R v Qiu Ca495/05

[2006] NZCA 74

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA495/05

THE QUEEN

v

QIU JIANG

Hearing:7 March 2006

Court:Chambers, John Hansen and Baragwanath JJ

Counsel:P J Kaye for Appellant

H D M Lawry for Crown

Judgment:3 May 2006 at 10 am

JUDGMENT OF THE COURT

Leave to appeal is granted, but the appeal is dismissed.

REASONS

(Given by Chambers J)

Blackmail

[1]        Qiu Jiang was found guilty of the following charge, namely that she “between 17 August 2004 and 18 October 2004, at Auckland, together with others, threatened expressly to endanger the safety of Shibing Wang with intent to obtain a benefit, namely a cash payment”.  That charge was brought under s 237(1) of the Crimes Act 1961. 

[2]        The “others” referred to in the charge have never been identified, and hence have never been charged.  In the case against Ms Qiu, the Crown relied, however, on the threats made by others, relying on the co-conspirators rule of evidence.  The principal issue on this appeal is whether the evidence of threats made by persons other than Ms Qiu was admissible. 

[3]        The Crown case against Ms Qiu was essentially this.  Wang Shibing, when visiting China in April 2003, was introduced by Ms Qiu’s parents to a woman to whom Mr Wang subsequently became engaged and whom in January 2005 he married.  The woman, now called Wang Guifen, came to join her then fiancé in New Zealand in August 2004.  Prior to her arrival here, however, Mrs Wang had been approached in China by Ms Qiu’s family, who asked her to pay a commission fee in relation to her introduction to Mr Wang.  She had refused to pay. 

[4]        The Crown case was that, at the end of August 2004, after Mrs Wang had come to New Zealand on a visitor’s permit, Ms Qiu arranged to meet Mr Wang at a Burger King restaurant to discuss a money matter.  At that meeting Ms Qiu told Mr Wang he must pay her “45,000 for the introduction fee to bring Guifen from China to New Zealand”.  At that time, Mr Wang did not know what currency Ms Qiu was referring to; later it became apparent that she was referring to the Chinese currency and the fee being demanded was the approximate equivalent of NZD8,000.  Ms Qiu told Mr Wang that, if he refused to pay the money, she would go to the New Zealand Immigration Service to tell them his marriage was a “false marriage”.  Mr Wang stood up and walked away.   Ms Qiu followed him and yelled, “You watch out.  I will get someone to break your legs.” 

[5]        A week later Ms Qiu telephoned Mr Wang and reiterated the threat.

[6]        On 29 September 2004 someone smashed six windows at Mr Wang’s home.  Ms Qiu telephoned him the next night.  Because Mr Wang suspected that Ms Qiu was the culprit, he asked her why she had broken his windows.  According to Mr Wang, Ms Qiu replied, “What can you do about it?”

[7]        A little later Mr Wang began receiving calls from a male with a Chinese Mandarin accent.  The male caller referred to the money owed to “Linda”.  Linda was the English forename Ms Qiu had adopted since being in New Zealand.  The male caller added, “Wait and see.  I will take care of you.”

[8]        On 7 October 2004, Mr Wang received a telephone call from a female he believed to be Asian, requesting his services in unblocking a kitchen sink.  (That sort of service was apparently in Mr Wang’s line of business.)  When Mr Wang arrived at the nominated address, no one was home.  Mr Wang then received a suspicious call, asking him to get out of his car.  He decided not to and drove off.  A silver car started following him.  As he was driving, he received a call on his mobile phone.  The male caller said, “Linda has paid me $10,000 to break your legs.  Where can you run?”  After some further conversation, the caller said, “Even if you report to the police, I will not be afraid.” 

[9]        Over the next few days the male caller made other calls, threatening to break Mr Wang’s legs if he refused to pay Linda. 

[10]     Mr Wang went to the police.  The police suggested that Mr Wang should make arrangements to meet Ms Qiu, ostensibly to pay her.  Those arrangements were made.  Mr Wang handed to Ms Qiu a sealed envelope, ostensibly containing cash.  As soon as the envelope had been handed over, the police swooped and arrested Ms Qiu. 

[11]     From the above account, it will be seen that the Crown case against Ms Qiu relied not only on threats Ms Qiu herself had made but also on the threats allegedly made by others.  The defence was that Ms Qiu had not made any threats herself and that she knew nothing about the threats allegedly made by others.  The defence contended that Mr Wang was lying when he said that he had received threats of physical harm.. 

Issues on this appeal

[12]     There are two issues on this appeal.

