Legal Research
Cases
Zheng v R

Zheng v R

Case [2015] NZCA 451 21 September 2015

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA430/2015
[2015] NZCA 451

BETWEEN	JIU MEI ZHENG Appellant
AND	THE QUEEN Respondent

Hearing:	2 September 2015
Court:	Miller, Fogarty and Mallon JJ
Counsel:	G C Gotlieb and J Ding for Appellant D G Johnstone and C Cross for Respondent
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…

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 Zheng v R

Details

AGLC: Zheng v R [2015] NZCA 451
Case: [2015] NZCA 451
Decision Date: 21 September 2015 at 10.00 am

CaseChat Overview and Summary

Jiu Mei Zheng has appealed against her conviction and sentence following her conviction of five counts of supply of the Class B drug, pseudoephedrine and one count of possession for supply of the Class B drug, pseudoephedrine. The appeal against conviction was dismissed on three grounds: the prejudicial evidence, inadequate summing up of the defence case and the convictions being unreasonable. The Court found that the prejudicial evidence was not prejudicial as the evidence was neutralised by the end of cross-examination and there was no need for a direction to the jury. The Court also found that the Judge appropriately directed on wilful blindness as the "critical issue for the jury to decide" and the Judge's summing up was appropriate in the context of the evidence. The appeal against sentence was allowed and the sentence of two years and nine months imprisonment was quashed and substituted with a sentence of home detention of eight months. The Court found that the sentence of two years and nine months imprisonment was manifestly excessive and that home detention would be a more appropriate sentence given the appellant's low level of culpability and the particular hardship of imprisonment for her.

Orders