The Queen v Xie [2007] NZCA 571 (13 December 2007)

Last Updated: 22 December 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA192/07 [2007] NZCA 571THE QUEEN

v

JIANG ZHONG XIE

Hearing: 5 December 2007

Court: William Young P, Glazebrook and Chambers JJ

Counsel: A J Trenwith for Appellant
S B Edwards for Crown

Judgment: 13 December 2007 at 2 pm

JUDGMENT OF THE COURT

1. The Crown’s application to call further evidence on the appeal is granted. At the hearing of the appeal, the parties may call evidence on facts in dispute.
2. Rule 12B of the Court of Appeal (Criminal) Rules 2001 will apply, with time limits to be calculated as if the date of this judgment were the date of filing the notice of appeal.
   

REASONS OF THE COURT

(Given by Chambers J)

A sentencing goes awry

[1] Jiang Xie pleaded guilty to 20 charges of importing psuedoephedrine, one charge of possession of psuedoephedrine for supply, and one charge of failing to answer District Court bail.
[2] He came up for sentence on 24 April this year. Prior to sentencing, the Crown had filed, in accordance with normal practice, the agreed statement of facts and written submissions on sentence. Those submissions contained the statement that Mr Xie was “not thought to be the mastermind” of the importation.
[3] After these submissions had been filed, Nicholas Williams was assigned by the Crown to appear at the sentencing. He had not prepared the Crown’s written submissions. He telephoned one of the police officers in charge of the case, Detective Sergeant Mark Osbourne, to check some details. Detective Sergeant Osbourne took the opportunity to explain it was not the police’s view that Mr Xie was “not thought to be the mastermind”. On the contrary, he told Mr Williams that, “as far as the police were concerned, [Mr Xie] was the mastermind behind the importations into New Zealand”.
[4] On the day of the sentencing, Mr Williams discussed this change in Crown position with defence counsel, Kirsten Giles. Ms Giles had become involved in the case only the previous day. Ms Giles did not demur from the Crown’s change of position.
[5] The sentencing then proceeded. The sentencing judge, Asher J, asked defence counsel whether it was accepted Mr Xie was a mastermind and received confirmation that it was.
[6] It now turns out Ms Giles had no authority to make that concession. Mr Xie does not accept he was the mastermind. He has appealed against the sentence Asher J imposed. Ms Edwards, for the Crown on this appeal, accepts the sentencing went awry in that Ms Giles’s concession was made without authority. She also properly accepts that some of the blame for the sentencing having gone awry falls on the Crown: the defence should have been told earlier that the Crown sought to amend its stance as to Mr Xie’s role in the offending.
[7] Ms Edwards accepts that Mr Xie should not be held to the concession he made. Ms Edwards submits we should, as part of the appeal hearing, conduct a disputed facts hearing in terms of s 24 of the Sentencing Act 2002. The Crown will attempt to prove that Mr Xie was the mastermind. Mr Trenwith, for Mr Xie, opposes that course.

Issues on this application

[8] Two issues arise on this application.
[9] The first is whether the present panel has jurisdiction to deal with the Crown’s application. This submission arises from the fact that a different panel started to hear this appeal, but had to adjourn the matter when it became clear there was an important factual dispute both as to the extent of Mr Xie’s offending and also with respect to what had happened prior to and at sentencing. Both sides then filed affidavits to clarify what had happened. Mr Trenwith submitted that only the original panel could deal with the Crown’s application to call further evidence and for this court then to conduct a disputed facts hearing.
[10] The second issue is whether this court should conduct a disputed facts hearing.

Does the present panel have jurisdiction to consider the Crown’s application?

[11] It is a little difficult to see what forensic advantage Mr Trenwith saw in pursuing a submission that the present panel did not have jurisdiction to determine the Crown’s application. The panel that started hearing Mr Xie’s appeal comprised a permanent member of this court and two High Court judges. Of those three judges, one is based in Auckland, one in Wellington, and the third in Christchurch. Getting all three together would be impossible before February next year. Persisting with the first panel would simply mean additional delay in the hearing of the Crown’s application and in the hearing of the substantive appeal.
[12] In any event, we are quite satisfied that any properly constituted panel could hear and determine the Crown’s application. It is obvious the hearing of the appeal will have to start afresh. No natural justice concerns arise from that, as the new panel will be completely unconcerned with anything that occurred at the first appeal hearing prior to its being aborted.
[13] Appeals are adjourned, unheard and part-heard, all the time – and for a variety of reasons. A judge falls ill during the hearing, and the appeal has then to start afresh before a different panel. A judge finds midway through a hearing that he or she has an unanticipated conflict, which causes the judge to recuse himself or herself. An appeal cannot be reached on its designated day and is adjourned off for consideration by a new panel. These are all administrative decisions. There can be no doubt about the substitute panel’s having jurisdiction to consider the appeal, provided it does so untrammelled by what occurred at the aborted hearing.
[14] In our view, nothing turns on the fact the hearing was “adjourned” rather than “aborted”. Obviously, if it had been convenient for the previous panel to be reassembled quickly, that would have been the desirable course – though only for practical reasons, in that they would have been familiar with the file as a result of their preparation for the appeal hearing back in August. That course is not, however, immediately practicable, and it has therefore proved desirable for the Crown’s application to be heard by a different panel, with the aim that the substantive appeal can be brought on for hearing again as quickly as possible.
[15] We hold we do have jurisdiction to consider the Crown’s application.

