The Queen v Zhou

[2008] NZCA 65

IN THE COURT OF APPEAL OF NEW ZEALAND

CA589/07
[2008] NZCA 65

THE QUEEN

v

HONG ZHOU

Hearing:4 March 2008

Court:Chambers, Gendall and Harrison JJ

Counsel:P L Borich for Appellant

M D Downs for Crown

Judgment:18 March 2008 at 2.30 pm

JUDGMENT OF THE COURT

A        The appeal against conviction is allowed.

B        The conviction is quashed.

C        A verdict of acquittal is entered.

REASONS OF THE COURT

(Given by Gendall J)

[1]       The appellant was convicted in the District Court at Auckland by a jury of failing to comply with the conditions of a restraining order in breach of s 25(1)(b) of the Harassment Act 1997.  She was subsequently sentenced to 45 hours’ community work. 

[2]       It was alleged that the appellant left offensive material where it would be found by, given to, or brought to the attention of a woman who had, nine months earlier, obtained a restraining order against the appellant by reason of her harassment.

[3]       The appellant advanced a number of grounds of appeal.  At the hearing this Court raised some additional concerns it had.  In the end, we find it necessary to deal with only two of the points discussed.  This is because the Crown conceded the appeal had to be allowed on at least one ground.  Further, for reasons we shall give, we are satisfied there should not be a new trial.  This obviates the need to discuss other points which were raised.  Were we ordering a new trial, we would have to have dealt with the other matters raised, as their resolution might have been germane to any new trial. 

Background facts

[4]       The essential facts fall within a narrow compass.  During 2004 the appellant became involved professionally and had a casual intimate relationship with a man we shall call John.  The complainant later became John’s personal assistant.  She too entered into an intimate relationship with him. 

[5]       From January 2005, the complainant began receiving, on a frequency of at least every second day, harassing communications from the appellant.  They were in the form of emails, letters, personal visits and phone calls of a distressing and intimidatory nature.  As a result, the complainant obtained a restraining order against the appellant.  About three months later the appellant breached the order by entering the office of the complainant and John and placing a picture of herself (the appellant) on a desk in front of the couple.  She was charged with breaching the protection order and pleaded guilty to that offence.

[6]       The present charge arose when the appellant caused to be delivered, through the agency of a colleague, Puti Watene, an envelope to John’s business address.  The envelope was addressed to John and marked “Private and Confidential”.  Notwithstanding that, the complainant opened it.  She read the letter inside.  She found parts of it, which referred to her, very distressing.  She complained to the Police who brought the charge in question.

Propensity evidence

[7]       One of the grounds of appeal was that the trial Judge failed properly to direct the jury on how to use propensity evidence that was called in support of the prosecution case.  As we have said, the appellant had been convicted of a breach of the protection order on an earlier occasion.  Counsel for the appellant argued that evidence of that conviction should not have been admitted because its prejudicial effect outweighed its probative value.  We do not have to determine whether that argument is right because, even if the evidence was rightly admitted, the Crown has conceded that Judge Bouchier’s direction to the jury as to how the evidence could be used was inadequate and that the appeal must be allowed. 

Whether we should order a new trial

[8]       The Crown seeks an order directing a retrial.  We have concluded that there should not be a retrial for the following reasons.

[9]       The Crown’s case was bound to fail if the Crown could not establish the appellant directed Mr Watene to leave the envelope where it would be found by, or given to, or brought to the attention of, the complainant.  The only evidence on that topic was to exactly the opposite effect. 

[10]     First, Julian Tricker, a former constable, gave evidence of a conversation he had with Ms Zhou.  She told him that she had addressed the envelope to John and marked it “Private and Confidential” because she intended only John to read it, not the complainant.  Secondly, Mr Watene gave evidence that he had been the person who delivered the envelope.  He asserted Ms Zhou had told him that he was to give the envelope to the receptionist, not to “the pregnant lady”, a reference to the complainant, and he was to make sure only John got it.  He said he had followed those instructions.  He gave the envelope to the receptionist, who was Asian (the complainant is not), and had asked the receptionist to give the envelope to John “only”.  He saw the receptionist put the envelope on John’s desk.  In the absence of any other evidence, it was not open to a reasonable jury to infer that the appellant intended the letter to be found by the complainant. 

[11]     There is a further point.  The envelope in its unopened state could not be regarded as “offensive material”.  It is, perhaps, an open question as to whether the letter inside it was “offensive material”.  But let us suppose it was, or at least that such a finding would be open to a jury.  This meant that the Crown had to prove not only that the envelope would be found by the complainant but also that she would open the envelope and read its contents and that Ms Zhou knew or intended she should do that, notwithstanding the envelope’s being addressed to John and marked “Private and Confidential”.  There was no evidence to support the drawing of such an inference.  Indeed, Mr Watene’s evidence was to the contrary. 

[12]     It is, of course, true that the jury found Ms Zhou guilty, but that finding was made, with respect to the trial Judge, in the absence of appropriate directions on these points.  On the evidence presented, the Crown could not have succeeded on these issues, had the jury been properly directed.  We do not consider the Crown should be given a second shot on this matter.  No order is made for a retrial and a verdict of acquittal is entered.

Solicitors:
Crown Law Office, Wellington