Wu v R

[2011] NZCA 358

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA638/2010 [2011] NZCA 358

BETWEEN  DI WU Appellant

ANDTHE QUEEN Respondent

Hearing:         21 July 2011

Court:            Stevens, Potter and Ronald Young JJ

Counsel:         R M Mansfield and E R Harrison for Appellant

D G Johnstone for Respondent

Judgment:      2 August 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1]      The appellant, Mr Di Wu was found guilty following trial by jury in the High Court at Auckland on two charges of conspiring with Wei Zhong (“Mr Wei”) to supply the Class A controlled drug, methamphetamine and one charge of supplying methamphetamine.   The period covered by the charges was 31 October 2006 to

10 November   2006.      Mr Wei   pleaded   guilty   to   charges   of   possession   of

methamphetamine for supply in early 2009.

DI WU V R COA CA638/2010 [2 August 2011]

[2]      The appellant was sentenced by the trial Judge, Courtney J, on 12 August

2010  to  twelve  and  a  half  years’  imprisonment  with  a  minimum  period  of

imprisonment of six years three months.

[3]      He now appeals both his conviction and sentence.

Grounds of appeal

[4]      The conviction appeal is on the grounds that the trial Judge: (a)         wrongly admitted hearsay evidence;

(b)      erred in failing to direct the jury on the use of the hearsay evidence; (c)        erred in failing to give a voice identification warning to the jury.

[5]      The appeal against sentence is on the basis that the sentence was manifestly excessive because no allowance was made from the starting point for the personal circumstances of Mr Wu.

Factual background

[6]     The Crown case was that a man named Xiao Pang was exporting methamphetamine from China into New Zealand.  His primary distributors in New Zealand were Mr Wei and two others, Mr Zhou and Mr Huang.   These men then on-sold the methamphetamine to middlemen, including the appellant and a Mr Li.

[7]      The  police  obtained  warrants  to  intercept  mobile  telephones  which  they believed  belonged  to  two  of  the  three  distributors,  Mr Wei  and  Mr Zhou.    The interceptions took place over October and November 2006.   There were no interception warrants in relation to the appellant’s cellphones.

[8]      On 9 November 2006 police stopped Mr Wei’s vehicle when he was driving

it in Auckland.  Ironically, the vehicle was stolen while police spoke with Mr Wei but

it was subsequently recovered.  The police found two mobile telephones on Mr Wei. These were two of the telephones which had been intercepted by the police under the warrants police had obtained.   In the directories of the telephones were recorded names and numbers which the police alleged related to the appellant.

[9]      On  5  December  2006  police  executed  a  search  warrant  at  Mr Zhou’s apartment.  They seized two mobile telephones from the bedroom of that apartment. In the directory of one of those telephones was recorded a name and number which the police alleged was a reference to the appellant.

[10]     The  prosecution  case  against  the  appellant  rested  almost  exclusively  on evidence  of  intercepted  communications  between  the  four  mobile  telephones  of Mr Wei and Mr Zhou with another person or persons whom the Crown alleged was the appellant and on the evidence of the names and numbers in the directories of three of those phones which the Crown alleged referred to the appellant.  The central issue at trial was the attribution or identity of the person or persons with whom Mr Wei and Mr Zhou were communicating on their mobile telephones.

[11]     In order to prove one of the third parties with whom Mr Zhou and Mr Wei were communicating was the appellant, the Crown sought to adduce the following evidence (“the hearsay evidence”):

(a)       From the directory of one of Mr Wei’s mobile telephones seized by

police    from    Mr Wei:     “Wu”     recorded    against     the    number

021 024 23221 (referred to for convenience as “3221”).

(b)From the directory of Mr Wei’s second mobile telephone: “Wudi” recorded   against   the   number   021 212 1031   (referred   to   for convenience as “1031”).

(c)      From the directory of one mobile telephone belonging to Mr Zhou seized  by  police:  “King  of  Cat”  recorded  against  the  number

021 023 1031.

[12]     The  Crown  did  not  give  a  hearsay  notice.  The  admissibility  of  the information  in  the  directories  of  the  three  relevant  telephones  of  Mr Wei  and Mr Zhou, upon which the Crown wished to rely, was the subject of a ruling by Courtney J during the trial.  The Judge ruled admissible the directory entries in issue (“the ruling”).1  We shall return to that ruling shortly.

