w w w . L a w y e r S e r v i c e s . i n



Wen Xu v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 559 of 2018

    Decided On, 07 August 2019

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE WILD
    By, THE HONOURABLE MR. JUSTICE THOMAS & THE HONOURABLE MR. JUSTICE MUIR

    For the Appellant: A.G. Speed, Advocate. For the Respondent: E.J. Hoskin, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by Muir J)

[1] 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.

[2] 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.

[3] Her appeal is based on alleged trial counsel error and on alleged error in the Judge’s summing-up.

[4] 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.

[5] 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.

[6] 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

[7] 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.

[8] 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:

(a) documents signed by the appellant, which recorded Mr Xia’s address as her own and describing him as variously her “husband” or “spouse”;

(b) the operation of joint bank accounts from which a wide variety of domestic expenses were paid, including both the appellant’s and Mr Xia’s credit cards and expenses associated with children from Mr Xia’s former relationship;

(c) the conception of their children;

(d) six joint overseas trips during the relevant period, including to Australia, Fiji and China, together with domestic travel;

(e) the appellant’s description of her status on her Facebook page as “Engaged since June 6, 2013”;

(f) a photograph of the couple, in wedding attire, posted to the appellant’s Facebook page in January 2014, which remained there for two and a half years;

(g) a family portrait of the couple with their children, posted to Facebook on 29 April 2016;

(h) Ms Xu’s reference to Mr Xia as her “husband” to third parties;

(i) Mr Xia financing (through the joint account) purchase of a new and larger Mercedes motor vehicle for Ms Xu’s use after birth of the first child;

(j) the fact that he kept his boat at the appellant’s house and that Ms Xu joined him on it from time to time; and

(k) a separation agreement dated 9 September 2016, describing the parties as having been in a relationship between the end of 2013 and July 2016. The parties had signed this agreement which contained the required lawyers’ certificates as to independent advice.

[9] By contrast Ms Xu gave evidence that she was not in a “marriage type relationship” with Mr Xia. She said that they had first met in October 2012 when she was working at SkyCity and Mr Xia was a VIP client, but because of the terms and conditions of her employment, they did not start dating until the early part of 2013, when Mr Xia trespassed himself from SkyCity and was therefore no longer regarded as a customer. Thereafter their relationship was intimate, but she said they did not live together. Her evidence was that they “broke up” in October 2013, which was shortly before her first application for a benefit. She further stated that all subsequent representations that she was in a relationship with Mr Xia, representations that they were engaged or that he was her husband, and the image she projected on Facebook were all attempts by her to “save face” and present herself as in a happy and stable relationship for consumption by family, friends and others. She emphasised shame within her culture from being a single woman with two children.

[10] Implicit in the jury’s guilty verdicts was rejection of this explanation and acceptance of the fact she remained in a relationship in the nature of a marriage with Mr Xia throughout the relevant period.

[11] We deal with the appeal by focusing first on the criticisms of trial counsel and then the Judge. As to the former, we note abandonment of three arguments which featured in the appellant’s written submissions.[5] We do not therefore address these further.

Alleged trial counsel error

The principles

[12] To succeed on this aspect of the appeal, the appellant must show that a miscarriage of justice has occurred.[6] To do so she must establish an error, irregularity or occurrence which has either (i) created a real risk that the outcome of the trial was affected, or (ii) has resulted in it being unfair or a nullity.[7] In R v Sungsuwan, the Supreme Court provided the following guidance in assessment of such claims:[8]

[64] We are presently concerned with subs (1)(c). Miscarriages of justice may arise from many causes. The conduct of defence counsel in handling the trial is but one possible cause. Conduct giving rise to criticism can occur in many different contexts. There may be acts or omissions in the course of preparation, there may be failure to follow direct instructions from the client, there may be incompetence through inexperience, there may be inadequate or wrong advice to the accused. Often the consequence may be that evidence was or was not (as is alleged here) put before the jury. There may be reasons for that, there may be good reasons, or there may not. They may accord with instructions. They may be based on confidential information in the possession of counsel.

[65] Where error or irregularity is alleged and attributed to counsel, but that would not have affected the outcome — was not material — there will be no need to analyse and judge the conduct of counsel. On the other hand, where the complaint is that counsel’s conduct was such as effectively to deny the accused representation to fairly present the defence, prejudice to the outcome will be readily found — and in extreme cases may need no inquiry.

[66] There will be cases in which particular acts or omissions of counsel may in retrospect be seen to have possibly affected the outcome but they were deliberately judged at the time to be in the interests of the accused. In some cases the accused will have agreed or acquiesced — only to complain after conviction. Where the conduct was reasonable in the circumstances the client will not generally succeed in asserting miscarriage of justice so as to gain the chance of defending on a different basis on a new trial. Normally an appeal would not be allowed simply because of a judgment made by trial counsel which could well be made by another competent counsel in the course of a new trial.

