Zheng v R
[2015] NZCA 451
•21 September 2015 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA430/2015 [2015] NZCA 451 |
| BETWEEN | JIU MEI ZHENG |
| AND | THE QUEEN |
| Hearing: | 2 September 2015 |
Court: | Miller, Fogarty and Mallon JJ |
Counsel: | G C Gotlieb and J Ding for Appellant |
Judgment: | 21 September 2015 at 10.00 am |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe sentences of two years and nine months imprisonment are quashed and we substitute a sentence of home detention (with special conditions) of eight months, calculated from the date of this judgment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fogarty J)
Introduction
This is an appeal against conviction and sentence. The appellant was found guilty, following a jury trial, on five counts of supply of the Class B drug, pseudoephedrine and one count of possession for supply of the Class B drug, pseudoephedrine, contrary to s 6 of the Misuse of Drugs Act 1975. She was sentenced to imprisonment for two years and nine months.
Grounds of appeal against conviction
Three grounds of appeal have been pleaded:
(a)That prejudicial evidence of no probative value was wrongly admitted against the appellant. (Prejudicial evidence)
(b)That the Judge failed to adequately direct the jury with regard to the defence case during summing up. (Inadequate directions)
(c)That the convictions were unreasonable having regard to the evidence at trial. (Convictions unreasonable)
The criteria
Section 232(2) and (4) of the Criminal Procedure Act 2011 provides:
232 First appeal court to determine appeal
…
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
…
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
A “real risk” is one that might well have eventuated, and requires the Court to be persuaded that the risk actually exists and is not illusory or fanciful.[1]
[1]McNaughton v R [2012] NZCA 16 at [6]. See also Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
The Supreme Court has commented in R v Condon[2] that the assessment of the fairness of a trial is to be made in relation to the trial overall:
[78] It is important to remember that, as Deane J observes, the assessment of the fairness of a trial is to be made in relation to the trial overall. A verdict will not be set aside merely because there has been irregularity in one, or even more than one, facet of the trial. It is not every departure from good practice which renders a trial unfair, as Lord Bingham made clear in a passage in Randall, which was referred to with approval in Howse. He said that it is at the point when the departure from good practice is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe. In Howse it was said that this approach is one of general application.
(footnotes omitted)
The trial and the relevant charges
[2]R v Condon [2006] NZSC 62, [2007] 1 NZLR 300.
The jury trial for Ms Zheng and five co-defendants commenced on 15 April 2015 with Gilbert J presiding. Forty-five charges against various defendants were pursued at the trial. Ms Zheng was the defendant to five charges of supplying pseudoephedrine and one charge of possession for supply of pseudoephedrine.
The pseudoephedrine in question was mostly in the form of ContacNT, which is a widely available cold and flu medication in China. Two of the charges pleaded that the appellant, together with Mr Tran, supplied pseudoephedrine, in one to Mr Tarm, in the second to Mr Li.
Background facts
It was the Crown case that Ms Zheng had agreed to store a suitcase containing packages, locked, she having the key, in a bedroom in her house. She agreed to act upon an instruction from time to time from Mr Tran to remove one or more packages from the suitcase and leave it outside her house. She agreed to use a simple code. Mr Tran would refer to a number of biscuits or mah-jong. The packages in the suitcase had an outer wrapping of newspaper and were labelled with a number 1, 2, and some other numbers up to 10.
At trial the Crown case was in the alternative:
(a)That Ms Zheng knew that the packages were pseudoephedrine; or
(b)That she was on enquiry as to the contents of the packages and was wilfully blind to that.
In its closing the Crown did not abandon express knowledge but pursued wilful blindness. The Judge gave a direction on wilful blindness. He did not direct on express knowledge.
First ground of appeal – prejudicial evidence
Detective Sergeant Beal’s answers in cross-examination
The detective in charge of the case, Detective Sergeant Beal, gave evidence that Ms Zheng had some of the customers of Mr Tran in her house. The appellant argues this evidence was prejudicial and the jury should have been directed to disregard it. The Crown case, as understood by defence counsel, was not that the appellant dealt directly with any of the customers for the drugs or that the appellant dealt with any of the associates to Mr Tran. Rather, the Crown case depended on intercepts recording Mr Tran calling the appellant’s home and using the code, instructing that a “number of” biscuits or mah-jong be placed outside the house.
