R v Wang

[2007] NZCA 371

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST IS, HOWEVER, PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA336/07 [2007] NZCA 371

THE QUEEN

v

WANG YU XI

Hearing:         22 August 2007

Court:            Chambers, Randerson and John Hansen JJ Counsel:  J Haigh QC and P F Wicks for Appellant

J C Gordon and J C L Dixon for Crown

Judgment:      29 August 2007         at 11 am

JUDGMENT OF THE COURT

AThe  application  for  leave  to  appeal  is  granted,  but  the  appeal  is dismissed.

BFor the  avoidance  of  doubt,  we  declare  that  the  following  pieces  of disputed evidence will be admissible at the appellant’s trial:

(a)      The     appellant’s     videotaped     interview     undertaken     on

18 April 2006 (videotapes and transcript);

R V WANG CA CA336/07  29 August 2007

(b)      The  appellant’s  videotaped  interview  undertaken  on  19  April

2006 (videotapes and transcript);

(c)      The print-out  of the appellant’s written  statement  of 18  April

2006     (exhibit     4),     including     the     appellant’s      signed acknowledgement of it;

(d)      Evidence from Detective Bailey as to what the appellant told him during the taking of the appellant’s statement between 9 am and

1.10 pm on 19 April 2006.

C        The admissibility of the print-out of the appellant’s written statement of

18-19 April 2006 (exhibit 6) as an exhibit is to be resolved at trial, if necessary.  (The appellant’s signed acknowledgement of that print-out is not, however, under any circumstances admissible.)

DAn order is made that this judgment and the reasons therefor are not to be  published  in  the  news  media  or  on  the  internet  or  in  any  other publicly accessible database until completion of the trial.  Publication in

a law report or law digest is, however, permitted.

REASONS OF THE COURT

(Given by Chambers J)

Table of Contents

Para No Body in a suitcase  [1] Issues on the appeal  [5] When was Mr Wang detained?  [11]

3.54 pm on 18 April  [14]

10 pm on 18 April  [19]

8.30 am on 19 April  [25]

1.12 pm on 19 April  [27] Was the disputed evidence unfairly obtained?  [33] Clarification of the admissibility of the written statement  [41]

Notebook entries and watch-house conversation  [47]

Conclusion  [49]

Body in a suitcase

[1]      On Good Friday (14 April)  last  year, a body was found in a suitcase in Auckland’s Waitemata Harbour.   The body was subsequently identified as that of Biao Wan.  The police immediately started inquiries.  They formed the view that the killing might have taken place in a room at the Elliot Street Apartments Hotel in the centre of Auckland.  The hotel room had been booked sometime before by Wang Yu Xi, the current appellant.  Not unnaturally, the police wanted to speak to Mr Wang, among others.   They found he lived in an apartment in Hobson Street, also in the heart of Auckland.  On 18 April last year, the police executed a search warrant on Mr Wang’s apartment.  He and two friends, Zheng Li and Lianda Yin, were present. Detective Wayne Bailey, one of the police officers executing the warrant, had previously been directed to deal with Mr Wang if he was present.  Detective Bailey asked  Mr  Wang  if  he  would  consent  to  accompany  him  to  the  police  station. Mr Wang agreed.

[2]      This appeal concerns what happened over the rest of that day and the next day.    During  that  time,  Mr  Wang  gave two  videotaped  statements,  the  first  on

18 April, the second on 19 April.  In addition, he gave what we shall loosely call a written statement.   He started that on 18 April and finished it on 19 April.   This statement was taken down on a computer by Detective Bailey, with Mr Wang sitting beside or near him.  It was an attempt to put in chronological order what Mr Wang had  said  in  his  first  lengthy  and  very discursive  video  statement.    The  written statement came between the two video statements.  Following the second videotaped interview, Detective Bailey arrested Mr Wang for the kidnapping of Mr Wan and for being an accessory after the fact to the murder of Mr Wan.

[3]      The Crown has now laid an indictment charging Messrs Wang, Li and Yin and  another,  Xiangxin  Cui,  with  kidnapping  Mr  Wan  on  13  April  last  year. Messrs Wang, Li and Cui are also charged with his murder.

