Zeng v Police
[2021] NZHC 1057
•14 May 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-215
[2021] NZHC 1057
BETWEEN QIHUI ZENG
Appellant
AND
NZ POLICE
Respondent
Hearing: 22 February 2021 Appearances:
J M Grainger for the Appellant
B Hamilton and A Tumahai for the Respondent
Transcript provided:
12 April 2021
Judgment:
14 May 2021
JUDGMENT OF POWELL J
This judgment was delivered by me on 14 May 2021 at 12 noon Registrar/Deputy Registrar
Date:
ZENG v NZ POLICE [2021] NZHC 1057 [14 May 2021]
[1] Qihui Zeng has appealed his conviction and sentence, having been found guilty of assault with intent to injure by Judge A C Roberts after a judge-alone trial.1
[2] In a reserved judgment, Judge Roberts rejected the evidence of Mr Zeng and adopted the evidence of the complainant, Mr Zeng’s then partner, that he had cut her on the forearm with a knife.2
[3] Judge Roberts subsequently declined Mr Zeng’s application to be discharged without conviction.3 His Honour found that the accepted consequences of the conviction did not outweigh the gravity of the offence4 and sentenced Mr Zeng to five months’ community detention and 120 hours of community work.
[4]Mr Zeng appeals on three grounds:
(a)Mr Zeng’s choice of a judge-alone trial rather than a jury trial was not properly informed;
(b)Judge Roberts erred in declining to stay the prosecution following significant trial delays combined with the non-disclosure and subsequent loss of a photo of Mr Zeng’s forehead; and
(c)Judge Roberts erred in his assessment of the gravity of Mr Zeng’s offending when determining the discharge without conviction application.
[5] This Court must determine whether either of the first two issues has given rise to a miscarriage of justice.5 A miscarriage of justice means any error, irregularity or occurrence that has created a real risk that the trial outcome was affected or that has resulted in an unfair trial or a trial that was a nullity.6
1 Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
2 New Zealand Police v Zeng [2019] NZDC 26429 at [3] and [22]-[23].
3 New Zealand Police v Zeng [2020] NZDC 4823.
4 At [22].
5 Criminal Procedure Act 2011, s 232(2)(c).
6 Section 232(4).
[6] With regard to the third ground of appeal, an appeal against a discharge without conviction is an appeal against conviction and sentence.7 Accordingly, the appeal stands to be determined pursuant to sub-pt 3 of pt 6 of the Criminal Procedure Act 2011. Section 232(2) of the Act in particular provides that the appeal must be allowed if there has been miscarriage of justice resulting from the refusal to grant a discharge without conviction, or as the Court in Jackson conceptualised it:8
... the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the appellant has pleaded guilty. Alternatively, it can be said that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.
[7] The issue on the final ground of appeal is therefore whether Judge Roberts’s decision declining to grant a discharge without conviction to Mr Zeng amounted to a miscarriage of justice or whether his Honour otherwise erred in applying the principles for discharging an offender without conviction.
First ground of appeal – no informed choice about type of trial
[8] There is no dispute that a failure to advise an accused of their right to elect a jury trial can mean a miscarriage of justice has occurred.9
[9] In this case, Mr Zeng asserts his then counsel, Michael Kan, did not adequately inform him as to what a jury trial was at the time he elected a judge-alone trial. In Mr Grainger’s submission on behalf of Mr Zeng, merely being advised of a right to choose a jury trial was insufficient if Mr Zeng did not understand his rights and could not make an informed choice.10 In Mr Grainger’s submission, credibility was the key issue at trial, and juries are generally better placed to assess this. As a result,
7 Jackson v R [2016] NZCA 627 at [7] – [9].
8 At [12].
9 Abraham v Auckland District Court [2007] NZCA 598; Kumar v Police [2018] NZHC 3202 at [25].
10 See Parker v Police [2012] NZHC 1231 at [17]-[19].
Mr Grainger submitted the identity of the fact-finder in this case may have made a difference to the outcome.11
The evidence
[10] In both his affidavit filed in support of the appeal and in his evidence before me, Mr Zeng acknowledged that he had met with Mr Kan prior to his election and had discussed in Mandarin “what type of trial [he] should have”. In his affidavit Mr Zeng made it clear he could not “fully recall the exact details of this meeting given how long ago it was” and reiterated this position in Court. Mr Zeng nonetheless went on to state in his affidavit:
I expressed my desire to get matters dealt with quickly: because of this Michael recommended that I chose judge alone trial.