[67] But there will be cases, rare cases, as was recognised in Pointon, where the conduct of counsel, although reasonable in the circumstances in which it occurred, nevertheless can be shown to have given rise to an irregularity in the trial that prejudiced the accused’s chance of acquittal (or conviction of a lesser offence) such that the appeal Court is satisfied there was a miscarriage of justice. The Court will always reserve the flexibility to identify and intervene to prevent a miscarriage of justice however caused.

[13] In this Court’s decision of Hall v R,[9] it was emphasised that appeals based on alleged counsel error are not an opportunity for minute examination of whether some aspect of the defence could have been dealt with differently or better. Whether there has been a miscarriage of justice remains the touchstone and if it is clear the error or errors would not have affected the outcome, the appeal must be dismissed.

Alleged failure to prepare properly

[14] Mr Speed’s overarching submission is that defence counsel, Ms Amber McLean, was ill-prepared and no real effort was made to ready the case until after callover in the week that the trial commenced. He submitted that this was clearly inadequate for what was a complex and evidentially difficult trial with an overlay of nuanced cultural factors. This submission was based on an affidavit by Ms Xu, on which she was cross-examined before us.

[15] In the affidavit she deposed to first meeting with trial counsel “for approximately an hour and I discussed the case and my defence with her”. It is apparent from counsel’s notes that this was on 28 November 2017. Ms Xu then stated:

The next time I met her for anything more than a few minutes (she always seemed to be [in] a great hurry and never took the time to speak to me after that first meeting) was on the morning of trial when we spoke for about half an hour.

Up until that point I had not had any opportunity to discuss my defence with her or to go over disclosure which I had received.

...

Prior to the trial I did not meet with her to go through any evidence at all. I did not meet with anybody from the Public Defence Service prior to the trial. I simply had no idea how the trial was to progress but I certainly did want to explain why I believed I was wrongly charged.

...

The only preparation that took place was during the trial itself.

[16] We are unable to accept this evidence. Counsel also provided an affidavit and was cross-examined on it. She annexed her extensive file notes. We are satisfied:

(a) She met or spoke with the appellant on three occasions prior to 28 November 2017.

(b) The meeting on 28 November was for a period of three hours and 20 minutes, not approximately an hour as alleged by the appellant.

(c) In the lead up to the trial, the appellant’s preference was to speak over the phone because of her parenting commitments, which had been made significantly more onerous by the severe ill-health of her second child.

(d) Counsel spoke with the appellant by phone for one hour 40 minutes on 15 June 2018, two hours 15 minutes on 16 June 2018, one hour 25 minutes on 17 June 2018, and one hour and 10 minutes on 19 June 2018.

[17] We have reviewed the file notes, which total 30 pages, and are further satisfied that counsel worked diligently to obtain a comprehensive brief from her client and address with her the evidence on which the Crown relied and the appellant’s explanations.

[18] Up until the day before trial it had been counsel’s expectation that the Crown would play the appellant’s three-hour audio interview with the Department’s investigating officer and that Ms Xu was therefore unlikely to give evidence. However, that position changed on 19 June 2018 when Crown counsel advised they would not be doing so.

[19] At that point counsel prepared a detailed (11 page) brief of evidence with cross references to the relevant documents. This was provided to Ms Xu on or about the first day of the trial. On 21 June they met between 5.30 pm and 8.10 pm to “have a run through” of her evidence-in-chief and to submit the appellant to a mock cross examination which Ms Xu recorded on her cell phone. Full notes were taken by counsel’s assistant. And they had a further lengthy discussion between 7.35 pm and 10.05 pm on 24 June 2018. This occurred during the course of the appellant’s evidence-in-chief and was again focused on ensuring the appellant’s case was comprehensively put.

[20] It is clear therefore that Counsel’s extensive pre-trial preparation was matched by equivalent attention during the trial. We are unable to accept that she was ill prepared herself or that she inadequately prepared her client to give evidence. Her examination of the appellant, cross-examination of the Crown’s principal witness and closing address to the jury all demonstrate a thorough knowledge of her client’s case and defence.

[21] In any event, we accept Ms Hoskin’s submission that the appellant does not establish any specific prejudice as a result of the alleged inadequacy of counsel’s preparation. Certainly none is apparent from the record and the fact that the jury acquitted on two charges points in the opposite direction. We note also counsel’s undisputed evidence that, after Ms Xu was sentenced, she thanked counsel for her “hard work, late nights and weekends”.

[22] We are not therefore persuaded by this ground of appeal.

Failure to advise on and/or call witnesses

[23] In his written synopsis Mr Speed submitted there was “no evidence that there were any enquiries made by trial counsel to obtain evidence or any discussion and advice to the appellant about this evidence”.

