Fan v R

Case [2012] NZCA 114 28 March 2012

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA372/2011 [2012] NZCA 114

BETWEEN CHAO FAN Appellant

ANDTHE QUEEN Respondent

CA373/2011

AND BETWEEN YUNKE SUN Appellant

ANDTHE QUEEN Respondent

Hearing: 1 November 2011
Court: Harrison, Miller and Asher JJ Counsel: R Mansfield for Appellants
M D Downs for Respondent

Judgment: 28 March 2012 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or

FAN V R COA CA372/2011 [28 March 2012]

other publicly available database until final disposition of trial.

Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] The appellants Yunke Sun and Chao Fan appeal against a pre-trial ruling in the District Court at Auckland under s 344A of the Crimes Act 1961.1 In that ruling Judge Hubble declined to order that the appellants’ highly incriminating statements to the Police were inadmissible.

Background

[2] At 6.40 pm on Tuesday, 22 December 2009, Messrs Sun and Fan and another were seated in a Mercedes-Benz motor vehicle parked in Vogel Lane, Auckland. They were approached by Police conducting a routine patrol. As the Police approached, the third person hastily exited the vehicle. During the conversation that followed, one of the Police officers noticed a Gucci bag between Mr Sun’s legs. He could see that this had within it a zip-lock bag containing pink and yellow granules. The officer recognised these as ContacNT granules, which contain the class C controlled drug pseudoephedrine.

[3] Messrs Sun and Fan were immediately arrested and searched. The Gucci bag was found to contain two large snap-lock plastic bags containing approximately four kilograms of ContacNT granules. The likely yield, if used to manufacture methamphetamine, was approximately one kilogram. Mr Sun stated that he knew he had done wrong. Mr Fan admitted owning the vehicle but stated that the bag
belonged to Mr Sun. He denied knowledge of its contents.

1 R v Sun and Fan DC Auckland CRI-2009-004-28216, 8 June 2011.

[4] Messrs Sun and Fan were taken to the Police Station and sought the advice of a lawyer. There then followed exchanges between Sergeant O’Neill and Mr Kan, a Mandarin-speaking lawyer, and Mr Kan and Messrs Sun and Fan. These led to Messrs Sun and Fan making statements to the Police in which they gave an account not only of how they came to have the ContacNT granules in the car, but also how they had been involved in at least two or three earlier supplies of ContacNT intended for the manufacture of methamphetamine. In addition to being charged with possession…

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 Fan v R

Details

AGLC: Fan v R [2012] NZCA 114
Case: [2012] NZCA 114
Decision Date: 28 March 2012

CaseChat Overview and Summary

The appellants, Yunke Sun and Chao Fan, appealed against a ruling by the District Court at Auckland under section 344A of the Crimes Act 1961. The ruling had declined to order that their highly incriminating statements to the Police were inadmissible. The statements related to their involvement in the possession, sale and conspiracy to sell pseudoephedrine for the manufacture of methamphetamine. The appellants alleged that the Police had indicated to them, through their lawyer, that if they cooperated and made statements they would face summary rather than indictable charges and that a much lesser sentence than would otherwise be imposed would follow. They argued that as a consequence of this representation, their statements should be excluded on the ground that they were unreliable in terms of section 28 of the Evidence Act 2006 and should in any event be excluded on the ground that they were improperly obtained in terms of section 30 of the Evidence Act. The Court of Appeal considered whether the statements should be excluded on the ground of unfairness, finding that the Police had not been at fault in any way. It held that there remained a general common law discretion to exclude evidence where its admission would be unfair. However, the Court concluded that the statements should not be excluded. The appeal was dismissed.

Orders