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R v Liu [2015] NZHC 732 (16 April 2015)

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-044-001376 [2015] NZHC 732

THE QUEEN

v

_{YUN QING LIU}

RESERVED JUDGMENT OF MOORE J [Re: admissibility of evidence (1)]

This judgment was delivered by me on 16 April 2015 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

R v LIU [2015] NZHC 732 [16 April 2015]

Contents

Paragraph

_Number

Introduction ..............................................................................................................[1] Background...............................................................................................................[3]

The first challenge – admissibility of hearsay statements (s 18(1) of the

Evidence Act 2006) ...............................................................................................[35] Trial issues............................................................................................................[46] Hearsay evidence .................................................................................................[49] Defence submissions ............................................................................................[59] (i) Nature of statements ...........................................................................[61]

(ii) Contents of the statements ..................................................................[64] (iii) Circumstances relating to the making of the statement ......................[66] (iv) Other matters.......................................................................................[71]

Crown submissions ..............................................................................................[72] (i) Nature of the statements .....................................................................[73] (ii) The contents of the statements ............................................................[75] (ii) The circumstances that relate to the making of the statements...........[77]

Challenged passages.............................................................................................[93] (i) Philip Chen’s formal written statement ..............................................[94] (ii) Peter Chen’s formal written statement ................................................[95] (iii) Ms Yen Chin’s (“Cindy”) formal written statement ...........................[96]

Conclusion..........................................................................................................[104]

The second challenge – admissibility of statements made by the defendant

to Philip Chen .....................................................................................................[109] Further factual background ................................................................................ [114] Discussion of issues ...........................................................................................[146] Was Philip Chen a Police agent? ................................................................[151]

Do the recordings constitute a search? .......................................................[167] Was there a search or seizure? ....................................................................[170] Was the search unreasonable? ....................................................................[173] Was the defendant’s right to silence breached? ..........................................[180]

If the disputed evidence was improperly obtained should it, nonetheless be admitted in terms of s 30(2) of the Evidence Act 2006? ............................[192]

The balancing exercise ...............................................................................[194] Conclusion..........................................................................................................[205]

Introduction

[1] Yun Quin Liu, the defendant, is charged with the murder of his partner Bin Chen. The Crown alleges that Ms Chen met her death at the hands of the defendant some time on the evening of Monday, 5 November 2012. The defendant’s trial for the murder of Ms Chen is scheduled to commence on 4 May 2015.

[2] The Crown applies for pre-trial orders that certain evidence is admissible. This judgment deals with applications relating to two aspects of the evidence.

(a) First, the Crown seeks to adduce evidence of statements alleged to have been made by the deceased. More specifically, the Crown applies to admit various hearsay statements made by Ms Chen to three witnesses. The challenged statements were made by Ms Chen to her two brothers and a friend, Ms Yen Chin. The defence objects to their admission on the grounds that the statements are hearsay and the circumstances relating to the statements do not provide reasonable assurance that the statements are reliable.

(b) Secondly, the Crown seeks to adduce evidence of statements made by the defendant to Ms Chen’s brothers. The defence objects to their admission on the grounds the statements were improperly obtained.¹

The defence submits that Ms Chen’s brothers were acting as agents of the Police at the time the statements were made and that they amounted to an unreasonable search and were elicited in an unfair manner which undermined the defendant’s rights to silence and/or to counsel. In any event the evidence should be excluded as improperly obtained in terms of s 30(2) of the Evidence Act 2006.

Background

[3] The deceased, Ms Chen, immigrated to New Zealand from China in 1992. She adopted the English name “Cissy”. She bought her first home in View Road,

_{Glenfield, before she met the defendant. Her oldest brother, Philip Chen (“Philip”),}

¹ Evidence Act 2006, s 30.

assisted in the purchase although it is unclear to what extent. In 2004 she met the defendant, who was also an immigrant from China. The defendant went by the name “Jack”.

[4] The defendant, who had been previously married and was about a decade older, later moved into the View Road property with Ms Chen. In 2007 the couple decided to purchase a property in Tetrarch Place, Totaravale in North Glenfield. Although the defendant made some capital contribution towards its purchase, Ms Chen’s contribution was substantially greater. In 2009 Ms Chen and the defendant bought another property in Mt Albert. This they rented while they continued to live in Tetrarch Place.

[5] They lived together in Tetrarch Place for about three years. It was a regular practice of theirs to walk together in the neighbourhood after work and in the weekends.