[24] Expressed in that way, the submission goes too far. Counsel’s meeting notes for 28 November 2017 indicate that there was discussion with the appellant about possible witnesses. Indeed, the two witnesses now relied on by the appellant (and another) were referred to as follows:

Heidi possible witness = would likely need interpreter for her.

Janette YAN English is fine =

live in [Auckland]

Jojo CAI

Janette + Jojo may not be useful for defence as saw the image presented.

[25] In his cross-examination of counsel and oral submissions, Mr Speed’s focus was more on her alleged failure to follow up, brief and advise Ms Xu to call witnesses — and in particular “Janet” and “Heidi”. Counsel candidly accepted that “Perhaps in hindsight yes”, she was under a professional duty to make such inquiries. She said that:

Normally with potential witnesses, I would get a phone number and an address and I haven’t here. I am not sure why. Whether it was something I was going to follow up with at a later time I’m struggling to recall.

[26] We accept counsel erred in this respect. The issue for us is therefore whether there is a real risk this error may have affected the outcome of the trial. Both Ms Jiang (Heidi) and Ms Yan (Janet) gave evidence on the appeal and were cross-examined.

[27] Ms Yan met the appellant while they were both employed at SkyCity and maintained social contact with her after they both left. They caught up approximately once a month. Sometimes Ms Yan would collect Ms Xu from her home. Sometimes they would meet at a venue close to Ms Yan’s work. She says that she saw none of the indicia of a person “in a happy relationship and ... being looked after by her partner” and that she got the strong impression that Ms Xu “had to do everything herself”. She regarded it as significant that Mr Xia never joined Ms Xu on the occasions she and Ms Yan went out for dinner. She said she would have expected her friends to be proud to introduce any new partner and that they would socialise together. She acknowledged, however, that her own partner did not regularly join such events saying “you girls can have ... fun”.

[28] We accept Ms Yan as an honest and straightforward witness, but her evidence is largely based on her assumptions about how a relationship should operate. She had little contact with the appellant in her domestic environment. Significantly, however, she admitted on one occasion seeing men’s clothing in the wardrobe of the appellant’s bedroom. Clearly, such evidence would not have assisted the appellant. The fact that she never observed Mr Xia at the house, or that he never came to dinner is unlikely, in our view, to have had any material influence on the jury’s assessment, particularly given the evidence that Mr Xia was a businessman with many interests in both New Zealand and Australia. His absence from the home on the few occasions Ms Yan visited was therefore unsurprising.

[29] Ms Jiang’s evidence did, however, have greater potential significance. She befriended the appellant in 2009, but became especially close to her after the birth of the appellant’s first child. Her employment as a tour guide meant that she had substantial “down-time” which she often spent at the appellant’s house, assisting her with her newborn. She says that she was at the house almost every day, arriving before 9.00 am and often not leaving until 11 pm or 12 am. She says that on some occasions she would even stay overnight, and that although she saw Mr Xia at the house perhaps once a week in the first month after the baby was born, thereafter it was “very few times”, and that sometimes their contact was “just greetings and before he [left] but sometimes he [came] back during the daytime to get something, to fetch something”.

[30] In May 2015 Ms Jiang moved into the house for approximately two months. Her evidence was that she did so because her boyfriend was visiting from Singapore and her own accommodation was too small. Thereafter she had significant contact with Mr Xia because he and her boyfriend shared a common interest in heavy drinking and “would be drunk every night” — the implication of this evidence being that the drinking was occurring in Ms Xu’s house where Mr Xia was resident at the time.

[31] During one such drinking session, she says the two men decided that both couples should go to Fiji, which they did shortly thereafter. They travelled together (both to and from) and had adjoining rooms at the resort. The couples would sometimes eat or cook together. It appears that at or about that time the appellant’s second child was conceived.

[32] In August 2015 Ms Jiang’s mother died and she was required to go to China. When she returned to New Zealand, she moved to another address quite close to the appellant, and when she was not working, continued to visit on most days. Again, she says she saw Mr Xia only sporadically, “maybe once or twice a month”. She thought it “obvious” that he was not living there. She says that she never saw the intimacy or affection that she would have expected of two people in a relationship. She acknowledged that she knew nothing about the appellant’s finances.

[33] We agree with Ms Hoskin that Ms Jiang’s expectations of what constitutes a relationship in the nature of marriage, and in particular her expectations around overt demonstrations of affection, do not set the benchmark. We agree also that there was much in her evidence (including confirmation that Mr Xia resided at the house while Ms Jiang was living there and of the holiday in Fiji) which supported the Crown case. However, there were also aspects of the evidence which may have been helpful to the defence case, in particular, Mr Xia’s infrequent presence after the first child was born. The issue we must decide is whether there was a real risk the failure to call this evidence may have affected the outcome of the trial and thus a real risk of miscarriage of justice.