The “prejudicial” evidence was elicited, unexpectedly, by answers in
cross-examination by Detective Sergeant Beal suggesting that other co-defendants were at the house from time to time. Therefore, defence counsel submitted he was not prepared for the evidence.Mr Gotlieb, counsel for Ms Zheng, was cross-examining the officer in charge about his awareness that the defendant had two children. Having established that Detective Sergeant Beal knew that, the following sequence occurs:
QAnd you had no concerns about the children?
AAt the time, some.
QAnd that’s because of the charge, not for the way she cared for them?
AWe were listening to phone calls originating from an address where people we knew to be involved in drug dealing were frequenting for the purposes of drug dealing and gambling throughout all hours of the day and night.
QOr are you referring to someone more than Mr Tran?
AYes.
QBut these people aren’t subject of the charges before the Court.
ASome are.
The cross-examination continued, leading to this question:
QWell, are there other intercepts where you say she’s talking to people?
AAside from intercepts, Mr Tarm, for example, was a regular visitor to the address.
QBut that was to play mah-jong.
AMr Tarm also attended the address for the purpose of collecting what we allege were consignments of ContacNT arranged by Mr Tran.
…
AI’m not sure that’s strictly correct Mr Gotlieb.
Detective Sergeant Beal subsequently withdrew his suggestion.
QAnd you have no evidence of anything happening inside her house, it is only relates to what happened outside her house.
AIf we look at the conversations, there were clear references to Mr Tran directing Ms Zheng to go to her bedroom to get the things and take them outside. The goods came from inside.
QI’m not disputing that. What it seems to be you’re saying now, that she’s giving this stuff to them inside the house.
AI apologise for not being clear.
QOkay.
AThe goods were inside the house.
QYes.
AIt has been accepted from day dot on this inquiry that the goods were removed from the address on occasions and placed in the environs.
As the last few questions clarify, Detective Sergeant Beal made it plain that he was not suggesting that Ms Zheng was giving the drugs to people inside her house.
Nor did the Crown suggest so in closing. The Crown case always was that her role was to store the pseudoephedrine in the locked suitcase, to remove parcels from that suitcase in accordance with instructions and to leave them outside to be collected by some person who was unknown to her.
Mr Gotlieb submitted that although at the conclusion of the
cross-examination the issue had been neutralised, Detective Sergeant Beal’s acknowledged speculation and apology for being unclear was insufficient to remove prejudice.Mr Gotlieb did not raise the matter with the Judge at the time but submitted, in hindsight, that he should have and that pursuant to s 122 of the Evidence Act 2006, the Judge should have considered whether to give a warning to the jury of the need for caution in deciding whether to accept the evidence. He submitted that the Judge’s summing up made no mention of this prejudicial evidence and, accordingly, there was an obvious inference for the jury left to them as to the impression Detective Sergeant Beal had made on them. The failure of the Judge to give a warning that this evidence had no evidential foundation resulted in a substantial miscarriage of justice.
We find it material that the experienced counsel, both for the Crown and the defence, and the experienced Judge did not identify a need for a direction then or in closing, to disregard Detective Sergeant Beal’s evidence. This is now said to be an appeal point justifying a finding of substantial miscarriage of justice.
As will become clear later in the judgment, the Judge summed up on the ground that the Crown case depended on proof of wilful blindness. As to which, the material facts did not rely on proof that customers entered into the defendant’s home. There was no suggestion that the appellant handed packages to anyone, let alone drug users. This ground has no merit and fails.
Other prejudices
Mr Gotlieb also relied on some questioning of Ms Zheng by the Crown that some of the newspaper wrappings were ripped and that she would have seen the colours of the contents inside:
The relevant question was:
QThe package that we can see in photograph 373, which is partially ripped.
A Yes.
QSo just looking at the corner of that larger package with the number 10 on it, you saw inside at least one newspaper-wrapped package that it contained those pink and yellow granules inside the clear plastic bag.
This drew an objection immediately and the Court considered the objection in chambers, the jury retiring. The jury then came back and the question was pursued:
QCan you see that on that top one, there’s a tear in the newspaper so that we can see the pink substance underneath?
AI didn’t look inside. I didn’t pay attention.
QLook you’re one step ahead of me. I’m just asking you whether you can see the tear in the newspaper right now.
That drew another objection. The jury retired again and there was further discussion in chambers. Cross-examination then resumed and there was no further suggestion in questions that Ms Zheng could see the content of the packages as distinct from how they were wrapped.
