R v Yang [2016] NZDC 22067 (8 November 2016)

Last Updated: 23 May 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT AUCKLAND

CRI-2015-092-013233 [2016] NZDC 22067

THE QUEEN

v

_{YIMING YANG}

Hearing:	29 June and 3 August 2016
Appearances:	T Hu for the Crown C Frederic for the Defendant
Judgment:	8 November 2016

JUDGMENT OF JUDGE R J COLLINS [On application to rule evidence admissible]

Introduction

[1] On 21 November 2014 Michael Jason Lovell (co-defendant) submitted a claim form to Cover More insurance for personal items he claimed were damaged on his recent travels. One of the items he claimed was damaged was an Apple MacBook Pro Retina laptop.

[2] To support his purchase of the MacBook Mr Lovell submitted an Ariana Electronics Limited tax invoice number INV 01904 dated 13 January 2014 in the sum of $3,499.00. The Crown case is that claim and the invoice produced to support

_{the claim were both fraudulent.}

R v YANG [2016] NZDC 22067 [8 November 2016]

[3] The Crown allegations as set out in the Crown Charge Notice crystallised with Charge 1 being a charge against Mr Lovell for obtaining by deception. Charge

2 is a charge against the defendant Mr Yiming Yang that he altered invoice INV

01904 with an intent to cause loss and alternatively in Charge 3 that he made a false document, namely, invoice no. INV 01904 and thereby committed the offence of forgery.

[4] The Crown case is the Mr Lovell made the fraudulent insurance claim and that Mr Yang committed either or both of the offences with which he is charged for the purpose of assisting Mr Lovell’s false claim. The insurance company paid Mr Lovell’s claim.

[5] The co-defendant Michael Lovell has pleaded guilty to the charge he faced and currently awaits sentence.

[6] The Crown seek, in the trial of Mr Yang, to adduce evidence of a signed statement the defendant provided to an insurance investigator and produce an email the defendant sent to the same investigator (“the statements”).

[7] Both the statement and the email are strongly probative of the Crown case.

The grounds for objection

[8] The defendant says that the statements should be ruled inadmissible on the following grounds:

(i) Firstly the conduct of the insurance investigator was such that the statements were influenced by oppression and are therefore inadmissible pursuant to s 29 of the Evidence Act 2006 (“the Act”);

(ii) Secondly the circumstances in which the statements were made were likely to have adversely affected the reliability of

the statements and should be excluded pursuant to s 28 of the

Act1;

(iii) In any event the actions of the insurance investigator were such as to surround the obtaining of the statement by unfairness and that the statement should therefore be excluded pursuant s 30 of the Act.

The applicable legal provisions

[9] Sections 28 and 29 of the Evidence Act provide:

28 Exclusion of unreliable statements

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if—

(a) the defendant [or, if applicable, a co-defendant] against whom the statement is offered raises, on the basis of an evidential foundation, the issue of the reliability of the statement and informs the Judge and the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue.

(2) The Judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.

(3) However, subsection (2) does not have effect to exclude a statement made by a defendant if the statement is offered only as evidence of the physical, mental, or psychological condition of the defendant at the time the statement was made or as evidence of whether the statement was made.

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

1 I have expressed the objection in that way though I note the onus is on the prosecution to satisfy me on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):

(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put:

(d) the nature of any threat, promise, or representation made to the defendant or any other person.

29 Exclusion of statements influenced by oppression

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if—

(a) the defendant [or, if applicable, a co-defendant] against whom the statement is offered raises, on the basis of an evidential foundation, the issue of whether the statement was influenced by oppression and informs the Judge and the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the statement was influenced by oppression and informs the prosecution of the grounds for raising the issue.

(2) The Judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.

(3) For the purpose of applying this section, it is irrelevant whether or not the statement is true.

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):

(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put:

(d) the nature of any threat, promise, or representation made to the defendant or any other person.

(5) In this section, oppression means —

(a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or

(b) a threat of conduct or treatment of that kind.