[34] We do not consider the risk such that the appeal should be allowed. Cumulatively, we regard the eleven factors identified in [8] above as establishing a compelling circumstantial case that Ms Xu and Mr Xia were in a relationship in the nature of marriage, even if it may, at times, not have seemed a particularly good one. The evidence of substantial financial interrelationship, including the fact they held joint accounts through which hundreds of thousands of dollars were processed for mutual living expenses and purchases, was of itself strong evidence of such relationship. Indeed, so interdependent were they that when they entered into a separation agreement on 9 September 2016, it was said to address “matters with respect to termination of their relationship, division of joint properties acquired during their relationship and childcare”. Notably also, the separation agreement recorded the relationship (albeit described as “boyfriend and girlfriend”) as subsisting between the “end of 2013 and July 2016”, the latter date being inconsistent with Ms Xu’s advice to Work and Income (and with her evidence in the trial) that they had broken up in October 2013.

[35] We also find compelling the fact that Ms Xu described Mr Xia as her husband or spouse in documents which were provided to persons well outside the network of friends and relatives with whom she identified issues of “face” as most significant. And to the extent she claimed such issues were relevant to a wider audience, the reality was, of course, that she was content to describe herself as a single woman with children to Work and Income representatives.

[36] Nor can we overlook the very extensive overseas travel the couple undertook during the relevant period, nor the fact that they maintained an intimate relationship, nor the period they were clearly living together, nor the fact that they did ultimately get married in 2017, albeit this was shortlived. In combination, all of this evidence so substantially reinforces the appropriateness of the jury’s verdicts that in our view there is no real likelihood that admission of Ms Jiang’s evidence would have affected the outcome of the trial. Put another way, we are not satisfied that if the evidence had been called, a jury acting reasonably would have reached different verdicts.

[37] We do not therefore consider there to have been a miscarriage of justice on this account.

Alleged failure to obtain a copy of Mr Xia’s police record

[38] Counsel’s file note of 28 November 2017 records that Mr Xia had been charged “2x [with domestic violence]”. Counsel was unsure whether that meant two separate occasions of domestic violence or two charges. The note continues:

v Statements + POL400s.[10]

Query get PO?[11] Discussed [with] SHINE but told by them that

[39] Counsel subsequently obtained (from the appellant’s Family Court lawyer, Ms Quirke) a copy of an affidavit apparently sworn 5 December 2017 in support of a protection order.[12] This referred to physical violence by Mr Xia on two occasions. On the first, which is not identified by date, Mr Xia is said to have slapped Ms Xu on the face. The second was in March 2017 and was more serious. It is this assault which counsel principally focused on. Because it was outside the charge period she did not believe it to be relevant.

[40] Ms Xu’s evidence before us was that the earlier incident had occurred in 2014, approximately three months after her first child was born. She understood that counsel would be obtaining the police records in respect of both assaults. Counsel could not recall whether she told Ms Xu she would be doing so. When asked whether she accepted it would have been prudent to obtain the files she said:

Yes, I probably should have double checked that. That 2015[13] incident was not referred to in the Family Court affidavit so I don’t know if that may have influenced me deciding not to get that police file ... I accept that Ms Xu mentions two incidents in that Family Court affidavit but there’s no date or year for the other incident.

[41] We consider counsel’s concession fair but are unpersuaded that production of the 2014 police complaint would have materially enhanced the appellant’s prospects of acquittal. Mr Speed submitted that it would have usefully bolstered her evidence that she split with Mr Xia shortly after the first child was born. But at trial, her evidence was that they had broken up in October 2013, prior to her first application for Social Welfare assistance.[14] More significantly, however, there was evidence of the appellant and Mr Xia having travelled together to Sydney, China and Fiji in the months following the assault, of the parties continued operation of joint accounts, and of the conception of their second child around May 2015. Against that background, the only available conclusion is that the comparatively minor assault in 2014 had, at most, a temporary impact on their relationship.

Inclusion of inadmissible material in Crown’s exhibit bundle

[42] The Crown produced a bundle of exhibits for which it had given prior notice under s 130 of the Evidence Act. Before the trial commenced, the Judge identified admissibility (hearsay) objections to some of the documents.[15] Discussions with counsel followed. Counsel submitted that the documents were inadmissible. That submission was accepted and 10 documents were withdrawn from the bundle, together with two of the sample ANZ bank statements.[16] This occurred before the bundle was distributed to the jury.