We are satisfied that the record of the case shows that the objections were adequately dealt with at the time. There was no evidence before this Court that counsel sought from the Judge a specific direction to the jury at the time, or later in the closing. Normally if a direction is required when irrelevant evidence is inadvertently admitted or inadmissible evidence is admitted, a direction is given to the jury at the time. There is, however, always a danger of highlighting an issue in giving directions. Counsel and the trial Judge were better placed than we are on appeal to make a judgement call in the context of the trial dynamics on matters of this kind. Whether to seek a direction is an option clearly available to counsel at the time and before closing. There is no basis in this appeal for reopening this particular topic.
Second ground of appeal – the Judge failed to adequately put the defence case to the jury during summing up
As already noted, the Crown opened on the basis that the appellant had actual knowledge. The Crown closed both on actual knowledge and on wilful blindness. The Judge directed on wilful blindness. This ground of appeal argues that the Crown did not open on the suggestion the appellant had been wilfully blind and argues that the Judge in his summing up should have put to the jury that the Crown had closed on actual knowledge, that the appellant knew there were controlled drugs or was wilfully blind. That is that both alternatives need to be spelt out for the jury.
There is a further submission that as there were two different sets of charges, five counts of supply and one count of possession for supply, the Judge should have differentiated his directions on wilful blindness.
The Crown closed on the possibility of actual knowledge and also on wilful blindness. Having distinguished between the two concepts, Crown counsel said:
Now, the level of Ms Zheng’s knowledge of what she was handling is a matter for you and you need to come to your own views on it. You might in fact come to the view based on the way that she took part in “the mah-jong or biscuits” code, the way that she went to the room to talk, that she knew what she was doing was dealing with controlled drugs, actually knew and there is a little clue to that which I will come back to. But equally if you find that there were questions which she knew she should be asking here because she had a suspicion about what she was dealing with and she didn’t ask those questions because she wanted to remain in ignorance, or she wanted not to have it confirmed to her that she was dealing with controlled drugs, then that’s also a type of knowledge that is sufficient for the purposes of proving the case against her.
(emphasis added)
The submissions went on to talk about the appellant’s evidence that Mr Tran, in answer to the question, “What was in the suitcase?”, said, “medicine”. The jury were invited to treat that answer as unreliable.
In his summing up the Judge took the jury through a written question trail as it applied to each defendant. In respect of the appellant, he began:
Charge 20 (Episode 63A)
[113] That Jiumei Zheng on 29 October 2013 at Auckland together with Van Thanh Tran supplied the Class B controlled drug pseudoephedrine to Chuck Lou Tarm.
Question 1
Are you sure that on 29 October 2013 Jiumei Zheng participated in the supply of pseudoephedrine to Chuck Lou Tarm by actually supplying it or by assisting Van Tran to supply it?
[114] There seems to be no doubt that Ms Zheng stored a large quantity of pseudoephedrine in a black suitcase in her bedroom under her daughter’s bed and that from time to time she took packages wrapped in newspaper out of the suitcase and left them outside under the kitchen window or in the letterbox as directed by Mr Tran. The main issue in relation to the charges against Ms Zheng is likely to be whether she was aware that the packages contained pseudoephedrine or at least a controlled drug. However, you will also need to consider whether you are sure that she participated in the particular supplies as alleged. The transcripts of the intercepted communications relevant to the alleged supply on 29 October 2013 start at page 1148.
When first addressing the second question, the Judge directed:
Question 2
Are you sure that Jiumei Zheng knew that the substance supplied was pseudoephedrine or at least a controlled drug?
[115] This is likely to be the critical issue for you to determine. Even if you are not sure that Ms Zheng actually knew that the suitcase contained controlled drugs, you must consider whether the Crown has proved beyond reasonable doubt that her suspicions were aroused about what was in the suitcase but that she deliberately refrained from making further enquiries or confirming her suspicion because she wanted to remain in ignorance. As I said before, if this is proved, the law presumes knowledge on the part of Ms Zheng because of her deliberate failure to enquire when she knew there was reason for enquiry. This is sometimes referred to as “wilful blindness”.