[4]      Mr Wang, through his counsel, Messrs Haigh QC and Wicks, has challenged the admissibility of what passed between Mr Wang and the police on 18-19 April. That challenge was heard by Winkelmann J.   With some exceptions, to which we shall  come,  she  ruled  the  statements  admissible:  HC  AK  CRI2006-004-018412

9 July 2007.  Mr Wang now seeks leave to appeal.  This judgment is being delivered under some time pressure as the trial begins next week.

Issues on the appeal

[5]      Mr  Haigh’s  contention  is  that  Mr  Wang’s  statements  were  improperly obtained evidence for the purposes of s 30 of the Evidence Act 2006.  The argument is put on two bases.

[6]      First, it is said that the statements were obtained in breach of s 23 of the New Zealand Bill of Rights Act 1990.  A statement obtained “in consequence of a breach of any enactment…by a person to whom section 3 of the New Zealand Bill of Rights  Act  1990  applies”  is  improperly  obtained  evidence:  see  Evidence  Act, s 30(5)(a).  Police officers are, of course, persons to whom s 3 of the Bill of Rights applies.

[7]      The second argument is that the evidence was obtained unfairly.   Unfairly obtained evidence is also improperly obtained evidence for the purpose of s 30: see subs (5)(c).

[8]      So  far  as the Bill of Rights Act  point  is concerned,  the  crucial  issue  is whether Mr Wang had been “detained under any enactment” at the time he made his statements.   It is only upon arrest or detention that s 23 rights are triggered. Winkelmann J found Mr Wang had not been detained when he made his statements, with the consequence that s 23 was not triggered.  Mr Haigh challenges that finding. That is the first issue with which we must deal.  We may add that there is no dispute as to the applicable law.  The question is whether the judge’s factual findings were correct.

[9]      For the reasons that follow, we agree with Winkelmann J on the issue of detention.  That is sufficient to dispose of the first ground of challenge.  We do not propose to consider what the consequences should have been had we found the judge was wrong to hold Mr Wang had not been detained.

[10]     The second issue with which we shall deal is whether the disputed evidence was unfairly obtained.

When was Mr Wang detained?

[11]     Mr Haigh kept his options open as to when he asserted Mr Wang’s detention commenced.   He suggested four possible start points.   Before discussing each of those, we shall give a brief timeline of crucial events over the two days with which we  are  concerned.    This  timeline  contains  references  only  to  times  and  events relevant either to Mr Haigh’s detention argument or to his fairness argument (which is dealt with in the next section of these reasons).

18 April

8.30 am               Mr Wang consents to accompanying Detective Bailey to

Auckland Central Police Station.

8.54 am               They arrive at Auckland Central Police Station.

10.19 am             The first video interview starts.

12.26 pm            Lunch break.

1.18 pm              The first video interview restarts.

3.54 pm              The first video interview ends.

4.12 pm              The collection of samples begin.

8.06 pm              The typing of the written statement begins.

9.30 pm              The typing of the written statement is broken off for the night.

9.42 pm              Mr  Wang  signs  the  written  statement  (which  is  still incomplete).

10 pm                 Detective Bailey takes Mr  Wang  to  Rydges Hotel in

Auckland for the night.

19 April

8.30 am               Detective Bailey picks up Mr Wang from Rydges Hotel.

9.04 am               The typing of the written statement resumes.

12.05 pm ∗       Break for lunch.

1.10 pm              Detective  Constable  Hilton  advises  Detective  Bailey that Mr Wang has been identified on the Elliot Street Hotel   surveillance   camera,   entering   the   hotel   on

13 April at 5.05 pm.    Mr Wang had not at that stage admitted to visiting the hotel at that time.

1.12 pm              Detective Bailey puts that assertion to Mr Wang, and a brief conversation takes place.

1.15 pm              Detective Bailey administers a caution to Mr Wang and gives him his rights under the Bill of Rights.

1.30 pm              Mr Wang agrees to do a second video interview.

2 pm                   The second video interview starts.

4.48 pm              The second video interview ends.

5.40 pm              Detective Bailey arrests Mr Wang.

∗ This time may be wrong.  It may have been 1.05 pm, as it seems Detective Bailey had eaten only part of his lunch and Mr Wang hardly any of his hamburger and chips when Detective Constable Hilton arrived at 1.10 pm.

[12]     Mr Haigh’s submission is that Mr Wang’s detention began at one of the following times.