[43] Subsequently, further challenges were made to the admissibility of documents and others were excluded by agreement.[17] Mr Speed conceded that, as a result of these various rulings and directions, the only inadmissible documentary evidence which came before the jury were various Work and Income internal notes, which he accepted also contained exculpatory material. Accordingly, he said he was unable to point to any specific prejudice. However, he said that this was further evidence of a failure to prepare the case adequately.

[44] Although in our view the admissibility issue should have been earlier resolved, no miscarriage of justice therefore resulted.

Admission of record of evidential interview

[45] As we have indicated, on the day before trial, the Crown advised trial counsel that it would not be playing the audio recording of the appellant’s interview with the Ministry’s Mr Greentree, and this took counsel by surprise. Mr Speed submits that the decision should have been challenged and that there was a more-than-even chance that the Judge would have ordered the Crown to play the recording, subject to appropriate editing. He submitted that counsel should have been aware of the commentary in Adams on Criminal Law,[18] under the heading “Court can force prosecution to offer evidence of defendant’s exculpatory statement” and the cases there discussed, including R v King[19] and R v Felise (No 3).[20]

[46] Counsel candidly admitted that she was unaware of her ability to challenge the Crown’s decision, but before the jury was empanelled, she did ask for further time to consider what implications the decision may have. In cross-examination, she acknowledged that “in hindsight perhaps I should have asked for a longer adjournment”.

[47] However, we accept Ms Hoskin’s submissions that:

(a) This was not one of those exceptional cases where fair trial considerations required the Crown to adduce the defendant’s exculpatory statement as part of its case.[21]

(b) Any defence application faced the difficulty that the interview was long, that it was not a video recording, and that it was very substantially based on documents.

[48] Ms Hoskin submitted it could have been an endurance test for the jury. We agree and consider that the experienced trial Judge would have likely come to a similar conclusion.

[49] Of course, once the appellant had elected to give evidence, the proscription in s 21 of the Evidence Act from offering her earlier statement no longer applied. However, the interview was only admissible in rebuttal as a prior consistent statement if it complied with s 35 of the Act. This relevantly provides that a prior consistent statement is admissible if it:[22]

... responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; ...

[50] As this Court observed in S (CA481/2018) v R:[23]

[22] It is now settled that the courts take a liberal view of what amounts to a claim of invention. The Supreme Court has held that a general challenge to the truth of a witness’s evidence will usually amount to a claim of post-event invention. ...

[51] However, even assuming that the audio interview was admissible in rebuttal, it is still necessary for the appellant to establish that trial counsel’s failure to seek its admission caused a miscarriage. We do not consider it did. The fact that the appellant had voluntarily participated in a three-hour interview, without either a support person or a lawyer, and without advance warning of what documents she would be shown during the interview, were all matters before the jury. Ms Hoskin is correct that unlike the position in S (CA481/2018) v R, the appellant was not cross-examined on her earlier statement and no inconsistencies between such statement and her evidence were alleged. Nor did the interview feature significantly in the evidence of Mr Greentree. The main references were to the appellant’s confirmation that her address was used to enrol Mr Xia’s older children at her local school (because it was thought to be a good one) and Mr Xia organising a contract in his name for the maintenance of her pool because she did not know what was involved.

[52] Mr Speed relies on an observation in the Judge’s summing-up that one of the more helpful tools in the assessment of witnesses’ evidence was to consider such factors as “has the witness been consistent not only during her evidence in Court but over time?” He submits that introduction of the prior consistent statement would have bolstered the appellant’s credibility. However, since the in-court evidence was consistent with the interview, any admission of the latter would have necessarily attracted a judicial caution that repetition does not add anything to the evidence. Indeed, courts have long treated such evidence as superfluous.[24] We also consider that because it was only an audio interview, and of such extended length, playing it would have likely taxed the jury’s patience to the point of disengagement.

[53] We do not therefore identify any miscarriage of justice as a result of counsel’s failure to seek to have the interview played.

Alleged errors by trial Judge

No or incomplete inferences direction

[54] This was a circumstantial case because, as the defence reminded the jury and indeed attempted to capitalise on in closing, the Crown did not call evidence from anyone who had observed the relationship between the appellant and Mr Xia during the relevant period. The Judge summed up on this aspect as follows:

Now, the Crown case is what we call a circumstantial case. It requires you to look at various documents and various pieces of evidence, and ask yourself, “What do I conclude from that?” The legal term for that process is drawing inferences. You have facts, what is contained in the documents, what inferences do you draw from those documents? So that is the process of a circumstantial case, drawing inferences from various sources to determine what you conclude.

Now, the Crown does not rely on just one document. It relies on all the documents, and it invites you to consider them, determine what facts you can conclude from them, and then ask yourselves, “What can I infer from this?” and the Crown says the obvious inference is that there was a marriage type relationship between the two.