[116] The Crown case is that Ms Zheng was at least placed on enquiry given all of the circumstances. It points to the indicators of secrecy such as Ms Zheng’s agreement to use code language, mahjong pieces and biscuits, to describe the packages, the fact that the packages were contained in a locked suitcase kept under the bed and Mr Tran’s concern to ensure that his conversations with Ms Zheng were not overheard by others in the house and her assurances to Mr Tran in that regard. The Crown invites you to dismiss the suggestion that Ms Zheng thought that the suitcase contained medicine. It invites you to use your commonsense and consider why Mr Tran would want to store medicine in a locked suitcase under Ms Zheng’s daughter’s bed and why there would be any need to refer to it using code language.
[117] Mr Gotlieb submitted that you need to consider all of this from Ms Zheng’s perspective. Ms Zheng said in her evidence that she has limited education. She said that she met Mr Tran at church and that she regarded him as a friend who had helped her by lending her money to purchase a second mahjong table and by referring people to play mahjong at her house. She said that she thought that the packages contained medicine because that is what Mr Tran told her (notes of evidence page 397). He points out that there is no evidence that Ms Zheng was being paid for what she did for Mr Tran contrary to what you might expect if she was knowingly involved in drug dealing.
[118] If you accept Ms Zheng’s evidence that will be the end of it and you will find her not guilty on all charges. If her evidence leaves you feeling unsure, then you will find her not guilty. But, if you reject her evidence you should not leap from that assessment to guilt. You must remember that the Crown retains the burden of proving all elements of the charges beyond reasonable doubt based on the evidence that you do accept.
[119] However, if you are satisfied beyond reasonable doubt that Ms Zheng either knew that the suitcase contained controlled drugs or was wilfully blind as to whether or not this was the case, then you must find her guilty. You cannot allow any feelings of sympathy towards her to influence your judgment. You must approach the case against her in the same clinical and detached way as for all defendants, putting any feelings of prejudice or sympathy to one side.
In oral argument before the Court, it became plain that what Mr Gotlieb was arguing was that the Judge should have said more. He should have drawn the jury’s attention to what was essentially a retreat by the Crown from pursuing the argument that she had actual knowledge.
We are satisfied it was appropriate the trial Judge to direct on the wilful blindness test as the “critical issue for you to decide”. He gave a very clear direction on wilful blindness in [115] set out above.
There was no prejudice to the defendant in the Judge closing on wilful blindness. To the contrary, the Crown case for express knowledge was weak. Effectively, the Judge left it open for the jury to find actual knowledge but expressed his opinion to the jury they were likely to find the crucial issue was not actual knowledge but being on notice so that Ms Zheng was wilfully blind.
Mr Gotlieb had relied on the decision of McSweeney v R,[3] where the distinction was drawn between wilful blindness as to whether the bag contained money and wilful blindness to the purpose to which the money was being put. That was because money, unlike drugs, is not in itself an illicit substance. No such subtle distinction has to be drawn here. The defendant’s conduct was criminal so long as she was wilfully blind as to what was being kept in the suitcase.
[3]McSweeney v R [2012] NZCA 90 at [19]–[27].
Nor was it necessary for the Judge to separately instruct on wilful blindness between the charge of possession and the three charges of supply. For if the appellant was wilfully blind as to what was in the suitcase, then given that all of the packages she supplied came from the suitcase, she was wilfully blind as to what she was supplying. Alternatively, if she was wilfully blind as to what she was supplying then given the packages came from the suitcase, she was also wilfully blind as to what she possessed. It would have been confusing to the jury to try to draw such distinctions.
We are satisfied, given the state of the evidence, that the trial Judge correctly invited the jury to decide the case on wilful blindness rather than on express knowledge. Inasmuch as he revealed any views, he was indicating to the jury that the Crown were not likely to be able to prove beyond reasonable doubt express knowledge (a view favourable to the defence), so that the crucial issue was whether they had established wilful blindness beyond reasonable doubt.
Other directions
There were five charges of supply against the appellant. In respect of three of the charges, Mr Tran had been convicted of supply. Where part of the charge required proof that Mr Tran had supplied the drug on the day and to the person, the jury were directed that their answer to this particular question would be “yes” because they could rely on the certificate of convictions.
The appeal point in this case was that the jury might have used propensity reasoning to rely on Mr Tran’s convictions when dealing with the two charges in relation to which Mr Tran did not have corresponding convictions. Mr Gottlieb submitted that the Crown asked the jury to look at the “history of the case”, which invited propensity reasoning, and the jury should have been directed that they should not rely on Mr Tran’s other convictions when assessing these charges.