[6] In late 2011 or early 2012 they sold Tetrarch Place and together bought and moved into a house in Waiau Street, Torbay. They kept the rental property in Mt Albert. In this new suburban environment they continued their well-established routine of walking together in the evenings and weekends.

[7] Although Ms Chen had lived in New Zealand for about two decades she maintained relatively close, albeit irregular, contact with her family overseas. Her mother had died when she was about 8 or 9 leaving her widower father to bring up the three children: Ms Chen and her two brothers. Ms Chen was the middle child of the three, all of whom were close in age. The family lived in Guangzhou, China, in the family home they shared with their grandmother who became a surrogate mother. The family bonds were described by the brothers as very strong. Ms Chen’s older brother, Philip, moved between Guangzhou and Canada where his family lived and where he had residency. Her unmarried, younger brother Peter Chen (“Peter”) lived in Guangzhou. Contact between them was mostly in the form of telephone calls and email.

[8] Ms Chen’s brothers did, from time to time, visit her in New Zealand and Ms Chen also returned to her homeland for occasional visits. However, the primary contact between the family was by telephone and was, it seems, primarily with Ms Chen’s younger brother, Peter, who described the two as being very close. He said his sister called him if she was “happy” or if she was “angry”. She would also call him on festive occasions. Ms Chen’s last visit to China was in September 2011 when she and the defendant visited Philip and stayed with him for a few days in Guangzhou. The primary purpose of their trip to China was to visit the defendant’s seriously ill brother.

[9] On this visit both Philip and Peter, who was also in China at the time, noticed the couple appeared unhappy and were arguing, often over trivial matters. It was evident to the brothers that the relationship was unhappy and deteriorating, an observation which was consistent with certain comments Ms Chen had previously made to both her brothers, particularly Peter, in her telephone calls from New Zealand.

[10] It was on this visit that it is claimed that Philip first discussed with Ms Chen the possibility of her making a will in order to protect her property. She is reported to have told her brother that if the defendant knew this he would not be happy. She indicated she would think about the suggestion. Apparently, nothing further was said on the topic at this time.

[11] It was also during this trip that they first raised the prospect of the whole family, including their ageing father, visiting New Zealand.

[12] After Ms Chen returned to New Zealand she continued to have telephone conversations with Philip and Peter, during which she repeated her statements to them about the deteriorating nature of her relationship with the defendant. This unhappiness seems to have focused primarily on the couple’s finances, the defendant’s fiscal conservatism and his controlling behaviour.

[13] In February 2012 Philip and Peter, together with their elderly father, arrived in Auckland. They were met at the airport by Ms Chen, the defendant and Philip’s

sister-in-law, Candy. While in New Zealand they stayed at the Waiau Street address and saw, at first hand, the frequency of the arguments between the couple. It was during this visit that Philip reminded his sister of the conversation they had in Guangzhou about her making a will. Ms Chen said she would consider the idea but, according to her brother, seemed generally resistant to the suggestion.

[14] Due, at least in part, to the tensions in the household, the visitors brought forward their departure and left New Zealand a few days earlier than they had originally intended.

[15] In various telephone calls which followed, Ms Chen described to her brothers a pattern of a steadily deteriorating relationship. Peter, in particular, was in reasonably regular telephone contact with his sister over this time.

[16] On Friday 2 November 2012, three days before Ms Chen’s disappearance, Peter received a call from his sister. He described her mood as flat but because this was hardly new and because he was becoming used to her presenting in this way, he thought little of it.

[17] Two days later, on 4 November 2012, he received another call from his sister in which he described her as sounding very distressed and angry. Ms Chen said that she had just had “a fierce argument” with the defendant and his son although she did not say why they had fought. However, she made specific mention of the fact she was intending to prepare a will and that she proposed to nominate Peter as first beneficiary, Philip as the second and Philip’s two sons, as third. According to Peter, she did not explain why she had decided on this course. Peter told her to be careful not to tell the defendant of her plan to which, it is claimed, Ms Chen responded that she did not care and, in any event, the defendant knew she was preparing a will.

[18] Ms Chen asked her brother to send details of the four potential beneficiaries and indicated there was some urgency around this request. Peter said he then contacted his brother Philip and asked him to forward the material their sister had requested.

[19] Late on the morning of Monday, 5 November 2012 Ms Chen rang a friend Ms Yen Chin, who calls herself Cindy. Their relationship is described more fully later in this judgment. According to Cindy the two had known each other for a long time and were close friends. Cindy says she was aware of the rising tensions in the relationship especially around financial matters.

