R v Huang - [2009] NZCA 527

IN THE COURT OF APPEAL OF NEW ZEALAND
CA577/2007
[2009] NZCA 527
IN THE MATTER OF An application for recall of judgment by Mr Comeskey

THE QUEEN
v
XIAO HUI HUANG
Hearing:12 October 2009

Court:Glazebrook, Potter and Wild JJ
Counsel:E R Fairbrother for Mr Comeskey

S B W Grieve QC and J S Clark, Amici Curiae

Judgment:11 November 2009 at 11.30 am

JUDGMENT OF THE COURT

The application for recall is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No

Introduction  [1]
Procedural aspects  [3]
Background  [7]
Senior Sergeant Chenery’s affidavit  [15]
Mr Comeskey’s recall application  [19]
Jurisdiction  [21]
Comments relating to the backpack issue  [22]
Comments on misleading the Court  [29]
Transcript  [31]
Mr Fairbrother’s submissions  [34]
Was the Court misled?  [36]
Was there a breach of natural justice?  [45]
Comments on sentencing submissions  [57]
Impugned comments  [57]
Mr Fairbrother’s submissions  [58]
Our assessment  [60]
Result  [62]
Introduction
[1]       On 5 March 2008, in R v Huang [2008] NZCA 46, this Court dismissed Ms Huang’s appeal against her conviction on various drugs charges as well as the related appeal against her sentence of 12 years imprisonment. In the course of the judgment on Ms Huang’s appeal the Court (Glazebrook, John Hansen and Wild JJ) made a number of criticisms of Mr Comeskey who was Ms Huang’s counsel for that appeal.
[2]       On 18 December 2008, the Complaints Committee No 2 of the Auckland District Law Society charged Mr Comeskey with misconduct in his professional capacity on the basis that Mr Comeskey misled this Court during the conduct of Ms Huang’s appeal. On 25 May 2009, Mr Comeskey applied for the recall of the Court’s judgment on the appeal, on the basis that the criticisms of him in this Court’s judgment were unjustified.
Procedural aspects
[3]       On 27 May 2009, Mr Comeskey was directed to serve his recall application on the Crown, the New Zealand Law Society and Ms Huang. None of these parties wished to be heard. The Crown did, however, object to certain of the amendments to the judgment sought by Mr Comeskey. Mr Comeskey agreed not to seek those amendments. The Crown also provided a copy of an affidavit by Senior Sergeant Chenery, which had been filed in the disciplinary proceedings relating to Mr Comeskey before the New Zealand Law Practitioners Disciplinary Tribunal.
[4]       No affidavits were filed by or on behalf of Mr Comeskey. The Court did, however, in the course of hearing the recall application, offer Mr Comeskey the option of giving viva voce evidence. He decided not to do so, being content to rely on the material before the Court, which included a full transcript of the appeal hearing. No objection was taken to the affidavit of Senior Sergeant Chenery and no application was made to cross-examine him.
[5]       Because no other party wished to be heard in relation to the application, Mr Grieve QC and Ms Clark were appointed as amici curiae to assist the Court.…

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 R v Huang

Details

AGLC: R v Huang [2009] NZCA 527
Case: [2009] NZCA 527
Decision Date: 11 November 2009

CaseChat Overview and Summary

The case of R v Huang involved an application for recall of a judgment by Mr Comeskey, who was the counsel for Ms Huang in her appeal against her conviction on various drug charges. The primary legal issues before the Court were whether Mr Comeskey had misled the Court and breached the principles of natural justice during the appeal hearing. Additionally, the Court considered if certain comments made in the judgment regarding Mr Comeskey's sentencing submissions were appropriate.

The Court found that Mr Comeskey had indeed misled the Court by initially giving the impression that he had never seen the backpack and its contents, which was necessary for his cross-examination of a police witness. Although Mr Comeskey corrected this statement, the Court deemed his initial assertion misleading. The Court rejected the argument that it breached natural justice by not warning Mr Comeskey about the potential criticisms, holding that counsel must be aware of their fundamental duties to the Court, including the duty not to mislead.

Regarding the sentencing submissions, the Court rejected Mr Comeskey's argument that his client's role as a courier warranted a significantly lower sentence. The Court held that Mr Comeskey's reliance on a previous case to support his argument was inappropriate, as the case did not support the proposition he argued for. The Court also found no breach of natural justice in commenting on Mr Comeskey's sentencing submissions, as it is not expected that a Court will warn counsel before making comment on the arguments presented.

Ultimately, the Court declined the application for recall of the judgment, finding no grounds to alter or amend the original decision.

Orders