I followed his advice, and signed some instructions confirming my not guilty plea and my decision to have a judge alone trial.
He did not explain to me the differences or the pros and cons of each type of trial.
[11]In particular, Mr Zeng asserted:
At the time that I elected judge alone trial I did not know what a jury trial was.
I did not know that it involves 12 ordinary people hearing the evidence and deciding after they have heard the evidence if I am guilty.
I am from China, and in China we do not have jury trials.
I have also never been in trouble with the police before, either in China or New Zealand.
[12] Like Mr Zeng Mr Kan had no recall of the specifics of his meeting with Mr Zeng, and although acknowledging he had made no file note as to the meeting confirmed it was his normal practice to advise his clients of the differences between jury trial and judge-alone trial. He rejected any suggestion that that practice had not been followed in this case.
11 Contrast Holley v Police, where no miscarriage of justice occurred because the nature of the defence was not one in which the identity of the fact-finder would have made a difference in determining guilt: Holley v Police [2012] NZHC 3431 at [6].
Discussion – informed choice
[13] Having heard from both Mr Zeng and Mr Kan and having had the opportunity to review the transcripts carefully, I am not satisfied that there has been a miscarriage of justice in respect of the first ground of appeal.
[14] First, the above summary shows that Mr Zeng was clearly aware that he had a choice between the two systems of trial and his choice was acknowledged in writing. In circumstances where Mr Zeng clearly did not have a clear recollection of the discussion with Mr Kan, and Mr Kan confirmed that it was his normal practice to advise of both trial options, there is simply no basis to conclude that Mr Zeng was not told of the difference between the two types of trial and made his choice accordingly.
[15] Even if there was some basis for concluding Mr Kan had not fully informed Mr Zeng about the nature of a jury trial it is difficult to see that a miscarriage of justice has occurred in this case. Instead, there appears no doubt that Mr Zeng based his decision on the perceived speed advantage in respect of the judge-alone trial, albeit in this case considerable delays did occur as detailed in the next section. Such an approach was rational and I reject Mr Grainger’s submission that there is any inherent advantage in a jury trial as compared to a judge-alone trial when credibility issues are at stake. Moreover, in this case any fact-finder whether judge or jury, would have found Mr Zeng’s explanations, as recorded by Judge Roberts in his judgment and characterised as “nonsensical”,12 difficult to accept.
Second ground of appeal – should the prosecution have been stayed?
[16] A court can grant a stay for delay if it finds the delay is undue.13 The Court of Appeal has also confirmed the power to grant a stay for non-disclosure of relevant material.14
[17] Mr Grainger submitted that stay should have been granted due to the combined impact of the amount of time it took to bring the matter to trial and Police non-
12 New Zealand Police v Zeng [2019] NZDC 26429 at [17]-[22]
13 Williams v R [2009] NZSC 41 at [130]-[131]; CT v R [2014] NZSC 155 at [32].
14 F v District Court at Hamilton [2015] NZCA 600 at [41]; Attorney-General v District Court at Hamilton [2003] 3 NZLR 777 (HC) at [57].
disclosure of particular evidence that was subsequently lost.15 Mr Grainger noted that Mr Zeng’s case took nearly two years to bring to trial due to no fault of his own. He argued that the delay caused him prejudice because it led to the loss of potentially exculpatory evidence.
[18] The evidence which went missing was a photograph taken by Constable James Payne at the time Mr Zeng was arrested showing Mr Zeng’s forehead with his fringe lifted up. It was submitted this was significant because if Mr Zeng had head- butted the complainant as she asserted some mark would have been left on Mr Zeng’s forehead. There is not dispute that this photograph was not disclosed in breach of the Criminal Disclosure Act 2008. Defence counsel was eventually told that it had been wiped from the Constable’s phone and was lost.
