R v Liu - [2015] NZHC 1125

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 HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-044-001376 [2015] NZHC 1125

THE QUEEN

v

YUN QING LIU

Hearing: 20, 21 May 2015

Counsel:

B Dickey and F Culliney for Crown
M Kan and F Pereira for defendant

Judgment:

25 May 2015

JUDGMENT OF KATZ J

This judgment was delivered by me on 25 May 2015 at 3:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Meredith Connell, Crown Solicitor, Auckland
Michael Kan Law, Auckland

R v LIU [2015] NZHC 1125 [25 May 2015]

Introduction

[1] The defendant, Yun Qing (“Jack”) Liu, is currently on trial on a charge of

murdering his partner, Bin (“Cissy”) Chen. Ms Chen disappeared on Monday,

5 November 2012. Her body was not found until 16 months later.

[2] On the morning of her disappearance, Cissy Chen had a telephone conversation with a close friend, Yen (“Cindy”) Chin. Ms Chen told Cindy of her plans to make a will, leaving her assets to her brother and nephews. During the course of the conversation Ms Chen allegedly said to Cindy: “Cindy if one day I am dying [if I die] you please quickly call the police and Jack he’s the one who kill me”.

[3] The Crown believes that Mr Liu murdered Ms Chen within hours of that conversation, on the evening of Monday 5 November 2012. Mr Liu’s motive for killing Ms Chen is allegedly that he became aware on 5 November 2012 (or shortly before that) that she was intending to make a will, excluding him. The Crown case is that this precipitated an argument that turned violent, resulting in Ms Chen’s death.

[4] The Crown applied for a number of pre-trial orders regarding the admissibility of certain evidence. Moore J determined those admissibility issues prior to trial, with one exception. He determined that the admissibility of the “If I die” statement should be resolved by the trial Judge. In particular, Moore J concluded that a proper assessment of the reliability, probative value and prejudicial effect of the statement required hearing oral evidence from Cindy, at a voir dire, to
assess the tone, mood and context of the relevant exchange.1

[5] That voir dire has now been held, during the third week of Mr Liu’s trial. I accordingly analyse the admissibility of the “If I die” statement below, in light of the evidence that has now been given by Cindy regarding the circumstances in which the
“If I die” statement was made.

1 R v Liu [2015] NZHC 732 at [103f]; R v Liu [2015] NZHC 746 at [119]-[122].

Overview of relevant legal principles

[6] All relevant evidence is admissible, unless excluded by the Evidence Act

2006 (“Act”) or another statute.2 Evidence is relevant if it has a tendency to…

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 Liu

Details

AGLC: R v Liu [2015] NZHC 1125
Case: [2015] NZHC 1125
Decision Date: 25 May 2015

CaseChat Overview and Summary

In the case of R v Liu, the High Court of New Zealand, Auckland Registry, considered the admissibility of a statement made by the deceased, Bin Chen, to her friend Cindy, on the morning of her disappearance. The statement, "Cindy if one day I am dying [if I die] you please quickly call the police and Jack he’s the one who kill me", was crucial in determining the admissibility of the statement at trial. The Crown argued that the statement was relevant to the state of the relationship between the deceased and the defendant, Yun Qing Liu, and was crucial to establishing motive in the case. The defence argued that the prejudicial effect of the statement outweighed its probative value, as there was a significant risk that the jury would use the statement to engage in impermissible reasoning, concluding that the defendant was the killer based on the statement alone. The Court held that the statement was inadmissible as its prejudicial effect outweighed its probative value. The Court noted that the statement, made on the very day of the deceased's disappearance, carried a significant risk of being used for an impermissible purpose, namely as direct evidence of the defendant's guilt, despite any direction from the Court. The Court concluded that no matter how strong the direction, the risk of the jury engaging in impermissible reasoning was too great to admit the statement at trial.

Orders