R v Wang

[2012] NZHC 1087

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 CHRISTCHURCH REGISTRY

CRI-2011-009-008943 [2012] NZHC 1087

THE QUEEN

v

CHUNG CHEN WANG

Hearing:         18 May 2012

Appearances: K B Bell for Crown

M Callaghan and L Drummond for Accused

Judgment:      18 May 2012

ORAL JUDGMENT OF CHISHOLM J

[1]      Mr Wang  faces  an  indictment  alleging  that  on  about  1 August  2011  he smuggled an unauthorised migrant, namely Hong Liu, into New Zealand, the charge having been laid under s 98C(1) of the Crimes Act 1961.  The trial is to commence on 11 June 2012.

[2]      The  accused  arrived  from  Kuala  Lumpur  on  a  flight  that  landed  in

Christchurch at around 11 p.m. on Sunday 31 July 2011.  Mr Liu, who had travelled with the accused, produced a false Taiwanese passport on arrival in New Zealand.  It

R V WANG HC CHCH CRI-2011-009-008943 [18 May 2012]

is alleged by the Crown that the accused had arranged Mr Liu’s unauthorised entry

into the country.

[3]      A number of matters now require determination, namely, the admissibility of: (a)     the  interview  of  the  accused  on  1 August  2011  by  Ms Taylor,  an

immigration officer;

(b)propensity evidence concerning previous travel by the accused to New Zealand in 1997 and 1998 (evidence in relation to that matter would be given by Ms Taylor);

(c)       hearsay evidence notices concerning the evidence of Ms Taylor and

Mr Smit, another immigration officer;

(d)      expert evidence to be adduced by Mr Spence;

(e)       parts of an interview of the accused on 29 August 2011 by Detective

Batchelor.

In each case there is a contest as to the admissibility of the evidence.

[4]      Unfortunately it is not possible to resolve the last matter concerning the admissibility  of  parts  of  the  interview  of  the  accused  on  29  August  because Mr Callaghan  has  given  notice  that  Detective  Batchelor  is  required  for  cross- examination.   Currently the Detective is in Australia.   It is therefore necessary to adjourn that matter until next Wednesday morning, 23 May 2012, at 10 a.m.     I understand that it is likely that Mr Wang will also give evidence at that time.

Ms Taylor’s evidence

[5]      Today  I  heard  evidence  from  Ms  Taylor  who  was  cross-examined  by Mr Callaghan.  She said that before Mr Wang could legally enter New Zealand he needed a visa and had to satisfy other requirements.  Having passed through customs he was kept in the immigration suite which comprises a relatively large area (I use

the word “kept” in a neutral sense).  After interviewing Mr Liu on Monday 1 August

2011 Ms Taylor then interviewed the accused.

[6]      Before  the  interview  commenced  Ms  Taylor  was  informed  by  a  senior sergeant of police that the police intended to charge the accused.  Although there is no information about the nature of the charge the police had in mind at that stage, it can be inferred that it was for smuggling Mr Liu into the country.   No doubt the objective of the officer in passing this information on to Ms Taylor was to ensure that if that if visa and other requirements were met Mr Wang would not be released.  Ms Taylor accepted that this was probably the reason.   Having said that, it should be added that the interview was clearly for immigration purposes and there is no suggestion that the police had any input or influence over it.

[7]      The interview commenced at 5:15 p.m. on 1 August 2011 and concluded

8:11 p.m.  It emerged from Mr Callaghan’s cross-examination of Ms Taylor that part way through the interview Ms Taylor formed the impression that the accused might be involved in something more serious than immigration issues, such as people smuggling.  No Bill of Rights or caution were given to the accused.

[8]      Soon after the interview finished Mr Wang was arrested (at 8:30 p.m.) by the police and charged with people smuggling.

Admissibility of 1 August 2011 interview

[9]      I go straight to the critical issue:  was the evidence arising from the interview improperly obtained in terms s 30 of the Evidence Act 2006?  Ms Taylor’s evidence provides the necessary evidential foundation to satisfy subs (1)(a).   The section applies accordingly.

[10]     The next step is to determine, on the balance of probabilities, whether or not the evidence was improperly obtained for the purposes of subs (2)(a).  If so, it will then be necessary to take the next step of deciding whether exclusion of the evidence would be “proportionate to the impropriety” in terms of subs (2)(b).

[11]     The  definition  of  “improperly  obtained”  evidence  in  subs  (5)  includes evidence that is obtained “unfairly”.   Once the circumstances surrounding the obtaining of this evidence and the contents of the evidence are assessed it becomes apparent that this evidence was indeed unfairly obtained.

