R v Qiu

Case [2007] NZSC 51 5 July 2007

No judgment structure available for this case.

Type to search within this case.

For a Court ready (fee required) version please follow this link

IN THE SUPREME COURT OF NEW ZEALAND
SC 41/2006
[2007] NZSC 51
QIU JIANG
v
THE QUEEN
Hearing:15 February 2007

Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:W G C Templeton and K M Muller for Appellant

J C Pike and A Markham for Crown

Judgment:5 July 2007

JUDGMENT OF THE COURT

A The appeal is allowed and the conviction is quashed.

B A new trial is ordered.

REASONS
(Given by Anderson J)
[1]       The appellant was convicted on one count of blackmail pursuant to s 237 of the Crimes Act 1961. On this appeal from the Court of Appeal she says that a miscarriage of justice has occurred because of the way the indictment was framed. She also says that the trial Judge misdirected the jury in several respects.
The allegations
[2]       The complainant Mr Shibing Wang and his wife gave evidence about a number of threats they said were made by the appellant, who was known as Linda, and by unknown people on her behalf. The threats related to money claimed by the appellant to be owed to her family by Mr Wang and his wife for arranging their marriage.
[3]       The alleged threats began with statements made by the appellant at and in the vicinity of a Burger King restaurant on one day about the end of August 2004. According to Mr Wang, the accused said “if you don’t pay the money I will break your leg” and then, later, “if you don’t pay the money I will get someone to break your leg”. At this time the appellant herself had suffered broken legs in a car accident and walked with the aid of crutches.
[4]       Within a month of the Burger King incident subsequent threats were made by telephone, according to the evidence of Mr and Mrs Wang. The callers threatened to “deal with” them and more specifically, to break Mr Wang’s leg if the debt was not paid. The telephone calls were made by two unknown men and one unknown woman. On several occasions they included comments to the effect that those people were acting on instructions from Linda. Some of the calls were recorded by Mr and Mrs Wang. Although the recordings indicate that the appellant claimed a debt, which Mr Wang denied, they do not contain threats by the appellant personally or through others.
[5]       There was an occasion when windows of Mr Wang’s house and car were broken. The next day, the accused called Mr Wang. When he asked the accused why she had broken his windows, she replied “what can you do about it?”.
[6]       On another occasion Mr Wang was called out to do some maintenance work at an address in Howick. While he and his wife were waiting in their van at the address, they noticed a suspicious vehicle. Their van was then followed in a sinister way by that vehicle, which had two occupants, a male…

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 Qiu

Details

AGLC: R v Qiu [2007] NZSC 51
Case: [2007] NZSC 51
Decision Date: 5 July 2007

CaseChat Overview and Summary

The case of R v Qiu involves an appeal against a conviction for blackmail under s 237 of the Crimes Act 1961. The appellant, Qiu Jiang, was convicted on one count of blackmail following a series of threats made by her and unknown persons, allegedly on her behalf. The conviction was challenged on the grounds that the indictment was improperly framed and the trial judge misdirected the jury. The Supreme Court of New Zealand allowed the appeal, quashed the conviction, and ordered a new trial.

The primary legal issues addressed by the Court were whether the indictment's single count for blackmail, which combined multiple threats made by the appellant and others, was appropriate and whether the trial judge's directions to the jury were adequate. The Court found that the indictment's single count, which conflated different types of offending, was problematic as it did not distinguish between the threats made by the appellant and those made by others. This made it necessary for the trial judge to provide clear directions to the jury to ensure their verdict was unanimous on the basis of the evidence presented. However, the judge's directions were found to be inadequate, particularly in explaining the co-conspirators rule and the need for caution when considering hearsay evidence. The judge's explanations also implied a conclusion on the existence of a conspiracy, which was inappropriate.

The Court further noted that the judge's directions on the credibility of the complainant's evidence and the requirement for unanimity among the jurors were insufficient. The judge's directions did not adequately warn the jury to be cautious of the hearsay evidence or the need to be satisfied beyond reasonable doubt of the appellant's involvement in the alleged conspiracy. The Court concluded that these shortcomings made the verdict unsafe.

On the issue of the co-conspirators rule, the Court discussed the appropriate standard for admitting hearsay evidence in cases of alleged criminal conspiracies. The Court favoured a "reasonable" standard over a "probability" standard, in line with the reasoning in R v Humphries and R v Buckton. The Court found that the trial judge had correctly applied the test endorsed by Buckton and Morris (Lee), and that her decision to admit the hearsay evidence was justified. However, the Court also noted that the admissibility of such evidence may need to be reviewed before a case goes to the jury if indications for admission weaken during the trial.

In light of the inadequate jury directions, the Supreme Court allowed the appeal, quashed the conviction, and ordered a new trial. The decision highlights the importance of clear and accurate jury directions, particularly when dealing with complex issues such as the co-conspirators rule and the admissibility of hearsay evidence.

Orders