Discussion – should the prosecution have been stayed?
[19] The starting point for the second ground of appeal is, as Mr Grainger responsibly accepted, while the extent of the delays in this case were substantial, they are not sufficient on their own to have warranted a stay.
[20] The chronology prepared on behalf of Mr Zeng in support of the appeal shows that despite a number of administrative adjournments apparently caused by Court error and judicial unavailability, the judge-alone trial was ultimately set down for hearing within 18 months, and the judge-alone trial itself commenced within 22 months, which while unfortunate given it appears the trial was otherwise ready to proceed, is not such as to warrant a stay. As the Supreme Court has stated:16
The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. A stay is not a mandatory, or even a usual remedy. Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a Court to do.
[21] Likewise, the loss of the photo also does not automatically lead to a stay. This Court has held that in deciding whether to grant a stay for non-disclosure of
15 See Criminal Disclosure Act 2008, ss 13(2)(a) and 14(1).
16 Williams v R [2009] NZSC 41 at [18].
information, some of the considerations to be taken into account are the extent to which the failure to disclose will cause prejudice to the accused in the conduct of his or her defence and whether he or she can nevertheless receive a fair trial.17
[22] In this case, the potential significance of the photograph is overstated. Its non- disclosure did not cause prejudice to Mr Zeng in advancing his defence. The charge against Mr Zeng was assault with intent to injure with the primary focus being on whether Mr Zeng had cut the complainant with a knife. In his judgment Judge Roberts set out the components of the charge,18 before noting the nature of the complainant’s injuries being “two obvious cuts to her left forearm”. In Judge Roberts’s view “the issue was who caused those cuts”.19
[23] It was apparent therefore that Judge Roberts’s focus throughout was appropriately upon the cause of the cuts and this he eventually determined by an assessment of the respective credibility of both Mr Zeng and the complainant. In the end, his Honour considered Mr Zeng’s explanations “nonsensical”.20 In considering the complainant’s evidence was to be preferred, Judge Roberts stated:21
I am satisfied now with all before me that the defendant’s recital is an untruthful one. My reasons for so concluding are these:
(a)His claim is unbelievable. If as he says this all occurred because of his unwillingness to leave forthwith to self-harm, to strike herself on the forehead on a cabinet and to cut herself, he is describing what I can only term extreme behaviour.
(b)He strives to provide an answer for every aspect on which he is challenged. For example, the claim first made in evidence-in-chief and not put to the victim that she the victim went outside for a smoke. At this stage of his evidence he was dealing with the fact that she was unable to leave. On the other hand, the victim’s recital has the ring of truth to it. Her recital hangs together. I do not consider that she went out of her way to make things difficult for the defendant. As I have indicated, she could if she was being dishonest have well and truly compromised him.
17 Attorney-General v District Court at Hamilton [2003] 3 NZLR 777 (HC) at [57].
18 New Zealand Police v Zeng [2019] NZDC 26429 at [2].
19 At [3].
20 At [20].
21 At [22].
[24] Whether or not Mr Zeng head-butted the complainant does not enter into the analysis as to whether the charge was proven. Indeed, Judge Roberts made it clear he was not concerned with whether there had in fact been a head butt or other type of blow given it was not an element of the offence charged.22 Nor was there any evidence before the Court that a person inflicting a head butt would necessarily suffer injuries to a forehead, particularly when otherwise covered by a fringe.
[25] Overall, I am not satisfied that the breach of disclosure obligations by the Police warranted a stay or any other form of redress, whether alone or when combined with the delays in bringing the charges to trial. As a result, the second ground of appeal must fail.
Third ground of appeal – should Mr Zeng have been granted a discharge without conviction?