[13]     To  prove  that  Mr Wu  was  on  all  relevant  occasions  the  user  of  three cellphones   with   the   numbers   ending   in   1031,   3321   and   also   the   number

021 023 24771 (referred to for convenience as “4771”), the Crown relied on the

following sequence of events:

(a)      On 14 November 2006 a caller using cellphone 4771 called Mr Zhou and  introduced  himself  as  “Di  Wu”  (cellphone  4771  had  not previously featured in the call data obtained by police pursuant to the interception warrants.  It started to feature after the arrest of Mr Wei on 9 November 2006).

(b)On 27  November 2006  a  caller  from  cellphone 4771  arranged  to obtain  methamphetamine  from  Mr Zhou’s  residence  at  Scene  3 apartments.

(c)      The caller who arrived in the lobby of Scene 3 apartments at a time which coincided with the caller’s indicated intentions and movements, was captured on CCTV.  That person was Mr Wu (thus confirming his identity as the user of cellphone 4771 and the receiver of methamphetamine from Mr Zhou that evening).

(d)The cellphone used by Mr Zhou for the above calls was found in his bedroom on 5 December 2006.  Its directory contained a listing for the user of cellphone 1031 as “King of Cat”.

(e)      This listing indicated an apparent degree of familiarity between the user of cellphone 1031 and Mr Zhou.  This was confirmed by its use

1      R v Wu CRI-2006-19-018458 HC Auckland, 17 June 2010.

prior to Mr Wei’s arrest on 9 November 2006 to contact Mr Zhou and advise him of the likely availability of a significant quantity of methamphetamine.

(f)      Also on 9 November 2006 cellphone 3221 had been used during the afternoon and evening to arrange the delivery by Mr Wei of a half kilogram of methamphetamine.  That methamphetamine was found in Mr Wei’s car a short time after he was stopped by police and arrested.

(g)During one of the telephone calls on 9 November 2006 the user of cellphone 3221 indicated that he was “in class”.   A woman with a foreign accent was heard speaking in the background during that call.

(h)At the relevant time Mr Wu was marked present as attending a class at Whitireia Community Polytechnic and in particular a course taught by Natasha Thomas-Menezes.

(i)       One  of  the  two  cellphones  seized  from  Mr Wei  on  arrest  on

9 November 2006 had the name “Wu” listed for cellphone 3221.

(j)       The other cellphone taken from Mr Wei on his arrest had the name

“Wudi” listed for cellphone 1031.

(k)A further methamphetamine deal arranged with Mr Wei (the delivery of nine ounces to “Little King” on 8 November 2006) indicated that the user of cellphones 1031 and 3221 was the same person.

(l)The voice attributed to the user of cellphones 1031, 3221 and 4771 was said by the translator/transcriber of the relevant conversations, Cyril Young, a native mandarin speaker and qualified translator, to appear to his ear to be “consistent” throughout the calls he listened to and transcribe.

[14]     The Crown case was that once the identity of the cellphone users, including critically the identity of Mr Wu as the user of cellphones 1031, 3221 and 4771, was

established,  the  content  of  their  calls  together  with  the  seizure  of  about  half  a kilogram of methamphetamine (17 ounces) from Mr Wei’s car on 9 November 2006 provided proof of the charges.

[15]     The essential and indeed sole issue at trial was whether the evidence proved beyond reasonable doubt that Mr Wu was the user of cellphones 1031, 3221 and

4771.  The Crown’s case was circumstantial.  It relied on the sequence of events and circumstances  set  out  above.2     Two  (and  arguably  three)  of  the  items  of circumstantial  evidence  were  hearsay  statements,  that  is,  statements  made  by  a person other than a witness and offered to prove the truth of their contents.3   These are the items referred to at (d), (i) and (j) above.4

Courtney J’s ruling

[16]     Having ruled admissible the evidence of the entries in the contact lists or directories in the cellphones of Mr Zhou and Mr Wei found by police, Courtney J gave her reasons in the ruling.

[17]     The Judge summarised the competing positions of the parties.  The Crown contended that the statements were acts undertaken in furtherance of a joint criminal enterprise and admissible pursuant to the co-conspirator’s rule.   Mr Mansfield, for the appellant, argued there was insufficient evidence to support admissibility under the co-conspirator’s rule and that the information was hearsay and inadmissible.

Legal principles

[18]     The Judge referred to the exception preserved by s 12A of the Evidence Act

2006 to the rule against hearsay evidence, namely that the acts or statements of a co- conspirator in furtherance of the joint enterprise are admissible against the accused.

2 At [13].

3      Evidence Act, s 2006, s 4.

4 At [13]. Mr Johnstone submitted that the listing in Mr Zhou’s cellphone which attributed “King of Cat” to cellphone 1031 was not a hearsay statement because the Crown was not seeking to prove the truth of its contents, namely that the user of cellphone 1031 was “King of Cat”. The relevance of the evidence was that Mr Zhou had sufficient familiarity with the user of cellphone

1031 to list the number in his directory.  However, as all three listings were treated as hearsay statements in the High Court ruling we shall treat them likewise.

