Hu v R [2011] NZCA 412 (26 August 2011)

Court of Appeal of New Zealand

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Hu v R [2011] NZCA 412 (26 August 2011)

Last Updated: 31 August 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA173/2011 [2011] NZCA 412

BETWEEN JIE ER HU Appellant

AND THE QUEEN Respondent

Hearing: 22 August 2011

Court: O'Regan P, Ronald Young and Venning JJ

Counsel: J H Wiles for Appellant S B Edwards for Respondent

Judgment: 26 August 2011 at 11.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against conviction is dismissed.

100. The appeal against sentence is allowed. The sentence of eight years six months’ imprisonment is quashed and a sentence of seven years’ imprisonment imposed.

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REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1] Ms Hu was found guilty by a jury of wounding with intent to cause grievous bodily harm. The trial Judge, Judge Kiernan, subsequently sentenced her to eight years and six months’ imprisonment. She now appeals against conviction and sentence.
[2] The sole ground of appeal against conviction is that as a result of trial counsel errors, a miscarriage of justice has occurred. This allegation is based on a claim that trial counsel “failed to traverse crucial factual aspects in cross-examining witnesses – both the police witnesses and the complainant, and also failed to highlight crucial aspects in her closing address”.
[3] The sentence imposed is said to be manifestly excessive.
[4] The appellant appealed a month out of time due to delays relating to the fact that trial counsel incompetence was being appealed. The Crown did not oppose an extension of time. We grant an extension of time for the filing of the appeal.

Conviction appeal

Background facts

[5] Ms Li, the victim, had previously been in a relationship with the appellant’s father but ended the relationship in late 2009. She and the appellant’s father disagreed over the appropriate division of funds in a joint account.
[6] The Crown case at trial was that the appellant tried to intervene in the dispute and contact Ms Li but the victim would not answer her calls. On 16 January 2010 the appellant drove to Ms Li’s home in Henderson at about 5 a.m. At that time Ms Li was leaving to attend a local market. The appellant had bought a sea cucumber as a gift for Ms Li.
[7] The two parties’ versions of events then diverge completely. The Crown case was that Ms Li and the appellant met in Ms Li’s driveway. After the exchange of the gift Ms Li went back into her house to put the sea cucumber in the fridge. The appellant came behind her and as she entered the house, the appellant held a knife to Ms Li’s throat telling her not to move. A struggle then developed over the knife. The accused used the knife to slash at Ms Li’s chest and face resulting in a number of wounds to Ms Li. Ms Li then managed to get outside. The appellant, however, caught her on the driveway and they struggled again.
[8] The appellant pushed Ms Li down on to the paving. Ms Li managed to bite one of the appellant’s fingers. Ms Li then got up and tried to walk away but the appellant caught her again. During this time the appellant slashed Ms Li’s head causing deep cuts.
[9] After the appellant left Ms Li headed back to her house. On the way inside she picked up the knife that she had been attacked with and the appellant’s cell phone which were lying on her driveway. She put the knife on the shoe shelf on her deck and the cell phone under a pillow in her bedroom.
[10] Ms Li received seven lacerations of various depths to her head, across her forehead and both sides of her head extending to her ears and across the top of her skull. Further, she had four deep lacerations to her thumb and forefingers.
[11] The appellant’s case at trial was that she had gone to see Ms Li to try and resolve the issue of the money owed to her father. When they got inside she said that Ms Li became angry, went to the kitchen and came back holding a cleaver style knife. She then waved it in front of the appellant. The appellant claimed she tried to wrestle the cleaver from Ms Li’s hand and a further struggle ensued.
[12] The appellant said during this struggle she saw another knife on the side table in the dining area. She grabbed it. Ms Li then dropped her cleaver and grabbed the knife the appellant was holding. There was a further struggle in the hallway when Ms Li pushed her into a door frame and tried to kick her in the stomach and used a choke hold to prevent the appellant from getting out the front door.
[13] Once the parties were in the driveway the appellant said Ms Li tried to force her to the ground and tried to turn the knife toward her stomach. The appellant was pregnant at the time. Eventually the appellant was able to get away and drive off as Ms Li came at her with the knife that she had wrestled from the appellant.
[14] Essentially, therefore, the appellant’s case was that the victim had been the aggressor throughout and that the appellant’s actions had been solely to defend herself.
[15] The Crown case, accepted by the jury given their verdict, was that the appellant had been the aggressor throughout. The Crown said the appellant had a motive for the attack, being her anger with Ms Li ending the relationship with her father and the dispute about money. The Crown pointed to the difference in injuries between the two women. Ms Li had serious injuries. The appellant’s injuries were minor, the worst a severely swollen finger where she had been bitten. These differences, the Crown said, supported Ms Li’s version of events.

