Hu v R - [2011] NZCA 412

IN THE COURT OF APPEAL OF NEW ZEALAND

CA173/2011
[2011] NZCA 412

BETWEEN JIE ER HU
Appellant

AND THE QUEEN
Respondent

Hearing: 22 August 2011

Court: O'Regan P, Ronald Young and Venning JJ

Counsel: J H Wiles for Appellant
S B Edwards for Respondent

Judgment: 26 August 2011 at 11.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against conviction is dismissed.

CThe appeal against sentence is allowed. The sentence of eight years six months’ imprisonment is quashed and a sentence of seven years’ imprisonment imposed.

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REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

Ms Hu was found guilty by a jury of wounding with intent to cause grievous bodily harm. The trial Judge, Judge Kiernan, subsequently sentenced her to eight years and six months’ imprisonment. She now appeals against conviction and sentence.
The sole ground of appeal against conviction is that as a result of trial counsel errors, a miscarriage of justice has occurred. This allegation is based on a claim that trial counsel “failed to traverse crucial factual aspects in cross-examining witnesses – both the police witnesses and the complainant, and also failed to highlight crucial aspects in her closing address”.
The sentence imposed is said to be manifestly excessive.
The appellant appealed a month out of time due to delays relating to the fact that trial counsel incompetence was being appealed. The Crown did not oppose an extension of time. We grant an extension of time for the filing of the appeal.

Conviction appeal

Background facts

Ms Li, the victim, had previously been in a relationship with the appellant’s father but ended the relationship in late 2009. She and the appellant’s father disagreed over the appropriate division of funds in a joint account.
The Crown case at trial was that the appellant tried to intervene in the dispute and contact Ms Li but the victim would not answer her calls. On 16 January 2010 the appellant drove to Ms Li’s home in Henderson at about 5 a.m. At that time Ms Li was leaving to attend a local market. The appellant had bought a sea cucumber as a gift for Ms Li.
The two parties’ versions of events then diverge completely. The Crown case was that Ms Li and the appellant met in Ms Li’s driveway. After the exchange of the gift Ms Li went back into her house to put the sea cucumber in the fridge. The appellant came behind her and as she entered the house, the appellant held a knife to Ms Li’s throat telling her not to move. A struggle then developed over the knife. The accused used the knife to slash at Ms Li’s chest and face resulting in a number of wounds to Ms Li. Ms Li then managed to get outside. The appellant, however, caught her on the driveway and they struggled again.
The appellant pushed Ms Li down on to the paving. Ms Li…

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 Hu v R

Details

AGLC: Hu v R [2011] NZCA 412
Case: [2011] NZCA 412
Decision Date: 26 August 2011

CaseChat Overview and Summary

The appeal in Hu v R was heard by the Court of Appeal of New Zealand, consisting of O'Regan P, Ronald Young, and Venning JJ, with the hearing taking place on August 22, 2011, and judgment delivered on August 26, 2011. The appellant, Jie Er Hu, appealed against both her conviction and sentence, arguing that her trial counsel's performance led to a miscarriage of justice and that her sentence was manifestly excessive. The appeal against conviction was dismissed, but the appeal against sentence was allowed, resulting in the original sentence being quashed and replaced with a sentence of seven years' imprisonment.

The legal issues before the Court of Appeal were whether the appellant's trial counsel's conduct resulted in a miscarriage of justice and whether the original sentence imposed was appropriate. Regarding the miscarriage of justice claim, the appellant argued that her trial counsel failed to cross-examine witnesses adequately and highlight crucial aspects in the closing address. The Court of Appeal reviewed the trial counsel's conduct and found no evidence of inadequate representation that could have led to an unsafe verdict. The appellant's complaints about the handling of the knife, the cleaver, the backpack, and the cell phone did not show any trial counsel error. The Court also found no error in the trial counsel's decision to admit certain facts during the trial. Finally, the Court noted that the appellant's counsel's suggestion that more emphasis could have been placed on the complainant's lies was speculative and did not indicate any risk of an unsafe verdict.

Regarding the sentence, the Court of Appeal found the starting sentence of ten years' imprisonment to be manifestly excessive. The Court considered the appropriate starting sentence to be in the middle to high range of band two of Taueki, and thus considered the appropriate starting point to be eight and a half years' imprisonment. However, the Court ultimately decided that a starting point of seven years' imprisonment was more appropriate, taking into account the relevant factors identified by the trial judge and other similar cases. The Court also acknowledged that the 18-month deduction for the appellant's personal circumstances was somewhat increased but accepted that imprisonment would be particularly difficult for her given the circumstances.

In conclusion, the Court of Appeal dismissed the appeal against conviction, upheld the appeal against sentence, and imposed a sentence of seven years' imprisonment for the appellant.

Orders