Commissioner of Police v Li

[2018] NZHC 1262

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES OR IDENTIFYING PARTICULARS OF RESPONDENTS UNTIL THE FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2013-404-3228

[2018] NZHC 1262

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

STEVEN QUAN LI

First Respondent

Continued next page

Hearing:

30 and 31 May 2018

Counsel:

M Harborow for Applicant

D Dufty and R Patel for Fourth Respondent

Judgment:

31 May 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 31 May 3018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Meredith Connell, Auckland

COMMISSIONER OF POLICE v LI [2018] NZHC 1262 [31 May 2018]

FAN YANG

Second Respondent

PENGJU CHEN
Third Respondent

JONATHAN LI
Fourth Respondent

AIQING XIANG
Fifth Respondent

[1]    The Commissioner of Police has commenced a civil forfeiture application against five respondents, including Mr Li. It is alleged that Mr Li committed mortgage fraud by giving ANZ false information in support of his mortgage application, including that he was a shareholder and employee of Best Home Textile (Nantong) Company Limited (Best Home) and received a significant salary from them. Mr Xu, the General Manager of Best Home, has sworn a deposition that the information was false. I have an application from the Commissioner that Mr Xu give his evidence by AVL. This is opposed.

Legislative frame

[2]    The Courts (Remote Participation) Act 2010 (the Remote Participation Act) sets out the criteria at s 5 for determining whether AVL is appropriate, namely:

(a)The nature of the proceedings.

(b)The availability and quality of the technology that is to be used;

(c)The potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including:

(i)The ability to assess the credibility of witnesses and the reliability of evidence presented to the Court; and

(ii)The level of contact with other participants.

(d)Any other relevant matters.

[3]    While this is a civil application, the allegations of mortgage fraud make it criminal in nature. To my mind, this makes the matters set out in s 6, dealing with criminal cases, relevant to the assessment:

6Additional criteria for allowing use of audio-visual links in criminal proceedings

A judicial officer or Registrar must also consider, when he or she is required to determine under this Act whether or not to allow the use of AVL for the appearance of any participant in a criminal proceeding, the potential impact of the use of the technology on the effective maintenance of the right of the defendant to a fair trial, and on his or her rights associated with the hearing, and, in particular,—

(a)the ability of the defendant—

(i)to comprehend the proceedings; and

(ii)to participate effectively in the conduct of his or her defence; and

(iii)to consult and instruct counsel privately; and

(iv)to access relevant evidence; and

(v)to examine the witnesses for the prosecution; and

(b)the level of contact the defendant has with other participants; and

(c)any adverse impression that may arise through the defendant or any other participant appearing by means of AVL, and whether that adverse impression may be mitigated.

[4]    The scope and effect of the Act has been recently considered in two judgments of this Court. Gendall J observed:1

… there is legislative recognition that at a general level there is nothing inherently unfair or inferior about having a participant in a proceeding appear by way of AVL.

[5]Similarly, Lang J in Addleman v Lambie Trustee Ltd accepted that:2

[3]     As Ms Ross, for the plaintiff points out, there is now no presumption in favour of a witness giving evidence in the courtroom rather than remotely. This reflects the fact that recent advances in technology mean that high quality AVL links are now available. In addition, when assessing the credibility and/or reliability of the evidence given by a witness the courts are now less willing to place weight on factors such as the witness’s demeanour.

[6]    Similar observations have been made in the context of s 103 of the Evidence Act (which also applies here). The Court of Appeal in R v O said:3

[37]     Section 103 allows a broad fact-specific inquiry.   It appears to signal a distinctive shift in legislative policy to extend the scope for the mode of

1      R v H [2018] NZHC 326 at [49].

2      Addleman v Lambie Trustee Ltd [2017] NZHC 1719.

3      R v O [2012] NZCA 475 at [37].

giving evidence by alternative means beyond the previous limitations to young and mentally impaired complainants in sexual cases. The provision vests a broad and unfettered discretion in the trial Judge once the jurisdiction to make an order is established. As this Court has previously observed, there is now no default position or presumption in favour of giving evidence in the ordinary way.4

[7]    I also note that, for the purposes of s 103, the absence or likely absence of a witness from New Zealand may be a ground for permitting a witness to give evidence in an alternative way.

Submissions

[8]    The Commissioner makes the following submissions in support of the application:

(a)The Court has access to advanced and high quality AVL technology.

(b)AVL is no impediment to the Court assessing credibility.