[13]     First, there was a dispute at the trial as to whether the evidence of threats made by persons other than Ms Qiu was admissible in this trial against her.  The trial judge, Courtney J, ruled that the evidence was admissible.  Mr Kaye, who was not trial counsel but who appeared for Ms Qiu on this appeal, submitted that that ruling was wrong.  Was it?

[14]     Secondly, Mr Kaye submitted that, even if, contrary to his first submission, the evidence was admissible, the judge failed to give sufficient direction to the jury when summing up on the use which could be made of the threats made by others.  The judge’s failure in that regard was said to have led to a miscarriage of justice.

[15]     There is one other matter we should clear out of the way now.  Ms Qiu was late in filing her appeal.  She has explained the delay: it arose from her decision to change counsel and from it taking Mr Kaye some time to obtain the file from previous counsel and get up to speed.  The delay was not long.  Mr Lawry, for the Crown, took no point about it.  We grant leave to bring the appeal out of time. 

[16]     We shall now deal with the two issues on this appeal in turn. 

The admissibility ruling

[17]     It is common ground that, for the evidence of what others did to be admissible, such evidence must be shown as being to be within the co-conspirators rule of evidence.  Dr Peter Gillies, in his excellent monograph The Law of Criminal Conspiracy (2ed 1990), defined the rule in these terms at 183:

The acts and declarations of a co-conspirator may be admitted for the purpose of establishing the truth of any express or implied assertion contained in them, against each and every other co-conspirator, provided that these acts, etc, were committed in furtherance of the conspiracy, during its currency, and provided further that a foundation for their reception against each and every other co-conspirator is laid.  This foundation consists of independent evidence, i.e. evidence other than evidence of the other alleged co-conspirators’ doings, which links the given co-conspirator to the conspiracy (establishes his or her participation).

[18]     Dr Gillies refers to a number of rationales for the rule (at 184-186).  The rationale accepted by this court and the High Court of Australia relies on the concept of agency.  The conspirators are regarded as partners in crime and the reason for admitting the evidence of the actual words of one co-conspirator against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the other: see Tripodi v R (1961) 104 CLR 1 at 6, Ahern v R (1988) 165 CLR 87 at 95, and R v Humphries [1982] 1 NZLR 353 at 356 (CA).

[19]     It is well established that the rule is not confined to conspiracy cases per se: it can apply in party cases, at least where, as here, the Crown alleges a common purpose to do the unlawful act or acts charged: R v Shelford [1993] 2 NZLR 742 at 745 and R v Tauhore [1996] 2 NZLR 641 at 643 (CA).

[20]     In this case, what Mr Kaye challenges is whether the “foundation…of independent evidence” was properly established. 

[21]     Courtney J considered that question in line with this court’s direction in R v Morris(Lee) [2001] 3 NZLR 759 at [15]-[20]. She said in her ruling (HC AK CRI 2005-004-008984 6 September 2005 at [3]):

In order to bring this evidence within the co-conspirator exception the Crown needs to show first, that there was in fact a conspiracy and secondly, that the accused participated in it.

[22]     In considering those questions, Her Honour said that she considered the test to be balance of probabilities; that is to say:

…the Court must be satisfied, on the balance of probabilities, that both exist.  The existence of the alleged conspiracy and the accused’s participation in it must be shown to the standard without reference to hearsay evidence. 

[23]     Before going on to consider the two matters upon which the court must be satisfied, we pause for a moment to discuss the burden which falls on the Crown.  The judge applied a standard of balance of probabilities, and there is authority from this court supporting that as the standard.  Other authorities, however, have eschewed that test and have applied a lower standard: the test has been said to be “a test of reasonable evidence of common intention”: Ahern at 99.

[24]     In Australia, there is no doubt about the appropriate test: it is “reasonable evidence”, as set out in Tripodi (at 7) and Ahern.  That is also the test in England: R v Jones [1997] 2 Cr App R 119 at 124 (CA). The rather confused state of the law in this country stems from the divided court in R v Buckton [1985] 2 NZLR 257 (CA). What the ratio of that case is may be open to doubt: see R v Mahutoto [2001] 2 NZLR 115 at [17]-[19]. But the time has come for us to be definitive as to whether the test in this country should be “reasonable evidence” (as in Australia and England) or “balance of probabilities”. We adopt the former, for the reasons given in Mahutoto at [13]‑[23]. There is no need to repeat that reasoning here. It should be remembered that the judge, in determining whether the evidence of co‑conspirators’ acts and declarations is admissible, is not determining whether a common purpose was formed or, if it was, when it was. That is ultimately a question for the jury. The trial judge is simply determining whether there is evidence of sufficient strength for it to be safe to let the evidence of the co-conspirators’ acts go to the jury. As this court said in Humphries, the essence of the judicial function is to evaluate “whether the evidence was capable of being accepted” (at 356). The test of “reasonable evidence” fits neatly with the essence of the judge’s task in this area.