[12]     Before the interview commenced the accused had been confined at the airport for many hours.   Regardless of whether he was technically “detained” for the purposes of s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (and thereby had the right to consult and instruct a lawyer) it is clear from the evidence that he was not free to go.  As Ms Taylor said, if he had tried to leave the immigration suite without the authority of the immigration officials it is likely that he would have been prevented from doing so by the police.

[13]     Apart from that the accused was arguably liable to arrest and detention under s 309 of the Immigration Act 2009 as a person liable for “turnaround”.  If that is the case  then  there  might  be  implications  concerning  the  fairness  of  the  evidence obtained during the interview by the immigration officer.

[14]     But I do not need to go any further into those matters.   To my mind, it is highly significant that before the interview started the police had decided that the accused would be charged and had passed that information on to the immigration official  who was  to  conduct  the interview.   While it is  true that  he was  being interviewed by Ms Taylor for immigration purposes, the reality was that if information useful to the police emerged during the course of the interview it was virtually inevitable that the police would attempt to use it against the accused.  In other words, information was being obtained from the accused under circumstances where, in the normal course of events, he would have received a caution and his Bill of Rights.

[15]     On top of this there is the content of the interview.  Towards the end of the interview the accused was effectively cross-examined by the immigration officer. He was asked whether he wanted to tell any more lies, whether he wanted to start telling the truth, to stop telling lies, etc.  He was also accused of having smuggled people into New Zealand previously.  There can be no doubt that if this interview

had been conducted by a police officer it would not have stood any chance of being admitted.

[16]     I am therefore satisfied that the evidence was improperly obtained for the purposes of subs 2(a).

[17]     The next issue is whether exclusion of the evidence would be proportionate to the impropriety in terms of s 30(2)(b).  I am satisfied that the exclusion would be proportionate. The impropriety involved matters of substance, not matters of form or technicality.  Equally importantly, the police later undertook an extensive interview of the accused.

[18]     It follows that the interview is inadmissible.  To the extent that Ms Taylor’s

evidence is directed towards that interview it is also inadmissible.

Propensity evidence

[19]     Through Ms Taylor the Crown wants to lead propensity evidence relating to two earlier trips the accused made to New Zealand.  The evidence would be that on

29 December  1997  Mr Wang  arrived  in  New  Zealand  from  Hong  Kong.    Two Peoples  Republic  of  China  nationals  on  the  same  flight  used  false  passports. Mr Wang departed Auckland for Hong Kong on 31 December 1997.  On 9 January

1998 he again arrived in Auckland from Hong Kong.  A Peoples Republic of China national who arrived on the same flight used a false Taiwanese passport.

[20]     An email from Ms Taylor to the police, which was adduced in evidence today, indicates that the Immigration Department had not been able to locate the relevant 1997 and 1998 files.  The email includes the comment: “I don’t think we have any evidence that he [Mr Wang] smuggled these people into New Zealand apart from the fact that he travelled on the same flight as them”.

[21]     For the Crown Ms Bell identified (for the purposes of s 43 of the Evidence Act) the broad issue in dispute:  whether the accused had smuggled Mr Liu into New Zealand.  She submitted that these two earlier events demonstrated a similar modus

operandi with the immigrants on both those occasions and the instant occasion using false passports.  On each of the earlier occasions the stay in New Zealand was brief. Ms Bell relied on Mr Wang’s admissions when interviewed by Detective Batchelor to establish three points:  first, that Mr Wang had brought two asylum claimants from China in 1997; secondly, that he came again in 1998l; and thirdly, that on both those occasions he came “for free”, which also reflected the explanation he had given on this occasion.

[22]     For the accused, Mr Callaghan submitted that there is no proof that Mr Wang had  done  anything  wrong  on  either  of  those  earlier  occasions.    All  in  all,  he submitted, the connection alleged by the Crown was tenuous to say the least.   He noted that those events occurred 13 to 14 years ago and submitted that in terms of s

43(1) of the Evidence Act the probative value of the evidence could not outweigh the unfair prejudicial effect.  He also submitted that in terms of s 43(4) the effect of the evidence would be to unfairly predispose the jury against the accused that that they would tend to put disproportionate weight in reaching a verdict to those earlier events.

[23]     Propensity evidence can only be offered by the prosecution if in terms of s 43(1) the evidence has a probative value in relation to an issue in dispute which outweighs the risk that the evidence may have an unfairly prejudicial effect on the accused.    When  considering  the  admissibility  of  the  evidence  I  am,  of  course, obliged to take into account the nature of the issue in dispute.   I adopt Ms Bell’s analysis of the issue in dispute.

[24]     Subs  (3)  lists  the  matters  that  may  be  considered  when  assessing  the probative value of the propensity evidence.  As to the frequency of the acts, there were two earlier incidents in 1997 and 1998.   While the Crown was keen that I should also weave in other alleged incidents concerning Australia and Canada, I decline to do so.  Evidence about those incidents will not be presented to the jury. Moreover, the evidence relating to Canada seems to be nebulous.  I therefore entirely disregard those other incidents when considering this propensity issue.

[25]     The time connection between those two earlier events and the current alleged offending is remote.   There has been a delay of 13 to 14 years.   Again I am not prepared to use alleged events concerning Australia or Canada as a bridge to reduce the impact of the remoteness in time.   To my mind the remoteness in time is a significant factor.

[26]     The extent of the similarity between the acts is slightly difficult to interpret. If the inference can be drawn that the appellant was involved in the unlawful entry of the Chinese nationals in 1997 and 1998, as might seem to be the case from his interview, the similarity between the acts might be quite significant.  However, the admissibility of the evidence arising from Detective Batchelor’s interview is still to be determined.  I also note that the accused was referring to asylum seekers in his interview, not people using false passports.   So while there might be a superficial similarity between the acts, that conclusion involves a high degree of speculation. That prompts me to approach the issue of similarity with caution.

[27]    In terms of whether there are unusual features, it again depends on the interpretation that is placed on the events in 1997 and 1998.   If the sinister interpretation connecting the accused to the illegal immigrants is applied the events might be categorised as unusual.  On the other hand, if the proper interpretation is that the accused was simply on the same flights as the Chinese nationals the “unusualness” factor loses much of its sting.

[28]     In the end I think Mr Callaghan is right that in terms of subs (4) there is a real risk that if this evidence was before the jury it would unfairly predispose the jury against the defendant and they might tend to give it disproportionate weight.  The propensity evidence is therefore inadmissible.   That means that there will also be consequential deletions in other evidence (I think Mr Smit) concerning the trips to New Zealand in 1997 and 1998.     No doubt counsel will be able to resolve that aspect.

Expert evidence

[29]     Mr Spence will provide expert evidence as to people smuggling.  Ms Bell is right that in terms of s 25 this is a matter in relation to which members of the jury are unlikely to have knowledge and the jury is likely to obtain substantial help from the evidence that he will give.   Subject to the matters I am  about to mention, the evidence is admissible.

[30]     First, it has been  agreed that paragraph  45 should come out.   Secondly, paragraphs 35 and 36 have been challenged.  I agree that as the evidence is presently framed it should not be admitted.   I expect that the evidence that the Crown is seeking to adduce through the expert (that citizens of the Peoples Republic of China are not allowed to have dual passports) can be adduced in a more reliable fashion. Hearsay evidence from a reliable source would almost certainly be admissible. Counsel are to see whether they can resolve the matter.  If necessary it will have to be determined by the trial Judge.

Hearsay evidence

[31]     The challenge concerns the parts of proposed evidence of Ms Taylor and

Mr Smit in respect of which notice has been given.

[32]     As far as Mr Smit is concerned the challenge is to the following:

15.      Although I presumed [that] Chung Chen Wang had not boarded the flight at Kuala Lumpur  I had noticed prior to the flight arriving that both men had purchased their tickets on the same day with the same agent and both tickets had been paid for [by] Mastercard.

Ms Bell explained that Mr Smit’s evidence is derived from evidence of Ms Taylor which indicates that in this case an AirAsia X flight manifest was prepared and emailed to the New Zealand immigration authorities.

[33]     The crux of the defence objection is that the source evidence should be provided.    That  seems  to  be  in  the  form  of  the  email  from AirAsia  X  to  the immigration authorities.  That objection is well taken because as the evidence stands

it simply comprises assertions by Ms Taylor which are then relied on by Mr Smit. The Crown should provide the defence with the relevant email from the airline in the form of a hearsay notice.  It would seem to be virtually inevitable that such evidence would be admissible.  Again, I leave it to counsel to see whether this matter can be progressed.  If necessary it will have to be resolved by the trial Judge.

[34]     Some other parts of Ms Taylor’s evidence also require deletion:  paragraphs

13  –  15;  the  words  “At  the  completion  of  the  interview”  at  the  beginning  of paragraph 16; and all reference to Australian travel.  There is also a slight conflict between paragraphs 33 – 43 and an email which is receiving the attention of counsel. It is unnecessary for me to rule on it.  If necessary the trial Judge will have to do so.

Postscript

[35]     I have now been told that the propensity ruling I have delivered means that there will be no need for Clifford J to hear the challenge to the accused’s interview. Counsel have resolved the matter.  The transcript on page 42 will not be led from line 10.  In other words, the interview will cease with the words “was forbidden to leave border”.

Solicitors:

Raymond Donnelly, P O Box 533, Christchurch 8140,  [email protected]

Mark Callaghan, Christchurch,  [email protected]