She noted that the basis for the co-conspirator’s rule is that statements made by one member of a joint criminal enterprise in furtherance of a common criminal purpose are attributable to all members on the basis that there is implied authority in each to speak on behalf of the others.5

[19]     The Judge referred to the three threshold issues for admissibility of acts or statements by an alleged co-conspirator identified by this Court in R v Messenger:6

(a)      That there was a conspiracy or joint enterprise of the type alleged;

(b)      That the accused was a member of that conspiracy or joint enterprise;

and

(c)       That the statements were made and/or the acts done in furtherance of the conspiracy or joint enterprise.

[20]     The Judge referred to the standard of proof required to meet the threshold as identified in Messenger:7

In terms of the matters set out at [11](a) and (b), it is sufficient for the Crown to show that there was reasonable evidence that there was a conspiracy or joint enterprise and that it involved the accused.   The phrase “reasonable evidence” connotes evidence which of itself would not sustain a verdict of guilt but which is of such a nature that the Judge considers it safe to admit the evidence of a co-conspirator.  See R v Buckton [1985] 2 NZLR 257 at

258 per Cooke J and at 263 per Somers J (CA), as approved by the Supreme court in Qiu at [28].

[21]     The Judge then turned to consider whether in terms of the standard of proof identified in Messenger, there was reasonable evidence that Mr Wu was party to a joint criminal enterprise, there being no real issue over the existence of a joint criminal  enterprise  as  alleged  by the  Crown  involving Mr Wei  and  Mr Zhou  to supply drugs.  This fact was accepted by Mr Mansfield in the High Court and on this

appeal.

5      Qiu Jiang v R [2007] NZSC 51, [2008] 1 NZLR 1 at [24], citing R v Humphries [1982] 1 NZLR

353 at 356 (CA) and Tripodi v R (1961) 104 CLR 1 at 7.

6      R v Messenger [2008] NZCA 13 at [11].

7 At [12].

[22]     The Judge identified the issue as being whether the Crown could point to reasonable evidence that Mr Wu was a member of the joint criminal enterprise.  She said the Crown sought to show that in each of the recorded telephone calls in which either  Mr Wei  or  Mr Zhou  was  a  party,  Mr Wu  was  the  other  speaker,  and accordingly to attribute to Mr Wu the three cellphone numbers: 1031, 3221 and

4771.   She noted that the Crown relied on the coincidences in references in conversations between these phones and Mr Wei and Mr Zhou’s phones, with known facts about Mr Wu.

User of numbers 1031 and 3221

[23]     The Judge referred to the submission of Mr Johnstone for the Crown that the numbers 1031 and 3221 were both used by the same person and that person was Mr Wu.  The 1031 number was used in calls from 1-9 November 2006 inclusive, but on 8 November 2006 a call was made to Mr Wei’s phone from 3221 which the Crown said was clearly a continuation of a call made shortly beforehand from 1031

and another call made shortly afterwards also from 1031.8    The Judge then related

the relevant content of the telephone calls on 8 November 2006 at 16:17, 16:36 and

18:40 and noted the Crown’s submission that the conversations all concerned a supply to “Little King” in terms that strongly suggested that 1031 and 3221 were being used by the same person.

[24]     She referred to the evidence of the professional translator Mr Young who translated all but one of the intercepted calls and gave evidence that the voice of the unknown speaker in each of the calls was consistent throughout.

[25]     The Judge also referred  to the coincidence of references in some of the conversations to the speaker being “at school” and unchallenged information about Mr Wu’s enrolment in Whitireia Community Polytechnic.  She referred to evidence of  student  records  from  the  Polytechnic  (not  disputed  by  the  defence),  that

established through a student ID photograph and other records that Mr Wu was

8      In the ruling the digits in the various phone numbers referred to are sometimes out of order.  For example 1031 is referred to as 1301.  We have referred to the correct numbers in summarising the Judge’s ruling.

enrolled at the Polytechnic in 2006 for two papers with courses on specified days and specified times which had relevance in supporting the Crown’s contention that the  caller  on  1301  and  3221  was  Mr Wu.    For  example,  a  call  at  13:59  on

9 November 2006 from 3221 to Mr Wei’s phone referred to the speaker being “In class  ...”.    That  call  coincided  with  Mr Wu’s  scheduled  Thursday  tutorial  on
9 November  2006  which  the  Polytechnic’s  attendance  records  showed  Mr Wu attended, although his attendance was generally very poor and records showed that he did not attend any lectures or tutorials at all for that paper in September or October.