[20] In that telephone call Ms Chen is reported to have asked Cindy if she knew a lawyer she could speak to because she wished to make a will in favour of her brother. By way of explanation she noted she was not married, did not have children and, in the event of her death, wanted to give all her money to her brother. According to Cindy she did not sound scared but she did convey a certain degree of urgency. This was the first time Cindy had heard Ms Chen talk about making a will although she had heard, through Philip’s sister-in-law Candy, that the prospect of Ms Chen making a will had been discussed with her brothers when the family visited

some months earlier.²

[21] Cindy described Ms Chen as saying she wanted her younger brother, Peter, to be a beneficiary rather than Philip, whom she described as “very rich”. Cindy said Ms Chen did not want her money going to the defendant and his son. She said she wanted to sell the Mt Albert rental property but the defendant would not agree. Cindy described her friend as being very angry and saying that if he did not want to sell it then he could go and live there himself. Ms Chen apparently wanted to sell the Torbay property and divide the proceeds so she could use her share to buy a small place for herself.

[22] In the context of this conversation, Cindy said that making a will was a good idea and mentioned the possibility of Mr Liu poisoning Ms Chen. This appears to have been an unprovoked statement on her part. In response, Ms Chen commented:

“If I die one day, quickly ring the police, he’s (Jack’s) the one who kill me.”

[23] Cindy described the conversation as rushed and lasting only a few minutes. That was the last time Cindy spoke to Ms Chen.

2. The Crown has indicated it will call Candy at trial. She apparently witnessed this discussion directly.

[24] The following day, at 1:40 pm (New Zealand time), Ms Chen is alleged to have called Peter to enquire as to progress on the documents she had requested. Peter described his sister as “rushing and sound[ing] very distressed”.

[25] That afternoon Ms Chen tried, unsuccessfully, to speak with her lawyer. Telephone logs show the call was made but Ms Chen was unable to speak to her legal advisor. It is the Crown’s case that the purpose of that call was to arrange a time for an appointment to discuss the making of a will.

[26] On her return home from work Ms Chen telephoned Peter at 4:48 pm asking him to scan his passport and email it to her. Peter described this as a very short conversation. It would be the last time Peter would hear from his sister.

[27] It was some time after this the defendant returned home. He later told the Police that Ms Chen had gone out for a walk on her own at 5:30 pm. He said he did not go with her because he was tired and had a sore thumb, having injured it while moving a pot plant shortly after he arrived home from work. While Ms Chen was out walking he said he worked on the house and watered plants. He only noticed Ms Chen had not arrived home when one of her friends telephoned and asked to speak to her. The time of this telephone call was 8:20 pm. The defendant said he went out in his car to look for her. He drove around their usual walking route down to Long Bay but never saw her.

[28] He said that when he returned he telephoned the friend back and told her he had been unable to find Ms Chen. He said he did not telephone Ms Chen’s family in China because he did not want to unnecessarily alarm them at that early stage.

[29] Twenty three minutes after he spoke to the friend he telephoned 111 and reported Ms Chen missing.

[30] However, at 7:15 pm a call from the Waiau Street landline was made to Philip’s cell phone. Philip was in a meeting and so the call was unanswered. This call, and more particularly the identity of the caller, has assumed considerable significance in this case. The reasons for that are obvious. If Ms Chen had, as the

defendant claimed, left the house at 5:30 pm to go walking and never returned who then made the call from Waiau Street to Philip? This call and the circumstances around it are discussed later in this judgment in relation to the second admissibility challenge.

[31] It is the Crown’s case that probably that evening, but perhaps during the preceding weekend, the defendant became aware Ms Chen was intending to write him out of her will. It is the Crown’s case that the defendant fatally injured Ms Chen that evening and disposed of her body, after which he embarked on a systematic course of deception designed to deflect suspicion and blame.

[32] Over the following hours and days he gave explanations for his partner’s

disappearance to her friends and family, as well as the Police.

[33] Extensive searches were made of the Torbay area and, in particular, the routes which Ms Chen was known to follow when out walking with the defendant. Despite the intensity of these searches no traces of the missing woman were found.

[34] More than 16 months later, in March 2014, a lawn mowing contractor discovered human remains in the grill of an open storm-water culvert in the Trias Reserve, North Glenfield. The Trias Reserve, which is part of the Rewi Alley Reserve, is located some 500 meters from Tetrarch Place where Ms Chen and the defendant used to live. It was an area they knew well because they used to walk there before they moved to Torbay. The remains were later confirmed to be those of Ms Chen. Due to their advanced state of decomposition and disarticulation no cause of death was identified.