Should this court hold a disputed facts hearing?

[16] Mr Trenwith accepted this court has jurisdiction to conduct a disputed facts hearing: R v Chicoine CA220/04 24 February 2005 and R v Gatenby CA511/04 28 April 2005. But he submitted that, as an exercise of discretion, we should refuse to conduct one in this case. This was essentially for three reasons:

• (a) The error in the High Court was primarily caused by the Crown;
• (b) Mr Xie would have no right of appeal against any factual decision this court might make on a disputed facts hearing;
• (c) There has been significant delay in the hearing of this appeal.

[17] We are satisfied the interests of justice require this court to conduct a disputed facts hearing. Mr Xie’s offending is very serious. It is important that he should be sentenced on a correct factual basis. Had his counsel objected to the Crown’s assertion that he was the mastermind, we have no doubt the sentencing would have been adjourned so that a disputed facts hearing could take place. It is inconceivable Asher J would have deprived the Crown of the opportunity of proving Mr Xie’s “mastermind” status. We should now do what he would have done had the parties’ positions been correctly reported to him.
[18] We respectfully reject the three reasons Mr Trenwith advanced against this course. As to the first, it is not correct that primary blame for the error that has arisen lies with the Crown. As we have just said, had Ms Giles taken proper instructions from Mr Xie when Mr Williams advised the Crown’s change of position, she presumably would have learned he did not accept “mastermind” status. Had she informed the court of that, a disputed facts hearing would have been inevitable. What is important to note is that this is definitely not a case where the Crown is trying to change its stance after sentencing.
[19] We mention in passing that Ms Giles’s affidavit is somewhat vague as to just what instructions, if any, she did receive from Mr Xie on the day of sentencing. She merely records that she accepted what the Crown had told her “in the absence of any other instructions”. That could mean she did not consult with Mr Xie at all; alternatively, it could mean she did consult with him and he did not contradict the Crown’s assertion that he was the mastermind. We have proceeded on the assumption that the former scenario is what occurred. If, of course, the latter scenario represented what happened, then Mr Xie’s attempt now to prevent a disputed facts hearing is all the weaker.
[20] As to the second reason, it is true that Mr Xie will not have a right of appeal against this court’s decision on a disputed facts hearing conducted in this court. But that is always the case when this court does get involved in determining facts as part of the appeal process. For example, it is common for this court to have to make factual determinations in cases involving allegations of trial counsel incompetence. What instructions did the appellant give? What took place between the appellant and his or her trial counsel? Was trial counsel incompetent? There is no right of appeal from this court’s determinations on such questions. That is simply an inevitable consequence of the appellate structure, flowing from this court’s having no jurisdiction to remit any questions or issues to the trial court.
[21] In any event, it should not be forgotten that it is Mr Xie who wants release from the concession made by his counsel in his presence at sentencing. It is in reality his own conduct which has potentially deprived him of a right of appeal against factual determinations on a disputed facts hearing.
[22] Finally, of course, we note that Mr Xie retains a right to appeal by leave from any decision this court may ultimately make.
[23] We turn to Mr Trenwith’s third reason. It is regrettable that this dispute has caused delay in the consideration of Mr Xie’s appeal. That delay is not the responsibility, however, of either the Crown or this court. In actual fact, what should have happened is that Mr Xie should have been the one applying to call further evidence, right from the time he filed his appeal back in May. Had he done that, the entire appeal would have been able to be dealt with when called in August. Instead, the point was not signalled in advance and the initial panel had no option but to adjourn the appeal as there was no evidence whatever before the court as to what had happened prior to and at sentencing.
[24] Further, Mr Xie is serving a long term of imprisonment: eight years, three months. Asher J also ordered he serve a minimum period of imprisonment of four years, two months. Such delay as there has been will not unduly prejudice Mr Xie, as, even if this court finds he was not the mastermind of the importation, he will still clearly be required to serve a very lengthy period of imprisonment.
[25] We are accordingly satisfied that it is in the interests of justice that there should be a disputed facts hearing as part of the hearing of Mr Xie’s appeal. Both sides will need to file affidavits relevant to the facts in dispute. Rule 12B of the Court of Appeal (Criminal) Rules 2001 will apply. The time limits included in that rule should be calculated in this case as if the date of this judgment were the date of filing the notice of appeal. Unless a party calling evidence (party A) is notified by the other that a witness is required to give his or her evidence in chief orally, party A may assume the other party consents to that deponent’s evidence in chief being given by the affidavit already filed: see Evidence Act 2006, s 83(1)(b).

Solicitors:
Crown Law Office, Wellington