[10] The authors of Adams on Criminal Law at EA29.04(1) observe:

(1) Combining arguments of unreliability and oppression

A difficulty is encountered when a defendant combines arguments of unreliability under s 28 with oppression under s 29. A single voir dire will be held to determine the admissibility of the defendant’s statement. As discussed at EA28.04(1), in R v Patten 8/4/08, Harrison J, HC Auckland CRI-2006-004-3200 the defendant relied on s 28, the Reliability Rule and s

29, the Oppression Rule, in contesting the admissibility of his statement to the police. At the voir dire held to determine the admissibility of the defendant’s statement, Harrison J permitted the prosecution to cross-examine the defendant about the truth of his statement to the police. While it is arguable that although such a process is permissible in enquiries under the Reliability Rule (s 28), it is clear that s 29(3) would prohibit such cross- examination if the enquiry was conducted solely under the Oppression Rule.

As discussed at [EA28.04(1)], in R v Wichman [2015] NZSC 198 at [439, fn

492] Glazebrook J specifically disapproved of the approach taken in Patten. Although for other reasons Glazebrook J dissented in Wichman, at [84] the majority accepted that their approach to an enquiry into the reliability of a defendant’s statement was generally consistent with that of Glazebrook J.

[11] The application of the “reliability rule” has been set out in Wichman2, where the majority stated as follows:

[82] Section 28(2) is not an entirely easy provision and its language gives rise to a range of possible interpretations. On one, only the tendency of the relevant circumstances is relevant; their likely or actual impact on the defendant is irrelevant.

On another, slightly less strict interpretation, the likely effect of the circumstances on the defendant are material. Such interpretation is consistent with s 28(4)(a) and (b) which treat the condition and characteristics of the defendant as material. A third interpretation would allow for the actual impact of the circumstances on the defendant to be taken into account, which in effect was the approach taken in R v Fatu, which is discussed in the reasons of Glazebrook J. A judge who was of the view that the circumstances relied on had not materially influenced the statement made by the defendant would presumably also conclude that those circumstances were “not likely to have adversely affected” the reliability of the statement. A fourth interpretation would permit the inquiry to extend to the reliability of

2 R v Wichman [2015] NZSC 198.

the statement on the basis that a judge who is satisfied as to the reliability of the statement would also conclude that it was not likely that the circumstances relied on adversely affected its reliability.

[83] Given the legislative history, it would be wrong to construe s 28(2) as permitting admissibility to be determined on the basis of a trial before a judge as to the truthfulness of the confession. To this extent we agree with the Court of Appeal. We also accept that there is considerable force in the considerations referred to by the Chief Justice in support of an approach to s 28(2) which focuses primarily on the circumstances relied on, and their tendency (albeit allowing for the personal condition and characteristics of the defendant). Such approach, however, does not easily accommodate cases in which the circumstances relied on are internal to the defendant – in other words, of the kind involved in Cooney – and is thus not a great fit for all the work which s 28 is required to perform. As well, it does not sit entirely easily with the use of the word “reliability”. It would be incongruous, to say the least, if an obviously true confession were to be excluded on the basis of a theoretical likelihood that the circumstances in which it was made may have affected its reliability.

[84] We see the s 28(2) inquiry as particular in character. It is addressed to the reliability of “the” statement in issue rather than “a” statement in the abstract. We consider that the “circumstances in which the statement was made” encompass the nature and content of the statement and the extent to which those circumstances affected the defendant. We are also of the view that congruence (or the reverse) between what is asserted in the statement and the objective facts and the general plausibility (or otherwise) of the statement are relevant to the s 28(2) decision. This is consistent with at least the drift of the judgment of the majority in CT (SC 88/2013) v R, which was concerned with unreliability for the purposes of s 122 but proceeded on the basis that the ability (or inability) to challenge the truthfulness of the evidence in question may be material to its reliability. It is, as well, generally consistent with the approach proffered by Glazebrook J in her reasons. We emphasise, however, that a reliability hearing is not a mini trial. A confession induced by threats or promises of a character likely to result in a false confession will usually be held to be inadmissible.

