| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA559/2018 [2019] NZCA 356 |
| BETWEEN | WEN XU |
| AND | THE QUEEN |
| Hearing: | 26 June 2019 |
Court: | Wild, Thomas and Muir JJ |
Counsel: | A G Speed for Appellant |
Judgment: | 7 August 2019 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Muir J)
Wen Xu appeals her conviction on four charges of dishonestly and without claim of right using a document,[1] and two charges of obtaining by deception.[2] The charges related to what is frequently described as benefit fraud and were heard by a jury presided over by Judge Jelas. The Crown’s case was that Ms Xu had failed to disclose that she was, at relevant times, in a relationship in the nature of marriage.
[1]Crimes Act 1961, s 228(1)(b) (maximum penalty seven years’ imprisonment).
[2]Sections 240–241 (maximum penalty seven years’ imprisonment).
Ms Xu also faced two additional charges on which she was acquitted. Both related to the period between her first meeting with the Ministry of Social Development — Work and Income (Work and Income) on 25 November 2013 and the birth of her first child on 18 July 2014. The six charges for which she was convicted all related to events after that date.
Her appeal is based on alleged trial counsel error and on alleged error in the Judge’s summing-up.
Counsel error is said to comprise:
(a)the failure to call relevant evidence from the appellant’s friends Jun Yan and Haibo Jiang;
(b)the failure to obtain a copy of the police record of Mr Di Xia;[3]
(c)the failure to challenge the admissibility of various Crown documents;
(d)the failure to seek admission as evidence of an audio recording of Ms Xu’s interview by the Ministry of Social Development investigator Mr Greentree; and
(e)the failure to prepare adequately.
[3]The person with whom the Crown alleged she was in a relationship in the nature of marriage.
In respect of the Judge’s directions, Ms Xu submitted there was no adequate direction on inferences and that a lies direction was appropriate under s 124(3) of the Evidence Act 2006.
Although Ms Xu also filed an appeal against her sentence (eight months’ home detention and six months’ post-detention conditions), this was abandoned on the grounds that it has now substantially been served.
Background
For the two-year period 18 July 2014 to 27 July 2016, the appellant represented herself both orally and in writing to Work and Income as a single woman who was not living in a relationship in the nature of marriage. As a result, she was paid $47,922.31 in benefits.
The Crown case was that throughout this period she was in a de facto relationship with Mr Xia who was also the father of her two children.[4] It relied on multiple threads of circumstantial evidence, including:
[4]A second child was born on 2 February 2016.
(a)documents signed by the appellant, which…
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- AGLC
- Xu v The Queen [2019] NZCA 356
- Case
- [2019] NZCA 356
- Decision Date
CaseChat Overview and Summary
The Court of Appeal found that trial counsel had not been inadequately prepared and that the appellant had not suffered any prejudice from counsel’s failure to call certain witnesses or seek admission of the audio recording. It also found that the trial judge’s summing up did not result in a miscarriage of justice. Accordingly, the appeal against conviction was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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