The first challenge – admissibility of hearsay statements (s 18(1) of the Evidence

Act 2006)

[35] This is the first evidential challenge. The defence challenge is that the

hearsay statements of Ms Chen made to Ms Chen’s brothers and Cindy, as described

above, should not be admitted because the circumstances relating to the statements do not provide reasonable assurance the statements are reliable.³

[36] The Crown has filed 68 formal written witness statements.

[37] Mr Kan, for the defendant, has indicated multiple challenges to various parts of the evidence the Crown seeks to adduce.

[38] For the purposes of the present application, Mr Kan has given notice that he objects to the admissibility of certain portions of the witness statements which contain hearsay accounts of what Ms Chen is claimed to have said to some of those witnesses.

[39] It is the hearsay statements attributed to Ms Chen contained in the formal statements of three witnesses which lie at the heart of Mr Kan’s concerns. These are the statements of Ms Chen’s brothers, Philip and Peter and her friend Cindy.

[40] For the purposes of the argument before me, Mr Kan has advised the Crown which portions of the witnesses’ statements he objected to. These were numerous.⁴

The Crown has since provided the Court with copies of the relevant statements with the challenged portions identified by Mr Kan highlighted.

[41] As the argument progressed it became apparent that the various challenges were a good deal broader than simply the inquiry signalled under s 18 of the Evidence Act 2006. Mr Kan’s objections to the evidence included claims that parts of the statements were speculative, irrelevant and contained inadmissible opinion evidence.

[42] In many, if not most, of these instances the cause for complaint lies in the way in which the formal statements have been compiled and expressed. Some explanation is required. Although the formal written statements are dated April and

_{July 2014 these are not the dates when the witnesses’ statements from which the}

³ _{Evidence Act 2006, s 18(1).}

⁴ 19 passages for Philip Chen; 8 passages for Peter Chen; 11 passages for Ms Yen Chin (Cindy).

formal, filed statements were based were made.⁵ The formal written statements, as is frequently the case in long running Police investigations such as this, are composite in the sense they are drawn from multiple earlier statements made to the Police. For example, Philip’s statement is drawn on statements he made to the Police on 7 and

14 November 2012.

[43] In the course of argument Mr Kan drew my attention to patently inadmissible portions including speculative conclusions, unqualified opinions and personal views. Mr Raftery for the Crown, readily and quite properly, accepted that much of this evidence, in the form recorded in the formal written statements, is inadmissible. However, in some cases, the subject matter of the evidence expressed in its present objectionable form may well be admissible if a proper evidential foundation for its admission is laid at trial. That exercise is properly left to the discipline of counsel and the supervision of the presiding Judge having regard to the context and nuances of evidence as the trial evolves. It is simply neither practical nor desirable to undertake a line by line analysis of these lengthy statements in an attempt to settle every evidential point, particularly if the objections are capable of being met either by agreement or by the laying of proper foundations. The futility and artificiality of that course became readily apparent in the course of argument. On numerous occasions Mr Raftery volunteered that the evidence, as presently framed in the statements, would not be lead in that form but that its essence and effect would be admissible when an appropriate foundation was laid or the evidence was received through another witness. Mr Kan accepted this was the case and, in most instances, withdrew his objection when the position was explained.

[44] These incursions should not be permitted to distract from the purpose of the present application. For present purposes I have not been asked, nor is it appropriate, to determine multiple and frequently curable issues of admissibility of

_{this sort.}

⁵ Philip and Peter Chen’s formal written statements are dated 17 April 2014; Yen Chin’s (Cindy)

statement is dated 12 July 2014.

[45] On the present application my task is to determine whether the hearsay statements of the deceased are admissible because the circumstances relating to them provide reasonable assurance that they are reliable.

Trial issues

[46] Mr Liu denies killing Ms Chen. As I apprehend the defence case it is that Ms Chen went out walking on her own late on the afternoon of or in the early evening of Monday, 5 November 2012 and never returned home.

[47] The Crown seeks to adduce the hearsay statements in question to prove to the jury the following matters:

(a) The frequency and intensity of the arguments and the escalating animosity between the couple, particularly in the months and days preceding Ms Chen’s disappearance.

(b) No doubt connected to (a) above, the inequality of financial contribution between the couple toward the ‘relationship property’, and the controlling nature of the defendant.

(c) By reason of (a) and (b) above, Ms Chen decided to make a will, the effect of which was to remove the defendant from any benefit arising from her property interests.

[48] The Crown claims these factors, both individually and cumulatively, provide an explanation and motive for the defendant to kill Ms Chen.

