Zhan v The Queen - [2011] NZCA 644

IN THE COURT OF APPEAL OF NEW ZEALAND

CA370/2011
[2011] NZCA 644

BETWEEN FUJUE ZHAN
Appellant

AND THE QUEEN
Respondent

Hearing: 10 November 2011

Court: Wild, Chisholm and Potter JJ

Counsel: F C Deliu for Appellant
M D Downs for Respondent

Judgment: 14 December 2011 at 11.30 am

JUDGMENT OF THE COURT

The appeal, which is both against conviction and sentence, is dismissed.

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REASONS OF THE COURT
(Given by Wild J)

Introduction

At a trial in the District Court presided over by Judge Mathers the jury found Mr Zhan guilty of importing about one kilogram of methamphetamine. The Judge sentenced Mr Zhan to 11 years six months imprisonment.[1] Mr Zhan appeals both his conviction and sentence.
[1] R v Zhan DC Auckland CRI-2009-004-23366, 19 May 2011.
In appealing his conviction Mr Zhan alleges that his trial counsel was incompetent, that the prosecutor misconducted herself, that the Judge made numerous errors in summing up to the jury, and that the verdict was not supported by the evidence.
The appeal against sentence is more narrowly based. The only challenge is to the one year reduction the Judge allowed Mr Zhan for his relative youth, his lack of previous relevant convictions and the hardship of lengthy imprisonment away from his family in China. Mr Zhan contends the allowance should have been in the range 18 months to three years.

Background

On 15 October 2009 Customs officers intercepted and examined a courier package of heavy duty industrial rollers that had arrived from China. Inside the rollers they found 1003.6 grams of methamphetamine. The package was addressed to “Mr Wang” at an address in Balmoral, Auckland.
When the package was delivered at about 1.15 pm the following day by courier van, Mr Zhan was waiting for it in a nearby car. After identifying himself to the courier driver as Mr Wang, he took the package and drove away with it in his car. Mr Zhan took the package to an apartment in downtown Auckland and left it there unopened. Police and Customs executed a search warrant at the apartment that night. They found the package, and also tools which they thought could be used to open the industrial rollers in it. Mr Zhan returned to the apartment while the search was underway.
When interviewed by the police Mr Zhan admitted picking the package up. He told the police he had done so on instructions from an unknown person in China whom he had met on the internet. He denied receiving any money for the collection. He claimed he was unaware of the package’s contents and that his instructions were to keep the package until he received further instructions.
Mr Zhan was 24 at the time of this offending in October 2009. He had been in New Zealand since 2004.
Mr Zhan was found guilty upon retrial. At his first trial in July 2010 the jury were unable to agree.

Appeal against conviction

Trial counsel incompetence

Mr Zhan directed the following criticisms at Mr Le’au’anae,…

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 Zhan v The Queen

Details

AGLC: Zhan v The Queen [2011] NZCA 644
Case: [2011] NZCA 644
Decision Date: 14 December 2011

CaseChat Overview and Summary

The case of Zhan v The Queen involved an appeal against both conviction and sentence by Fujue Zhan, who was found guilty of importing approximately one kilogram of methamphetamine by the District Court. The Court of Appeal, consisting of Wild, Chisholm, and Potter JJ, heard the appeal and ultimately dismissed both the appeal against conviction and sentence. The appeal against conviction was based on several grounds, including claims of trial counsel incompetence, prosecutorial misconduct, alleged misdirection by the Judge in summing up to the jury, and a contention that the verdict was not supported by the evidence. The appeal against sentence challenged the one-year reduction allowed by the Judge for Zhan's relative youth, lack of previous relevant convictions, and the hardship of lengthy imprisonment away from his family in China.

The Court of Appeal rejected the claims of trial counsel incompetence, noting that the defence strategy was consistently maintained throughout the trial and that the criticisms did not suggest how the defence could have been conducted more effectively. Regarding prosecutorial misconduct, the Court found that the prosecutor was entitled to question Zhan about lies he had told the police, as these lies could evidence guilt. The Court also found that the Judge's summing up to the jury was accurate and adequate, and that the verdict was supported by the evidence presented at trial. Finally, the Court of Appeal dismissed the appeal against sentence, finding that the one-year reduction allowed by the Judge was "merciful" and "perhaps... generous."

In summary, the Court of Appeal dismissed both the appeal against conviction and sentence, upholding the original findings of the District Court. The appeals were dismissed, and the convictions and sentence remain in place.

Orders