The reliability findings of Collins J and the Court of Appeal

[85] The s 28(2) exercise is factual. In the present case it was carried out by the Judge who found in favour of the prosecution. His conclusions were not explicitly challenged in the Court of Appeal but, as noted, the Court disagreed with Collins J as to whether the police had offered the respondent an incentive to lie and was concerned as to both the impact of the operation on the respondent and the cogency of the confession as it was not knowingly made against interest.

[12] As to the meaning of oppression and any causative effect in terms of the obtaining of the statement Harrison J in R v Patten3 said this:

The infringing conduct must be the exercise of authority or power in a burdensome, harsh or unjust manner, which is of itself improper... Its offensive characteristic is its inherently coercive tendency to overbear and thus adversely affect the truth of a statement. But the existence of oppression of itself is not determinative; its causal effect is critical. In the event that an evidential foundation of oppression is established, then the inquiry must focus on whether or not it influenced the statement.

[13] In R v Hone4 Williams J observed:

The exclusive nature of the definition of “oppression” means both that definitions of “oppression” or “oppressive” in other statutes and cases decided under them will be inapplicable as having been passed for different purposes. Secondly, Courts considering the application of s 29 should confine themselves to the types of conduct or treatment listed and not feel the need to enlarge their judgments with a list of synonyms like an entry in Roget’s Thesaurus although the words “oppressive, violent, inhuman” and “degrading” embody their synonymous counterparts.

[14] With respect to all three grounds of objection the enquiry on this application was into the same conduct, or actions of the insurance investigator. Both the insurance investigator Mr Ramkashin and the defendant Mr Yang gave evidence at the hearing. Both were thoroughly cross-examined. They gave completely contrasting versions of the critical events. The enquiry here then is intensely factual. Any difficulties with the implementation of the complexities around ss 28 and 29 effectively disappear in this case as a result of the resolution of the starkly contrasting versions.

Mr Ramkashin’s version

[15] Mr Ramkashin described how he, on 20 February 2015, went to Ariana Electronics in the late morning to make enquiries with respect to Mr Lovell’s insurance claim. He firstly spoke to the defendant’s assistant, a Mr Tan. Mr Ramkashin had with him what was produced as exhibit 1 in this hearing. That

_{was the invoice submitted by Mr Lovell to support the insurance claim. The invoice}

3 _{R v Patten Auckland High Court CRI-2006-004-003200 8 April 2008 Harrison J at paras [28] – [29].}

4 R v Hone High Court Napier CRI-2007-020-1518 15 April 2008 Williams J at para [57].

was addressed to Mike Lovell. It was dated in this way, “13/01/2014” but somewhat

confusingly recorded two serial numbers.

[16] Mr Ramkashin showed exhibit 1 to Mr Tan and asked if he could see the store copy. Mr Tan showed Mr Ramkashin what was produced as exhibit 2 and what was referred to in the hearing as the “Tracey” invoice. It was an invoice for $95.00 for a laptop keyboard and in no respect did it match the invoice that Mr Lovell had submitted to support his insurance claim.

[17] Thereafter Mr Ramkashin’s evidence was that Mr Yang returned to the store. They introduced themselves. Mr Ramkashin said that he at no time held himself out to be a police officer and identified himself as an insurance investigator.

[18] Mr Ramkashin was obviously interested in resolving the discrepancies between the two invoices. He went with Mr Yang to a nearby Sushi shop where he took a statement which is in fact exhibit 3. This is a part of the evidence that the defence wish to be excluded from the trial.

[19] Mr Ramkashin is a former police officer and the statement has the appearance of statements commonly taken by police officers. It starts with recording Mr Yang’s details. In bullet point form it records his relationship with Mr Lovell and then goes on to give a narrative of the transaction where it was said that Mr Lovell had purchased a laptop from Mr Yang. However halfway through that narrative the defendant changed his account and indicated that exhibit 1 was a document that he had falsely prepared.

[20] Following recording what Mr Yang had told him, Mr Ramkashin said he invited Mr Yang to read it and sign it. Mr Yang did not wish to read it so Mr Ramkashin read the statement to him and it was then signed by Mr Yang.

