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The Queen v Cheng [2008] NZCA 508 (28 November 2008)

Court of Appeal of New Zealand

The Queen v Cheng [2008] NZCA 508 (28 November 2008)

Last Updated: 3 December 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

v

Hearing: 24 November 2008

Court: Robertson, Hugh Williams and Harrison JJ

Counsel: R J Hooker for Appellant
K Bicknell for Crown

Judgment: 28 November 2008 at 12.30pm

The appeals against conviction are dismissed.

REASONS OF THE COURT

(Given by Hugh Williams J)

Introduction

[1] Following trial in the Auckland District Court the appellant, Ms Cheng, was found guilty by the jury on two pairs of representative charges of assault and assault using a long wooden stick between July 2003 and 2005 on twin daughters, M and X. She was acquitted on five other representative charges of assault on her daughters using a feather duster, a short stick and, in M’s case, of using a toy wand.
[2] She appeals against those convictions under s 385(1)(a) of the Crimes Act 1961 on the grounds, first, that the verdicts were unreasonable or could not be supported having regard to the evidence and, secondly, on the basis of a remark made by the Judge at the conclusion of her summing-up.

Facts

[3] The twins were born to Mr and Mrs Cheng on 17 May 1993 in China but shortly afterwards the parents left the girls with close relatives and emigrated to New Zealand. There was some, but not a great deal of, contact over the decade to July 2003 when the parents brought the twins to New Zealand.
[4] In the meantime, two further children had been born to the couple and, on the twins’ arrival, the whole family lived in a small inner city flat in Auckland.
[5] When the alleged offending came to notice the twins were interviewed by specialist interviewers on 28 September 2005 in accordance with the required protocol. The interviews were conducted in English, the girls having acquired sufficient fluency over the period they had been in this country.
[6] As is common in interviews with children of that age, the interviews were somewhat discursive. But since a claimed lack of specificity and detail was one of the principal points advanced in support of the appeal by Mr Hooker (counsel for Ms Cheng) it is instructive to note that M gave detailed evidence about being hit “the first time when we come to New Zealand” with a feather duster, which drew blood at an indicated site. She spoke of being beaten repeatedly with the thick stick used to “hang the clothes up”. She spoke of being hit with a “magic adabra” thing when her mother was grumpy. She also spoke of being hit for not doing her ESOL homework, when her mother was wearing heavy or heeled shoes, of her mother twisting the twins’ ears and further assaults for using a Chinese/English electronic dictionary instead of learning English words. Injury sites were pointed out when sought. Other childish issues about food and chores were also detailed.
[7] X raised similar issues, speaking of being hit almost every day with thick and thin sticks, a prop, hands, shoes and twisting of the ears. She specifically spoke of assaults with a feather duster and chopsticks and again identified injury sites when asked. She, too, mentioned the electronic dictionary incident and childhood chores.
[8] The defence was that the incidents did not occur, with the exception of one assault admitted during the appellant’s Police interview, though that was said to come within the parental discipline defence then available. Both girls were cross-examined to that end, with the possibility of collusion between the twins being put to M but not X.
[9] On execution of a search warrant on the appellant’s property, of the suggested implements only the clothes-line prop was found. M was challenged in cross-examination on the possibility of fabrication in light of Police inability to locate other suggested implements. Lack of detail in time, place and circumstance was also put to each of the girls and each was challenged as to the correctness of her account by contrast with Mrs Cheng’s statement and the evidence she and her husband later gave.

First Ground of Appeal:

(1) Submissions

[10] Mr Hooker submitted, in accordance with the test recently propounded by this Court, that the jury, acting reasonably, ought to have entertained a reasonable doubt as to the appellant’s guilt and that no jury could, on all the evidence, have been satisfied to the required standard of her guilt: R v Munro [2008] 2 NZLR 87 (CA), R v Owen [2008] 2 NZLR 37 (SC). He submitted the twins’ evidence was vague, and lacked specificity and detail as to when or where the assaults were said to have taken place or who may have been present at the time. He suggested there were neither start nor end points to the alleged assaults nor independent evidence of injury. He emphasised that only the laundry prop was found and not the other implements said to be used, and submitted the girls embellished their stories and colluded.
[11] In addition to her written submissions, Ms Bicknell for the Crown pointed out the appellant was acquitted on all charges alleging use of implements not uplifted by Police.

