[1] At a jury trial before Judge Gittos, at which he was represented by Mr Davison QC, the appellant was convicted on six charges of importing pseudoephedrine and one of attempting to pervert the course of justice. He was sentenced to a term of imprisonment of four years.[1]
[2] The appellant appeals against his conviction only. On his behalf Ms Wickliffe raised two grounds of appeal:

(a) The Crown failed to disclose call and text data relating to a police cell phone, together with other material, until the trial was underway or, in one instance, at all. As a consequence, Ms Wickliffe said, the appellant did not have a fair trial.

(b) Fresh evidence is now available that might have had a material bearing on the outcome of the trial. Accordingly, there is a risk that there has been a miscarriage of justice.

Background

[3] In 2006 the appellant stood trial on fraud charges arising from investment services that he had been providing to potential immigrants. Two of the principal complainants against the appellant were a married couple, Cai Dong Li (Ms Cai) and Yu Jun (Mr Yu). As the jury was unable to agree, a retrial was scheduled.
[4] Shortly before the appellant’s retrial was due to begin on 17 September 2007, six packages of pseudoephedrine, a precursor substance for the manufacture of methamphetamine, arrived in New Zealand from China. Two packages were addressed to a unit in Botany Downs where Ms Cai and Mr Yu lived and four were addressed to a house in Half Moon Bay where their friend, Ping Fang (Ms Fang), lived. Ms Cai and Mr Yu had stayed with Ms Fang at the Half Moon Bay address while the first fraud trial was underway.
[5] The packages were addressed variously to Ms Cai, Mr Yu and Ms Fang. The day before these packages began to arrive in New Zealand, a police officer received several text messages on his cell phone from a number in China. These messages indicated that drugs were being sent from China to New Zealand for Ms Cai, Mr Yu and Ms Fang. He then received a text from a New Zealand cell phone, which read:

Here are some information about drug receiver their address 42a pigeon mountain road halfmoon bay Auckland name are yu jun and fang ping there is another receiver named cai dong li lived unit 33 opito way botany downs auckland.

[6] Only one of the packages was actually delivered. It went to Ms Fang, who put it in the rubbish. The remaining five packages were intercepted when x-rayed by Customs.
[7] The Crown case against the appellant was that he had arranged the drug importation to discredit Ms Cai and Mr Yu immediately before the second fraud trial was due to begin. The Crown relied particularly on the following factors:

(a) At trial the appellant admitted that he had sent the text message quoted above[2] and that he had taken steps to conceal the fact that he had done so.

(b) Genuine importers of illicit drugs do not use the intended recipients’ real names when addressing drug parcels.

(c) When the police visited Ms Fang she showed them the parcel in the rubbish. The Crown said it was clear that she was not involved in the manufacture of methamphetamine and had not been expecting a consignment of pseudoephedrine.

(d) When the police searched the appellant’s home they discovered a notepad which listed the names of the three recipients of the packages, the two addresses to which they were sent and the cell phone number of the police officer who had been sent the texts.

[8] The appellant denied that he had arranged the importation of the pseudoephedrine. He said that he had received a number of telephone calls from a Chinese man who introduced himself as Mr Guo and wanted to discuss Mr Yu. The appellant said that he did not know Mr Guo but in the last of the telephone calls Mr Guo told him that Ms Cai, Mr Yu and Ms Fang would shortly be receiving a consignment of illegal drugs and gave him the two addresses to which the drugs would be sent. Mr Guo also gave him the police officer’s cell phone number. The appellant said that he thought that he should advise the police of what he had been told out of a concern to protect the New Zealand community from harm. However, given his upcoming fraud trial, he thought he should do so anonymously. Accordingly, he used his former girlfriend’s cell phone and purchased a new SIM card for it. After sending the text message, he threw both away. The appellant said that he was very confident of succeeding at his retrial on the fraud charges and so had no reason to discredit Ms Cai or Mr Yu.
[9] Against this background, the essential issue for the jury was relatively straightforward – whether they were sure that the appellant had orchestrated the importation of the pseudoephedrine or whether he had at least raised a reasonable doubt in giving his explanation of events. In the result, the jury was satisfied that the Crown had established its case beyond a reasonable doubt.