Hearsay evidence

[49] Hearsay evidence is evidence of statements made by a person other than a witness, which is offered in support of the truth of those statements. Such evidence raises unique difficulties because the maker of the statements is unable to be cross- examined. For this reason, courts have traditionally treated such evidence with caution. This caution has now been codified in the Evidence Act 2006 which

provides that, other than in certain identified circumstances, hearsay evidence is not admissible.⁶

[50] One exception to the hearsay rule is where the person who made the statements is unavailable as a witness.⁷ This is commonly the case in murder trials where the statements of the victim before her death may prove relevant to issues at trial. Where this is the case, the court may admit hearsay evidence if "the circumstances relating to the statement provide reasonable assurance that the statement is reliable".⁸

[51] The word "circumstances" in this context is further defined in the Act:

circumstances, in relation to a statement by a person who is not a witness, include—

(a) the nature of the statement; and

(b) the contents of the statement; and

(c) the circumstances that relate to the making of the statement; and

(d) any circumstances that relate to the veracity of the person; and

(e) any circumstances that relate to the accuracy of the observation of the person

[52] What precisely is to be included in these categories has been discussed in detail in a number of cases. A wide range of factors has been considered relevant including whether the statement maker had any relevant knowledge;⁹ whether the statement was coerced in some way,¹⁰ and whether the maker of the statement was

_{later willing to stand by that statement.}¹¹

[53] In considering these factors, it is important to bear in mind the role of the court in determining whether the evidence should be admitted. The purpose of the general exclusionary rule is to balance the prejudice that comes from being unable to

_{cross-examine the maker of the statement. The focus is therefore on the reliability of}

⁶ _{Evidence Act 2006, s 17.}

⁷ _{Section 18(1)(b)(i).}

⁸ _{Section 18(1)(a).}

⁹ _{K(CA332/14) v R [2014] NZCA 393}

¹⁰ _{TK v R [2012] NZCA 185.}

¹¹ Donnelly v R [2011] NZCA 660.

the statements themselves, not on the reliability of the witness who claims to have heard them.

[54] Similarly, the purpose of the examination is not to remove from the jury the role of weighing competing evidence or determining credibility. Questions of weight remain with the jury. As the Court of Appeal in Adams v R observed:¹²

Section 18(1)(a) focuses on ‘the circumstances’ that ‘provide reasonable assurance that the statement is reliable’. That is a threshold test. A judge must determine, as a matter of law, whether the threshold is met. This gate- keeping role is quite different from the jury’s role in assessing the credibility of witnesses and the reliability of evidence given at trial. The distinct constitutional functions of judge and jury must not be conflated.

[55] As a result of this distinction, the threshold for admitting evidence is comparatively low. As the Court of Appeal noted in TK v R:¹³

The issue of reliability is ultimately a jury matter. A court, when considering admissibility under s 18(1), does not have to assess the reliability of the hearsay statement against the criminal standard of proof. What is instead required is a scrutiny of the circumstances surrounding the statement and an assessment, in that context, that there is a ‘reasonable assurance’ the statement is reliable. If admitted, the function of weighing up the surrounding circumstances of the hearsay evidence and assessing its overall reliability passes to the jury.

[56] Neither is it the role of the Court, in assessing whether hearsay evidence is admissible under s 18 of the Act, to assess the relevance of that evidence. To the degree that the evidence in question is irrelevant it will be excluded under s 7 of the Act, but this is a process better suited to be dealt with by the Judge at trial.

[57] Despite this, the Court does not need to accept the statements as evidence merely because it is sure that they were uttered. The Court must still consider whether the statements themselves are reliable and whether they provide useful evidence of the facts which they allege. As the Supreme Court observed in R v

Gwaze:¹⁴

...the definition of “circumstances” for the purpose of hearsay evidence

_{makes it clear that the inquiry into reliability must include not only accuracy}

¹² _{Adams v R [2012] NZCA 386 at [26].}

¹³ _{TK v R, above n 10, at [23]}

¹⁴ R v Gwaze [2010] NZSC 52, (2010) 24 CRNZ 702 at [45].

of the record of what is said and the veracity of the person making the statement, but also the nature and contents of the statement, and the circumstances relating to its making. The Judge's approach, in considering only the reliability of the capture and recording of the information, was not sufficient discharge of the responsibility under ss 17 and 18 to exclude evidence except where the circumstances provide reasonable assurance of reliability.

