The Queen v Bai Liang Su

IN THE COURT OF APPEAL OF NEW ZEALAND

CA407/00

THE QUEEN

BAI LIANG SU

Hearing:	28 June 2001
Coram:	Richardson P Blanchard J Randerson J
Appearances:	E R Fairbrother for Appellant A J F Perkins for Respondent
Judgment:	5 July 2001

JUDGMENT OF THE COURT DELIVERED BY RANDERSON J

At his trial concluding on 5 October 2000, the appellant was convicted of murder and sentenced to life imprisonment. He now appeals against conviction essentially on three grounds:
[a]There is fresh evidence which ought to be admitted in relation to characteristics of the appellant for the purposes of a defence of provocation.
[b]Alleged misconduct of trial counsel.
[c]Alleged misdirections in the summing up.

Background

The appellant was alleged to have murdered his wife, Jiang, in a carpark at Hastings on 20 March 2000. The Crown relied on either of the murderous intents set out in ss 167(a) and (b) of the Crimes Act 1961. The principal defences were first that neither of those grounds was made out on the facts and second, that murder should be reduced to manslaughter by reason of provocation. At trial, no point was taken as to any “characteristics” of the offender for the purposes of s 169(2)(a) and the trial Judge summed up accordingly.
The appellant emigrated to New Zealand in 1986 and subsequently bought a market garden at Levin. In 1995 he went to China where he was introduced to Jiang. He returned to New Zealand within a matter of days and was joined by Jiang later that year. They were married in December 1995. Together they worked long hours in the market garden. Two children were born who were looked after partly by their parents and partly by the appellant’s mother who lived in Palmerston North. During the marriage, an additional piece of land adjoining the existing market garden was purchased.
In September 1999, Jiang’s mother came to New Zealand and stayed with her daughter and the appellant until 7 December 1999. She and Jiang then left Levin and did not return to live there. Jiang went to stay with her uncle in the Hawkes Bay, assisting him with his takeaway business in Hastings.
There was evidence that the appellant had tried unsuccessfully on a number of occasions to persuade Jiang to return to live with him. In the week in which Jiang died, he visited Hastings on 14 March, along with other members of his family. They went to the takeaway bar where the appellant spoke to Jiang’s uncle but was not able to speak to her. She was at the premises but her uncle told the appellant she was not there. He also told the appellant that Jiang had not changed her mind and was refusing to return to live with him.
Then on 19 March, the day before the killing, the appellant again travelled to Hastings with a view to talking to Jiang. There was evidence from her uncle, supported by his son, that the appellant came to the takeaway bar again that evening along with the two children. On that occasion he had an opportunity to talk to Jiang while sitting in a motor vehicle in the carpark outside the takeaway bar. There was evidence of angry words from the appellant and the appellant pushing Jiang with both hands on her shoulder. Thereafter, attempts were made to find a motel for the night. Jiang’s uncle said in evidence that the appellant was again pushing Jiang in the car at the motel. The appellant appeared very angry. In the end, Jiang left the motel with one of the children and the appellant remained there with the other.
The following day, the appellant returned to the takeaway bar around the middle of the day. He asked to speak to Jiang and she agreed to do so. She left the takeaway bar with the appellant and returned about 15 minutes later. She then left the shop again with the two daughters and went to the rear of the carpark.
