The Queen v Zhou - [2008] NZCA 65

IN THE COURT OF APPEAL OF NEW ZEALAND
CA589/07
[2008] NZCA 65
THE QUEEN
v
HONG ZHOU
Hearing:4 March 2008

Court:Chambers, Gendall and Harrison JJ
Counsel:P L Borich for Appellant

M D Downs for Crown

Judgment:18 March 2008 at 2.30 pm

JUDGMENT OF THE COURT

A        The appeal against conviction is allowed.
B        The conviction is quashed.
C        A verdict of acquittal is entered.
REASONS OF THE COURT
(Given by Gendall J)
[1]       The appellant was convicted in the District Court at Auckland by a jury of failing to comply with the conditions of a restraining order in breach of s 25(1)(b) of the Harassment Act 1997. She was subsequently sentenced to 45 hours’ community work.
[2]       It was alleged that the appellant left offensive material where it would be found by, given to, or brought to the attention of a woman who had, nine months earlier, obtained a restraining order against the appellant by reason of her harassment.
[3]       The appellant advanced a number of grounds of appeal. At the hearing this Court raised some additional concerns it had. In the end, we find it necessary to deal with only two of the points discussed. This is because the Crown conceded the appeal had to be allowed on at least one ground. Further, for reasons we shall give, we are satisfied there should not be a new trial. This obviates the need to discuss other points which were raised. Were we ordering a new trial, we would have to have dealt with the other matters raised, as their resolution might have been germane to any new trial.
Background facts
[4]       The essential facts fall within a narrow compass. During 2004 the appellant became involved professionally and had a casual intimate relationship with a man we shall call John. The complainant later became John’s personal assistant. She too entered into an intimate relationship with him.
[5]       From January 2005, the complainant began receiving, on a frequency of at least every second day, harassing communications from the appellant. They were in the form of emails, letters, personal visits and phone calls of a distressing and intimidatory nature. As a result, the complainant obtained a restraining order against the appellant. About three months later the appellant breached the order by entering the office of the complainant and John and placing a picture of herself (the appellant) on a desk in front of the couple. She was charged with breaching the protection order and pleaded guilty to that offence.
[6]       The present charge arose when the appellant caused to be delivered, through the agency of a colleague, Puti Watene, an envelope to John’s business address. The envelope was addressed to John and marked “Private and Confidential”. Notwithstanding that, the complainant opened it. She read the letter inside. She found parts of it, which referred to her, very distressing. She complained to the Police who brought the charge in question.
Propensity evidence
[7]       One of the grounds of appeal was that the trial Judge…

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.

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Details

Case: [2008] NZCA 65
Decision Date: 18 March 2008

CaseChat Overview and Summary

In this case, the appellant, Hong Zhou, was convicted in the District Court at Auckland for breaching a restraining order under the Harassment Act 1997. The conviction related to the appellant allegedly leaving offensive material where it would be found by, given to, or brought to the attention of a woman who had previously obtained a restraining order against her. The appellant appealed the conviction, and the appeal was heard by the Court of Appeal of New Zealand. The Crown conceded that the appeal must be allowed on at least one ground, and the court found it necessary to discuss only two of the points raised during the hearing.

The primary legal issues before the Court of Appeal were whether the trial judge had adequately directed the jury on the use of propensity evidence and whether a new trial should be ordered. The Court of Appeal found that even if the propensity evidence was rightly admitted, the trial judge's direction to the jury on how the evidence could be used was inadequate. The Court also concluded that there should not be a retrial, as the Crown's case was bound to fail based on the evidence presented. The only evidence on the topic suggested that the appellant intended only John to read the envelope and not the complainant. Additionally, the unopened envelope could not be regarded as "offensive material," and there was no evidence to support the inference that the complainant would open the envelope and read its contents.

The Court of Appeal allowed the appeal against conviction, quashed the conviction, and entered a verdict of acquittal. The Court found that the Crown could not have succeeded on the issues in question had the jury been properly directed, and therefore, no order was made for a retrial.

Orders