Discussion

[16] The Supreme Court in Sungsuwan v R identified the circumstances under which counsel’s conduct might give rise to a miscarriage of justice.[1] Tipping J said:

[115] It follows that, when counsel’s conduct is said to have given rise to a miscarriage of justice, the Court must ask itself first, whether something can fairly be said to have gone wrong with the process of justice in the way the appellant was represented at trial. If that is so, the Court must then ask itself whether what has gone wrong has deprived the appellant of the reasonable possibility of a not guilty or more favourable verdict. If the answer is no, there will be no real risk of an unsafe verdict and thus no miscarriage of justice. If the answer is yes, there will have been a miscarriage of justice, irrespective of whether what has gone wrong amounts to negligence on counsel’s part. It may sometimes be convenient to start with the second question. If the appellant has not been deprived of the reasonable possibility of a more favourable verdict, that will ordinarily (unless the high threshold of an unfair trial is reached) be the end of the matter.

[116] It is appropriate to emphasise that this approach should not be regarded as giving the appellant the ability to speculate on what the outcome might have been if different tactical or other decisions had been made, or different advice had been given by counsel as to the content of presentation of the defence. Nor should the appellant be able to rely on speculative points to impugn counsel’s advice which he has accepted or acquiesced in at the time. The appellant must establish a real as opposed to a speculative risk of an unsafe verdict and must show that the impugned conduct of counsel has clearly caused that risk. If as in this case, there was potential for both advantage and disadvantage to the appellant in a course which he claims counsel should have taken, the reality of the risk to the verdict must be assessed with both those aspects in mind.

Whose knife was it?

[17] To return, therefore, to the specific grounds of appeal raised by the appellant. The first complaint relates to the knife that the Crown said was used by the appellant in the attack. Ms Li said that the knife used by the appellant during the attack had holes in the blade. She had found the knife in the driveway after the attack.
[18] The Crown case was that the appellant had brought the knife to the house. The defence case was that the knife was Ms Li’s. After the offending the Police obtained a search warrant for the appellant’s apartment the purpose of which (in part) was to search for other knives of a similar type. No such knives were found.
[19] The appellant’s complaint is that her trial counsel neglected to question the Police Officers who gave evidence as to whether the Police had searched for knives of a similar type at Ms Li’s address.
[20] The appellant’s point is that if similar knives had been found at Ms Li’s address this would have supported the defence version of events and in particular the evidence of two defence witnesses who said they had seen this type of distinctive knife at Ms Li’s home. The appellant says if similar knives had been found at Ms Li’s address this would have limited the ability of the Crown to attack the credibility of the two defence witnesses.
[21] We do not consider there was any inadequacy in trial counsel’s actions here. Trial counsel established that the search of the appellant’s residence produced no knives of a similar type to the one allegedly used by her in the assault.
[22] The Police searched Ms Li’s premises shortly after the assault when she was in hospital. At the time of the Police search the appellant had not claimed that the knife which caused the injuries to Ms Li was Ms Li’s knife. The Police, therefore, had no reason to search Ms Li’s premises with this in mind.
[23] The state of the evidence as to the knife at the end of the trial, therefore, allowed trial counsel to point out there were no similar knives at the appellant’s address. Two defence witnesses had said they had seen similar knives at Ms Li’s house. Questioning the Police as to whether there were similar knives at Ms Li’s house would have at best, have resulted in the Police saying they had found none but they had not searched for any such knives. In those circumstances, therefore, further questioning could not have improved the defence case but could have undermined it.
[24] We reject this complaint about counsel’s conduct.

