Zhan v R [2011] NZCA 644 (14 December 2011)

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Zhan v R [2011] NZCA 644 (14 December 2011)

Last Updated: 22 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA370/2011 [2011] NZCA 644

BETWEEN FUJUE ZHAN Appellant

AND THE QUEEN Respondent

Hearing: 10 November 2011

Court: Wild, Chisholm and Potter JJ

Counsel: F C Deliu for Appellant M D Downs for Respondent

Judgment: 14 December 2011 at 11.30 am

JUDGMENT OF THE COURT

The appeal, which is both against conviction and sentence, is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

[1] At a trial in the District Court presided over by Judge Mathers the jury found Mr Zhan guilty of importing about one kilogram of methamphetamine. The Judge sentenced Mr Zhan to 11 years six months imprisonment.[1] Mr Zhan appeals both his conviction and sentence.
[2] In appealing his conviction Mr Zhan alleges that his trial counsel was incompetent, that the prosecutor misconducted herself, that the Judge made numerous errors in summing up to the jury, and that the verdict was not supported by the evidence.
[3] The appeal against sentence is more narrowly based. The only challenge is to the one year reduction the Judge allowed Mr Zhan for his relative youth, his lack of previous relevant convictions and the hardship of lengthy imprisonment away from his family in China. Mr Zhan contends the allowance should have been in the range 18 months to three years.

Background

[4] On 15 October 2009 Customs officers intercepted and examined a courier package of heavy duty industrial rollers that had arrived from China. Inside the rollers they found 1003.6 grams of methamphetamine. The package was addressed to “Mr Wang” at an address in Balmoral, Auckland.
[5] When the package was delivered at about 1.15 pm the following day by courier van, Mr Zhan was waiting for it in a nearby car. After identifying himself to the courier driver as Mr Wang, he took the package and drove away with it in his car. Mr Zhan took the package to an apartment in downtown Auckland and left it there unopened. Police and Customs executed a search warrant at the apartment that night. They found the package, and also tools which they thought could be used to open the industrial rollers in it. Mr Zhan returned to the apartment while the search was underway.
[6] When interviewed by the police Mr Zhan admitted picking the package up. He told the police he had done so on instructions from an unknown person in China whom he had met on the internet. He denied receiving any money for the collection. He claimed he was unaware of the package’s contents and that his instructions were to keep the package until he received further instructions.
[7] Mr Zhan was 24 at the time of this offending in October 2009. He had been in New Zealand since 2004.
[8] Mr Zhan was found guilty upon retrial. At his first trial in July 2010 the jury were unable to agree.

Appeal against conviction

Trial counsel incompetence

[9] Mr Zhan directed the following criticisms at Mr Le’au’anae, who defended him:

• (a) he was wholly unprepared for the trial;
• (b) he failed to object to the videotaped interview by the police of Mr Zhan;
• (c) he advanced implausible allegations against the police of brutality against Mr Zhan; and
• (d) he made no pre-trial applications, nor sought any pre-trial rulings.

[10] While Mr Deliu’s submissions elaborated these points, we need not. The reason is that these criticisms lead nowhere. Mr Deliu does not suggest how Mr Le’au’anae might have conducted Mr Zhan’s defence more effectively. Consistent with this, in his affidavit affirmed on 19 October 2011 in response to Mr Le’au’anae’s affidavit of 14 October, Mr Zhan stated this:

27. Throughout my case I believed that Mr L had a new strategy, although we never discussed it, I was sure that he would have had a plan. If I had realised prior to my trial that his plan was to do the same thing as at my previous trial, I would have asked him to try something different or add in something new.

[11] Mr Deliu confirmed to us that Mr Zhan’s defence was that he did not know that the package contained methamphetamine, and therefore lacked the required criminal intent. We have read the transcript of the trial. This defence was put by Mr Le’au’anae to the jury from the start to the finish of the trial. Mr Le’au’anae’s opening statement for the defence to the jury includes this:[2]

[Mr Zhan] accepts, ladies and gentlemen of the jury, that on the particular day in question he picked up a package from 98 Landscape Road in Mt Eden, but he was doing that as a favour for a friend, a friend who emailed him from China, or presumably from China because that’s where the package came from, and asked him to pick it up. So that’s what he did. But he did not know what was in the package.