Now, the defence rightly point out that it is a circumstantial case. There is no direct evidence, which is the other type of case, direct evidence meaning coming from persons who knew Ms Xu during the relevant period of time. [The defence] says you cannot take the documents at face value. To do so would mean that you would not take the real meaning and purpose behind them. You need to look at Ms Xu’s evidence. You need to bear in mind why she did them that way, which was to save face, being this shameful single parent pregnant person in New Zealand. ...

[55] We accept that the Judge did not provide the usual full inference direction (i.e. that an inference is a conclusion drawn from facts which have been established or that the jury has accepted as reliable and that it is not a guess but rather a logical deduction from such facts). However, we do not consider any miscarriage resulted. One of the essential issues was what the Jury could legitimately infer from a range of documents, including those in which the appellant had herself identified Mr Xia as her husband or spouse. The facts in that sense spoke for themselves. They did not need to be established. And when the Crown invited what the Judge referred to as “the obvious inference”, the jury was implicitly being asked not to guess but to make logical deductions.

Absence of lies direction

[56] Mr Speed submits that the Judge should have given a lies direction under s 124(3) of the Evidence Act. There was no request that she do so. He refers to the Crown’s closing address in which Mr Simpson said:

The problem with Ms Xu’s explanation, the difficulty is that no matter which way you look at it, no matte

Please Login To View The Full Judgment!

r which version of events you consider, Ms Xu has lied. Potentially, she has lied to Work and Income, potentially to her doctors, her friends, her family, lied to primary schools, potentially lied to you. Her evidence is that lying is easier, her evidence is that it’s just easier to face people that way, so that makes her explanation of all these documents a bit problematic. It’s a matter for you but if you don’t accept Ms Xu’s explanation, what you can do is you can just set it to one side and then you’re left with the Crown evidence which is these documents that you have before you ... [57] Ms Hoskin submits that no lies direction was necessary because no link was being drawn between the lies (which on Ms Xu’s evidence were told to everyone other than Work and Income and the jury) and Ms Xu’s guilt. She says, relying on this Court’s statement in R v Guo: “Plainly, however, a lies direction is not required where the Crown simply maintains that a defendant’s exculpatory explanation is false”.[25] [58] We agree that the Crown was not relying on Ms Xu’s lies to establish guilt and that the matter was therefore adequately addressed by the Judge’s standard tripartite direction. The Crown’s case was that Ms Xu had been truthful to everyone except Work and Income and it was in fact the defence which invited the conclusion that she had been lying in every other context. We agree with Ms Hoskin that this is the antithesis of the situation where the Judge was required to consider a lies direction. [59] Neither of these grounds of appeal therefore succeed. Result [60] The appeal against conviction is dismissed. --------------------------------------------------------------- [1] Crimes Act 1961, s 228(1)(b) (maximum penalty seven years’ imprisonment). [2] Sections 240–241 (maximum penalty seven years’ imprisonment). [3] The person with whom the Crown alleged she was in a relationship in the nature of marriage. [4] A second child was born on 2 February 2016. [5] “No coherent theory of the case”, “Failed to agree/call cultural evidence” and “Failed to adequately advise on her right to a translator”. [6] Criminal Procedure Act 2011, s 232(2). [7] Section 232(4). [8] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730. [9] Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [74]. [10] POL400s are police forms which are required to be filled in when a violent domestic incident is reported, and “ v statements” is a reference to victim statements. [11] Abbreviation for Protection Order. [12] The copy she received, and which was annexed to her affidavit, was unsigned but dated. [13] There is some confusion in the evidence as to whether the first assault was in 2014 or 2015. We adopt 2014, consistent with Ms Xu’s evidence before us. [14] The basis of charges 1 and 2 on which she was acquitted. [15] R v Xu [2018] NZDC 12277. [16] One of which showed a $1 million deposit to the joint account which was regarded as more prejudicial than probative. [17] R v Xu [2018] NZDC 13077. Mr Xia was not a witness in the proceedings. [18] Simon France (ed) Adams on Criminal Law — Evidence (online ed, Thomson Reuters) at [EA21.02]. [19] R v King [2009] NZCA 607, (2009) 24 CRNZ 527. [20] R v Felise (No 3) (2010) 24 CRNZ 533 (HC). [21] As in R v King, above n 19; and R v Felise, above n 20. [22] Section 35(2)(a). [23] S (CA481/2018) v R [2019] NZCA 169. [24] Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [8]. [25] Guo v R [2009] NZCA 612 at [68].
O R







