R v Yan [2012] NZHC 427 (15 March 2012)

Last Updated: 20 January 2013

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-092-10550 [2012] NZHC 427

THE QUEEN

v

_{YAN YONG MING}

Hearing: 14 March 2012

Counsel: RMA McCoubrey for Crown

DPH Jones QC and PF Wicks for Accused

Judgment: 15 March 2012

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 15 March 2012 at 11:00 am pursuant to Rule 11.5 High Court Rules.

_{Registrar/Deputy Registrar}

SOLICITORS

Meredith Connell (Auckland) for Crown

Forest Harrison (Auckland) for Accused

COUNSEL

_{DPH Jones QC; PF Wicks}

R V YAN YONG MING HC AK CRI-2009-092-10550 [15 March 2012]

Introduction

[1] Mr Yan Yong Ming is due to stand trial in this Court on 7 May 2012. Mr Yan is a national of the People’s Republic of China and the charges relate to the process by which he came to live in this country. 10 weeks have been allowed for the trial and I will be hearing the case without a jury.

[2] Two pre-trial matters were argued before me yesterday. The first was an application by the Crown for an order under s 344A of the Crimes Act 1961 that the evidence of a proposed Crown witness, Lu Wenming, is admissible. The second was an application by the accused for orders that disclosure be made by the Crown pursuant to the Criminal Disclosure Act 2008.

(1) The s 344A application

[3] The Crown wishes to call at trial the evidence of Lu Wenming. An unsigned brief of evidence has been supplied. It is unsigned because Mr Lu has refused to sign the brief. The evidence itself is unremarkable. Mr Lu is a public official in China and his evidence goes to the sequence of events by which a warrant to arrest the accused was issued in China and then notified to Interpol. There are elements of the brief, pointed to by Mr Jones QC for the accused, which might be objectionable for hearsay. However, I do not have to consider that now. If it remains a relevant issue at trial, it can properly be addressed then.

[4] The Defence objection to the admissibility is based on what Mr Jones terms “the underlying fairness ground”. Mr Jones submits that it would be unfair to allow Mr Lu to give evidence because the Defence has insufficient information to be able to cross-examine him. Apparently a Detective Zhang, a New Zealand police officer, prepared the unsigned brief for Mr Lu. There are two versions. The version which the Crown now applies for permission to lead is the second version. The earlier version was the one prepared directly by Detective Zhang after communications with the witness.

[5] Mr Jones points out that the proposed brief is in English and Mr Lu is not a speaker of English. There has been no disclosure of any notes taken by Detective Zhang of his dealings with Mr Lu. In the normal course of things, it would be expected that there would be, at least, job sheets and notebook entries. Perhaps there would be memoranda to other officers involved in the case as to Detective Zhang’s dealings with Mr Lu. It could be expected that the Police liaison officer in Beijing who, apparently, has been involved in the case might also have made notes. It might be expected that Mr Lu would have provided copies of Chinese official documents to back up his evidence. But there has been absolutely no disclosure of anything of the sort so the Defence would not be in a position to challenge the evidence of Mr Lu were he to give it. That is a fundamental unfairness in Mr Jones’s submission.

[6] Mr Jones has suggested a practical solution in the event that there is no disclosure of the sort that would cure the difficulty. Mr Jones suggested that the Police could have Detective Zhang prepare a detailed job sheet as to his dealings with Mr Lu and as to how the statement was taken. Mr Jones also would like a brief from a Ms Li, who is the assistant to the Police liaison officer in Beijing. Mr Jones believes that Ms Li would have had something to do with briefing Mr Lu and a document from her as to the process by which that occurred would be useful. Of course, whether the Crown accepts that it should act in this way is a matter for the Crown. I certainly cannot direct the preparation of documents. (I interpolate here that since the hearing, Mr McCoubrey for the Crown has filed a memorandum in which he advises that he will be recommending to the Police that Detective Zhang prepare a job sheet as suggested by Mr Jones.)

Decision

[7] I grant the Crown’s application to call the evidence of Mr Lu. Although I understand the difficulty which Mr Jones has raised, it is not one which I consider should cause me to exercise an inherent jurisdiction to prevent Mr Lu from giving evidence.

[8] The Crown understands that Mr Lu can give evidence as set out in the two unsigned briefs of evidence. Those unsigned briefs have been disclosed. The core

events described in the briefs are clearly relevant to elements of the charges which must be proved by the Crown. It so happens that because Mr Lu is an officer of a foreign country, and not an English speaker, the usual supporting documentation seems not to be available. If it is, then of course it must be disclosed.

[9] One of the possible consequences for a trial in a situation such as this is that delay will be occasioned by the Defence seeking time to prepare cross-examination once it has heard Mr Lu’s evidence-in-chief. One way to minimise that risk would be for Detective Zhang to prepare the account of his involvement with Mr Lu as suggested by Mr Jones. I record my view that Mr McCoubrey is adopting a responsible position by recommending to the Police that that be done. Another avenue would be for the Defence to ask the prosecution for access to Detective Zhang so that he can be interviewed on the subject.

[10] In summary, I do not see that I can order a witness who, on the face of the record, has relevant and significant evidence to give from being barred from giving it. The practical difficulties that the Defence faces can be ameliorated by the sort of co-operation offered by Mr McCoubrey and by taking any steps necessary at the trial to afford the Defence sufficient time to prepare its cross-examination of the witness.

(2) Application for disclosure orders pursuant to the Criminal Disclosure

Act 2008

[11] The Defence seeks orders that the respondent disclose to the applicant eight categories of information. The Crown accepts that information in the categories if available, and subject to the usual grounds for withholding information, should be disclosed.

[12] Section 30 of the Criminal Disclosure Act 2008 provides that an accused may apply to the Court for an order that a particular item of information or type of information in the possession or control of the prosecutor be disclosed. One of the grounds must be that the prosecutor has failed or refused to disclose the information. The Court may make the order if it is satisfied that the accused is entitled to the information requested.

[13] In this case Mr McCoubrey submits that it is neither necessary nor desirable to order the Crown to make disclosure as sought. He submits that there has been no failure by the Crown to make the disclosure. A first request for disclosure in some of the areas concerned came by letter from the Defence dated 13 February 2012. A reply was given on 15 February 2012 and work is still being done in respect of that. A further request was made on 22 February 2012 relating to further categories of information and by letter dated 7 March 2012 the Defence concentrated its various requests in one place. Mr McCoubrey submits that the requests are best dealt with by the Crown being given the opportunity to give a measured and detailed response to each request. That would be better than having to respond to an order which might not allow for the discussion and flexibility required.

[14] Mr Jones points to the closeness of the hearing date, submits that the Crown had a positive duty to disclose this information well before now, and submits further there is no detriment to the Crown if the orders are made. The advantage in having the orders made now is that certainty will be imposed.

[15] I am not convinced that it is necessary at this stage to make the orders sought. Mr McCoubrey has acknowledged that the Crown has an obligation to disclose relevant information within the categories listed in the Defence application. He acknowledges that if exemptions are to be relied upon, they will have to be notified to the Defence. That is standard procedure. In my view, given these concessions, it would be premature to make orders for disclosure.

[16] I will give the Crown an opportunity to respond properly to the letter of

7 March 2012. I will give the Crown and the Defence the opportunity to confer over the Crown’s response and to see whether any further disclosure is necessary. Accordingly, I dismiss the application.

[17] I reserve leave to the Defence to apply again for orders for disclosure if, by

_{29 March 2012, it still perceives a need for such.}

Brewer J