[12] Mr Le’au’anae added to this some powerful opening points. The police had found no cash in Mr Zhan’s apartment or in any bank account nor any text messaging or drug paraphernalia, such as scales or ziplock bags. All of those things typically accompany drug dealing. Mr Zhan had casually left the package of drugs – which had a street value of about $1 million – right next to the front door of his apartment. If he had known what was in the package and its value would he have done that?
[13] With one exception, Mr Deliu makes no criticism of Mr Le’au’anae’s cross-examination of Crown witnesses. It was thorough, in some cases lengthy. It could certainly not be criticised as superficial and inadequate.
[14] The cross-examination that Mr Deliu does criticise is Mr Le’au’anae putting it to Detective Zhang, toward the end of his cross-examination, that the detective had twice hit Mr Zhan on the side of his head with his notebook at the end of his interview. The Judge cautioned the detective that he did not need to answer those allegations but the detective did, denying them. As Mr Downs points out, the same allegations were put to Detective Zhang by counsel (not Mr Le’au’anae) at Mr Zhan’s first trial. Mr Downs makes the point that those allegations obviously reflected Mr Zhan’s instructions. Mr Deliu does not suggest otherwise. His complaint is that the allegations should not have been made, because they did not advance the defence.
[15] Closing to the jury, Mr Le’au’anae elaborated the defence. He did this by following through Mr Zhan’s actions in relation to the package. He reiterated that Mr Zhan had always accepted that he had taken delivery of the package. He accepted also that Mr Zhan had told the police some lies. He concluded his address in this way:[3]

... But you’ll hear from Her Honour that there are all sorts of reasons why people lie, and that doesn’t necessarily make them guilty, and in this case, ladies and gentlemen of the jury, it doesn’t necessarily mean that Mr Zhan was an importer, knowingly, that there are drugs in that package. He told you he did not know, and his actions speak for themselves. And that creates a doubt, and if it creates a doubt then the only verdict that you can come back with is one of not guilty. Thank you very much, so pleases Your Honour.

Prosecutorial misconduct

[16] Mr Deliu submits the prosecutor misconducted herself in cross-examining Mr Zhan about lies he had told the police, and in relying on those lies in her closing address to the jury. We reject this criticism. A jury can now rely on an accused’s lie as evidence of guilt.[4] The prosecutor was therefore entitled to question Mr Zhan about lies he had told the police which could evidence guilt. Indeed, if the prosecutor had failed to do that she would have failed in her duty to put the Crown case fully but fairly.
[17] We are satisfied that the lies the prosecutor asked about did evidence guilt. For example, she had Mr Zhan admit that he had lied to the police about his ability to use the internet:[5]

17. Do you remember telling the police officers that you did not know how to use your Woosh internet?
1. Yes at that time I didn’t tell the truth.
17. So you were lying to the police when you told them you didn’t know how to use your internet?
1. Yes.

[18] And she had Mr Zhan admit that he had lied to the police about the tools which the police found in his apartment – tools the Crown contended could be used to open the rollers in which the methamphetamine was concealed:[6]

17. You lied to the police about the tools, correct?
1. Yes.
17. Why did you feel the need to lie about the tools if they weren’t anything important?
1. It was the case that I lied in the DVD however the tools are all purchased by me, that is the truth. I bought them.
17. Why did you lie about them if they weren’t important?
1. When you are told that you have drugs at your home, you are scared, you panic and then it was not possible for you to answer the questions with a clear thoughtful manner.
17. Why was it hard to tell the truth?
1. I lied at the time, it wasn’t a matter whether I told the truth or not, even if I told the truth then the police would not be prepared to believe me, they would still take me as a bad person, a criminal.

Misdirection by the Judge in summing up

[19] Mr Deliu accepted that the Crown could prove its case against Mr Zhan by establishing either that he knew the package contained a controlled drug, or that he was “wilfully blind” to its contents. That is in line with this Court’s decision in R v Martin.[7] But Mr Deliu submitted the Judge did not direct the jury that they must be satisfied that Mr Zhan had the requisite knowledge or wilful blindness pre-importation, as opposed to prior to Mr Zhan taking delivery of the package at the address in Balmoral, Auckland. In respect of the wilful blindness alternative, Mr Deliu submitted:[8]

... because it was an importation allegation ... the deliberate failure to enquire must have been only at the points where the Appellant was communicating with the China connection.