[25]     We are aware that in Morris, which postdated Mahutoto, this court adopted a “balance of probabilities” test: at [16]. It appears, however, that Mahutoto was not referred to this court; in any event, this court’s comments in Morris were made in a context where “nothing [turned] on the difference” between the two tests: at [16]. It may be that nothing turns on the difference in this case either; but it is unsatisfactory that trial judges have been left in a state of uncertainty as to the test they should apply.

[26] Courtney J concluded “that, on the balance of probabilities, there existed a conspiracy the object of which was to extract money from Mr and Mrs Wang through threat of harm to Mr Wang”: at [11]. That was the first stage of the appropriate judicial enquiry. Mr Kaye does not challenge Her Honour’s entitlement to reach that conclusion; nor does he challenge her reasoning.

[27]     The judge then turned to consider the second issue, namely whether it had been established that Ms Qiu was part of the alleged conspiracy.  Her Honour said:

[12]     This leaves the question of participation by the accused.  Determination of this issue must be made without reference to the statements that I have taken into account in considering whether a conspiracy existed.  Mr Pilditch [the prosecutor] has submitted that I should have regard to the existence of the accused’s direct threat at Burger King.  There is some inconsistency in the deposition transcript as to whether the threat was that the accused would herself break Mr Wang’s legs or whether she would get someone else to.  Mr Wang says both.  I think that, on balance, the overall effect of Mr Wang’s evidence would establish that the accused had threatened to have someone else harm Mr Wang.

[13]     I also consider the accused’s statement “what if I did?” in relation to the broken windows is some evidence of her involvement in that act.  I note that at this time the accused was on crutches with both legs broken as a result of a car accident.  Realistically, this makes it unlikely that she actually carried out those acts personally. 

[14]     Thirdly, is the coincidence that the threats being made by the unknown callers that Mr Wang should pay money to avoid having his legs broken were the same threats as Mrs [Qiu] had herself made at Burger King. 

[15]     Fourthly, I take into account that coincidence in timing of these various events.  There is no indication in the depositions that there were difficulties in any other aspect of the Wangs’ lives that might have led to threats such as this being made against them.  On the other hand, within a month of Mrs [Qiu] making the threats at Burger King a pattern of harassment through telephone calls began.  The contents of the telephone call reflect the threat that the accused herself made. 

[28] Her Honour concluded that the evidence showed that it was more likely than not that Ms Qiu was involved in the conspiracy: at [17].

[29]     Mr Kaye does not dispute that the judge was entitled to take into account the matters referred to in [12] and [13] of the ruling.  But he submits that the judge was wrong in considering the third and fourth factors when determining this second threshold question.  Mr Kaye submitted that these factors involved the judge considering and accepting the hearsay evidence which was under challenge.

[30]     We accept the thrust of Mr Kaye’s submission on this point.  The judge, in referring to the “coincidence in timing”, clearly was taking into account the fact that near identical threats were made by different people within a short period of time.  The use of that hearsay evidence is not permissible on this second stage of the enquiry.  We have no doubt that the matters referred to in [12] and [13] of the ruling were sufficient in themselves to constitute reasonable evidence that Ms Qiu was a participant in the alleged conspiracy.  That is sufficient to dispose of this ground of appeal. 

[31]     Notwithstanding that, we wish to make brief comment on the third and fourth factors, given Mr Kaye’s submission that they are hearsay and therefore not available as evidence to help establish (to a reasonable standard) that Ms Qiu was a participant in the conspiracy.

[32]     We do not accept Mr Kaye’s submission.  The judge was entitled to take into account the coincidence of the threats made by others being the same as the threats made by Ms Qiu.  For the purpose of determining whether Ms Qiu was a participant in the conspiracy, the others’ words are not being relied on for the truth of the assertions made – which would amount to hearsay – but rather for their coincidental effect.  The others’ words are properly described as “verbal acts” in so far as the current enquiry is concerned: see R v Jackson (1987) 11 NSWLR 318 at 324.

[33]     This point would perhaps be more clearly shown had the others involved attempted to break Mr Wang’s legs rather than issuing threats to do so.  The coincidence of the others’ acts being the same as the act Ms Qiu threatened would, of course, be relevant to the issue of whether Ms Qiu was a participant in the conspiracy.  The callers’ threats in this case are the equivalent of the physical act of the attempted assault in the example just given; for these purposes, there is no difference between the physical act and the verbal act and neither gives rise to a hearsay problem. 