(2) Discussion and decision

[12] In our view, there is little weight in the points advanced by Mr Hooker.
[13] As the review of the twins’ video statements and evidence goes, while there was a certain imprecision in the complainants’ accounts, their evidence dealt with the point at which the assaults began and ended, it contained sufficient detail on which the jury could found its verdicts and in cross-examination the twins refuted suggestions of fabrication or collusion. Further, the jury plainly did not accept the appellant’s evidence either that the assaults did not occur or that, in the one instance where force was admitted, that it was reasonable in the circumstances.
[14] We are unable to find any basis on which it might be said that, on all the evidence, the jury in the appellant’s case could not reasonably have been satisfied to the required standard of her guilt on the counts on which they convicted. These were, after all, representative, not specific, charges. Strong support for that conclusion is to be found in the appellant’s acquittal on the counts where implements other than the laundry prop could not be located.
[15] That ground of the appeal against conviction is accordingly not made out.

Second ground of appeal:

(1) Background

[16] The summing-up followed a conventional course including lengthy summary of the respective cases. In particular, the Judge noted the Crown’s argument that the “girls’ accounts were remarkably consistent” and Mr Hooker’s response suggesting fabrication and his submission that the jury should, as the Judge put it, “view with considerable scepticism, or actually just not accept, what the girls had to say on these matters”. She recounted his reasons why he considered the girls may have concocted the whole tale.
[17] However, the Judge then concluded her summing-up by saying:

I want to leave you with just one thought that you may or may not find relevant and that is whether or not you think that girls of the age of 11 years, who are foreign to a country and who do not have very good English, would willingly lie about what their parents had done to them in order to uproot themselves from the only family they know in an almost completely foreign country, to live with people who are not Chinese and to be without their families. That may be something that you will find helpful in considering the evidence, or it may not. It is entirely up to you.

[18] Immediately on the jury’s retirement, Mr Hooker objected to that passage on the basis that the Judge’s comments were not part of the Crown’s case. He submitted her observations were not fairly balanced and suggested to the jury that the complainants had no motive for fabrication.
[19] A memorandum which we received from trial counsel for the Crown suggested the Judge’s remarks arose out of submissions made by Mr Hooker to the jury in closing to the effect that the complainants had deliberately lied and were motivated by their desire to return to China. Mr Hooker agreed he relied on what he suggested were the complainants’ lack of detail and specificity, to found a submission that they had fabricated their accounts, but accepted he did not put the possibility of collusion to X and also accepted that he declined when asked by the Judge whether he wanted issues arising out of the cited passage raised with the jury. He did not persist with his objection on the ground it would over-emphasise the point.
[20] Ms Bicknell submitted the Judge was entitled to indicate her own views on the evidence, particularly where comment was appropriate in the interests of a fair trial: R v Fotu [1995] 3 NZLR 129, 138 (CA), R v Molioo [2008] NZCA 333 at [14].

(2) Discussion and decision

[21] It was open to the Judge to comment upon a submission by Mr Hooker in closing and, where appropriate, to correct an error. It was also open to her to conclude by identifying the critical issue of credibility provided she did so in neutral terms. The Judge’s concluding remarks are justifiably open to criticism as being not only an expression of her views on the complainants’ credibility but also a firm intimation to convict. There must always be a balance, and this unjustifiable comment came close to overstepping the line.
[22] We also consider that, if the Judge wished to comment on the topic, she should have included a further direction that the jury should not be diverted, by considering why the twins might have lied, from their prime role of deciding whether the charges had been proved by the Crown to the required standard: R v T [1998] 2 NZLR 257 (CA).
[23] However, all of that notwithstanding, we are unpersuaded that the comment in question, in the context of the trial, might have led to a miscarriage of justice.
[24] This ground of appeal, therefore, is also not made out.

Result

[25] In the result, the appeals against conviction are dismissed.

Solicitors:
Crown Law Office, Wellington