[26] Having been found guilty, Mr Zeng applied to be discharged without conviction.23 There is no dispute that a court can discharge an offender without conviction when satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.24 Mr Zeng argued that his culpability was low and a conviction would adversely impact his career and immigration prospects. In particular, it would mean he was unable to complete his study course or find employment, make overseas travel difficult and impair his ability to apply for New Zealand citizenship. To this end Mr Zeng relied upon an affidavit from an immigration lawyer, Simon Laurent, to the effect that a conviction would “almost inevitably result in deportation action of some kind” against Mr Zeng, although whether Mr Zeng would in fact be deported was “finely balanced.”
[27] In declining to discharge Mr Zeng without conviction, Judge Roberts found the offending was moderately serious and fell within band two of the sentencing bands for injuring with intent in Nuku v R (attracting a starting point of up to three years’ imprisonment).25 Aggravating factors were the attack on the head, the use of a knife
22 It is noted that Judge Roberts accepted there may have been issues with language in the reporting of the head butt. See [14]-[15].
23 Sentencing Act 2002, s 106.
24 Sentencing Act 2002, s 107.
25 Nuku v R [2012] NZCA 584 at [38].
and the breach of trust. As a result, Judge Roberts identified a starting point of 10-12 months’ imprisonment. Few mitigating factors were identified and in particular no concession was made for Mr Zeng’s participation in the Man Alive Living Without Violence programme, given he continued to deny responsibility for the offending and also continued to try to tarnish the victim’s name by claiming she had gang connections. There was similarly no discount for Mr Zeng’s volunteer community work prior to sentencing. As a result, while Judge Roberts accepted that a conviction would have clear consequences for Mr Zeng, his Honour concluded those consequences did not outweigh the gravity of the offence.
[28] Mr Grainger took no issue with Judge Roberts’s assessment of the likely consequences of conviction but submitted that his Honour erred in categorising the offence as moderately serious given the delay and the failure of the prosecution to meet disclosure obligations, Mr Zeng’s previous good character, and the voluntary community work he has completed. In Mr Grainger’s submission, the seriousness of the offending was low to moderate. In consequence, the impact a conviction is likely to have on Mr Zeng’s immigration and employment prospects would be out of all proportion to the gravity of his offence.
Discussion – should Mr Zeng have been granted a discharge without conviction?
[29] Section 107 governs the approach courts must take, which includes considering mitigating features of the offending and the offender.26
[30] Having considered the submissions made on behalf of Mr Zeng, I do not consider Judge Roberts made any error, let alone one that by entering a conviction constituted a miscarriage of justice for the purposes of s 232 of the Criminal Procedure Act 2011.
[31] In particular, it is clear that in determining the gravity of the offending, Judge Roberts was aware of all the matters upon which Mr Zeng now relies and Mr Zeng’s
26 Courts must 1) assess the gravity of the offence by identifying the aggravating and mitigating features related to the offending and the offender, 2) identify the direct and indirect consequences of conviction and whether those consequences are out of all proportion to the gravity of the offending, and 3) decide whether to exercise its residual discretion to discharge the offender: Z v R [2012] NZCA 599 at [8].
offending was appropriately categorised as moderately serious. As Mr Hamilton submitted on behalf of the Police, the assault took place within an intimate relationship and involved a knife as well as an attack to the head. The issues of delay and non- disclosure, while clearly present, were not for the reasons set out above sufficiently serious to fall into the category of mitigating factors reducing the gravity of the offending. The other potential mitigating factors likewise do not affect the perceived seriousness of the offending: Judge Roberts recognised Mr Zeng was entitled to a discount for good character and this would be applied in calculating the end sentence. In contrast, his Honour acknowledged Mr Zeng’s attendance in a Man Alive programme and that he had undertaken some community work but did not provide credit for either given Mr Zeng’s ongoing lack of acceptance of the offending.
[32] In those circumstances, and notwithstanding the consequences identified by both Mr Zeng and Mr Laurent and accepted by Judge Roberts, it is not possible to conclude the consequences of conviction on Mr Zeng were out of all proportion to the gravity of his offending. As a result, the third ground of the appeal also cannot succeed.
Decision
[33]The appeal is dismissed.
Powell J
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