The cleaver

[25] The second complaint relates to the appellant’s allegation of the cleaver used by Ms Li. The complaint is that trial counsel did not make it sufficiently clear that the appellant’s case was Ms Li was wielding a cleaver at the appellant. The appellant’s case at trial was that Ms Li had confronted the appellant with the cleaver and it was only later in the struggle and in her defence that the appellant picked up a knife. The appellant’s counsel suggested that trial counsel should have stressed that a cleaver is more threatening and dangerous than a knife. However, the evidence before the jury was that the meat clever was ten centimetres long whereas the blade of the knife used by the appellant was measured at 15 centimetres long. In any event this issue was not significant in the context of this case. No counsel error has been identified.

Whose backpack?

[26] The appellant complains that her trial counsel failed to adequately challenge the Crown case that a backpack found at Ms Li’s house was taken there by the appellant on the day of the assault and may have hidden the knife.
[27] The relevance of the backpack related to Ms Li’s evidence as to how the knife was brought to her house by the appellant. Initially Ms Li said that she was not sure how the knife got to her house. In cross-examination she said that she first found the backpack in her home when she returned from hospital. It did not belong to her. She then said “it might be the bag that the knife was brought in”. Later she said in evidence that she gave the bag to the Police and said to the Police “this is how the knife was brought in”. It was clear from the evidence that Ms Li did not know how the appellant brought the knife to her house and her later claim that the knife was in the backpack was a guess.
[28] Who owned the backpack and whether it was used to conceal the knife was a minor matter at trial. Crown counsel did not mention the backpack in his final address to the jury. As the Crown noted, the real issue at trial was whether the appellant had brought the knife to Ms Li’s house and used it as Ms Li had described. How it was brought to the house was hardly relevant. The alleged failures here were, in the context of the case, of little or no moment.

Hiding cell phone and demanding $10,000

[29] The appellant’s case was that after the attack Ms Li had hidden the accused’s cell phone and demanded $10,000 for its return in a subsequent telephone conversation. Ms Li accepted, in evidence, that she had hidden the cell phone and that she had demanded $10,000 from the accused and her father (Mr Hu) but she said the demand for $10,000 was to cover her medical costs from the attack.
[30] Counsel for the appellant claims that if more searching questions had been put to Crown witnesses it would have raised a reasonable doubt about why the cell phone was hidden and that Ms Li had in fact demanded $10,000 for its return.
[31] There was no dispute that Ms Li had the appellant’s phone and that she had hidden it nor that she had demanded $10,000. The only dispute was why she demanded the $10,000.
[32] The appellant’s claim, through her father, that Ms Li had demanded $10,000 for the return of a phone was hardly likely given the value of a cell phone is likely to only be a few hundred dollars. Nor is it likely that if Ms Li was further questioned she would have changed her story and accepted she had demanded the money for the return of the cell phone rather than the costs of her medical treatment for the injuries.
[33] In any event the evidence of Mr Hu (the appellant’s father) allowed the appellant to put to the jury that Ms Li had tried to extort $10,000 from him. This was a peripheral issue which did not go to the central issue for the jury. There was no trial counsel error here.

Section 9 admissions

[34] Trial counsel agreed to a series of admissions of fact for the jury, part of which was a list of Ms Li’s injuries. The appellant complained that this admission meant the true nature and extent of Ms Li’s injuries were not before the jury, that the expert witness was not open to cross-examination about his findings as to the injuries and finally, the admission of fact effectively prohibited Ms Hu from calling rebuttal medical evidence. Counsel claimed that if such an expert had been called he or she might have confirmed the superficial nature of many of the injuries.
[35] There is no evidence before this Court to support the claim that Ms Li’s injuries were superficial.
[36] Trial counsel will often admit facts where proof is effectively inevitable in an attempt to diminish the significance or emphasis those facts might give. Here, the expert evidence described serious cuts to the head. Requiring the witness to be called would likely have emphasised these injuries and have disadvantaged Ms Hu.
[37] There is no trial error here.