There were no adult witnesses to what then occurred. However, in a lengthy video interview with the police conducted later the same day, the appellant described the events in some detail. He stated that the victim did not agree to his request to return with him. She wanted to go to live with her former boyfriend. There was an argument and she pushed him. He pushed her back and there was some further pushing by each of them. He conceded he was angry but, at that stage, he was just pushing her. She fell down and, according to the appellant’s statement, she kicked him in the area of his feet. He said that it was not very serious. He was still angry and he began shaking her with both hands around her neck. As he shook her, the back of her head was hitting the tarsealed surface of the carpark. He saw some blood. This went on only for a short time and he admitted he was very angry. When he saw his wife was bleeding, he stopped and ran into a nearby bakery shop, telling the shop assistant he had killed his wife. According to the shop assistant, he appeared to be in a state of shock and he stayed there, crouching down, until the police and ambulance arrived.
In his police interview, the appellant said he did not know whether his wife was still alive when he stopped shaking her. He repeated on a number of occasions that he did not intend to kill her.
Overall, the interview occupied approximately three hours and contained a good deal of background about the relationship between the parties. He denied threatening her on any previous occasion and also denied ever having hurt his wife. He was angry, he said, because Jiang was going to leave him and go back to her former boyfriend and because she wanted his property. In that respect, there was evidence that Jiang had consulted a lawyer shortly after they parted. The lawyer had written to the appellant about matrimonial matters, including property issues.
The undisputed pathological evidence was that Jiang’s head was beaten a number of times on the carpark surface with considerable force such as to cause skull fractures and deep injury to the brain.
The Crown case was that, at least during the three months Jiang’s mother was living with the couple in 1999, the appellant had been violent towards Jiang. In that respect, the Crown case relied heavily on the evidence of Jiang’s mother who related a number of incidents involving some degree of violence towards the appellant and, in particular, an incident in which she testified to having seen the appellant attempting to suffocate Jiang with a blanket. Jiang’s mother also gave evidence of threats by the appellant to kill Jiang on a number of occasions during the time she was staying with them. These threats included words such as “One day I will hit her dead”.
The Crown contended that the appellant’s concern was to secure Jiang’s return to the market garden and that he was also concerned about her claim to part of his market garden property and house. When Jiang told the appellant she was not coming back, he became extremely angry and then carried out his threat to beat her to death.
The defence case relied first on lack of murderous intent. In that respect, defence counsel relied at trial on the appellant’s remarks in his police interview and on statements that he did not realise that what he was doing to her was serious and was likely to cause her death. There was evidence from two independent witnesses that the appellant had been talking calmly and normally to his wife shortly before the incident. Then, the defence submitted, he suddenly lost control, grabbed his wife’s neck and shook her. He stopped when he saw the blood and ran into the bakery seeking help.
The matters relied upon as constituting provocative conduct by the deceased were that:
[a]He had sponsored her to come from China to New Zealand to be his wife.
[b]She had obtained her New Zealand citizenship only shortly before the separation and had then departed leaving him to look after the children.
[c]She wished to go and live with her former boyfriend.
[d]Her claim to the property.
[e]The discussion in the carpark immediately before the killing where she indicated she wished to divorce him and pushed him away.
The appellant did not give evidence himself at trial. The only witness called on his behalf was his brother‑in‑law who gave evidence of his previous good character. In particular, he described the appellant as a hardworking person. He had never seen the appellant using violence towards his wife or anyone else. After Jiang left the appellant, he noticed the appellant had become very sad and had lost interest in his work, something he had never known before.