[26]     A further item of evidence relied on by the Crown was that a voice could be heard in the background of that intercepted phone call which the Crown said was the voice  of  the  class  teacher  Ms  Thomas-Menezes.    Ms  Thomas-Menezes  gave evidence that she thought it was her voice in the background.  But the Judge set that evidence to one side because she did not hear evidence to clarify whether the police had told Ms Thomas-Menezes they thought it was her voice, before or after she identified the voice as probably hers.

[27]     The Judge referred to another call later that same day, 9 November 2006, from  3221  to  Mr Wei’s  phone  in  which  the  unknown  caller  confirms  he  is  “at school”.  This call at 21:28 occurred at a time when there were no scheduled classes but she noted the Crown’s submission that there was an apparent distinction between being  “in  class”  and  “at  school”  by reference  to  a  previous  call  from  1031  to Mr Wei’s phone in which Mr Wei and the unknown caller make arrangements to meet at “... the place still at the school, just beside ...”.

[28]     A further reference to “school” was made in an earlier call from 1031 to Mr Wei’s phone on 7 November 2006 at 15:06 where the caller says “I have to go to school in a moment.  Is it alright at 5 o’clock?  About 5 o’clock?”  The time of this call coincided with Mr Wu’s scheduled Tuesday lecture in one of his papers and Mr Johnstone pointed out that the call was made 20 minutes before the scheduled lecture.  However, the attendance record showed that Mr Wu did not in fact attend that lecture which the Judge said might be regarded as inconsistent with the claim by the person calling of having to go to school “in a moment”.  She observed, on the

other hand, that the proposed meeting time of about 5 o’clock was before the end of the lecture and that could be viewed as consistent with someone whose attendance was spasmodic.

[29]     The   Judge   acknowledged   Mr Mansfield’s   contention   that   without   the evidence  of  Ms  Thomas–Menezes  it  was  impossible  to  place  Mr Wu  in  that particular class when the call was recorded, particularly given the number of Chinese students in classes in Auckland at any given time.  The Judge, however, considered

that the evidence showed unusual coincidences based on the following:

MrWu was in class at the very time the unknown caller said that he was “in class”.  Significantly that was one of the few times when Mr Wu actually was

attending class that semester.

About 20 minutes before Mr Wu had a scheduled class the unknown caller

told Mr Wei that he, the unknown caller, was at school.

The unknown caller arranged with Mr Wei to meet at a time when Mr Wu’s

scheduled  class  would  still  have  been  underway  but  attendance  records showed that Mr Wu did not in fact attend that day.

[30]     The Judge said that she found these coincidences “striking” notwithstanding the defence contentions about the number of schools in Auckland to which the unknown  caller  might  have  been  referring.     She  added  to  her  consideration Mr Young’s evidence that the voice of the unidentified caller using all three phones was consistent.

User of number 4771

[31]     The Judge then turned to consider evidence in relation to the phone number

4771.   On 14 November 2006 a call was made to Mr Zhou’s phone from 4771 at

19:01.   The caller announced himself as “Di Wu”.   There was a discussion about going to the “main entrance”, about the caller wanting to “get something from you” and the caller having “the paper with me now”.   The Judge viewed that evidence

against evidence of events on 27 November 2006.  On that day there was another call from 4771 to Mr Zhou at 17:43.  The caller did not introduce himself by name. There was a discussion in which Mr Zhou asked “... how much, your side?” to which the caller replied “Three or four”.  Mr Zhou then instructed the caller to wait for his phone call which would be very soon.

[32]     At 18:06 there was a call from 4771 to Mr Zhou’s phone in which Mr Zhou told the caller to “come over”.   About half an hour later, at 18:43, Mr Wu was captured on surveillance video outside the entrance to the Scene 3 apartments. A few minutes later, at 18:45, there was another call from 4771 to Mr Zhou in which the unknown caller said “... didn’t I tell you three?” to which Mr Zhou replied “Don’t have it.  Only had ... Come back”.   The Crown asserted that this conversation was consistent with Mr Wu having gone to Mr Zhou’s apartment and having received drugs but finding on exit that he did not have the amount he expected to receive.

[33]     The Judge noted Mr Mansfield’s submission that there were 164 apartments

in the apartment block with over 200 residents and six entries and exits.

[34]     She concluded, however, that the evidence relating to the use of 4771 was compelling, noting that when the number was first used the caller introduced himself as “Di Wu”.  She said that fact coupled with the extraordinary coincidence of other calls being made from that phone to Mr Zhou at the very time when Mr Wu was captured on surveillance video outside Mr Zhou’s apartment block, could not be ignored.