No request was made of the trial Judge to give any specific direction about this and we consider that no such direction was required. It was made clear enough that the jury must be sure that Mr Tran had supplied pseudoephedrine on the two occasions. While the convictions may qualify as propensity evidence on Mr Tran’s part, a propensity direction vis-à-vis the appellant was unnecessary, there being no risk of illegitimate propensity reasoning in the circumstances, and would likely only confuse the jury.
This is another instance of counsel for the appellant seeking to take on appeal a direction point that he was able to raise at the time during the trial but did not, on our analysis for good reason.
The question trail was read during the summing up. Where there was a counterpart conviction of supply by Mr Tran, the jury were told they could answer “yes” as to supply because Mr Tran had been convicted of this. But where there was no counterparty conviction, such as charge 28, the Judge made it plain it was an alleged supply. To illustrate same, here is an extract from the summing up on charge 28:
Charge 28 (Episode 66A)
That Jiumei Zheng on 7 November 2013 at Auckland together with Van Thanh Tran supplied the Class B controlled drug pseudoephedrine to Chuck Lou Tarm.
Question 1
Are you sure that on or about 7 November 2013 Jiumei Zheng participated in the supply of pseudoephedrine to Chuck Lou Tarm by actually supplying it or by assisting Mr Tran to supply it?
[122] This is the alleged supply arising out of Mr Tran’s instruction to Ms Zheng at page 1248 of the transcripts to leave one package in the letterbox. I leave it for you to consider the evidence relevant to this charge in determining whether Ms Zheng participated in the supply of pseudoephedrine on that date as alleged.
(emphasis added)
There was no suggestion in [122] that the jury could rely solely on Mr Tran’s convictions as proving supply in this instance. We think Mr Gotlieb’s submission to the contrary is without merit.
We note that Mr Gotlieb submitted correctly that question trails are not a creature of statute and that no formal rules presently exists as to how question trails must be constructed and how a Judge must direct a jury with regard to their use. He submitted:
It is important for a Judge to relate the question trail to his summation of the evidence and the contentions of the parties.
At the hearing of this appeal we confirmed that the content of this question trail was known to counsel before the summing up. Prior to the summing up, counsel commonly comment on the content of the question trail prepared by the Judge, if not actually assist the Judge in its compilation. Counsel are alive to the importance of ensuring the directions implicit in the question trail are appropriate to the case. While the question trail here could have included the requirements of wilful blindness, it was not essential here that it did so, given the clear directions the Judge gave and that it was a relatively straightforward case in this respect.[4] That is reinforced by the fact that counsel did not see it necessary to raise this issue at the time. We are satisfied yet again that this point is being raised on appeal when it could have been but was not raised at the time the question trail was settled. This is not the occasion in which to discuss question trails generally.
Inadequate summing up of defence closing
[4]Compare with McSweeneyv R, above n 3.
Mr Gotlieb submitted that the Judge did not adequately address all the points made by the defence in closing. It is always a question of judgment by the trial Judge as to how the defence case is summarised. The summing up runs to 149 paragraphs, 44 pages. Mr Gotlieb identified four closing points that were lacking.
The first was the issue about what the defendant believed. We consider [114] and [115] of his summing up, cited above, appropriately addressed this. The second point was that other inferences could be drawn about why the suitcase was under the bed. Again, [114] and [115] cover this.
The third point was in respect of the code “mah-jong” and “biscuits”. Mr Gotlieb submitted there is no evidence suggesting any discussion had taken place where the appellant and Mr Tran confirmed the code was for ContacNT, nor did the appellant ever use the code first. We do not think this point is of any assistance to the defence. The relevant part of the Crown case is that the appellant participated in coded conversation in respect of the unusual contents of the suitcase. Because of the alternative way in which the Crown relied on knowledge, it was not an essential part of the Crown case that she knew the code was for ContacNT (that would be actual knowledge) and, as we have said above, the Judge focused principally on the wilful blindness aspect of the Crown case.
Ms Zheng’s slip up
In the course of the Crown’s cross-examination of Ms Zheng on the subject of whether she had actual knowledge that there were drugs in the suitcase, there were the following sequence of questions:
Q.And in this case, they would find that it was a suitcase with a padlock on it, is that right?
A.Yes. I’m not sure whether they would really find it but which I can say that they can easily find. The lock is really small. I’m not sure that whether they really see.
