gave considered and well-founded advice that if Mrs Dong gave evidence, then there was a risk of further evidence being presented that showed she had attempted to bribe a witness. In these circumstances, Mr Harrison cannot be criticised for giving the advice that caused Mr Dong to decide against calling his wife as a witness.
The suggestion a miscarriage of justice arose through an error by trial counsel is without merit.
Other grounds of appeal
We shall deal briefly with Mr Dong’s other grounds of appeal:
(a)The criticism the police failed to obtain a statement from Mr Dong is misguided. Mr Dong was provided with an opportunity to make a statement. He accepted the advice of Mr Harrison to not say anything to the police. That is standard advice and practice in New Zealand.
(b)The claim that something improper happened when the police conducted further interviews with prosecution witnesses is also without merit. The police took “notebook statements” in the hours following the events in question. Some time later the police arranged for formal statements to be taken with the assistance of an interpreter. Nothing untoward occurred by following this basic procedure.
(c)Nothing hinges on the allegation the prosecution erred by not producing in the trial witness evidential interviews. In New Zealand, witnesses usually give their evidence in person in court. There was no application to depart from this practice.
(d)The jury were not told about Mr Dong’s illness because Mr Harrison and Ms Millar were satisfied he was fit to stand trial. There was no reason why the jury would have been told about Mr Dong’s illness when considering his guilt or innocence.
(e)There is no evidence to support the contention that prosecution witnesses collaborated.
(f)Mr Harrison made a comprehensive closing address to the jury on behalf of Mr Dong. There was no reason to give Mr Dong an additional opportunity to address the jury before they delivered their verdicts.
(g)Mr Dong has received the case on appeal and provided us with detailed submissions. Nothing has been withheld from him.
(h)It was for the jury to decide if Mr Dong intended to wound Ms Luo. As we have previously explained, the jury were entitled to conclude Mr Dong intentionally stabbed Ms Luo with a knife in order to wound her.
Result
The application for an extension of time to appeal is granted.
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
Michael Kan Law, Auckland as standby counsel
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