R v Liu

Case [2015] NZHC 732 16 April 2015

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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 732

THE QUEEN

v

YUN QING LIU

Hearing: 18 and 19 February 2015

Appearances:

Kieran Raftery and Fiona Culliney for the Crown
Michael Kan and Frank Pereira for the Defendant

Judgment:

16 April 2015

RESERVED JUDGMENT OF MOORE J [Re: admissibility of evidence (1)]

This judgment was delivered by me on 16 April 2015 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

R v LIU [2015] NZHC 732 [16 April 2015]

Contents

Paragraph

Number

Introduction ..............................................................................................................[1] Background...............................................................................................................[3]
The first challenge – admissibility of hearsay statements (s 18(1) of the
Evidence Act 2006) ...............................................................................................[35] Trial issues............................................................................................................[46] Hearsay evidence .................................................................................................[49] Defence submissions ............................................................................................[59] (i)    Nature of statements ...........................................................................[61]
(ii)   Contents of the statements ..................................................................[64] (iii) Circumstances relating to the making of the statement ......................[66] (iv) Other matters.......................................................................................[71]
Crown submissions ..............................................................................................[72] (i)    Nature of the statements .....................................................................[73] (ii)   The contents of the statements ............................................................[75] (ii)   The circumstances that relate to the making of the statements...........[77]
Challenged passages.............................................................................................[93] (i)    Philip Chen’s formal written statement ..............................................[94] (ii)   Peter Chen’s formal written statement ................................................[95] (iii) Ms Yen Chin’s (“Cindy”) formal written statement ...........................[96]

Conclusion..........................................................................................................[104]

The second challenge – admissibility of statements made by the defendant
to Philip Chen .....................................................................................................[109] Further factual background ................................................................................ [114] Discussion of issues ...........................................................................................[146] Was Philip Chen a Police agent? ................................................................[151]
Do the recordings constitute a search? .......................................................[167] Was there a search or seizure? ....................................................................[170] Was the search unreasonable? ....................................................................[173] Was the defendant’s right to silence breached? ..........................................[180]
If the disputed evidence was improperly obtained should it, nonetheless be admitted in terms of s 30(2) of the Evidence Act 2006? ............................[192]
The balancing exercise ...............................................................................[194] Conclusion..........................................................................................................[205]

Introduction

[1] Yun Quin Liu, the defendant, is charged with the murder of his partner Bin Chen. The Crown alleges that Ms Chen met her death at the hands of the defendant some time on the evening of Monday, 5 November 2012. The defendant’s trial for the murder of Ms Chen is scheduled to commence on 4 May 2015.

[2] The Crown applies for pre-trial orders that certain evidence is admissible. This judgment deals with applications relating to two aspects of the evidence.

(a) First, the Crown seeks to adduce evidence of statements alleged to have been made by the deceased. More specifically, the Crown applies to admit various hearsay statements made by Ms Chen to three witnesses. The challenged statements were made by Ms Chen to her two brothers and a friend, Ms Yen Chin. The defence objects to their admission on the grounds that the statements are hearsay and the circumstances relating to the statements do not provide reasonable assurance that the statements are reliable.

(b)Secondly, the Crown seeks to adduce evidence of statements…

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 732
Case: [2015] NZHC 732
Decision Date: 16 April 2015

CaseChat Overview and Summary

Yun Qing Liu is charged with the murder of his partner Bin Chen. The defendant's trial for the murder of Ms Chen is scheduled to commence on 4 May 2015. The Crown applies for pre-trial orders that certain evidence is admissible. The first challenge concerns the admissibility of hearsay statements made by the deceased. The second challenge concerns the admissibility of statements made by the defendant to the deceased's brothers. The defence objects to their admission on the grounds the statements were improperly obtained. The defence submits that the deceased's brothers were acting as agents of the Police at the time the statements were made and that they amounted to an unreasonable search and were elicited in an unfair manner which undermined the defendant's rights to silence and/or to counsel. The Crown submits that there must be more than simply a common interest in having the deceased's body returned. There must be a conscious effort on the part of the Police which results in the agent acting on behalf of the Police. The Crown also submits that the recordings were not obtained in breach of the defendant's right to silence. The Court found that the disputed evidence is admissible. It was not obtained in breach of the defendant's right to be free from unreasonable search and seizure. Neither was it obtained in breach of the defendant's right to silence. The evidence is reliable and its probative value outweighs any illegitimate prejudicial value.

Orders