Q. What costs a lot and is very small?
A.Very small. I don’t have much memory about it but it’s a very small one. I could not remember its measurement but it’s very small one.
Q.You are talking about the substance inside the suitcase when you give the answer that, “It costs a lot and is very small,” aren’t you?
A.No, I got a key. With the key I can open it. Yeah, once the lock is open, it’s quite easy.
Q.Should I ask the question again? You’re talking about the substance inside the suitcase when you say it was, “Small and costs a lot,” aren’t you?
A.I don’t think they are valuable items because – as I was told that was medicine. This and they were put underneath the bed so is not very valuable.
The Crown closed to the jury on the grounds of actual knowledge and relied on the Crown’s understanding that she had said, “costs a lot and is very small” having let her guard drop. When the translation confusion was sorted out Crown counsel addressed the jury and acknowledged rightly that he had misheard and the jury were to place no weight on this evidence.
The complaint is that the trial Judge in his summing up did not emphasise that the Crown had, in this regard, lost their best and strongest argument for establishing the appellant’s actual knowledge. Mr Gotlieb submitted that the Judge should have drawn the jury’s attention specifically to the point that the Crown’s big point in their case was now gone. Through no fault of the Crown, their case was significantly weakened and this should have been dealt with by the Judge. The jury’s attention had not been drawn sufficiently “to this gaping hole in the Crown’s case”.
As has already been discussed above, the Judge effectively invited the jury to examine the culpability of Ms Zheng on the basis of wilful blindness, not on the basis of express knowledge.
In any event, as it happened, after the jury retired, they requested copies of the defence closing submissions. The Judge brought the jury back into the courtroom. He advised that he was not going to give them the defence closing submissions as that was contrary to the usual practice. He then went on:
Now there is one other matter since you’ve come back and that is that Mr Gotlieb, after you retired, asked me just to mention a matter that has been concerning him. As you know, for Ms Zheng and that’s this business about Mr Johnstone’s questioning of Ms Zheng, where he misheard or there was a misinterpretation of what was said and he got onto this point, “Oh, it was very small and very expensive” and he misunderstood, really, or misheard what was actually being spoken about was the lock on the suitcase.
So he then very responsibly, and you’ll remember this, after his closing address and before Mr Hudson made his address for Zigeng Ma, very carefully explained to you, “It’s been retranslated, that’s not what she said at all, she was talking about the lock”. So there is nothing in that point, you’ll remember that. Mr Gotlieb also reminded you about that and I thought that was enough. But I’m reminding you about it again because I’ve asked to do that and that’s perfectly fair.
Again, counsel accepted that direction to the jury at the time. We consider that it was adequate. It is of no merit to endeavour to raise it again as a criticism on the appeal.
Appellant giving evidence at trial and translation difficulties
Mr Gotlieb submitted that the Judge should have directed the jury that their focus should be on the facts, and the actual evidence of the appellant, rather than her demeanour. This was because her evidence was translated. Because of translation problems, Mr Gotlieb suggested that the jury should have been invited to go to the notes of evidence and look at those, rather than take the approach suggested by the Judge at [138] of his closing:
[138] You will have the exhibits with you in the jury room and the transcripts of the interviews. You will also have the transcript of the evidence. This transcript will enable you to check what a witness has said on any particular issue. But I would invite you not to become bogged down in analysing the detail of the transcript at the expense of the big issues in the case. You will probably find it better to approach each issue on the strength of what you remember and any notes you made during the hearing. The transcript of the evidence is not a substitute for your collective impression of all the evidence. And if you do consult the transcript, remember that you need to check what was said in those three places I referred to in my opening remarks at the commencement of the trial, being evidence in chief, cross examination, and re-examination. You may also need to check what other witnesses said on the same topic.
Mr Gotlieb was critical in this translation context of the invitation to rely upon their collective impression of the evidence. There is no substance in this point. It is a standard direction, to ensure that the jury do not think they have to read the transcript. It was not a direction to rely on demeanour.
Third ground of appeal – convictions unreasonable
The core of this argument was that the appellant had a very busy life, not only running two mah-jong tables but also looking after her children and was so busy that she did not reflect on the curious character of the assistance she was providing Mr Tran. It was submitted that “the appellant, when being cross-examined by the Crown, was continuously challenged on what she actually knew or whether she turned a blind eye. She unequivocally responded at every question that she did not know and acted at the direction of Mr Tran, without much thought”.