Late disclosure

[10] One of the issues which the defence explored at trial was call data relating to the police officer’s cell phone. It emerged in the course of cross-examination that full disclosure of that data had not been made. This was immediately rectified. In a ruling addressing the situation, Judge Gittos noted that the initial non-disclosure occurred because someone within Customs withheld the material out of a misplaced concern that it should be kept confidential because the particular cell phone was frequently used by informers providing information about the drug scene.[3] The Judge noted that the non-disclosure was a cause for concern, but said that it did not appear to have “caused anything other than inconvenience and delay”.[4] The Judge said:[5]

... I note that Mr Davison does not contend at this point that any injustice has arisen or that in the end the defence has not seen anything which is material that it requires to see. But it is plain from the way the matter has progressed that it could and should have been managed better so that advance notice of this quite complex material could have been given to the defence and a better focussed use made of the Court’s time surrounding these issues. So I make those comments for the benefit of those who may need to hear them.

[11] Ms Wickliffe argued that the appellant’s defence was compromised by the late disclosure of the call data. While we agree that disclosure should have been made promptly, we do not accept that the late disclosure gave rise to the possibility of an unfair trial:

(a) The appellant was represented at trial by a Silk with substantial criminal trial and appellate experience and expertise. While he was clearly unhappy at the late disclosure, and was granted an adjournment to consider the new material, Mr Davison did not complain that the appellant’s defence was materially prejudiced as a consequence. This is reflected in the extract from the ruling of Judge Gittos just quoted. Moreover, it is clear from his summing up that the Judge considered that nothing in the late disclosure had adversely influenced the trial.[6]

(b) When pressed, Ms Wickliffe was unable to explain how the late disclosure of the call data might have led to a miscarriage of justice. The critical text message was that quoted above.[7] As we have said, the appellant admitted that he had sent that message and that he had taken steps to conceal the fact that he had done so. The best Ms Wickliffe was able to say was that if the defence had received the data earlier, it might have been able to investigate it further and this might have turned up something of benefit for the appellant’s defence. But that is highly speculative. Something rather more concrete is necessary on appeal.

[12] As it happens, Mr Davison used the late disclosure effectively both in cross-examination of a police witness and in his closing address to the jury, where he suggested that the late disclosure was symptomatic of a sloppy police investigation. The Judge noted this defence contention in his summing up.[8]
[13] The same analysis applies to the other items that Ms Wickliffe said were disclosed late. Ms Wickliffe complained that as a result of their late disclosure the appellant did not have a fair trial but was unable to point to any material impact that these items might have had if they had been disclosed earlier.
[14] Accordingly, we reject this ground of appeal.

Fresh evidence

[15] The Crown called Mr Yu to give evidence at trial. During the course of his cross-examination by Mr Davison, the following exchange occurred:

There were a number of people who had got in touch with you, whether they were friends or associates that you ended up taking money from to invest. Am I right?

No that didn’t occur in China.

Weren’t you sued in China and taken to Court by someone who had given money to you and your family for investment?

This is a bizarre comment, there is no such thing. I didn’t understand how you could have put forward this one to me.

I just want to make it absolutely clear. Were you named in Court proceedings that went before the Courts in China in relation to claim by someone who had entrusted money to you for investment?

I reiterate, I wasn’t.

And later:

Then finally Yu Jun, have you had any people in China who have invested with you who have criticised you for handling their investments?
Why do you ask this question, what basis do you have to ask this question?
So is the answer, no, no one has criticised you for handling – for the manner in which you’ve handled their investments, is that what you’re saying? No one has suggested you’ve lost their money for them and you should be paying it back to them?
No, why is that?