[20] As Mr Downs argued, that submission is not correct. A number of decisions of this Court establish that importing into New Zealand for the purposes of s 6(1)(a) of the Misuse of Drugs Act 1975 is a process that starts from the time the drugs first enter New Zealand, and ends, either when the drugs become available to the addressee/consignee, or when the drugs are detained or seized by the authorities, whichever occurs first.[9] Applying those authorities to the fact situation here, the importation continued until the courier delivered the package to the Balmoral address (effectively, when the courier handed the package to Mr Zhan, who had identified himself as the addressee). We accept Mr Downs’ submission that the accepted fact that Mr Zhan was waiting there – and had been for several hours – to take delivery of the package brings Mr Zhan within s 6(1)(a) of the Misuse of Drugs Act, provided of course that the requisite knowledge or wilful blindness is established.
[21] The Judge’s directions about the requisite mental element of importing are at several different points in her summing up. First, in the course of her directions about the evidence, and in particular the drawing of inferences from it, the Judge said this to the jury:[10]

In this case the Crown asks you to draw the conclusion, from all the circumstances, that Mr Zhan did know what was in the package at the time that the package came into New Zealand, or the time that he received the package. The Crown says that this conclusion can be drawn from a number of factors and I’m not going to list them all but some of them are the time that he arranged to pick up his friend’s car the night before, being the 15th of October, the time that he went to the address at 7.00 or just after 7.00 in the morning, the risk that he was prepared to take in driving when he was a disqualified driver, approaching the courier driver and saying that he was Mr Wang, and having the tools in his possession.

(Emphasis added.)

[22] Secondly, the Judge’s directions to the jury about the elements of the charge of importing included the following:[11]

To establish this charge the Crown must prove four elements beyond reasonable doubt. First, that something was “imported into New Zealand”. The term “imported” is to be given its ordinary meaning of introducing or bringing into the country something from abroad, or causing or arranging for something to be brought in from abroad.

And for clarification, if a person agrees to act as the recipient of the importation of an item at a time prior to the item actually being received at the intended address then it is open to you to conclude by inference, taking into account all the facts and bearing in mind the onus of proof of beyond reasonable doubt, that that person is an importer. And this is what the Crown is relying on in this case.

...

Thirdly, that the person who either did the importing, or caused or arranged for it to be done, knew that what was being brought in was a controlled drug and intended that it should be brought into the country. The person does not need to know that the drug was methamphetamine.

(Emphasis added.)

[23] Later, when summarising the Crown’s case for the jury, the Judge said this:[12]

The Crown says there is evidence from which you can properly infer, beyond reasonable doubt, that Mr Zhan was involved in the importation of a controlled drug. In the alternative the Crown says that Mr Zhan’s present explanation of clothing and food is in fact evidence of wilful blindness as to what was in the package after his suspicion was aroused.

The Crown says that it is not necessary for Mr Zhan to know in fact that it was a Class A drug it is only necessary that Mr Zhan knew, or by inference was wilfully blind to the fact, that the package contained controlled drugs. The Crown also says that if Mr Zhan agreed to act as the recipient of the importation of the package at a time prior to it actually being received at the intended address he is liable as an importer and that you can draw this conclusion by making inferences taking into account all of the facts.

So the Crown says you must take into account all the circumstances and then decide whether or not you accept that the Crown has proved each and every element of the charge beyond reasonable doubt of importing of the package which contained a Class A drug.

(Emphasis added.)

[24] We consider those directions were both accurate and adequate. The jury would have clearly understood that they must be satisfied that Mr Zhan knew at the time he took delivery of the package from the courier driver at Balmoral that it contained illicit drugs, or was wilfully blind to its contents.
[25] Certainly, some of the evidence relied upon by the Crown, and referred to by the Judge in summing up, was about Mr Zhan’s conduct after he had taken delivery of the package. Examples are his willingness to drive off with the package, while disqualified from driving. And his lies to the police to which we have already referred. And Mr Zhan falsely claiming that the various tools and instruments the police found in his apartment belonged to his friend. But the Crown’s reliance on that post-delivery conduct was as an aid in establishing the requisite knowledge or wilful blindness on Mr Zhan’s part in importing the package.
[26] Mr Deliu contended there were other errors in the Judge’s summing up. Foremost amongst these was the Judge’s failure to direct the jury about Mr Zhan’s first trial. To emphasise the importance of such a direction, Mr Deliu pointed out that the prosecutor had cross-examined Mr Zhan about answers he gave in the course of his evidence at his first trial.
[27] Conventionally, at the start of a retrial, the Judge will seek counsel’s agreement as to what, if anything, the jury is to be told. Sometimes counsel ask that the Judge, in making opening remarks to the jury, explain that this is a retrial, and the significance of that. Sometimes counsel do not want the matter referred to. We do not know what happened here. We do not have a copy of the Judge’s opening remarks. Whatever the position was, we do not accept that not directing the jury in summing up that this was a retrial resulted in justice miscarrying. We note that Judge Mathers did direct the jury in these terms:[13]

And I remind you again that if by chance you have any previous knowledge of this case or any person involved in it you must put it firmly aside. You must judge the accused, Mr Zhan, only on the evidence sworn to and produced in this Court.