In this part of the argument Mr Gotlieb also returned to the question of the partially unwrapped packages and the Crown cross-examination suggesting she could see what was inside the packages. We have already covered this point earlier in the judgment.
On the question of her lack of knowledge of the contents, we reiterate that we think that the Judge’s direction in [115] was appropriate. There is no need for the Judge to have commented on the argument that she was so busy she did not give it much thought. On any view of the facts, even for a busy woman, it was a very strange set of instructions and pattern of conduct. That strange conduct of dealing in code and putting packages outside to be collected by unknown persons is the core of the case and was clearly the matter that would have engaged the jury’s examination. There was ample evidence to support the convictions.
Conclusion on conviction appeal
We conclude that there has been no significant challenge to the conduct of the trial and the quality of the summing up. The criticisms fall well short of the test to be met to justify a finding that the trial Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. There is no real risk that the outcome of the trial was affected by any of the alleged deficiencies raised in this appeal. The appeal against conviction is dismissed.
Appeal against sentence
In the High Court, the Crown had argued for a starting point between five and six years’ imprisonment for Ms Zheng. Mr Gotlieb had argued for a starting point between two and a half and four years. The Judge said:
[25] I accept Mr Gotlieb's submission that you were particularly vulnerable and that you were manipulated by Mr Tran. Your involvement was limited. I take into account the limited period of your offending, the fact that you merely stored the drugs and placed them outside your house when directed to do so by Mr Tran and that you did not receive any payment. Having regard to the starting points adopted for Mr Ha and Mr Lee, I consider that the appropriate starting point in your case is three years and six months' imprisonment.
Turning to her personal circumstances, the Judge said:
[28] I have read the psychologist's report. Mr Gotlieb refers to a number of matters identified in that report in support of his submission that a lengthy period of imprisonment would be disproportionately severe in your case. You were seriously injured when you were struck by a car in 2004, as a result of which your pelvis was broken. You suffer from a number of medical conditions which affect your physical health. You also suffer from poor mental health. You have virtually no English. You are the sole caregiver for your two children who are entirely dependent on you. Your imprisonment will obviously have a marked affect on them.
[29] I accept that as a result of these matters, imprisonment will be particularly difficult for you. I take them into account and the fact that you have no previous history of offending. I allow a discount of nine months. This brings your end sentence to two years and nine months' imprisonment.
On the appeal to this Court, the submission was that this sentence was manifestly excessive. Counsel submitted that in consideration of parity with
co-defendants and taking into account the appellant’s personal circumstances, the Judge could have reached a sentence of two years or less, bringing into play home detention. Counsel relied on a number of cases where the end sentence of home detention had been granted for similar offending.[5] There was the usual citation of the decision of this Court in R v Iosefa.[6][5]R v Iosefa [2008] NZCA 453.
[6]Tilialo-Staples v NZ Police [2013] NZHC 1255; R v Niazi HC Auckland CRI-2007-004-10053, 5 August 2010 (sentencing notes); R v Allen HC Auckland CRI-2004-44-7303, 24 June 2005 (sentencing notes); Verschaffelt v R [2015] NZCA 53; and R v Punnett HC AucklandThe jurisdiction of the Court of Appeal on sentence is provided for in s 250 of the Criminal Procedure Act:
250 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow the appeal if satisfied that—
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
(3)The first appeal court must dismiss the appeal in any other case.
This Court must accordingly be satisfied that there is an error in the sentence imposed on conviction.
In R v Hill[7] the Court was dealing with drug offending at a low level by a person who had a drug habit but who showed very good prospects of rehabilitation, such that the trial Judge, Williams J, observed:
If it were possible to achieve, there is every reason, both for you and for the community, to encourage you to rehabilitate yourself: to get off drugs and stay off drugs.
[7]R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [12].
The trial Judge took a starting point of three years, six months’ imprisonment and came to an end sentence of two years, three months. Without being particularly critical of that reasoning, the Court of Appeal considered the Judge still had jurisdiction to grant home detention and did so on appeal, concluding:
[44] In our view, then, this is the type of case in which the courts should be prepared to sentence to home detention in order to achieve the social and individual benefits that home detention offers.
In that case, the telling reasons for home detention in the end was the commitment of the offender to deal with his drug addiction and address the personal issues that caused him to enter the drug subculture and his ability to serve his home detention at a place where he had good support.