[34]     It is important to stress, as Courtney J did, that it is the coincidence in nature of threat and timing of threat which was of significance.  That is because the point of the enquiry at this stage of the judge’s ruling was whether Ms Qiu was a participant in the conspiracy.  The point was not to establish whether the others were participants.

[35]     Accordingly, we are satisfied that the judge was correct to rule the disputed evidence admissible and that she was entitled to rely on all four matters.  The first ground of appeal fails. 

[36]     We add one further comment.  Once the evidence of a co-conspirator’s physical and verbal acts is admitted, it is then for the jury to determine whether they are sure that the other was acting in concert with the accused.  If they are so satisfied, then it is possible that the co-conspirator’s physical and verbal acts may be used by the jury for a number of purposes, as the finding that the parties were acting in concert will mean that each was the other’s partner in crime.  The evidence of the other’s acts may help the Crown establish the various elements of the crime with which the accused is charged.  In that enquiry, which is different from the enquiry with which Courtney J was concerned in her ruling, the evidence, in so far as it consists of statements by others, may be used as proof of the truth of those statements.  It is in that respect that the co-conspirators rule is, at least in part, said to be an exception to the hearsay rule.

The summing up

[37]     We now turn to consider Mr Kaye’s challenge to Her Honour’s summing up.  The judge referred to the four essential elements that the Crown had to prove on this charge of blackmail.  First, she said that the Crown had to prove that Ms Qiu or someone acting in concert with her threatened Mr Wang.  She referred first to the evidence as to what happened at Burger King and said that, if the jury accepted Mr Wang’s evidence on that topic, this element would be proved.  Mr Kaye does not challenge the correctness of that. 

[38]     But the judge then went on to consider the evidence of other threats made by the unidentified people.  As to that, she said this:

[29]     …in relation to the other threats made by unidentified people, you would have to be satisfied that both the threats were actually made and also that they were made at the direction or the behest of the accused, that she organised for them to be made.  But this really depends on whether you believe the complainant’s evidence.  Mr Wang said that the callers made the same threat of breaking his legs and told him that he had to pay the accused.  You may accept that the callers did say that and you can infer from those threats that they were made in concert with the accused.

[30]     However, I need to say something to you about this evidence.  You might recall hearing counsel mention hearsay evidence during the trial.  The evidence of what these unidentified callers said is hearsay evidence because the callers themselves did not give the evidence of what they said.  Usually hearsay evidence is not allowed because the person who is said to have made these statements is not there to be cross-examined and so the evidence cannot be tested in the usual way.  So to put it simply, no one has been able to ask the people who made these calls under oath what they said and so we are hearing it second hand. 

[31]     However, hearsay evidence is allowed sometimes and one of the exceptions to the rule is where there has been a conspiracy between the accused and some other person.  In that situation, the evidence of what the other members of what the conspiracy said is allowed.  However, because the evidence of those other people has not been tested by cross-examination, you have to be careful when you are considering it.  It is for you to decide how reliable it is.  Remember that before you accept the evidence you need to be satisfied beyond reasonable doubt that these callers were acting in concert with the accused and that they did make the threats that Mr Wang gave evidence about.

[39]     Later in the summing up the judge set out in some detail the defence case, including trial counsel’s criticism of Mr Wang’s credibility. 

[40]     Mr Kaye submitted that the judge erred in giving “no directions whatsoever to the jury on the proper use to be made of those conversations”.  We cannot accept that submission.  We consider that [29]-[31] of the summing up, while economical, conforms with the High Court of Australia’s suggested approach in Ahern (at 104‑105) and with the English Court of Appeal’s approach in Jones at 130-134 (where the English Court followed Ahern).  We commend those judgments to New Zealand trial judges required to sum up in this tricky area. 

[41]     It might have been better had the final sentence in [29] (of the summing up) come later, after the directions in [30] and [31] as to how the jury should approach the evidence of the others’ acts and declarations, with the appropriate cautions.  In fact, in this case, most of the evidence of what others said was not being relied on technically as hearsay at all; the judge was using “hearsay” in a loose sense to convey an out of court statement made by someone not called as a witness.  Notwithstanding these quibbles, we think, But when the summing up is read as a whole, we think the direction was sufficiently clear.  The judge properly told the jury that they should be careful in considering the evidence of what the other people had allegedly said, given that it had not been “tested by cross‑examination”, and accordingly it was “second hand”.  Her Honour also said that, before that evidence could be accepted by them, they had to be satisfied beyond reasonable doubt that the callers were acting in concert with Ms Qiu and had made the threats that Mr Wang gave evidence about.  Those were the essential directions and they were correct.

[42]     The second ground of appeal also fails. 

Solicitors:
Crown Law Office, Wellington