(c)It will require Mr Xu to fly to New Zealand which will cause Mr Xu significant inconvenience and likely stress. This would be unfair both to Mr Xu and to the Commissioner.

(d)It is a large and unjustifiable expense to fly Mr Xu here.

(e)There is no risk of unfairness.

[9]    The Commissioner also addresses an allegation made that Mr Xu had been subject to police coercion at the time of his interview. That allegation is based on the affidavit evidence of Ms Yang, another respondent in the proceedings. Ms Yang deposes that Mr Xu in May 2017 told her that in late 2016 he was detained by police for 24 hours, did not have access to legal counsel or a support person and at the end of this detention he signed several pages of notes. She says he made it clear to her that he was under extreme pressure when he was detained for 24 hours and when he signed

4      Citing also V(CA492/2010) v R [2011] NZCA 525 at [21], citing R v Shone [2008] NZCA 313 at [28].

the documents. He also told her about a short interview in April 2017 at which he signed some documents.

[10]The Commissioner says that:

(a)Ms Yang’s evidence is unreliable hearsay.

(b)The account of events put forward by Ms Yang is contradicted by the evidence of Superintendent McCardle who was present at Mr Xu’s interview for the purposes of briefing him on the issues that will be before the Court.

(c)The reliability of Mr Xu’s evidence is corroborated by Mr Li’s own evidence, who accepts that he was aware that Best Home could not pay him a salary at the time he made his declaration with ANZ.

(d)The allegations of coercion can be adequately addressed through cross- examination.

Submissions for Mr Li

[11]   Ms Patel takes no issue with the quality of the AVL technology. Rather her primary concern is that Mr Xu has been subject to police coercion and could be subject to further intimidation or pressure by police while giving evidence. This she says bears both on the credibility and reliability of his evidence.5 Ms Patel makes the point that Ms Yang’s evidence is not hearsay because it is a conversation with a witness. She submits that Mr McCardle’s evidence is contestable and the Court should favour a cautious approach and require Mr Xu to attend in person.

5      Citing Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260.

Assessment

[12]   Ms Patel concedes that there is no default position in favour of giving evidence in the ordinary way. It is a matter of discretion having regard to the factors listed both in the Remote Participation Act and in the Evidence Act.

[13]   In the present case, there is no issue as to the quality of the AVL for trial purposes. Rather, the central issue is whether Mr Xu’s trial evidence will be improperly influenced by Chinese police if the evidence is given in China. It is an issue that is difficult to resolve given the inability of this Court to robustly test the allegation of improper influence or police coercion in a foreign jurisdiction. I accept however that a precautionary approach is appropriate. Cogent evidence supporting an allegation of coercion may be good reason, on fairness grounds, for requiring evidence in person.

[14]   However, I do not consider the evidence is sufficiently cogent to show that Mr Xu has been or will be subject to improper influence or police coercion for the following reasons:

(a)Ms Yang is not an independent witness (she is Mr Li’s sister-in-law and a respondent herself) and has much to gain from casting doubt on the truthfulness of Mr Xu’s evidence;

(b)No detail is provided as to the specific acts said to constitute “extreme pressure” other than the alleged period of detention which might qualify as improper – detention per se if lawful is not necessarily improper;

(c)There is no independent evidence (from Mr Xu  or an  associate of  Mr Xu) supporting an allegation of improper police influence or coercion;

(d)Ms Yang does not say that Mr Xu said the “extreme pressure” lead to false interview statements.

[15]   There is also Mr McCardle’s direct witness evidence that Mr Xu gave one of his statements freely. I accept however that this evidence alone would not have been sufficient to rebut cogent evidence of improper influence, given his account is based only on a snapshot in time.

[16]   I invited Ms Patel to produce country information that might provide some independent basis for an allegation of improper police influence. I adjourned so this information could be sought. Mr Dufty appeared on this issue. He conceded that there was no country information to suggest that the Chinese Police engaged in coercive practices, noting that based on the information he had seen, Chinese authorities observe the rule of law. Mr Dufty also conceded, properly in my view that there was insufficient evidence to challenge the admissibility of Mr Xu’s evidence.

[17]   Overall, I am therefore satisfied it is appropriate for Mr Xu to give evidence by AVL. Mr Xu is permanently resident overseas and the parties accept that the AVL is otherwise of a sufficiently high quality for trial purposes.

[18]   Finally, if other information comes to light or the evidence at trial reveals a suitable foundation for the issue now being raised, then it will still be available to  Mr Li to raise fairness objections to the AVL and or the admissibility of Mr Xu’s evidence.