First ground of appeal – fresh evidence

Mr Fairbrother, who was not counsel at the trial, submitted first that fresh evidence was available to support a defence based on the appellant having personal characteristics relevant to provocation. That evidence was placed before us in the form of an affidavit from the appellant to which was attached a report dated 10 June 2001 from a forensic psychiatrist, Dr Jeremy Skipworth.
Dr Skipworth’s report recounted the appellant’s background from the time of his birth in China, his upbringing and education, and his relationship with Jiang and other members of the family. Dr Skipworth relied on this account as well as the evidence produced at trial, including the transcript of the accused’s video interview. The concluding paragraphs of his opinion are:
When Yang left Mr Su and her children on 7 December 1999, Mr Su developed a number of symptoms consistent with a depressive syndrome. These symptoms included insomnia, anorexia (accompanied by a 5 kg in weight loss), poor concentration, a lack of energy which manifested in a significant reduction in his amount of work and his productivity at work, a loss of interest in his market garden, and fleeting suicidal ideas which were not acted on. Significantly he appeared to have been more irritable, in a depressed state, and was noted to be more argumentative in the months leading up to the offending.
Mr Su’s irritable depressed state deteriorated when he learnt that Yang wanted half of his market garden which he felt she was not entitled to. He had increasing difficulty coping, trying to look after his two young children as well as run the market garden. It appears that this state lasted over several weeks leading up to the offending.
According to Mr Su, he was provoked by Yang in the moments that preceded his offending. In particular, her provoking comments included implications and statements that she was never in love with him, that she had used him to gain money and residency, and that she would never return to him. These stressors were all directly related to the onset of Mr Su’s depressed and irritable state.
The combination of these factors, in my opinion likely led to Mr Su’s rage which ultimately resulted in his wife’s death. The evidence indicates that following a struggle, he held her by the neck and repeatedly bashed the back of her head on the pavement until she was dead.
From a clinical point of view, Mr Su was probably suffering from an adjustment disorder with depressed and irritable mood. This describes the development of emotional and behavioural symptoms in response to an identifiable stressor. These symptoms were associated with a marked distress and impairment in both social and occupational functioning. He probably did not meet the criteria for a major depressive illness.
A relevant aspect to consider in terms of the development of this condition is Mr Su’s cultural background which has relevance to the degree of stress associated with separation given the rarity of divorce in Chinese culture, and the embarrassment and shame that would be brought on him if his marriage failed. The departure of his wife, leaving him with two young children and the market garden to run led to the development of this adjustment disorder with depressed and irritable mood as previously noted.
Whether this state represents “characteristics of the offender” is ultimately a matter for the Court to determine. However, the evidence available to me clearly suggests that it predisposed him to being in an irritable and aggressive state which manifested in an ultimately homicidal rage when he was confronted with a series of probably true statements that Mr Su was desperately hoping were not true. Namely, that his wife had never loved him, that she had used him financially and for residency, that she was never coming back to him and that he was going to have to cope raising the children and looking after the marker [sic] garden without her assistance. Thus, there does appear to be a direct relationship between Mr Su’s irritable depressed state and his actions. Whether these circumstances amount to provocation as defined in Section 169 of the Crimes Act 1961 is a matter that I must leave for you and the Court.
Based on R v Rongonui [2000] 2 NZLR 385 (CA), Mr Fairbrother submitted that Dr Skipworth’s evidence supported at least two “characteristics” for the purposes of s 169(2)(a). The first was the adjustment disorder with depressed and irritable mood, and the second was his Chinese cultural background which, it was submitted, made him more susceptible to the provocation offered, given the suggested Chinese cultural view of divorce. It was submitted that either or both of the characteristics may have aggravated the gravity of the provocation and were not the same as a generally reduced power of self control.
This Court has power to receive fresh evidence on appeal in terms of s 389(c) of the Crimes Act and may allow an appeal under s 385(1)(c) if satisfied there has been a resulting miscarriage of justice. The relevant principles were re‑stated in R v Zachan (CA304/94, 11 August 1995) at 6:
The Court has jurisdiction to allow an appeal on the ground of the discovery of fresh evidence by virtue of s 385(1)(c) of the Crimes Act 1961. This provides that an appeal against conviction is to be allowed if the Court is of the opinion that on any ground there has been a miscarriage of justice. The Court will normally require that the evidence be fresh in the sense that it was not available at trial; and that it be credible and cogent in the sense that if given along with the other evidence in the case, the jury might reasonably have been led to return a different verdict. The overriding test however is the interests of justice. See R v Fryer [1981] 1 NZLR 748, R v Arnold [1985] 1 NZLR 193, R v Crime Appeal (CA 60/00) (1988) 3 CRNZ 512.
Although evidence may, strictly speaking, have been “available” at the time of trial (in the sense that if inquiry had been made the evidence could have been obtained), the interests of justice may nevertheless, in limited circumstances, require the reception of evidence where, for example, it was not available to the appellant because, for good reason, it had not occurred to him or his advisors to inquire about it.
We accept the submissions made by Mr Perkins on behalf of the Crown that this is not a case where it would be appropriate for us to exercise our discretion to receive the further evidence. First, it is clear from the affidavit of trial counsel that he consulted a psychiatrist prior to trial with a view to obtaining an opinion about a psychiatric‑based defence. He provided the psychiatrist with a copy of the appellant’s video transcript and additional background information relevant to the assessment. The psychiatrist expressed a view on the basis of which counsel considered that there did not appear to be an available psychiatric‑based defence and that the issues pertaining to provocation would be evidential ones which did not require assistance from a psychiatrist. On that footing, counsel did not arrange to have the psychiatrist formally interview the appellant.
Second, we are not satisfied that the evidence is sufficiently cogent in the sense that, putting it alongside the other evidence in the case, the jury might reasonably have been led to a different verdict. Dr Skipworth’s views are expressed as probabilities and it is not clear whether “an adjustment disorder with depressed and irritable moods” is a recognised clinical condition. Nor is it apparent that its description as “the development of emotional and behavioural symptoms in response to an identifiable stressor” is anything more than a statement that upon the departure of his wife, the appellant was in a distressed state which led him to be miserable, irritable, and lacking his usual interest in work. It is difficult to distinguish the appellant’s state, as so described, from that which would ordinarily be expected upon the break‑up of a marriage following the departure of the other spouse. Put another way, there is nothing to suggest that the appellant in the circumstances which faced him at the time, had any characteristics which would distinguish him from others facing the normal stresses which accompany a parting of this kind.
Third, it is well settled that to qualify as “characteristics” for the purposes of s 169, there must be something extending beyond mere ill‑temper, irascibility, or impulsiveness. We are not satisfied that the evidence goes any further than indicating the appellant is likely to have lost his temper when he was in an unhappy and possibly distressed state.
Fourth, to the extent that the evidence may be relevant, it goes to the appellant’s power of self‑control rather than to the gravity of the provocation.
It follows that, in terms of the majority view in Rongonui, the appellant’s symptoms would not amount to a qualifying characteristic under s 169.
We also accept the Crown’s submission that Dr Skipworth, while well qualified in the field of forensic psychiatry, did not have any relevant qualifications or experience to express a view as an expert about the cultural aspects of the case. Applying the test recently adopted by this Court in R v Makoare [2001] 1 NZLR 318, 324, we are unable to admit evidence on that point. As well, there is nothing which sufficiently connects the opinion expressed on the cultural issue with the behaviour of the appellant at the time in question.
For those reasons, we conclude that there is no basis for the admission of the fresh evidence. There was ample evidence before the jury of the history of the relationship between the parties and the appellant’s state of mind following Jiang’s departure several months before her death. All that evidence was properly available for the jury to consider in support of the defences run at trial. That evidence was relevant not only to the first line of defence (lack of murderous intent) but also to the issue of provocation clearly placed before the jury. Further, we are satisfied that the absence of the fresh evidence at trial has not occasioned a substantial miscarriage of justice.