[28] Mr Deliu was also critical of the Judge for not directing the jury “on a broad number of issues”, of which he offered these examples:[14]

1. Use of juror’s notes;
2. Inability to use sources extraneous to the evidence to reach a verdict;

100. Ability to ask questions of the Bench during deliberations, including to review exhibits and witness testimony;

4. Secretive nature of deliberations;
5. Importance of keeping an open mind;
6. Obligation to impartially adjudge facts without advocating for any side;
7. Adjudicating the facts on the evidence alone and through no other means (the classic example being flipping a coin); and
8. Not changing one’s mind simply because others may disagree (holding your vote).

[29] We do not accept these criticisms. The Judge’s summing up accurately and adequately directed and assisted the jury in its task. We reject the nub of Mr Deliu’s submission, which was that the summing up was not comprehensive and thus not fair.

Verdict not supported by the evidence

[30] On instructions, Mr Deliu put it to us that the Crown had an insufficient evidential base against Mr Zhan upon which a jury verdict of guilty could be rendered safe.
[31] We do not accept that. The issue in the trial was whether the Crown had satisfied the jury that Mr Zhan knew at the time he took delivery, that the imported package contained controlled drugs, or was “wilfully blind” to that. The jury’s unanimous verdict of guilty was well open to them on the evidence they heard. Salient items of evidence were these:

• (a) That Mr Zhan waited in his car for about half a day (from 7 am to 1.15 pm) in order to take delivery of the package at the Balmoral address, and then drove off with it, all at a time when he was a disqualified driver.
• (b) That Mr Zhan took the package to his apartment where there were tools and instruments (although we accept that the jury had no evidence that these tools were capable of opening the rollers and releasing the drugs concealed in them).
• (c) Mr Zhan’s unconvincing explanation to the police that he was collecting the package as a favour for his friend James, and that it contained food and clothing.
• (d) Mr Zhan’s lies to the police about matters capable of indicating guilt on his part. For example, about the tools in his apartment and his inability to use the Woosh internet he had.

[32] All the matters that could be advanced by Mr Zhan indicating that he was not guilty as charged were covered in evidence. We have referred to the main ones in [11] and [12] above.

Appeal against sentence

[33] Judge Mathers allowed Mr Zhan a one year reduction in sentence for his relative youth. Mr Deliu advanced the narrow and untenable point that the Judge should have allowed Mr Zhan a discount in the range of eighteen months to three years (12–25 per cent). It was contended that that discount properly reflected Mr Zhan’s age (he was 25 when sentenced), lack of previous relevant convictions, and the hardship of being away from his family in China.
[34] Mr Deliu accepted, as he did when appearing before the Judge at sentencing, that Mr Zhan could not get the benefit of any discount for a guilty plea or remorse.
[35] We agree with the Judge’s observation that the discount of one year she allowed Mr Zhan was “merciful” and “perhaps ... generous”. A submission that the discount could or should have been greater was untenable.
[36] When we put it to Mr Deliu that the Court was minded to exercise its power under s 385(3)(b)(i) of the Crimes Act 1961 to increase the sentence – a course Mr Downs had hinted may be appropriate – Mr Deliu elected not to pursue the sentence appeal further.

Result

[37] The appeals, both against conviction and against sentence, are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Zhan DC Auckland CRI-2009-004-23366, 19 May 2011.
[2] Case on Appeal at 75A.
[3] Case on Appeal at 188.

[4] R v Tepu [2008] NZCA 460, [2009] 3 NZLR 216 at [17], citing Bruce Robertson (ed) Adams on Criminal Law: Evidence (online looseleaf ed, Brookers) at [EA 124.02].
[5] Notes of Evidence at 129/14–19.
[6] Notes of Evidence at 144/33–34, 145/1–12.
[7] R v Martin [2007] NZCA 386 at [10].
[8] Appellant’s submissions at [75].

[9] R v Hancox [1989] 3 NZLR 60 (CA) at 62–63; R v Mason CA340/05, 16 March 2006; R v Wickremasinghe CA137/03, 21 August 2003; R v Adams [2008] NZCA 171 at [14].
[10] Judge Mathers’ summing up at 6.
[11] Judge Mathers’ summing up at 9.
[12] Judge Mathers’ summing up at 13.
[13] Judge Mathers’ summing up at 2.
[14] Appellant’s submissions at [79].