[16] Mr Davison had available to him at trial a judgment of a Chinese court in 1998 relating to an unsuccessful claim by a Mr Hanje Guo against a Mr Jun Yu. The judgment was in Mandarin but there was also an English translation. However, Mr Davison elected not to pursue the matter further with Mr Yu.
[17] When the appellant gave evidence he said in his evidence-in-chief:

What did this person say, this male person, what do you recall them saying to you?

First, he asked me questions in relation to the case and then he said he was in the same boat as me being cheated by Jun Yu. At that time I wasn’t prepared to believe what he said therefore I didn’t release much about the case I was having.

Did the man give a name or identify himself in any way?

He only told me his surname was Guo, G-U-O but he didn’t tell me any other details in terms of his contact details or the way and method of contact and I didn’t ask him either.

What language was the man communicating to you in?

He was speaking Chinese speaking Shanghai dialect.

So is that dialect regional in any way, associated with any part of China?

Only people in Shanghai spoke this type of dialect.

You say that he was asking you about the case, what sort of questions were being asked of you?

His question was such as what progress you have made so far, how was this fraud taken place and what problems you have in between yourselves. He also said he was a friend of Yu Jun’s families and he said he would help him to do some investment. He said the money was given to Jun Yu and he never got his investment back and he also lost the case.

[18] The following sequence occurred during the appellant’s cross-examination:

Now this name Guo you’ve been talking about – G-U-O – that’s the name you say of the person who rang you and spoke to you on the phone a number of times?

Yes.

And you’ve mentioned that he somehow knew Yu Jun through family connections, is that right?

Yes.

And I take it, that was something you’ve obviously told to your lawyer before coming to Court?

Yes.

And that name and the fact that it was somehow a family connection to Yu Jun?

Yes.

Because you heard Yu Jun being asked questions about investments, and whether someone had taken him to Court, didn’t you?

Yes.

But that name was never suggested to Yu Jun was it?

Correct.

But from what this person told you, he clearly knew Yu Jun?

Yes.

And yet Yu Jun hasn’t been asked about that person by the name of Guo, has he?

No.

So are you sure that you’ve told your lawyer that name before you came to Court and gave evidence yesterday?

Are you talking about the person who called me?

Yes.

Yes.

[19] Ms Wickliffe said that the English translation of the judgment of the Chinese court available to Mr Davison recorded the defendant Mr Yu’s date of birth as being 8 November 1955, whereas the date of birth of the witness Mr Yu was 18 November 1955. However, a translation subsequent to trial has indicated that the date of birth of the defendant Mr Yu was in fact 18 November 1955, the same as that of the witness Mr Yu. Ms Wickliffe submitted that if the correct translation had been available at trial, Mr Davison could have put the judgment to Mr Yu to challenge the truthfulness of the answers he gave under cross-examination. She pointed out that Crown counsel in her closing address had drawn attention to Mr Yu’s response to the suggestion that he had been sued in China and argued that his responses supported the view that he was a credible and reliable witness.
[20] Mr Boldt made two points in response to this submission. First, Mr Yu’s credibility was not central to the case against the appellant. It was never suggested that any of Mr Yu, Ms Cai or Ms Fang were in fact drug importers. Second, Mr Davison obviously made a decision that there was little to be gained in attempting to impeach Mr Yu’s answers. He did not, for example, ask Mr Yu if he knew a Mr Guo. In relation to the appellant’s claim that he had been contacted by a Mr Guo who said he had sued Mr Yu unsuccessfully in China, Mr Boldt said that further questioning of Mr Yu about Mr Guo might have produced answers that undermined or even destroyed it.
[21] We accept Mr Boldt’s submissions. Mr Davison made an understandable decision not to pursue this line of cross-examination with Mr Yu. It was not central to the defence case. Besides being of marginal relevance, the further evidence is not fresh. We reject this ground of appeal.

Decision

[22] For these reasons, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Wang DC Auckland CRI-2007-004-23343, 9 December 2009.
[2] At [5].
[3] R v Wang DC Auckland CRI-2007-004-23343, 15 October 2009 at [4].
[4] At [6].
[5] At [7].
[6] At [34].
[7] At [5].
[8] At [34].

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