[35]     The  Judge  concluded  there  was  reasonable  evidence,  not  only  of  the existence of a joint criminal enterprise, but also of Mr Wu’s involvement in it.

Acts or statements in furtherance of joint criminal enterprise

[36]     The Judge then turned to consider whether the entries in the directories were statements or acts by a co-conspirator in furtherance of the joint criminal enterprise (the third limb of the threshold test in Messenger).

[37]     The Judge accepted Mr Johnstone’s submission that the information in the directories was a statement by the user of the phone identifying a particular person with a corresponding cellphone number and that once entered into the phone it was effectively adopted as the phone user’s own statement.  She said the point was that the  user  of  the  phone  chose  to  record  a  particular  name  in  connection  with  a particular phone number, acknowledging that the names recorded were not of course Mr Wu’s correct name.

[38]     She rejected an argument by Mr Mansfield that the statements could not be regarded as done in furtherance of a joint criminal enterprise because it was not known when the entries in Mr Wei’s and Mr Zhou’s directories were made.   She said:9

I do not accept that argument.   The use of a contact list enables ease of communication through “speed dial” functions and the benefits of caller ID, both helpful attributes in an enterprise that will, from time to time, require fast-paced communications and the certainty of knowing who the caller is. Whenever these entries were made I consider that the ongoing use to which they were put was of assistance to the members of the joint enterprise.

[39]     The Judge therefore concluded there was reasonable evidence of the joint enterprise, that Mr Wu was a party to it and that the use of the contact lists to record the names and corresponding cellphone numbers of members of the joint enterprise were acts done in furtherance of the joint enterprise.  Accordingly she found that the hearsay evidence was admissible.

Was the hearsay evidence wrongly admitted?

[40]     There was no real issue over the existence of a joint criminal enterprise.  The issue for Courtney J was whether there was reasonable evidence, independent of and external to the entries in the directories of Mr Wei’s and Mr Zhou’s phones to show that the appellant was a member of the joint criminal enterprise.10   The Judge had to

determine whether there was reasonable evidence11 that Mr Wu was a member of the

9 At [29].

10     R v Messenger [2008] NZCA 13 at [13].

11     R v Messenger at [12] - refer [20] above.

joint  criminal  enterprise  without  taking into  account  the three  items  of hearsay evidence.

[41]     The Judge analysed and relied upon a number items of evidence as set out in the  summary  of  her  ruling  above.    They  included  references  in  conversations between cellphones 1031, 3221 and 4771 and the phones of Mr Wei and Mr Zhou which were found in their possession by police, between 7 November 2006 and

27 November 2006.

[42]     Mr  Mansfield’s  principal  submission  was  that  the  Judge  was  wrong  to consider the intercepted phone conversations as part of the available evidence to determine  whether  Mr Wu  was  a  member  of  the  joint  criminal  enterprise.    He submitted that, until the appellant could be established as a speaker in the relevant intercepted conversations, the content of the conversations remained inadmissible against him.  He submitted that in the absence of evidence that identified the speaker as   Mr Wu,   such   as   expert   evidence   of   voice   identification,   the   telephone conversations were not admissible evidence for determining the admissibility of the hearsay evidence.

[43]     We are unable to accept Mr Mansfield’s submissions.  Ultimately it was for the jury to decide on the basis of all the evidence, circumstantial as it was, whether the voice in the relevant telephone calls was that of Mr Wu.   On this the Judge clearly directed the jury.12

[44]     While this was a matter of fact to be decided by the jury, it was a matter for the Judge at an earlier stage in the trial to determine whether the hearsay evidence was  admissible  in  accordance  with  the  principles  established  by  this  Court  in R v Messenger.   In that context, in deciding whether Mr Wu was a member of the joint  criminal  enterprise  with  Mr Wei  and  Mr Zhou,  it  was  unobjectionable and indeed entirely appropriate that the Judge should take into account the whole pool of relevant evidence including the content of the intercepted telephone conversations,

excepting only the hearsay statements whose admissibility was in issue.

12     The question trail provided to the jury posed as the first question on each count: Has the Crown proved beyond reasonable doubt that the voice attributed to Mr Wu in the call at pages ... of the transcript was, in fact, Mr Wu’s voice?

[45]     Mr  Mansfield  was  also  critical  of  the  evidence  concerning  Mr Wu’s attendance at the school and at lectures and emphasised inconsistencies (which the Judge had identified and acknowledged in her ruling).   Likewise he criticised the “Scene 3” evidence as being too incomplete to be “reasonable”.   The matters he raised were taken into account by the Judge.13   She nevertheless found the evidence

relating to the use of 4771 “compelling”.14  We agree.

[46]     The third threshold requirement in Messenger is that the statements were made and the acts were done in furtherance of the conspiracy or joint enterprise.15

[47]     For the purposes of determining this requirement the hearsay statements are part of the pool of evidence available to the Court.   Mr Mansfield made the same points before us as were considered and rejected by Courtney J.  We agree with her reasons.16

[48]     Further,  as  Mr Johnstone  pointed  out,  the  entries  in  issue  were  in  the directories of Mr Wei’s phones when they were found on his person on arrest on

9 November 2006 when Mr Wei was in the process of delivering to Mr Wu half a kilogram of methamphetamine.  So the directory entries were clearly being used in furtherance of the joint enterprise at that stage.   Nor was there any evidence to suggest that Mr Wu had changed his name in the preceding ten days.

[49]     We therefore agree with the reasoning and conclusion of Courtney J.   The hearsay evidence was properly admitted. This ground of appeal fails.

Directions to the jury

(a)      Hearsay evidence

[50]     Mr Mansfield submitted that if, contrary to his arguments, the three entries in the directories of the phones of Mr Wei and Mr Zhou were admissible, a caution was

13 Ruling at [25].

14 At [26].

15     At [11](c).

16 Ruling at [27], [28] and [29]. See [36]–[39] above.

required by ss 122 and 123 of the Evidence Act to be given to the jury which the trial

Judge did not give in her summing up.17

[51]     Section 122(1) provides that, if the Judge is of the opinion that any evidence given in the proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to the evidence.

[52]     Section 122(2) provides that a Judge must consider whether to give such a warning when hearsay evidence is given.

[53]     Both parties referred to R v Qiu18 where the Supreme Court said:19

But even when such evidence is properly let in, it has the potential for unfairness to an accused unless accompanied by cautionary directions to the jury. The nature of appropriate directions is indicated in Ahern20

It will be proper for [the Judge] to tell the jury of any shortcomings in the evidence of the acts and declarations of the others including, if it is the fact, the absence of any opportunity to cross-examine the actor or maker of the statement in question and the absence of corroborative  evidence.    Where  it  is  appropriate,  it  will  not  be difficult to instruct a jury that they should not conclude that an accused is guilty merely upon the say so of another nor will that be an instruction which it is difficult to follow.

[54]     Whether to caution the jury in relation to any particular item of hearsay evidence is a matter for discretion. This Court said in R v Taylor:21

Section 122(1) creates the threshold.  The Judge must decide whether, in his or her opinion, any admissible evidence given in the proceeding may, nevertheless, be unreliable.  If the Judge were to answer that question in the affirmative, he or she has a discretion to warn the jury of the need for caution in deciding whether to accept the evidence or the weight to be given to it.

17     We can see no basis for Mr Mansfield's argument that there ought to have been a direction pursuant to s 123 of the Evidence Act.   That section is concerned with alternative modes of evidence.  The evidence was not given via an alternative mode.  The only relevant section was s 122.

18     Qiu Chiang v R [2007] NZSC 51.

19 At [16].

20     Ahern v R (1988) 165 CLR 87 at 104.

21     R v Taylor [2010] NZCA 69 at [61].

[55]     The Court referred to the positive obligation on a Judge to consider whether to give a warning if the evidence falls within one of the five categories in s 122(2), of which hearsay is one, and continued:22

It follows that the Judge’s task is to isolate potentially unreliable evidence and to direct the jury on it, if the Judge considers it was possible that the jury might give it too much weight without a direction.

[56]     The Court also referred to the useful reminder of first principles relevant to reliability  warnings  in  the  judgment  of  Richardson  J  in  R  v  Harawira  when, delivering the judgment of the Court, he said: 23

... In the end the fundamental question must be whether the summing up met the justice of the particular case. ...

[57]     In this case there was no question that the entries recorded in the phone directories were accurately reproduced in evidence.  They were the subject of exact forensic reproduction.  The entries in the directories were an item of circumstantial evidence which the jury had to consider and weigh in determining whether the cellphone user in each of the intercepted conversations was Mr Wu. As noted earlier his identity was the critical issue in the trial.  So the requirement for the jury to reach a decision as to the accuracy of the name attributed by Mr Wei to the user of cellphones 1031 and 3221 was the central, and essentially sole, issue in the case.  On this the Judge gave extensive and careful directions to the jury.   For example she said:

... I need to talk to you about the most important issue in this case, which is whether the voice on the tapes that the Crown alleges belong to Mr Wu was, in fact, Mr Wu’s voice.   The Crown case depends on proving that it was Mr Wu’s voice.  The defence case is that it was not his voice.  This is the single most important thing you have to decide in this trial.