This case is comparable to Hill, inasmuch as there are two factors justifying leniency in sentencing: Ms Zheng’s low level of culpability, and the hardship she experiences as a prison inmate in her particular circumstances.[8] Gilbert J had material about her circumstances before him, but we now have additional material.
[8]See Sentencing Act 2002, s 8(h) and Adams on Criminal Law (online looseleaf ed, Brookers) at [SA8.09].
Reflecting on her position, we do differ as to the weight to be given to the Judge’s findings that she was manipulated and got no payment. Clearly Mr Tran took advantage of the debt she felt she owed to him for the supply of the mah-jong tables. Compared to her co-offenders, her culpability was significantly lower. It is very material that she got no payment.
We now know the quality of the hardship that she has suffered in imprisonment. It has gone beyond a prediction, to a fact, and we also know that her children are experiencing difficulties. We think also that greater weight can be given to her low culpability.
We were impressed by the two reports from the clinical psychologist, Mr Kirker. The first was available to the sentencing Judge, the second, only to this Court. In his first report, Mr Kirker considered that Ms Zheng had entrenched mental health issues which were present at the time of her offending and beyond. We would note that they were such as to lessen, to some degree, her culpability. He said, “She has negativistic and depressive personality tendencies, with related distorted illness beliefs about her physical health and her state of mind”. He assessed her risk of reoffending as low. He reported that her two children, both teenagers, a boy and a girl, would experience significant distress if their mother was imprisoned. They have known their mother to be emotionally volatile, they have recently seen her overdose on prescription medication, and they are likely to experience worse to come. A community-based sentence would be a mental boost to them. They are at the adolescent age where they are at the highest risk of psychological difficulties if there is a loss or life change occurring. It was Mr Kirker’s opinion that Ms Zheng herself appears vulnerable to deterioration in mental health if she is imprisoned. She seemed to have already attempted self-harm as the sentencing date loomed.
His second report was prepared for this appeal. It is dated 24 August 2015. Having narrated the interview, Mr Kirker set out a summary and his conclusions. He concluded:
In terms of the hardship she is presently experiencing, it seems that imprisonment is having a greater negative psychological impact on Ms Zheng than the average offender due to her mental health/personality issues, language/cultural barriers, and separation from her children in the absence of other life focal points. The writer had predicted that Ms Zheng would likely require the intervention of mental health services if incarcerated and that has proven to be the case. … Her mental health needs would be better managed in the community where in addition to medication she could access psychotherapy with a Cantonese speaking therapist through the public Asian Mental Health Service.
He also recorded that her children seem likely to be experiencing some hardship during their adolescent ages when they are at the highest risk of psychological difficulties. He identified risks both for her daughter and for her son. They are getting some benefit from a relationship with their father who has stepped into the breach.
He recorded an expectation that Ms Zheng could look forward to release on parole within about ten months.
In the light of the second report from the psychologist, we now know that greater weight could have been given to his predictions at the time of sentencing. This is not a criticism of Gilbert J. We have the benefit of material that was not before him.
The appellant’s home has been previously approved as suitable for home detention.
We think it is appropriate on appeal to reduce the indicative sentence of two years and nine months’ imprisonment, arrived at by Gilbert J, to two years, to take account of the greater weight we give to her lesser culpability and the particular hardship of prison for her. That makes home detention available. Starting with an indicative twelve months home detention, we would allow a deduction of four months, having regard to the fact that she has spent two months in prison, resulting in eight months’ home detention from now.
In the circumstances, we consider that an appropriate sentence of home detention is eight months.
Her sentence of two years and nine months’ imprisonment are vacated and substituted with a sentence of home detention of eight months, calculated from the date of this judgment. The following special conditions apply. She is:
(a)To travel directly from prison to 32 Cornwall Road, Papatoetoe, and await the arrival of the probation officer and/or the field officer.
(b)To reside at that address and not move address without the prior written approval of a probation officer.
(c)Not to consume and/or be in possession of any alcohol and/or illicit drugs for the duration of the home detention.
(d)To attend any assessment for any appropriate programme as directed by the probation officer.
(e)To attend and complete any counselling, treatment or programme as recommended, as directed by and to the satisfaction of the probation officer.
Solicitors:
Crown Solicitor, Auckland for the Respondent
CRI-2004-044-7303, 5 December 2007 (sentencing notes).
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