Closing address

[38] Finally, counsel for the appellant said that more could have been made by trial counsel in her final address to the jury of Ms Li’s various lies, especially those regarding the true identity of her attacker. Initially, after the attack, Ms Li had lied (as she accepted) that she had not known the identity of her attacker. Counsel accepted that trial counsel had raised Ms Li’s lies in her address to the jury but said more emphasis could and should have been placed on these lies. This complaint is no more than appellate counsel’s opinion that a jury may have been influenced in the appellant’s favour if there had been more emphasis on one point of the appellant’s case than others. This difference of view could not possibly result in an unsafe verdict.
[39] For the reasons given we are satisfied there was no counsel misconduct that could have resulted in a miscarriage of justice. The appeal against conviction is dismissed.

Appeal against sentence

[40] The appellant was sentenced to eight and a half years’ imprisonment. In her R v Taueki[2] analysis the sentencing Judge identified six aggravating features; the use of a weapon; premeditation; a vulnerable victim; an attack to the head; extreme violence and serious harm.
[41] She considered that this offending was at the top of band two or the bottom of band three of Taueki. She took a starting term of ten years’ imprisonment, deducted 18 months for the appellant’s previous good character and the appellant’s personal situation as the mother of two young children who were now in China with the appellant’s husband to reach the final sentence of eight years six months’ imprisonment. The Judge accepted that separation would be difficult both for the appellant and the children.
[42] The appellant submits that the start sentence of ten years’ imprisonment was out of line with similar cases. He submits that a starting sentence of seven to eight years’ imprisonment is consistent with other similar cases.
[43] Further, counsel said that the appellant’s personal circumstances should have resulted in a 20 to 25 per cent deduction from the start sentence rather than the 15 per cent given. In particular he stressed the appellant’s alienation from her children as a major mitigating factor.
[44] We agree with the Judge’s analysis of the aggravating features. This was a very serious attack to the head of a 63 year old woman with a knife. It caused serious cuts to her head and to her hands when she tried to fight off the attack. It is also clear that the offending was premeditated. The Judge was entitled to conclude that the appellant had taken a knife to Ms Li’s house to facilitate the attack.
[45] However, we are satisfied that the starting sentence of ten years’ imprisonment was manifestly excessive. We consider it was out of line with other similar cases.
[46] A start sentence at the middle/high range of band two of Taueki was appropriate. We were referred to a number of appellate authorities but perhaps the most relevant was R v Konui.[3] There, after the victim had been involved in a fight, the appellant obtained a large knife from the kitchen of a house. He returned to the street where he stabbed the victim several times in the back and the head and the throat. When the victim fell to the ground he was stabbed again. The victim suffered three stabs wounds to his back and cuts to his head and the left side of his throat. He was admitted to hospital as an inpatient for eight days but no vital organs were damaged.
[47] The same six Taueki features identified in this case were identified by the trial Judge in Konui. This Court agreed with that analysis and thought a nine year starting sentence was not outside the permissible range.
[48] The other case of some relevance is Saber v R.[4] There Mr Saber after tension between his and the appellant’s family stabbed the victim several times in the torso. One stab wound to his stomach caused part of his intestine to protrude. There were several serious stab wounds to the victim’s stomach including a six inch wound as well as an eight centimetre laceration across his chest wall and further stab wounds to his right and left shoulder.
[49] The Judge in the District Court adopted a starting point of ten years’ imprisonment reduced in this Court to one of eight and a half years’ imprisonment.
[50] We are satisfied in this case, taking into consideration the relevant factors identified by the Judge and other similar cases, that the proper starting point here was eight and a half years’ imprisonment. We consider that starting point adequately reflects the seriousness of the offending here.
[51] We see no reason to differ from the Judge in her decision to deduct 18 months’ imprisonment from the start sentence to reflect the appellant’s previous good record and the difficulties that will inevitably be faced by her in such a lengthy absence from her children.
[52] We acknowledge that in keeping the 18 month deduction we are somewhat increasing the percentage deduction given to Ms Hu for her personal circumstances. We accept, however, that imprisonment will be especially difficult for Ms Hu given the fact that her children have now returned to China with her husband.

Result

[53] We quash the sentence of eight and a half years’ imprisonment and impose instead a sentence of seven years’ imprisonment.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
[2] R v Taueki [2005] 3 NZLR 372 (CA).
[3] R v Konui [2008] NZCA 401.
[4] Saber v R [2010] NZCA 603.