Xu v The Queen - [2019] NZCA 356

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA559/2018
[2019] NZCA 356

BETWEEN	WEN XU Appellant
AND	THE QUEEN Respondent

Hearing:	26 June 2019
Court:	Wild, Thomas and Muir JJ
Counsel:	A G Speed for Appellant E J Hoskin for Respondent
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…

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 Xu v The Queen

Details

AGLC: Xu v The Queen [2019] NZCA 356
Case: [2019] NZCA 356
Decision Date: 7 August 2019 at 3.00 pm

CaseChat Overview and Summary

Wen Xu appeals her conviction on multiple charges of benefit fraud, challenging both the performance of her trial counsel and the trial judge's summing up. Xu argues that her trial counsel failed to adequately prepare, call relevant witnesses, challenge the admissibility of certain Crown documents, and seek admission of an audio recording of an interview she had with a Ministry of Social Development investigator. She also contends that the trial judge did not adequately direct the jury on the drawing of inferences and that a lies direction under the Evidence Act was appropriate. The appeal against her sentence has been abandoned as it has substantially been served.

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