(a)     At 3.54 pm on 18 April, at the end of the first video interview;

(b)     At 10 pm on 18 April, when Detective Bailey took Mr Wang to the

Rydges Hotel;

(c)    At 8.30 am on 19 April, when Detective Bailey picked up Mr Wang from the Rydges Hotel; or

(d)    At 1.12 pm on 19 April, shortly after Detective Constable Hilton had advised Detective Bailey of the further sighting of Mr Wang at the Elliot Street Hotel.

[13]     For the reasons discussed below, we conclude Mr Wang was not detained at any of these four starting points.

3.54 pm on 18 April

[14]     We do not accept Mr Wang was detained at the conclusion of the first video interview.  Indeed, he obviously presented very well in the interview.  He started the interview as a suspect, but by the end Detective Bailey’s view of his involvement had changed, as Detective Bailey told Mr Wang.   The police now saw him as a possible Crown witness.  Detective Bailey told Mr Wang that.

[15]     Detective Bailey’s assertion that he at that time saw Mr Wang as a potential Crown witness, accepted by Winkelmann J as true, is supported by Detective Bailey later that day asking Mr Wang to give a written statement.  The detective wanted to get a chronological record of what Mr Wang knew, as he thought that would be of assistance to the investigation team.  Further, he now had in mind that, if Mr Wang were merely a Crown witness, a written statement rather than a videotaped interview of a suspect might be more appropriate.

[16]     Between 4.12 pm and about 6 pm, Detective Stephen Meade, whose job was to assist Detective Bailey, was involved in seeing that certain samples were taken from  Mr  Wang.    Mr  Haigh  relied  on  this  taking  of  samples  as  evidence  that Mr Wang was detained at this time.   In particular, Mr Haigh referred to a form relating to the taking of a bodily sample under s 7 of the Criminal Investigations (Bodily Samples) Act 1995.  That form referred to a belief that Mr Wang “may have committed the indictable offence of murder of Biao Wan”.  This showed, Mr Haigh submitted, that the police did still regard Mr Wang as a suspect at this stage.

[17]     We do  not  accept  Mr Wang was detained when the samples were being taken.  Before any sample was taken, it was explained to Mr Wang that he was not obliged to provide the sample requested.  He gave all samples voluntarily.  It is true that at the time the samples were taken Detective Constable Meade was not aware of Mr Wang’s changed status in Detective Bailey’s mind.  Detective Constable Meade did still regard Mr Wang as a suspect, as he was not aware of what had transpired during the first video interview.   But his misunderstanding in that regard is of no moment with respect to the issue we are concerned with, namely whether Mr Wang was at the time detained.  Detective Constable Meade did not have the responsibility of determining Mr Wang’s fate or status: he was simply carrying out a task delegated to him.   It was Detective Bailey who alone had the responsibility of determining whether or not Mr Wang was detained.

[18]     We are quite satisfied Mr Wang was not detained at the end of the first video interview.

10 pm on 18 April

[19]     Mr Wang was not able to return to his apartment for the night of 18-19 April, as it was still subject to police forensic examination.  Mr Wang told Detective Bailey he had nowhere to stay.   Detective Bailey said the police could arrange hotel accommodation for him.  Detective Bailey then took him to Rydges Hotel and left him there for the night.  Winkelmann J found he was not detained at the hotel and that the police had done nothing to cause him to believe he was detained.

[20]     Mr Haigh challenged the judge’s finding.  He pointed to the fact that, earlier in the evening, Mr Wang had surrendered his trousers and shoes for forensic examination.  He was issued with police overalls, but not with any shoes.  Mr Haigh also referred to the fact that Detective Bailey told Mr Wang not to use the hotel telephone.   He submitted the combined effect of not having shoes and not being allowed to use the telephone meant Mr Wang was detained at the hotel.

[21]     We do not accept that.  Mr Wang could have left the hotel room at any time. No  police guard  had been  left  in  place.    Rydges  Hotel was  in  a  part  of town Mr Wang knew well: indeed, he could see his apartment from the hotel room.  He had other friends living in the immediate neighbourhood.  We accept it would have been somewhat undignified to leave in bare feet, but by no means impossible.  There is no evidence Mr Wang asked for shoes.  He had asked to retrieve a pair of jeans from  his  apartment,  a  request  the  police  had  turned  down  on  the  basis  of  the apartment still being under police search warrant.

[22]     So far as the telephone is concerned, we note that, while Detective Bailey told Mr Wang not to use it, he did not remove it.  Detective Bailey gave Mr Wang the reasons why he did not want him to use the phone.  First, he told him “it would be best in the circumstances of the investigation that he not discuss [his evidence] with anyone”.  Secondly, he did not want the police to incur any unnecessary bills in relation to Mr Wang’s stay in the hotel.  That was not unreasonable.

[23]    The judge concluded Mr Wang was happy to fall in with the police’s arrangements for him.  He continued to wish to be as co-operative as possible.  She noted the evidence that the hotel room had already been arranged when Mr Wang asked Detective Bailey where he would stay, but she did not regard that as evidence of control or conscious manipulation of Mr Wang.  She said it was Mr Wang who initiated the discussion about accommodation.  She further said that, if the desire had been to manipulate Mr Wang, it was unlikely a hotel round the corner from his apartment would have been chosen.

[24]     We support the judge’s findings in this regard.

8.30 am on 19 April

[25]     The judge found that Mr Wang continued with his policy of co-operation on the morning of 19 April.  Detective Bailey gave evidence that Mr Wang was happy to continue with his written witness statement.  Mr Wang, in his cross-examination on the voir dire, initially said that he continued to give the statement because he had “no choices”.  But he later accepted that he wanted to show his co-operation with the police,  so  chose  to  continue  with  the  statement.    The  judge  found  he  was  not detained during the morning of 19 April.

[26]     We have seen nothing to indicate the judge’s conclusion in that respect was wrong.

1.12 pm on 19 April

[27]   After Detective Constable Hilton had told Detective Bailey about the surveillance camera showing Mr Wang had entered the Elliot Street Hotel on a third occasion  (Mr  Wang   having  previously  admitted  to   visiting   it   only  twice), Detective Bailey taxed Mr Wang about this.   Mr Wang then accepted that he had visited a third time, and gave a rather feeble excuse for the visit: “to check the wine”. Detective Bailey then said he needed to tell him the truth.  He then asked, “Did you know  about  the  murder  of that  Chinese  boy?”    After  a  long  pause,  Mr  Wang answered, “Yes, I know.  Jim was one, Li Zheng, and Max.”  Detective Bailey said, “Why was he killed?”  Mr Wang answered, “I don’t know.  Maybe he went to run away.”  Detective Bailey said, “Why did you book the hotel room?”  Mr Wang said, “For the boy, kidnap him.”   Detective Bailey said, “Who made you?”   Mr Wang replied, “Jim.”

[28]     Detective Bailey said in evidence that at that stage he formed the view that Mr Wang was once again in the frame as a suspect, not a potential Crown witness. He therefore advised him of his rights again.  He asked Mr Wang if he understood his rights – which had been given to him on a number of occasions the previous day. Mr Wang said, “Yes.”  Detective Bailey then said to Mr Wang, “Now, because of

what  you  have  told  me  has  made  you  part  of  –  in  relation  to  the  killing  and kidnapping of Wan Baio, I would  like to obtain a statement  from you,  do  you consent to this?”  Mr Wang agreed.  Detective Bailey then made arrangements for the interpreter to be present again.  An interpreter had been present the previous day when Mr Wang had had suspect status (during the first video interview).  This was a precaution taken by the police, even though Mr Wang’s English is of a reasonable standard.    (He  is  in  the  second  year  of  a  degree  course  at  the  University  of Auckland.)   The interpreter had, with Mr  Wang’s consent,  been dispensed  with during the preparation of the written statement, as at that time Mr Wang was simply a potential Crown witness.  Before the second video statement began, Mr Wang was again given his rights.  He indicated he was happy to give a further statement.

[29] Winkelmann J did not make a definitive finding as to whether Mr Wang was detained at this point. Even if he was, she considered “he received adequate advice of his rights, which would mean there was no negative consequence of that detention”: at [118]. Further, she held that, even if he were detained then, “he was

‘undetained’ before questioning”: at [116]. At the start of the second video interview, Detective Bailey, as well as repeating yet again Mr Wang’s rights, also told him he was not under arrest and was free to go.

[30]     We  do  not  accept  Mr  Wang  was  detained  at  1.12  pm  or  thereafter. Detective Bailey  was   justified   in  seeking  Mr  Wang’s   reaction  to  this   new information.  Perhaps unexpectedly, an inculpatory statement was then made.   The moment Mr Wang made that statement, Detective Bailey realised its significance, cautioned him, and again gave him his rights.   No further questioning took place until Detective Bailey had taken the following steps:

(a)     Found out  whether Mr Wang was prepared to  give a second  video statement;

(b)     Arranged for the return of the interpreter; (c)   Again given Mr Wang his rights;

(d)     Reiterated he was not under arrest and was free to go if he wished.

[31]     In our view, Mr Wang was not detained for the purposes of s 23 of the Bill of Rights until he was arrested later that afternoon.   It was only at that point that his s 23 rights were triggered.  They were given to him at that point.  Notwithstanding those rights not having earlier been triggered, we note that, by the time of his arrest, Mr Wang had been given his rights on no fewer than eight occasions over the two days.  At no stage did he indicate he was unwilling to co-operate or that he wished to obtain legal advice.

[32]     We uphold Winkelmann J’s finding that the police did not breach Mr Wang’s rights under s 23 of the Bill of Rights.   He was not under detention during the making of either video statement or the written statement.

Was the disputed evidence unfairly obtained?

[33] Winkelmann J found that the statements given by Mr Wang were not unfairly obtained. She found that, although he was with the police for a lengthy period of time, he was with them willingly: at [143]. He participated in the statements because he wished to co-operate and he wished the police to perceive him as co-operating.

[34]     Mr Haigh, in his written submissions, referred to twelve “facts” said to show “that the video interviews were unfairly obtained”.   Of those, only three have any relevance, however, to the first video interview.  The complaints relating to the first video interview could be summarised thus: too long, “with no diversion other than toilet breaks [and] a brief meal”; having to eat the meal inside the interview room and not being asked if he wanted to go outside to eat his lunch; and no phone access in the interview rooms.

[35]     We  do  not  accept  these  criticisms  of  the  police.    The  interview,  while lengthy, was not unreasonably so, particularly considering an interpreter was present and required to translate from time to time.  The interview began at 10.19 am and finished at 3.54 pm, but Mr Wang had a lunch break of almost an hour.  On the four occasions videotapes were changed, Mr Wang had the opportunity to have a drink

and use the bathroom.  Mr Wang was willing to continue with the interview.   For example, we can see from the transcript of videotape 2 (the hour before lunch), Detective Bailey checked with Mr Wang twice over that hour that he was happy to continue with the interview and reminded him of his rights.  Although Mr Wang ate his lunch in the interview room, he did not ask to go outside.  He could have done so had  he  wished.    Although  in  accordance  with  standard  practice  there  was  no telephone in the interview room, Mr Wang was told on a number of occasions he could call a lawyer if he wished.  Had he said he wished to call his parents, there is nothing in the evidence to suggest that request would not have been granted.

[36]     So far as the written statement  completed on 18 April is concerned,  the complaints are it came at the end of a long day, was undertaken in “a typists’ area”, and that no dinner was provided until after Detective Bailey and Mr Wang reached Rydges Hotel.  We do not consider these factors mean that that part of the written statement taken on 18 April was unfairly obtained.   It had been a long day, but Mr Wang was happy to co-operate.  Indeed, he was probably delighted to be told he had moved from suspect status to potential Crown witness status.   Many people work long days.  When counsel are briefing witnesses, it is frequently the case that such briefing will extend over many hours.   Juries frequently work well into the evening.  The point is that Mr Wang could have asked to stop at any time and that request would have been granted.   Indeed, it was Detective Bailey who eventually called a stop for the day.  Mr Wang did not ask for dinner.  Had he asked, there is nothing to suggest he would not have been given it.  We see nothing significant in where the written statement was taken.  A computer was required for taking it, and one was free in the typists’ area at the time.

[37]     Mr Haigh then reiterated his complaints about the night  in the hotel: the declining of the request to get clothing from his apartment; no shoes; police issue overalls; the request not to use the telephone.  The first point to make in this regard is that the focus of the present inquiry is not whether police conduct amounted to “best practice”.   The focus is on whether confessions have been obtained unfairly.   No confessions were obtained at the hotel that night.  At that stage, Mr Wang’s status was that of potential Crown witness.  Even if Detective Bailey could have handled

the overnight stay differently or better, that does not mean the statements obtained on

19 April were unfairly obtained.

[38]     So far as that part of the written statement made on 19 April is concerned, the complaint is that Mr Wang’s ““agreement” to the continuation of the interview has to be put into perspective”.  Mr Haigh referred to Mr Wang’s evidence that he felt he had “no choice”.  But that ignores other evidence Mr Wang gave that he continued with the written statement because he wanted to show his co-operativeness with the police.  We are satisfied, like the judge, his participation on 19 April was voluntary.

[39] The final “fact” in Mr Haigh’s list was the only fact directly relevant to the second video interview. This was that Mr Wang “was unfairly cross-examined”. Winkelmann J rejected that assertion: at [145]. Mr Haigh did not develop this point further in his written submissions and touched on it only briefly in his oral submissions. We are satisfied the judge was correct: there was no breach of either r 3 or r 7 of the Judges’ Rules, which were in force at that time.

[40]     We are satisfied all three statements were fairly obtained.   It follows the judge was right to rule these statements admissible.

Clarification of the admissibility of the written statement

[41]     Counsel disagreed as to exactly what Winkelmann J had decided with respect to the written statement.  We accept the judgment is not entirely clear in that respect.

[42]     There can be no doubt about the status of that part of the written statement taken on 18 April (exhibit 4).  Even though the statement was incomplete, Mr Wang signed it at 9.42 pm that night.  Detective Bailey asked him to do that, as he thought it possible Mr Wang would not agree to return the next day to complete it.  So that statement is clearly admissible.   Mr Wang’s acknowledgement of it makes it his statement.

[43]     The status of the 19 April part of the written statement is more problematic. When  Detective  Bailey  and  Mr  Wang  resumed  at   9.04  am  on  19   April,

Detective Bailey deleted on the screen Mr Wang’s acknowledgement of the previous evening and his own witnessing of it.  He then continued with the statement through to 12.05 pm (or 1.05 pm?), when they broke for lunch.  For reasons earlier given, the taking of the written statement never resumed.  Later that day, after Mr Wang had been arrested, he signed the 18-19 April written statement as “true and correct”.  But Winkelmann J has ruled that acknowledgement inadmissible.  The Crown does not seek to challenge the judge’s ruling on that.

[44]     What  then  is the status of what  Mr  Wang  told  Detective  Bailey  on  the morning of 19 April?   There can be no doubt that Detective Bailey can give oral evidence of what Mr Wang said to him.  In giving that evidence, he would be able to refresh his memory from the statement  he typed that  morning,  provided  he can establish that the transcript  is an accurate print-out  of what  he typed.   It  would constitute “a document made or adopted at a time when his…memory was fresh”, for the purposes of s 90(5) of the Evidence Act.   That may well be sufficient for the Crown’s purposes.

[45]     But what of the print-out itself?   Could it be a documentary exhibit?   We cannot be certain, and this is a matter which, if necessary, can be resolved at trial.  At the moment, the evidence is not sufficiently clear as to how the written statement was taken on 19 April.  If Detective Bailey and Mr Wang were sitting side by side in front of the computer screen, in a position where Mr Wang could himself see the record of the statement on the computer screen, then it may well be his statement.  It would then be a collaborative effort, with Detective Bailey as amanuensis, his typing being checked by Mr Wang as they went along.   If that is how the statement was taken, then in our view the 19 April part would be admissible as a document in its own right, provided the Crown could establish the written print-out is unchanged from what appeared on the screen.

[46]     If, however, Mr Wang could not read the statement as it was being typed, then the transcript of the 19 April part will not be admissible as an exhibit.

Notebook entries and watch-house conversation

[47]     Winkelmann  J  ruled  inadmissible  Mr  Wang’s  acknowledgement  of  the accuracy of Detective Bailey’s notebook  entries.    She also  ruled  inadmissible a conversation in the watch-house.  The Crown did not seek to challenge those rulings. They remain in force.  We have not considered them at all.

[48]     For the avoidance of doubt, we make clear that the judge’s ruling concerning Mr   Wang’s   acknowledgement   of   the   notebook   entries   will   not   prevent Detective Bailey from being able to refresh his memory from his notebook when giving his evidence.

Conclusion

[49]     We grant leave to appeal, but we dismiss the appeal.   We have set out in order B what is and is not admissible with respect to the disputed evidence.

Solicitors:

Haigh Lyon, Auckland, for Appellant

Crown Law Office, Wellington