[21] Mr Ramkashin said he then asked Mr Yang to send to him a copy of the original invoice which Mr Yang said he had used to produce in altered form what was exhibit 1. That document invoice was produced as exhibit 5 in this hearing.

That was emailed by Mr Yang at 5.40pm on Friday 20 February 2015. On 21

February 2015 at 1.29pm Mr Ramkashin replied to Mr Yang in this way:

Kenny

Thanks for sending this through.

Can you just confirm that the receipt you forwarded to me bearing INV 01904 dated 2014/1/13 is the copy of the original sale receipt for the actual customer who you sold the computer to with S/N CO2KT06EFFT0 to which you later added Mike Lovell’s name and further computer S/N C02IHOH9FD57 as agreed in your statement.

[22] At 4.55pm on Saturday 21 February Mr Yang replied to Mr Ramkashin with one word:

Yeah.

[23] Mr Ramkashin then replied on 22 February with his thanks.

[24] There were some further interaction between Mr Ramkashin and Mr Yang but that is largely irrelevant for these purposes and has no particular probative value in the trial. Suffice to say as with all matters there are differences in the accounts given between the defendant and Mr Ramkashin.

Mr Yang’s version

[25] The defence complaints about Mr Ramkashin’s actions fell under five allegations. Firstly, that he did not identify himself as a private investigator. Secondly, he conducted himself so as to deliberately create the impression through his words and conduct that he was a police officer. Thirdly, that he repeatedly threatened the defendant with criminal charges if he did not comply with Mr Ramkashin’s demands. Fourthly, that if Mr Yang cooperated with the investigation against Mr Lovell, who was the target, he would face no sanctions himself. Finally, that the defendant was questioned in an overbearing and aggressive manner.

[26] Consistent with that summary Mr Yang’s evidence was that Mr Ramkashin had misled him as to his identity, had threatened him with arrest, claimed that if he

did not speak to him at a venue such as the Sushi café then the interview would take place at the Glen Innes Police Station, that having initially made two pages of notes Mr Ramkashin ripped those up and threw them away and then created what is exhibit 3 (the defendant’s statement) which was not what Mr Yang had told him.

[27] It is important to note at this point that in evidence Mr Yang asserted that he had not in fact made the admissions which are recorded in exhibit 3. He claimed that they were a fabrication by Mr Ramkashin. That assertion was not put to Mr Ramkashin. I will comment on that later in this judgment. The defendant’s evidence was to the effect that the email he sent on 21 February was not agreeing to the interpretation the Crown asserted. It was contended that they were in fact three questions in that email and the response is ambiguous.

Findings

[28] I record my findings as follows:

(1) I am satisfied beyond reasonable doubt that both statements were not influenced by oppression.

(2) I am satisfied on the balance of probabilities that the circumstances in which the statements were made were not likely to have adversely affected their reliability.

(3) There was no unfairness in the way Mr Ramkashin dealt with the defendant such that the statements were in any way obtained by unfairness.

Reasons

[29] I accept the evidence of Mr Ramkashin that in material terms events transpired as he described. Consistent with that finding I reject the evidence of the defendant.

[30] I deal with my reasons for accepting the evidence of Mr Ramkashin before setting out why I reject the evidence of the defendant.

[31] Firstly Mr Ramkashin’s evidence is a plausible narrative. It started with him attending Ariana Electronics on 20 February 2015 to make routine enquiries about Mr Lovell’s insurance claim. I accept that part of Mr Ramkashin’s evidence where he advised that it is important for private investigators, who do not have the powers of the police, to gain people’s cooperation so as to expeditiously advance their enquiries. Had a store invoice matching exhibit 1 been shown to Mr Ramkashin by Mr Tan then that would have brought enquiries to an end. However, immediately upon being shown the “Tracey invoice” Mr Ramkashin knew there was a serious discrepancy to be resolved. Once the defendant returned to the store and spoke to Mr Ramkashin he also knew it was a serious discrepancy to be resolved. The discussion thereafter took place at the Sushi shop. It matters little whether it occurred on the pavement at a table or inside. The discussion was in a public place. It is implausible that Mr Ramkashin acted in the aggressive overbearing and threatening way alleged against him in a public place.

