Li v The Queen - [2017] NZCA 272

IN THE COURT OF APPEAL OF NEW ZEALAND

CA376/2016
[2017] NZCA 272

BETWEEN	ZHITONG LI Appellant
AND	THE QUEEN Respondent

Hearing:	13 March 2017
Court:	Cooper, Woodhouse and Collins JJ
Counsel:	W C Pyke for Appellant B D Tantrum and P J Arnold for Respondent
Judgment:	28 June 2017 at 3 pm

JUDGMENT OF THE COURT

AThe application for an extension of time for filing the appeal is granted.
BThe appeal is dismissed.

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REASONS OF THE COURT

(Given by Cooper J)

At his trial before Gilbert J and a jury the appellant Zhitong Li was found guilty of eight charges of possessing pseudoephedrine for supply, six charges of supplying pseudoephedrine, one charge of possessing methamphetamine for supply and one charge of supplying methamphetamine.[1]
[1]R v Lam [2015] NZHC 1713 at [2].
He now appeals against his convictions on the methamphetamine charges. He claims the jury’s verdict was unreasonable. He also submits that the Judge did not provide a proper direction on inferences, resulting in a miscarriage of justice.

Extension of time

The appeal is brought pursuant to s 231 of the Criminal Procedure Act 2011. It was filed significantly out of time, more than one year after the date on which Mr Li was sentenced. In its written submissions, the Crown expressed concern that inadequate reasons had been given for the delay. However, at the hearing of the appeal Mr Tantrum indicated that the Crown was not opposed to an extension of time being granted.
Counsel for Mr Li, Mr Pyke, relied on a range of explanations for the late filing of the appeal, including the fact that English is not Mr Li’s principal language, the magnitude of the file, and the time Mr Pyke needed to come to grips with it. While we understand the concerns expressed by the Crown about the length of the delay, in the end the issues at stake persuade us that the appropriate course is to extend the time for appealing and we make an order accordingly.

Background

The charges on which Mr Li was tried followed a police investigation that revealed that a Mr Tran had organised a large-scale distribution network for ContacNT. ContacNT contains pseudoephedrine, a class B controlled drug. As a result of the investigation, the police concluded that Mr Li was a wholesale customer of Mr Tran, purchasing ContacNT from him and on-selling it to his customers.
Mr Li was tried with four co-defendants. Together they faced a total of 37 charges. Twenty three charges involved supply of pseudoephedrine and 12 charges were of possession of pseudoephedrine for supply. Mr Li was the sole defendant in relation to the methamphetamine charges. They alleged respectively that Mr Li:
(a)on or about 23 November 2013 at Auckland had in his possession the class A controlled drug methamphetamine for the purpose of supply; and
(b)on or about 23 November 2013 at Auckland supplied the class A controlled drug methamphetamine to unknown others.
The trial took place against the background that the…

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 Li v The Queen

Details

AGLC: Li v The Queen [2017] NZCA 272
Case: [2017] NZCA 272
Decision Date: 28 June 2017 at 3 pm

CaseChat Overview and Summary

Zhitong Li was convicted of multiple charges relating to the possession and supply of pseudoephedrine and methamphetamine. He appeals against his convictions on the methamphetamine charges, arguing that the jury's verdict was unreasonable and that the trial judge did not properly direct the jury on inferences, leading to a miscarriage of justice.

The court considered whether the jury could reasonably have concluded that the intercepted conversation between Li and Tran was about methamphetamine. The Crown's case relied on the conversation and evidence from Detective Sergeant Beal about drug offending in New Zealand. The defence argued that there was no direct evidence of methamphetamine possession and dealing and that an inference of such conduct could not safely be drawn from the evidence. The court found that the jury could reasonably have concluded that the conversation was about methamphetamine based on the evidence, particularly the references to weight and the description of the substance as "powdery."

Regarding the inference direction, Li's counsel argued that the trial judge should have provided a specific direction on inferences in relation to the methamphetamine charges, similar to the one given for another charge. The Crown submitted that the earlier direction was sufficient and that the jury could apply commonsense in its deliberations. The court held that the trial judge's directions were adequate and that there was no appreciable risk of faulty reasoning by the jury.

The application for an extension of time for filing the appeal was granted, but the appeal was dismissed.

Orders