Judgements of Similar Parties

31-08-2020 James Leonard Toia Versus The Queen Court of Appeal of New Zealand
30-06-2020 Van Dung Nguyen Versus The Queen High Court of Australia
05-06-2020 Steven Robertson Versus The Queen Court of Appeal of New Zealand
02-06-2020 Wai Yew Chai Versus The Queen Court of Appeal of New Zealand
26-05-2020 Michaela Patricia Irwin Versus The Queen Court of Appeal of New Zealand
19-05-2020 Melissa Mary Haereroa Versus The Queen Court of Appeal of New Zealand
13-05-2020 James William Manuoa Te Hiko Versus The Queen Court of Appeal of New Zealand
11-05-2020 Phillip Richard Joe Versus The Queen Court of Appeal of New Zealand
08-05-2020 Malagi Vela Versus The Queen Court of Appeal of New Zealand
07-05-2020 Sammy Ayoun Soud Versus The Queen Court of Appeal of New Zealand
30-04-2020 Marshall James Dennis Joyce Versus The Queen Court of Appeal of New Zealand
28-04-2020 Kane Joseph Manoah Versus The Queen Court of Appeal of New Zealand
22-04-2020 Deo Narayan Versus The Queen Court of Appeal of New Zealand
07-04-2020 George Pell Versus The Queen High Court of Australia
03-04-2020 James Andrew Mills Versus The Queen Court of Appeal of New Zealand
24-03-2020 Jacob Lowenstein Versus The Queen Court of Appeal of New Zealand
23-03-2020 Te Iwi Ngaro Rameka Versus The Queen Court of Appeal of New Zealand
19-03-2020 Richard Tuwhakakorongo Te Roroa Te Kani Versus The Queen Court of Appeal of New Zealand
18-03-2020 William Rodney Swan Versus The Queen High Court of Australia
11-03-2020 Kelvin Clive Wood Versus The Queen Court of Appeal of New Zealand
02-03-2020 The Principal Commissioner of Customs, Chennai-VII Commissionerate, Chennai V/S M/s. Sea Queen Shipping Services (P) Ltd., Adyar, Chennai High Court of Judicature at Madras
02-03-2020 Leanne Maree Crighton Versus The Queen Court of Appeal of New Zealand
20-02-2020 Jimmy Peter Akuhata Versus The Queen Court of Appeal of New Zealand
05-02-2020 Zeki Ray Kadir Versus The Queen High Court of Australia
06-09-2019 Papa Manu Versus The Queen Court of Appeal of New Zealand
15-08-2019 Shane Arron Hunter Versus The Queen Court of Appeal of New Zealand
31-07-2019 Her Majesty The Queen Versus R.V. Supreme Court of Canada
29-07-2019 Shayal Upashna Sami Versus The Queen Court of Appeal of New Zealand
11-07-2019 Keith Bartram Versus The Queen Court of Appeal of New Zealand
10-07-2019 Gang Chen & Another Versus The Queen Court of Appeal of New Zealand
09-07-2019 Zen Pulemoana Versus The Queen Court of Appeal of New Zealand
08-07-2019 Kovinantie Fukofuka Versus The Queen Court of Appeal of New Zealand
05-07-2019 Majesty The Queen Versus Albert Penunsi Supreme Court of Canada
01-07-2019 Danial John Keeley Versus The Queen Court of Appeal of New Zealand
28-06-2019 Patrick John Goldfinch Versus Her Majesty The Queen Supreme Court of Canada
13-06-2019 QI XIE Versus The Queen Court of Appeal of New Zealand
11-06-2019 Kevin Martin Matthews Versus The Queen Court of Appeal of New Zealand
04-06-2019 Ngakiri Williams Versus The Queen Court of Appeal of New Zealand
31-05-2019 Tom Le Versus Her Majesty The Queen Supreme Court of Canada
24-05-2019 Bradley David Barton Versus Her Majesty The Queen Supreme Court of Canada
10-05-2019 Ram Parshotam Mittal & Others Versus Hotel Queen Road Pvt. Ltd. & Others Supreme Court of India
07-05-2019 Jason Phillip Dehaar Versus The Queen Court of Appeal of New Zealand
18-04-2019 Sean Patrick Mills Versus Her Majesty The Queen Supreme Court of Canada
12-04-2019 Rajeshwar Singh Versus The Queen Court of Appeal of New Zealand
10-04-2019 The Queen Versus Dylan Cossey Court of Appeal of New Zealand
09-04-2019 Tuatahi Te Parau Gotz Versus The Queen Court of Appeal of New Zealand
28-03-2019 Corey Lee James Myers Versus Her Majesty The Queen Supreme Court of Canada
22-03-2019 Shaun Thomas Bishop Butler Versus The Queen Court of Appeal of New Zealand
12-03-2019 Christian Lee Hone Hobson Versus The Queen Court of Appeal of New Zealand
28-02-2019 Stead Nuku Versus The Queen Court of Appeal of New Zealand
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
08-11-2018 Virgil Balajadia & Another Versus The Queen Court of Appeal of New Zealand