[58] In summary, in determining whether to admit hearsay statements, the Court must consider whether they provide useful evidence to support the claims which the statements contain. The Court can consider the likelihood that the maker of the statement knew whether the statement was correct and the likelihood that she was speaking honestly. It can also consider the surrounding circumstances to consider whether the statements have been captured accurately and whether they accurately represent what the statement maker was trying to say. But where objections to admissibility are limited to attacks on the credibility of the hearers of those statements, those objections will not generally affect whether the statements can be

admitted under this rule.¹⁵

Defence submissions

[59] Mr Kan accepts that for the purposes of s 18(1)(b)(i) the maker of the statement, Ms Chen, is unavailable as a witness.¹⁶

[60] He submits that in addition to the specific indicia of unreliability he has raised in relation to each statement, discussed in more detail below, the statements more generally are unreliable having regard to the s 16 factors. In particular he submits:

(i) Nature of statements

[61] The statements are, for the most part, not exact quotes of what the witnesses allege they heard Ms Chen say. Rather, Mr Kan submits the statements paraphrase and summarise what the witnesses say they remember Ms Chen telling them. In

_{some instances Mr Kan submits it is unclear whether the statements are, in fact,}

¹⁵ _{R v Shortland [2007] NZCA 37 at [43]- [44].}

¹⁶ Evidence Act 2006, s 16(2)(a).

statements attributed to Ms Chen or whether they are actually mere speculation on the part of the witnesses as to her feelings and opinions.

[62] Furthermore, Mr Kan submits that there is little, if any, evidence relating to the background or context to many of the alleged statements. For example, Mr Kan observes it is unclear whether the statements were made by Ms Chen without prompting or whether they were, in fact, affirmative responses to direct questioning.

[63] Finally under this heading Mr Kan submits that most of the statements were not witnessed by others. Of course, this objection relates more directly to whether the witness who claims to have heard the statement is being truthful.

(ii) Contents of the statements

[64] Mr Kan submits that many of the statements are of a general, rather than specific, nature. He says that they are likely to have been tainted by the witnesses’ antipathy towards the defendant. For example Philip, when first told by his sister of her relationship with the defendant, suggested to his sister that perhaps she should find a man who has not been married and, on finding out the defendant’s age, joked with Ms Chen, asking her why she would wish to marry her uncle. In the statement he observed that he did not think that the defendant was:

“... a perfect person to marry and I think Cissy knew I had this impression.”

[65] Furthermore, Mr Kan submits that there may have been some collusion between the witnesses because there was evidence of communication amongst the family and Cindy about what may have happened to Ms Chen.

(iii) Circumstances relating to the making of the statement

[66] Mr Kan submits that in some instances it is not clear whether the statements attributed to Ms Chen were made to the witness in person, over the telephone or via some other means such as hearsay via a third party (making the statements double hearsay). Furthermore, he submits that the environment in which the statements were made is also unclear and, more particularly, the quality of the exchange and any

audible interference (such as whether there was a poor telephone connection) cannot be assessed.

[67] In relation to some of the more general statements, Mr Kan points out that it is not disclosed when the statements attributed to Ms Chen were made or the effect that the passage of time may have on the witnesses’ ability to recollect.

[68] Mr Kan submits that it is not clear who was “driving the conversation” at the time the alleged statements were made and what statements may have preceded the conversation reported. In fact he went further, submitting that there is evidence Ms Chen was being subjected to pressure to conform and may have given affirmative and potentially incorrect or misleading responses about her finances and her relationship in an attempt to placate others, especially her old brother, Philip.

[69] More specifically, Mr Kan submits that in relation to the discussions Ms Chen had with Philip on her visit to Guangzhou about the will it is not clear when this occurred or where they were when the discussion took place. Neither, Mr Kan submits, is it clear if anyone else witnessed the conversation, how long the conversation took, who was leading the conversation and what was specifically said by the parties.

[70] Furthermore, Mr Kan submits that in relation to the discussion about a will when the family visited New Zealand it is not clear what the tone or nature of the questioning was. He submits that it is apparent from Philip’s statement he was pressuring Ms Chen.