Second ground - Conduct of trial counsel

It follows from our finding on the issue of fresh evidence that one of the main complaints about the conduct of trial counsel (failure to retain a psychiatrist) is without foundation. The issue was explored, at least to the extent of satisfying counsel that it need be pursued no further, and even if the further material were now available, it would not have made any material difference to the outcome.
The second main complaint was that trial counsel should have called the appellant to give evidence, particularly to rebut the allegations of prior violent incidents and threats to kill. The appellant’s affidavit before us reiterates his denials in the police video interview that he is not a violent person and has not been violent to his wife or children previously. Nor had he threatened violence. He denies the specific incidents related by Jiang’s mother and maintains that if he had been given a choice, he would have given evidence in Court but was not given the opportunity. He says he remains concerned that he did not have a chance to tell the jury his version of the incidents given by Jiang’s mother. He complains that trial counsel visited him in prison on only two occasions before his trial when an interpreter was present. These, he says, were both short visits and he did not have the opportunity to talk to his counsel about everything. He also claims that he did not understand a lot of what was said during the trial and that he could not hear the interpreter sufficiently at various stages.

In contrast, trial counsel has testified that the appellant’s instructions were that he did not wish to give evidence “unless he absolutely had to”. Counsel considered there were potential disadvantages in calling the appellant and says it was agreed between them that the appellant would only give evidence as a last resort if counsel felt that the case had gone badly. That would only arise if the issue of provocation could not be placed adequately before the jury or if the defence was unable adequately to challenge the evidence of alleged violence by way of cross‑examination or other evidence. At the conclusion of the Crown case, counsel felt it was unnecessary to call the appellant to give evidence. This was discussed with him and he indicated he was in agreement with that course. He gave those instructions after being informed of the reasons. Counsel is adamant that the appellant had the opportunity to give evidence if he had wished to do so.
Where complaint is made of conduct by trial counsel, the relevant test is whether the alleged misconduct could be said to have led to a miscarriage of justice, or at least to a real risk of a miscarriage of justice: R v Quinn [1991] 3 NZLR 146. In order to reach that threshold, the appellant must demonstrate radical or fundamental mistakes or blunders, not merely decisions that may have yielded better results: R v Pointon [1985] 1 NZLR 109 (CA); R v H [1997] 1 NZLR 673 (CA); R v Coster (CA538/95, 19 March 1996).
Here, we are satisfied that the decision not to call the appellant was not a radical or fundamental error and did not lead to a real risk of a miscarriage of justice. The evidence of Jiang’s mother as well as her uncle and cousin was strongly challenged in cross‑examination by trial counsel, including challenges to credibility based on prior inconsistent statements. The jury had the benefit of the accused’s lengthy video interview where he denied those allegations, as well as ample material to the effect that he did not intend to kill his wife. There was also evidence before the Court from the appellant’s brother‑in‑law to the effect that he had not seen any evidence of violence by the appellant towards his wife on any prior occasion.
We accept Mr Perkins’ submission that there were potential disadvantages in calling the appellant. These included the ability of the prosecutor to cross‑examine on parts of his video statement which indicated his awareness of what was happening during the time he was attacking his wife. That could have undermined his case that he did not mean to kill her and reacted suddenly to provocation. There would also have been an opportunity for the appellant to be cross‑examined on the basis of the evidence of the Jiang’s mother and that of her uncle and cousin which conflicted with his denials of previous violence. Crown counsel could also have explored the appellant’s motives for the attack and exploited his admissions of being in an angry state at the time of the attack.
In these circumstances, it is unnecessary for us to resolve the conflict of evidence in the affidavits of the appellant and trial counsel as to whether the appellant was given the opportunity to give evidence. If he had given evidence, it is difficult to see how it would have improved his position. Indeed, there was a risk that it might have made matters worse for him. It follows that no miscarriage of justice has been demonstrated on that account.
Mr Fairbrother also submitted that the availability of telephone records might have given some support to suggestions that the evidence from members of Jiang’s family was not objective or accurate. He did not pursue that before us in oral submissions and, having considered the issue, we do not regard any failure to make use of those records as material to the outcome of the trial.
Finally, we are not satisfied on the evidence before us that any miscarriage of justice occurred as a result of difficulties in communication between the appellant and counsel either before or during the trial. The appellant does not complain in his affidavit about any lack of communication from trial counsel during the Court process. In that respect, trial counsel states in his affidavit that he had numerous discussions with the appellant both during depositions and at the trial. Those discussions were conducted with the assistance of the Court appointed interpreter and the appellant did not complain to counsel about the interpreter. Trial counsel also states that the appellant’s family assisted with communications between himself and the appellant on occasions when no interpreter was available. While it was accepted that trial counsel saw the appellant on only two occasions between depositions and trial, he had spent a total of nearly eleven hours with the appellant and over six hours with his family. After the Judge's summing up, trial counsel says the appellant thanked him for his services as did other members of the family. There was no suggestion of any dissatisfaction.
Just over a week after the verdict, trial counsel visited the appellant in prison. The prospects of an appeal were discussed including potential appeal grounds. The appellant acknowledged in writing that trial counsel had offered to obtain other advice for him from named senior lawyers. He made it clear he wished trial counsel to act on his behalf and to file an appeal. The written acknowledgements to this effect were translated to the appellant by an interpreter. The appellant agreed they represented an accurate reflection of the discussions. Thereafter, trial counsel filed the notice of appeal and application for leave on 10 November 2000. It was not until later that present counsel was instructed to appear.
We conclude that there is no basis for the submission that the conduct of trial counsel resulted in any miscarriage of justice.

