The Queen v Xie - [2007] NZCA 571

IN THE COURT OF APPEAL OF NEW ZEALAND
CA192/07
[2007] NZCA 571
THE QUEEN
v
JIANG ZHONG XIE
Hearing:5 December 2007

Court:William Young P, Glazebrook and Chambers JJ
Counsel:A J Trenwith for Appellant

S B Edwards for Crown

Judgment:13 December 2007 at 2 pm

JUDGMENT OF THE COURT

AThe Crown’s application to call further evidence on the appeal is granted. At the hearing of the appeal, the parties may call evidence on facts in dispute.
BRule 12B of the Court of Appeal (Criminal) Rules 2001 will apply, with time limits to be calculated as if the date of this judgment were the date of filing the notice of appeal.

REASONS OF THE COURT

(Given by Chambers J)

A sentencing goes awry
[1]       Jiang Xie pleaded guilty to 20 charges of importing psuedoephedrine, one charge of possession of psuedoephedrine for supply, and one charge of failing to answer District Court bail.
[2]       He came up for sentence on 24 April this year. Prior to sentencing, the Crown had filed, in accordance with normal practice, the agreed statement of facts and written submissions on sentence. Those submissions contained the statement that Mr Xie was “not thought to be the mastermind” of the importation.
[3]       After these submissions had been filed, Nicholas Williams was assigned by the Crown to appear at the sentencing. He had not prepared the Crown’s written submissions. He telephoned one of the police officers in charge of the case, Detective Sergeant Mark Osbourne, to check some details. Detective Sergeant Osbourne took the opportunity to explain it was not the police’s view that Mr Xie was “not thought to be the mastermind”. On the contrary, he told Mr Williams that, “as far as the police were concerned, [Mr Xie] was the mastermind behind the importations into New Zealand”.
[4]       On the day of the sentencing, Mr Williams discussed this change in Crown position with defence counsel, Kirsten Giles. Ms Giles had become involved in the case only the previous day. Ms Giles did not demur from the Crown’s change of position.
[5]       The sentencing then proceeded. The sentencing judge, Asher J, asked defence counsel whether it was accepted Mr Xie was a mastermind and received confirmation that it was.
[6]       It now turns out Ms Giles had no authority to make that concession. Mr Xie does not accept he was the mastermind. He has appealed against the sentence Asher J imposed. Ms Edwards, for the Crown on this appeal, accepts the sentencing went awry in that Ms Giles’s concession was made without authority. She also properly accepts that some of the blame for the sentencing having gone awry falls on the Crown: the defence should have been told earlier that the Crown sought to amend its stance as to Mr Xie’s role in the offending.
[7]       Ms Edwards accepts that Mr Xie should not be held to the concession he made. Ms Edwards submits we should, as part of the appeal hearing, conduct a disputed facts hearing in terms of…

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 The Queen v Xie

Details

AGLC: The Queen v Xie [2007] NZCA 571
Case: [2007] NZCA 571
Decision Date: 13 December 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant Jiang Zhong Xie appealed against the sentence imposed by Asher J, which was based on a concession by defence counsel that Xie was the mastermind behind the importations into New Zealand. The Crown had filed the agreed statement of facts and written submissions on sentence, which stated that Xie was "not thought to be the mastermind." However, at the sentencing hearing, the Crown changed its position, and the defence counsel conceded that Xie was the mastermind without proper authority. Xie now appeals against the sentence on the ground that the concession was made without his authority. The Crown accepts that the sentencing went awry, and the appeal should proceed with a disputed facts hearing to determine Xie's role in the offending.
The court was required to decide two issues. The first issue was whether the present panel had jurisdiction to deal with the Crown's application to call further evidence and conduct a disputed facts hearing. The second issue was whether the present panel should conduct a disputed facts hearing. The court held that any properly constituted panel could hear and determine the Crown's application, and the interests of justice required the court to conduct a disputed facts hearing. The court rejected the reasons advanced by the appellant's counsel against this course, including the primary blame for the error that has arisen, the appellant's lack of right of appeal against any factual decision, and the significant delay in the hearing of this appeal.
The court granted the Crown's application to call further evidence on the appeal and ordered that the hearing of the appeal will start afresh. Both sides will need to file affidavits relevant to the facts in dispute, and Rule 12B of the Court of Appeal (Criminal) Rules 2001 will apply. The time limits included in that rule should be calculated in this case as if the date of this judgment were the date of filing the notice of appeal. The appeal was adjourned, unheard and part-heard, and the substantive appeal will be brought on for hearing again as quickly as possible.

Orders