...   It [the Crown] still has to prove that the speaker it says Mr Wu was Mr Wu.  If it can’t do that, it can’t prove the charges.  And because this is such an important issue to both the Crown and the defence, each of the questions on the question sheets begins with this issue, so in relation to each of the questions or each of the charges, rather, I’ve started by asking you this question.   The Crown relies on circumstantial evidence to prove that the voice was Mr Wu’s.

22 At [63].

23     R v Harawira [1989] 2 NZLR 714 (CA) at 726.

[58]     The Judge then gave the jury a fairly standard direction about circumstantial evidence and how the jury should approach the use of such evidence.

[59]   Given the reliable nature of the entries themselves, the existence of corroborative evidence in the separate pieces of circumstantial evidence (if accepted by the jury), and given that Mr Wei and also Mr Zhou, who are convicted prisoners could have been called to give evidence about the entries in the respective telephone directories, we are satisfied that no further judicial direction or caution about the hearsay evidence was necessary.  Mr Mansfield has not demonstrated before us that the  Judge’s  discretion  under  s  122  of  the  Evidence  Act  was  exercised  on  an erroneous basis.

(b)      Voice identification – Natasha Thomas-Menezes and Cyril Young

[60]     The evidence of Ms Thomas-Menezes related to a call from Mr Wei to 3221 at 1:59 p.m. on 6 November 2006 when the recipient of the call said he was “in class”. Another voice can be heard in the background of the intercepted conversation which was of approximately thirty seconds duration.

[61]     In giving evidence in chief Ms Thomas-Menezes said that it appeared to be her voice teaching a class but she agreed in cross-examination that without being directed to the circumstances in which the call was recorded, she could probably not have identified her voice.

[62]     Mr Mansfield submitted that the evidence of Ms Thomas-Menezes proved nothing, was unreliable and should have been excluded from evidence.  At the very least  a  mistaken  identity  warning  should  have  been  given  under  s  126  of  the Evidence Act.

[63]     Section 126 provides that when a case against the defendant depends wholly or substantially on the correctness of one or more visual or voice identifications of the defendant or any other person, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.

[64]     This case turned on the identification of the voice of Mr Wu as the jury was clearly and abundantly directed.   The evidence of Ms Thomas-Menezes about recognising her voice in the background of the particular conversation was, if accepted by the jury, simply a small piece of circumstantial evidence.  Her evidence was equivocal.

[65]     The Judge directed the jury about this evidence as follows:

Mr Johnstone invites you to conclude that the person talking in the background was a woman with an unidentified accent.  The teacher of that course was a woman who spoke with an accent, Ms Thomas-Menezes, who you heard from.   It’s for you to decide whether you agree that the person talking in the background was a woman speaking with an accent.   Now, Mr Johnstone is not suggesting that you should or indeed could actually find that the speaker in the background was Ms Thomas-Menezes.   On the evidence that would not be possible and Mr Mansfield rightly cautioned you to  bear  in  mind  Dr  Guillemin’s  evidence  about  the  difficulties  and  the dangers of attempting to identify voices without adequate voice samples, experience and qualifications.  What Mr Johnstone was saying was only that if you can conclude that the background speaker was a woman with an accent, that would be a piece, albeit a small piece, of circumstantial evidence that you would put into the mix in deciding whether it was Mr Wu who was in the class at the time that call was intercepted.  And it, to be looked at together with Mr Wu’s attendance records.

Mr Mansfield said in response that even if you did agree that the background speaker was a woman with an accent, that would be insignificant, given the many, many Chinese students with accents.  So it’s for you to think about all of those things, and decide what weight you put on any of the evidence you accept.

[66]     The evidence of Ms Thomas-Menezes did not require a direction under s 126. The direction given by the Judge was tailored to the evidence and the circumstances of the case. We consider the direction was appropriate and adequate.

[67]     Mr Cyril Young was the translator of all the intercepted conversations except one.    His  evidence was  to  the effect  that  the  voice attributed  by police in  the transcripts of the intercepted conversations as the voice of Mr Wu, was to his ear “consistent” when he listened through the transcripts.

[68]     Mr Young claimed no qualifications or experience in voice identification.  He did  not  purport  to  identify the  voice  of  any of  the  speakers  in  the  intercepted telephone conversations he translated.   His evidence was simply that because he

listened to the tapes of the conversations at great length, he was able to express the view that the voice attributed to Mr Wu was consistent throughout the conversations.

[69]     The Judge directed the jury as follows:

Mr Johnstone also points to the evidence of Mr Young, who translated the conversations, that the voice that the Crown says was Mr Wu’s was, in his opinion, consistent throughout all of the calls.  Now, Mr Young was not, of course, offered as an expert in voice recognition, but Mr Johnstone says that you can give weight to his opinion, given the length of time that it would necessarily   have   taken  him  to   translate   all   of   those   calls,   and   so Mr Johnstone said you can see, obviously, that he must have been listening to the calls for quite a time.  It’s for you to decide what weight you put on Mr Young’s opinion.

[70]     In his closing address Mr Mansfield extensively warned the jury about the dangers of speculating or making assumptions as to the identity of voices, referring to the evidence of the expert called by the defence, Dr Bernard Guillemin, as to the difficulties in this area, and advising the jury they should “... not try to become voice identifiers yourself”.  Counsel said to the jury:

What I’m trying to do is just say none of us, without qualifications and/or experience can safely identify a voice and please be very cautious about that because in reality the evidence is such that there is no identification.

[71]     Mr Johnstone referred to the evidence of Dr Bernard Guillemin “obviously an expert in the area of forensic voice or speaker identification”.  Counsel reminded the jury that speaker identification is a process that can be undertaken when you have got a sample of the voice and are able to compare it to a confirmed original sample. He said the problem was that there was no confirmed original sample here.  He told the jury that was why they needed to turn back and consider all the other evidence in the case and determine whether they were enough for the jury to be sure.

[72]     We consider that the nature of the evidence given by Mr Young was not strictly speaking voice identification evidence requiring a direction under s 126.  But given the critical  importance of the jury being  satisfied  that  the speaker in  the intercepted conversations was Mr Wu, it would have been preferable for the Judge to warn the jury of the special need for caution before finding the appellant guilty in reliance on the correctness of his identification in the intercepted conversations, and

to warn the jury that a mistaken identification can result in a serious miscarriage of justice.

[73]     However, in the overall context of the case and the clear and appropriate focus given by the Judge and both counsel, to the need for the Crown to prove beyond reasonable doubt that the voice attributed to Mr Wu in the relevant phone calls was in fact Mr Wu’s voice, we do not consider that the lack of a more specific warning in relation to the evidence of Mr Young gives rise to a miscarriage of justice.

[74]     We note that experienced counsel did not raise with the Judge at trial that any of these directions should be given. These grounds of appeal also fail.

Appeal against sentence

[75]     The appellant was sentenced by Courtney J on the basis that he had supplied

255 grams of methamphetamine and had conspired to supply a further 900 grams.24

[76]     On the basis that the appellant’s role in the offending was similar to that of Mr Li the Judge adopted a starting point consistent with that adopted for Mr Li of twelve and a half years’ imprisonment.  She declined to reduce the starting point for factors personal to the appellant.   The Judge imposed a minimum period of imprisonment of six years three months.

[77]     The sole ground of appeal is that the sentence is manifestly excessive because the Judge erred in failing to provide any reduction for the appellant’s mitigating circumstances when other accused, in particular Mr Li, had received a reduction. Mr Li’s ultimate sentence was eleven years three months’ imprisonment from the starting point of twelve and a half years’ imprisonment, the sentencing Judge having allowed a credit for good character and remorse.

[78]     In  sentencing  Mr Wu,  the  Judge  said  she  had  considered  his  personal situation.       She   noted   he   had    previous    convictions    for   possession    of

methamphetamine and possession of utensils.  Further he had convictions for driving offences, failing to answer District Court bail and had amassed over $12,000 in fines relating to vehicle related infringements and infringements relating to the licensing and controlling of an animal.  She said that while she did not place weight on those convictions  in  fixing  the  sentence,  Mr Wu  was  not  in  a  position  to  point  to  a blameless past and no reduction was justified.

[79]     In  relation  to  the  age  of  the  appellant,  twenty  three  at  the  time  of  the offending, the Judge said Mr Wu “could hardly be described as a naive youngster”.25

The Judge concluded that the extent of Mr Wu’s involvement and culpability was properly reflected in the starting point and there was nothing exceptional in his family circumstances to justify a decrease.

[80]     Mr Wu was convicted of serious drug offending.  The principal purposes in sentencing are deterrence and denunciation.  There was no guilty plea and nothing to indicate genuine remorse by Mr Wu or insight into his offending.  There was nothing exceptional in Mr Wu’s personal circumstances or his background that justified a reduction in his sentence.

[81]     The sentence appeal is also dismissed.

Result

[82]     The appeal against conviction and sentence is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent