HOU v R [2005] NZCA 13 (22 February 2005)

Court of Appeal of New Zealand

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HOU v R [2005] NZCA 13 (22 February 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA293/04

THE QUEEN



v



YU HOU

Hearing: 14 February 2005

Court: Chambers, Goddard, and Salmon JJ

Counsel: J F Mather for Appellant
H D M Lawry for Crown

Judgment: 22 February 2005

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by Salmon J)

[1]	This is an appeal against conviction on a charge of detaining without consent with intent to confine. The appellant was found guilty of this charge after trial in the District Court before a Judge and jury. He was sentenced to 300 hours community work.
[2]	The Crown case was that the complainant was forced into a car by another alleged offender. The car belonged to the appellant and he was the driver of it. At the direction of the other offender, the appellant drove the car to several locations in Auckland. During the course of this, a fourth person was picked up. After some time, the car was driven to the Hillsborough cemetery where the complainant was forced out of the vehicle. The principal offender had made demands for money during the course of the journey in the car. Further demands were made after the complainant was forced out of the car, and the complainant was assaulted. There is no evidence that the appellant took part, either in the demands or the assault.
[3]	After being returned to the vehicle, the complainant was forced to write a note acknowledging a debt owed to the principal offender. Once again, the appellant took no part in that activity. Eventually, the appellant left the car at an address in Mt Albert Road and the other two men, and the complainant, drove back to Newmarket where the journey had commenced.
[4]	The grounds of appeal pursued at hearing were that:

a) The prosecution was unclear as to the basis upon which the appellant was prosecuted;
b) Much of the evidence admitted at trial was prejudicial and irrelevant to the prosecution case against the appellant;
c) In his summing up, the Judge did not make the prosecution case clear to the jury and left the jury without a clear direction as to what it needed to consider and what it should not consider.

[5]	In his submissions Mr Mather, for the appellant, noted that s 209 of the Crimes Act 1961 uses the words "carries off or detains." He submitted on the basis of R v Crossan [1943] NZLR 454 (CA) that the words create two different offences. In this case, the appellant was charged with detaining. However, in his summing up, the District Court Judge (Judge Hobbs) referred consistently to carrying off, even though in referring the indictment to the jury, he used the word "detained." Mr Mather also criticised the summing up for lack of precision in relation to the geographical and temporal focus of the Crown’s case which was the incident when the complainant and the principal offender got into the car in Newmarket. He noted that the Judge told the jury that it needed to consider the events after leaving Newmarket "in the way I have asked you to when considering the evidence in relation to the state of the accused’s mind at the very beginning", but says that there is nothing earlier in the summing up to which that statement relates. Finally, he submitted that the lack of focus in the case led to evidence of little probative value to the charge being adduced. He submitted that the risk of the cumulative effect resulting in confusion on the part of the jury is so high that there has been a miscarriage of justice.
[6]	There is no doubt that the District Court Judge used the expression "carried" or "carrying off" extensively in his summing up. We have concluded, however, that he used those terms in a descriptive sense rather than as a reference to the alternative charge in s 209 of the Crimes Act. We were assisted in our consideration of this matter by Mr Mather’s description of events which took place at the trial, but which were not apparent from the record before us. Mr Mather told us that the defence that he put to the jury on behalf of the appellant was that the appellant had no knowledge that the complainant was being detained, if in fact there was a detention at all. He acknowledged that he did not in cross-examination seriously challenge the complainant’s contention that in fact he was detained, or that he was forced into the car against his will. It was also part of Mr Mather’s case at trial that it was necessary for the Crown to establish that that detention occurred at Newmarket at the time when the complainant was first forced into the car.
[7]	At the conclusion of counsel’s addresses at the end of the trial, the Court adjourned. The following morning the Judge asked to see counsel. He noted that counsel had raised the interesting legal point that detention and carrying off were two separate offences. He noted Mr Mather’s contention that the focus needed to be on Newmarket and that the intention needed to exist at that point. Mr Mather also told us that the Crown wished to rely on a detention at a different point of the continuum but that the Judge would not allow that.
[8]	Mr Lawry advised us that the Crown case at trial was that the detention commenced at Newmarket and continued on from that point but that the focus of all those involved, prosecution, defence and the Judge, was on what happened at Newmarket.
[9]	This additional information has enabled us to place the Judge’s summing up in context. When he came to describing the offence to the jury, the Judge took them to the indictment and noted that it alleged a detention without consent with intent to cause the complainant to be confined. He said that this was really a charge of kidnapping in layman’s terms. In the following part of the summing up the Judge uses the terms "carried off" and "carrying off" and, indeed, he says that the first element that the Crown must prove was that the victim was "carried off." He then explained that as meaning that he was moved or taken from one place to another and that the accused was involved in doing that. He then goes on to record that the Crown allegation is that the victim was "carried off from Newmarket" and that "the accused was involved in doing that."
[10]	On the face of it, those comments are consistent with a charge of carrying off without consent rather than detaining without consent. However, in the circumstances of this case, there is really no difference between the two concepts. The central issue was whether the complainant was held in the car against his will and whether the appellant had knowledge that that was so. As to the time at which the intention must be present, the Judge in summarising the defence case said this:

Mr Mather said to you that the Crown needs to prove what the accused’s intention was at the time he got into the car in Newmarket and he quite correctly says that the accused’s intention at that time is critical.

and later:

There is, he says, no compelling evidence to persuade you that the accused knew at the time the victim Mr Nan Meng got into the car that it was the intention of Lu Bai to carry him away and detain him.

[11]

Later the Judge noted a defence submission that what happened after leaving Newmarket does not have great relevance to the state of the accused’s mind when the car drove away from Newmarket. The Judge noted that was a submission which Mr Mather was perfectly entitled to make and that the jury needed to consider that submission:

in the way that I have asked you to when you are considering the evidence in relation to the state of the accused’s mind at the very beginning.

It is very apparent then that the Judge drew the jury’s attention, as Mr Mather had submitted should be the case, to the question of the appellant’s state of mind at the time the complainant was forced into the car in Newmarket. This question of intention was addressed again in answer to a question which the jury asked in these words:

The defence states that the intention to confine the victim had to be known from the time the victim first entered the car. If it is credible that at that time the accused may have simply been driver for a day out and only discovered later the intention to confine, does this still qualify as guilt beyond reasonable doubt?

The Judge said that the short answer to that question was No. So again, he emphasised to the jury the importance of the appellant’s state of mind at the time the complainant was forced into the car.

[12]	We observe that the Judge’s direction may have been unduly favourable to the defence. In our view, it would have been sufficient for the Crown to have established a detention without consent with intent to confine at any stage of the journey. It is apparent that Mr Mather was successful in persuading the Judge to take a more restrictive approach to the time at which intent should be proved. We are also satisfied that in the context of this case, detaining and carrying off amounted to the same thing. This was, in effect, a detention by carrying off. The jury were not misled as to their task. Clearly, the Judge was aware of the distinction between the two types of offence because that was the very matter he raised with counsel in Chambers. He used terminology referring to a carrying off from Newmarket to emphasise that it was the events at Newmarket which were pivotal to the case. There was no objection made by Mr Mather at trial to the terminology used by the Judge in summing up. Carrying off was just a description of what happened after the detention commenced.
[13]	For similar reasons, we do not accept that the evidence of what happened after the vehicle left Newmarket was irrelevant to the prosecution case against the appellant and thus prejudicial to him. Again, Mr Mather made no objection to this evidence at trial. That evidence was clearly relevant to the intent to confine. What the appellant did later was clearly relevant in any assessment of his actions and intention while in Newmarket.
[14]	For the above reasons we are satisfied that the grounds of appeal have not been made out. The appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland