Hearing:	23 August 2016
Court:	Kós P, Winkelmann and Brown JJ
Counsel:	S J Gill and L M Sziranyi for Appellant A Markham for Respondent
Judgment:	1 December 2016 at 11 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Table of Contents

Para No
Events leading up to the murder of Ms Fan  [2]
The Crown case against Mr Preston  [11]
First ground of appeal: Admission of appellant’s statements
in the form of Facebook postings and texts to adult daughters           [17]
     The text messages to appellant’s adult daughters  [17]
     Discussion  [23]
     Facebook “pro job” message  [28]
Second ground of appeal: Admissibility of evidence of victim’s
statements to third parties  [33]
     Relevant principles under the Evidence Act 2006  [37]
     Admissibility of victims’ statements under the law prior to the
     Evidence Act  [44]
     The Liu decision  [59]
     Admissibility in this case  [68]
Third ground of appeal: Admissibility of statements made to
pastor  [82]
     Background  [82]
     High Court judgment  [86]
     Relevant legal principles  [88]
     Discussion  [91]
Fourth ground of appeal: Trial Judge’s failure to put defence case
properly  [95]
     The gloves and the palm print  [99]
     DNA evidence  [112]
     Analysis  [115]
Fifth ground of appeal: Prosecutorial misconduct  [118]
     Relevant principles  [119]
     Inflammatory comments  [124]
     Inviting speculation  [133]
     Witch’s hat  [135]
     Discussion  [137]
     Ms Fan’s “lie” about “hitman”  [145]
     The killer had staged a burglary  [146]
     That the nature of the attack on Ms Fan meant that it was a
     “personal killing”  [147]
     That the attack had taken place over about five to fifteen minutes     [149]
     That the socks found by Ms Fan’s body had been taken to the
     address by Mr Preston as part of the change of clothes  [151]
Summary on appeal against conviction  [155]
Sentence appeal  [156]
Result  [169]

Mr Preston was convicted of the murder of his former partner, Rongmei (Mei) Fan, following a jury trial before Williams J in the High Court at Wellington.[1] He was sentenced by Williams J to life imprisonment with a minimum period of imprisonment of 19 years.[2] He appeals his convictions on a variety of grounds contending that a miscarriage of justice has arisen because errors were made in admitting certain material as evidence, because of prosecuting counsel’s conduct and, finally, because of deficiencies in the summing-up. Mr Preston also appeals against sentence on the sole ground that the minimum period of imprisonment imposed by Williams J was too high.

Events leading up to the murder of Ms Fan

[1]He was also convicted of breaching a protection order.

[2]R v Preston [2015] NZHC 3277 [Sentencing notes] at [42].

The narrative of events that emerged in evidence before the jury is as follows. Mr Preston met and married Ms Fan in China. The couple initially lived in China…

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 Preston v R

Details

AGLC: Preston v R [2016] NZCA 568
Case: [2016] NZCA 568
Decision Date: 1 December 2016 at 11 am

CaseChat Overview and Summary

Michael Edwin Preston appeals against his conviction for the murder of his former partner, Rongmei (Mei) Fan, and his sentence. He was convicted by Williams J in the High Court at Wellington and sentenced by Williams J to life imprisonment with a minimum period of imprisonment of 19 years. The appellant contends that a miscarriage of justice has arisen because errors were made in admitting certain material as evidence, because of prosecuting counsel’s conduct and, finally, because of deficiencies in the summing-up. Mr Preston also appeals against sentence on the sole ground that the minimum period of imprisonment imposed by Williams J was too high. The appeals are dismissed.

The text messages sent by Mr Preston to his adult daughters contained threats of violence and could properly be construed as evidence of a propensity of the nature articulated by the Crown. The evidence was plainly admissible. The Facebook “pro job” message was highly probative in that it showed Mr Preston was apparently expressing satisfaction in the police’s failure to progress their investigation into Ms Fan’s death. The evidence was plainly admissible. Statements made by Ms Fan to third parties were properly admitted into evidence before the jury. The Judge gave a well-tailored direction to the jury as to how the statements were to be treated. The evidence was properly admitted into evidence before the jury. There was no privilege attaching to the communication between Mr Preston and Mr Robinson, the pastor, and the evidence was properly admitted. The trial judge’s obligation in summing the case up for the jury includes an obligation to summarise the Crown and defence cases. The Judge did that. The Crown closing was appropriate. The submissions made by Crown counsel in closing did not require correction by direction. The overall context of the trial does not give rise to a real risk of a miscarriage of justice. The minimum period of imprisonment imposed upon Mr Preston was not manifestly excessive.

Orders