(iv) Other matters

[71] On the general question of reliability Mr Kan submits that the lack of any accurate record of what was specifically said by Ms Chen is an important factor. He contrasts this with instances such as those encountered in R v K¹⁷ (where the

challenged statement was a recorded interview of the deceased) and Mills v R¹⁸

_{(where the challenged statement had been made by the deceased shortly after}

¹⁷ _{R v K CA332/2014 [2014] NZCA 393 (CA).}

¹⁸ Mills v R [2010] NZCA 286 (CA).

suffering serious burns). He submits that in those cases the circumstances in which the statements were made were relatively clear as were the nature of the statements. He contrasts this with the present case. Mr Kan also argues that the Crown’s reliance on the closeness of the relationships between Ms Chen and the witnesses is misplaced. He submits that each witness overestimated the closeness of their relationship with Ms Chen and points to information which Ms Chen kept quarantined from each of them. To this end, Mr Kan points to comments that each witness has made about information that they only learned indirectly rather than from Ms Chen. He also points to Cindy’s falling out with Ms Chen; that may further undermine the claimed closeness of this relationship. Mr Kan argues that this reduces the reliability of some of the statements which touch on very personal matters, which he submits Ms Chen would have been unlikely to discuss openly with her brothers or with Cindy.

Crown submissions

[72] The Crown submits that many of the matters raised by the defence are more properly issues which should be left to the jury in its assessment of the weight to be placed on the evidence. In that sense the objections tend to relate to weight rather than admissibility. In relation to the s 16 factors the Crown submits:

(i) Nature of the statements

[73] Mr Raftery accepts that the statements are all oral and, for the most part, cannot be exact quotes of what the witnesses heard Ms Chen say. However, the extensive repetition of the themes around the couple’s financial circumstances, the deteriorating relationship and the evolution discussions around the making of a will provides support on an assessment of reliability.

[74] The nature of the relationship between the witnesses and Ms Chen necessarily means it would be unlikely the conversations would be recorded more formally. Rather, the discussions evince a natural and logical evolution of the core themes.

(ii) The contents of the statements

[75] The Crown accepts that some of the alleged statements are of a general, rather than specific, nature. However, Mr Raftery submits that this is entirely natural and to be expected and should not detract from the reliability of the statements simply because some of the conversations were general rather than specific.

[76] Mr Raftery rejects the allegation of collusion between the witnesses. He submits that there is simply no evidence to found such an allegation.

(ii) The circumstances that relate to the making of the statements

[77] Contrary to Mr Kan’s submission, Mr Raftery submits that the relationship between Ms Chen and her brothers was close and its closeness is evident from their statements. For example, Philip described the family dynamics in this way:¹⁹

“... We had a very strong family bond when we were growing up.”

[78] Further indicia of the closeness of the familial bond include the fact that Philip visited his sister in New Zealand four times. All three siblings were close in age. They were brought up together in a tight family unit.

[79] Philip accepted he did not speak with his sister about unhappy things relating to her previous marriage²⁰ and later suggested that:

_{“Because I am her oldest brother and hold a high position in the family she}

may not have felt like she could talk to me about any problems.”²¹

[80] However, Mr Raftery submits it is noteworthy that Philip provided financial assistance to Ms Chen in purchasing her first home giving rise to an inference that he must have had some involvement in her financial affairs. This supports the likelihood and reliability of the reported discussions with Ms Chen in relation to setting up a will, a factor also supported by her requests, some by way of email, for

_{her brothers to send copies of documentation. There is also the evidence of her}

¹⁹ _{Page 2 of the formal witness statement of Philip Chen.}

²⁰ _{Page 3 of formal witness statement of Philip Chen.}

²¹ Page 6 of formal witness statement of Philip Chen.

attempting to contact a lawyer shortly before her disappearance which gives support to the account provided by the contested statements.

[81] Mr Raftery submits that Philip claimed he spoke with his sister by telephone about once a month and this indicates a reasonably close sibling relationship.

[82] He submits Ms Chen’s relationship with her younger brother, Peter, appears to have been closer, a circumstance which is consistent with Philip’s relative seniority in the family hierachy and Peter’s comment that he and his sister were the closest because they were the youngest in the family. Mr Raftery submits that this closeness may well explain why it was that Ms Chen called Peter, rather than Philip, following the argument she had with the defendant the night before she went missing.

[83] He submits that the relationship between Peter and his sister was characterised by relatively frequent contact and, again, he submits that there is nothing in any of the statements to suggest that Ms Chen’s relationship with her brothers was anything other than as they describe it.

[84] Mr Raftery pointed to the passage in Peter’s statement that:²²

“Cissy would regularly tell me she was unhappy in the relationship. I have noticed this more and more over the years.”

[85] However, against that, Mr Raftery accepted there might not always have been a full and candid disclosure. He points to Peter’s statement that after moving to New Zealand in 1992 as a young woman, his sister became more resistant to talking about her personal life and for cultural reasons he would not push her to discuss her personal life with him. This, Mr Raftery submits, tends to explain how it was that the family were unaware of her brief marriage or the short liaisons she had with other men. In fact, according to Peter, it was not until Ms Chen and the defendant had been living together for about a year that he first learned of the defendant. It was only in later years, notably as the couple’s relationship became strained, that she

_{began to discuss the defendant over the telephone and, even more recently, by email.}

²² Page 6 of formal witness statement of Peter Chen.