Third ground - Misdirections in summing up

Mr Fairbrother’s first submission under this heading was that the trial Judge should have directed the jury as to the use which it could make of the allegations of past violence and threats. While accepting that the evidence was relevant and probative on the issue of intention, he submitted that its potential to prejudice the appellant was such that it required a direction of the kind envisaged in Rongonui at paragraphs [14], [15] and [16]. In that case, the Court was considering evidence that the accused had broken into the victim’s home on previous occasions and committed burglaries. This was accepted as relevant to the accused’s motive to enter the house on the day in question. It was found that the jury should have been warned it would have been wrong to conclude from that evidence that the accused must have gone to the flat on the occasion in question intending to rob the victim. The lack of any warning in the circumstances might well have occasioned a miscarriage of justice.
We do not consider that any ruling to that effect was required in the present case. On the facts in Rongonui, there was a risk the jury would improperly conclude that the accused had a general propensity to criminal behaviour or, at least, that she must have gone to the house with the same motive as previously. There was little risk of illegitimate prejudice in the present case. The evidence of previous violent incidents had earlier been ruled to be admissible on the basis that the incidents had occurred in a time period reasonably proximate to the killing and on the footing that the previous incidents were similar in nature to what occurred on the day in question, with the common feature of the appellant becoming angry and pushing his wife. The evidence of the threat to kill was relevant to the question of the appellant’s intention at the time of the killing and the probative value of the evidence was found to outweigh any illegitimate prejudicial effect.
In the context of the particular circumstances of the case, we view the evidence as simply part of the narrative of events and as descriptive of the relationship between the appellant and his wife over a period of time reasonably proximate to her death. It was undoubtedly relevant to the appellant’s intention and state of mind at the time of the killing. The jury had before them all the relevant evidence as to the circumstances, including the appellant’s entreaties for Jiang to return, the independent evidence that he was quite calm immediately before the killing and the numerous denials in his video interview of any intention to kill. In those circumstances, there was no material risk that the jury would unjustifiably leap to an adverse conclusion on the question of intent based on the previous incidents and threats.
The final matter raised was the Judge's direction to the jury as to whether provocative acts or statements by a person other than the victim could be taken into account. In that respect, trial counsel had referred to Jiang’s uncle having lied to the appellant about whether she was in the takeaway shop when he called. Counsel had also referred to occasions when the appellant was kept waiting by the uncle at the shop when he had come to talk to Jiang. The Judge directed:
... Those matters cannot in law amount to provocation because they would not be acts of Jiang Yang and they were remote in time from the accused killing her.
The Crown accepts that the acts of third parties can, in some limited situations, be relevant to a defence of provocation: R v Paniani [2000] 1 NZLR 234, 243 (CA). That may be so where the acts of the third party are so closely related by time, place, or circumstance as to be effectively the acts of the victim or, alternatively, such that they may be viewed as supporting or continuing the victim’s own acts.
Here, the conduct of the uncle on 14 and 19 March was clearly not sufficiently proximate to the events and could not be associated in any way with Jiang’s own alleged provocative conduct. There was some evidence that her uncle may have kept the appellant waiting for a short time on the day of the killing, but that could not be regarded as conduct associated with Jiang. The Judge was therefore right to conclude that the alleged provocative conduct by the uncle was not relevant in the circumstances.

Result

For the reasons expressed, the appeal is dismissed.

Solicitors:

Crown Solicitor, Auckland

[2001] NZCA 194

5 July 2001