[32] He recorded in exhibit 3 the defendant’s explanation at the start which would was an exculpatory explanation. However I accept his evidence that when his questions became difficult for Mr Yang to continue to give an innocent explanation to Mr Yang changed the story and gave the version which is recorded. I interpose at this point to observe that Mr Yang’s version of having given an innocent explanation which was ripped up is completely at odds with why Mr Ramkashin would then record on pages 1 and 2 of exhibit 3 the innocent explanation before going on to record the admissions.

[33] The evidence around the emails contained in exhibit 4 is totally consistent with Mr Ramkashin’s evidence. I do not consider his email sent at 1.29pm on

21 February 2015 to be in any way ambiguous or misleading. It contains more than one proposition but in effect what he was seeking was confirmation of that total proposition. He received that some four hours later in unequivocal terms. At the time that Mr Yang replied he was not in Mr Ramkashin’s presence.

[34] There is no internal inconsistency within Mr Ramkashin’s version of events. In addition the nature of what he has recorded in exhibit 3 i.e. the initial recording of an innocent explanation before the recording of the admissions, and the email exchange are strongly corroborate his version of events. Finally the recommendation in his report is consistent with what he said that he told Mr Yang. That is that any decision on whether Mr Yang would face a police complaint or possible police charges was not a matter for him but he would draw to those to whom he was reporting that Mr Yang had been cooperative. That is in fact what Mr Ramkashin did.

[35] The defendant on the other hand did not present a plausible narrative. His narrative struggled for believability in a number of respects. His assertions that differences in invoices or difficulties in producing copies of original invoices was due to a change in computer systems or software were confusing and vague. Like much of his evidence it became more vague and confusing the more Mr Yang was pressed by the prosecutor in cross-examination.

[36] Secondly Mr Yang has no difficulty with English. He has a good command of English. However when the questions became difficult he sought the use of the interpreter.

[37] His evidence to defence counsel that he had never been in trouble with the police was clearly wrong. It came as a surprise to Mr Frederic when the defendant conceded that he had been arrested in relation to an importation in 2004 at the Auckland Airport. Charges under the Misuse of Drugs Act in relation to that were ultimately the subject of a discharge pursuant to s 347 Crimes Act 1961. Ten years later Mr Yang pleaded guilty to a charge of driving while suspended and was discharged without conviction by the presiding District Court Judge. It is surprising then that someone you had been favourably treated by the Justice system, on two occasions, when represented by counsel on both occasions, would not have sought legal advice if he felt he was been pressured into making false admissions or a confession under threat of legal action.

[38] Harrison J in Patten5 referred to oppression in this way:

Its offensive character is its inherently cohesive tendency to overbear and thus adversely affect the truth of the statement.

[39] Significantly here, in the end the defendant’s position was not that his will was overborne and he that he made a statement when but for the oppressive behaviour he would have made no statement. The defendant’s position was that his will was not overborne and far from making a statement he did not wish to make he actually made a statement that was completely exculpatory. In other words he did not admit creating a false invoice and in fact maintained throughout to Mr Ramkashin that the invoice created was for purposes which were in no way intended to dishonestly mislead. Mr Yang’s position was that Mr Ramkashin fabricated a false version which the defendant did not read and nor had read to him but merely signed because of Mr Ramkashin’s conduct. It is difficult to see how such a scenario fits in all with an allegation of oppression. Certainly if Mr Yang’s claims about Mr Ramkashin’s behaviour were correct then it certainly had no impact upon Mr Yang.

[40] The defendant’s position is that what he actually said has been completely misrepresented. If his narrative, or material parts of it were accepted by me there is a clear nexus to issues of reliability. In fact it is difficult to imagine a more unreliable statement than one that was never made. However in terms of reliability I have already set out my finding and reasons for that finding.

Conclusion

[41] The statement and the email exchanges (which were exhibit 3 and exhibit 4 in this pre-trial application are ruled admissible at the defendant’s trial.

R J Collins

_{District Court Judge}

5 Op. cit.