31-10-2018 Jesse-James Winter & Another Versus The Queen Court of Appeal of New Zealand
18-10-2018 John Garry Davidoff Versus The Queen Court of Appeal of New Zealand
11-10-2018 Iraia Aranga Ngamotu Burton Versus The Queen Court of Appeal of New Zealand
10-10-2018 Eric Walter Smith Versus The Queen Court of Appeal of New Zealand
05-10-2018 William Arthur Parkin Versus The Queen Court of Appeal of New Zealand
18-09-2018 Kelly William Stewart Versus The Queen Court of Appeal of New Zealand
11-09-2018 NZME Publishing Limited & Others Versus The Queen & Another Court of Appeal of New Zealand
10-09-2018 Shannon Taimania Heemi Versus The Queen Court of Appeal of New Zealand
06-09-2018 Heather Gleason-Beard Versus The Queen Court of Appeal of New Zealand
23-08-2018 Laurence Tyson Te Ruki & Another Versus The Queen Court of Appeal of New Zealand
10-08-2018 Rodney George Martel & Others Versus The Queen Court of Appeal of New Zealand
20-07-2018 Her Majesty The Queen & Others Versus Derek Brassington & Others Supreme Court of Canada
13-07-2018 Her Majesty The Queen in Right of British Columbia Versus Philip Morris International, Inc. & Others Supreme Court of Canada
09-07-2018 Michael Robert Pollard Versus The Queen Court of Appeal of New Zealand
06-07-2018 William Hines Versus The Queen Court of Appeal of New Zealand
02-07-2018 Benjamin Shepherd Versus The Queen Court of Appeal of New Zealand
29-06-2018 Richard Alan Suter Versus Her Majesty The Queen Supreme Court of Canada
22-06-2018 David Shaun Galloway Versus The Queen Court of Appeal of New Zealand
20-06-2018 Paul Ian Lane Versus The Queen High Court of Australia
13-06-2018 Jeffrey G. Ewert Versus Her Majesty The Queen in Right of Canada (the Commissioner of the Correctional Service of Canada, the Warden of Kent Institution & the Warden of Mission Institution) & Others Supreme Court of Canada
29-05-2018 Leon Delshannon Turner & Others Versus The Queen Court of Appeal of New Zealand
29-05-2018 Leon Delshannon Turner & Others Versus The Queen Court of Appeal of New Zealand
25-05-2018 Wing Wha Wong Versus Her Majesty The Queen & Others Supreme Court of Canada
18-05-2018 Timothy Brunsell Versus The Queen Court of Appeal of New Zealand
18-05-2018 Timothy Brunsell Versus The Queen Court of Appeal of New Zealand
10-05-2018 The Queen Versus Merkins Bah Agu Court of Appeal of New Zealand
10-05-2018 The Queen Versus Merkins Bah Agu Court of Appeal of New Zealand
09-05-2018 John Collins Versus The Queen High Court of Australia
02-05-2018 Joshua Terehunga Edwards Versus The Queen Court of Appeal of New Zealand
02-05-2018 Joshua Terehunga Edwards Versus The Queen Court of Appeal of New Zealand
01-05-2018 Manoj Vohra & Another Versus The Queen Court of Appeal of New Zealand
01-05-2018 Manoj Vohra & Another Versus The Queen Court of Appeal of New Zealand
27-04-2018 Lealofi Setu Versus The Queen Court of Appeal of New Zealand
27-04-2018 Lealofi Setu Versus The Queen Court of Appeal of New Zealand
19-04-2018 Her Majesty The Queen Versus Gerard Comeau & Others Supreme Court of Canada
13-04-2018 Marie-Eve Magoon & Another Versus Her Majesty The Queen Supreme Court of Canada
26-03-2018 Isaac Cruz Eru Broughton Versus The Queen Court of Appeal of New Zealand
23-03-2018 Bruce Carson Versus Her Majesty The Queen Supreme Court of Canada
23-03-2018 Zhuoling Gao & Others Versus The Queen Court of Appeal of New Zealand
21-03-2018 Ronald Michael Craig Versus The Queen High Court of Australia
21-03-2018 Hone Rankin Daniels Versus The Queen Court of Appeal of New Zealand
15-03-2018 Matthew John Young Versus The Queen Court of Appeal of New Zealand
09-02-2018 Canadian Broadcasting Corporation Versus Her Majesty The Queen & Others Supreme Court of Canada
02-02-2018 Williams Lake Indian Band Versus Her Majesty The Queen in Right of Canada as Represented by the Minister of Aboriginal Affairs & Northern Development Canada & Others Supreme Court of Canada
21-12-2017 Donald Joseph Boutilier Versus Her Majesty The Queen & Others Supreme Court of Canada
14-12-2017 Brian Frank Taylor & Others Versus The Queen Court of Appeal of New Zealand