R v Su - [2016] NZHC 2778

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-004-8179 [2016] NZHC 2778

THE QUEEN

v

XIANG SU

Hearing: 14 October 2016

Appearances:

B R Northwood for Crown
T M Cooper for Defendant

Judgment:

21 November 2016

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 21 November 2016 at 10.45 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Meredith Connell, Crown Solicitor, Auckland

Counsel: T M Cooper, Auckland

R v SU [2016] NZHC 2778 [21 November 2016]

Introduction

[1] This judgment determines two interlocutory applications made following the discharge of the jury on the (first) trial of this matter on 7 October 2016. The first is an application by the Crown, opposed by Mr Su, to amend the one charge that Mr Su would face in a subsequent trial. The second is an application by Mr Su to be discharged, on the ground that, as a matter of law, a properly directed jury could not reasonably convict him.1

Background

[2] The Police located 228 grams of methamphetamine in the back of a computer (“computer”) at Mr Su’s house at approximately 5 pm, 16 July 2015. The methamphetamine was packaged in zip lock bags in various weights, these bags being inside other containers, such as a small camera bag and a box used to package a cellphone. The computer itself was in a spare bedroom in which Mr Su was occupying, apparently following disagreements with his wife. The Police also found a set of scales, small zip lock bags and what the Crown alleges is a “tick list” of weights, these items being in a desk in the bedroom.

[3] As a result of this discovery Mr Su was charged with possession of methamphetamine for supply. He went to trial on this charge on 3 October 2016, as well as on a charge that he, with Jiawen Jiang, supplied methamphetamine to Jasmine Grant and Christopher Fry on 18 June 2015 (“supply charge”). I discharged Mr Su on the supply charge for reasons mentioned below.

[4] Mr Su’s evidence at trial was that he had stored the computer for a friend, Yibang Zhang, known as John, when John was required to vacate business premises and that he did not know of the presence of the drugs. Mr Su explained the scales and zip lock bags on the basis that he was a user of methamphetamine but no more than that, and that whatever the “tick list” related to, it did not relate to drugs.

[5] Until late in the piece, the issue at trial was whether Mr Su knew of the presence of the drugs. Late in the trial, counsel for Mr Su, Ms Cooper, submitted that Mr Su

should…

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 Su

Details

AGLC: R v Su [2016] NZHC 2778
Case: [2016] NZHC 2778
Decision Date: 21 November 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Peters heard two interlocutory applications following the discharge of the jury on the first trial of Xiang Su, who was charged with possession of methamphetamine for supply and supply of methamphetamine. The first application was by the Crown to amend the charge against Mr Su, which Mr Su opposed. The second application was by Mr Su to be discharged, on the ground that, as a matter of law, a properly directed jury could not reasonably convict him. Justice Peters allowed the Crown’s application to amend the charge and dismissed Mr Su’s application for discharge. The court held that the amendment would not prejudice Mr Su and that there was sufficient evidence on which the jury could find the charge proved. The court also held that intercepted communications, to which Mr Su was not a party but which the Crown adduced at his trial, were admissible pursuant to the common law “co-conspirators” exception to the hearsay rule, preserved by s 12A(1) Evidence Act 2006. The court held that there was reasonable evidence that Mr Su was a member of the joint enterprise and that the statements were made in furtherance of the conspiracy.

The final orders of the court were that the charge be amended as proposed by the Crown, and that Mr Su’s application for discharge be dismissed. If the matter was not already listed in a criminal callover, it was listed in the callover at 9 am, 30 November 2016.

Orders