[86] In response to Mr Kan’s submission that there were inconsistencies between the accounts given by the brothers and Candy, Philip’s sister-in-law, in respect of the argument in relation to the will, Mr Raftery observed that Peter said:²³

“I don’t know where we were when [Philip] mentioned [the will] to Candy but we did have lunch with Candy at her home during the trip so I would assume that it was while we were at her house ... The rest of the day was very uncomfortable and we didn’t feel very welcome at Cissy and Jack’s house.”

[87] Mr Raftery submits this statement tends to suggest that the mention of the will caused a falling out between Ms Chen and her brothers. This is consistent, in Mr Raftery’s submission, with Candy’s version of the events where she indicated:²⁴

“I invite them for lunch. At the time Cissy was very unhappy. I asked her why ... she told me that my elder brother and the other family member asked me to set up a will and I told I not going to do it. And I felt Jack was very happy on that day. Their sister started argument in my place on that date.”

[88] In response to Mr Kan’s submission that the brothers’ poor opinion of the defendant coloured their evidence, Mr Raftery notes this is a matter on which Mr Kan will be able to cross-examine the brothers in the course of the trial.

[89] In relation to the circumstances relating to the veracity of Ms Chen, Mr Raftery submits that there is no evidence on which the veracity or accuracy of Ms Chen’s statement might be impeached. Indeed, he points to a number of corroborative features which tend to support Ms Chen’s account to her brothers and to Cindy. For example, in the context of arguments and the deteriorating nature of the relationship, both brothers also witnessed and commented on their own observations of the breakdown, both when Ms Chen and the defendant were in Guangzhou and also during the family’s visit to New Zealand.

[90] Additionally, Mr Raftery relies on the corroborative evidence of workmates, neighbours and flatmates who will give evidence of witnessing or overhearing arguments between the couple in the days and months leading to Ms Chen’s

_{disappearance.}

²³ _{Page 11 of formal witness statement of Peter Chen.}

²⁴ Page 7, line 7, DVD interview of Lifang Zheng (Candy).

[91] The evidence of Ms Chen deciding to make a will comes from both brothers as well as Cindy. It is independently supported by the evidence from Ms Chen’s lawyers that contact was made by Ms Chen although there is no direct evidence as to what Ms Chen sought to discuss with them.

[92] In summary, Mr Raftery submits that the circumstances which relate to the making of the statements by Ms Chen to her brothers are entirely consistent with the sort of communication one might expect between close siblings who live in different countries. The communications are characterised by a general reluctance to disclose personal issues relating to the relationship during its earlier phases but as the relationship deteriorated that reticence yielded to a willingness to become more open and explicit in Ms Chen’s complaints about the defendant and her relationship with him. Furthermore, Mr Raftery submits that this evolving pattern of increasing candour is entirely explicable and consistent with the siblings’ respective positions in a close knit family.

Challenged passages

[93] I now turn to discuss the specified challenged passages and record my decision and reasons in relation to each. As the discussion below reveals, some of Mr Kan’s challenges do not engage the s 18 principles. Some are not hearsay statements at all. However, for completeness and to assist the parties and the Judge at trial, I shall deal with each of the passages Mr Kan has given notice he takes objection to.

[94] The page references and the text of the challenged passages are set out below.

(i) Philip Chen’s formal written statement

(a) Page 5

“I’m not sure if he had money invested in the house.

Cissy said that Jack wanted to sell the property at View Road as they were finding [it] hard to pay the mortgage on the second property at Tetrarch Place.

I remember telling her not to sell it as the first house was one hundred per cent owned by her and no-one could take it away from her.

I still have the phone number for Tetrarch Place in my diary as 64 9

4433099.”

(i) This conversation appears to have been part of the telephone conversation in which Philip first learned from his sister of her relationship with the defendant. The context of the disputed portion is to be found in the preceding paragraphs which are not the subject of challenge. There Philip discussed how he expressed his concerns to his sister about the defendant, his previous marriage and his age.

(ii) In my view these are the very sort of details which a concerned and patrician older brother would discuss with his younger sister on learning she had a new partner. Ms Chen’s statement that the defendant wanted to sell the property due to financial pressures is entirely consistent with that theme and is corroborated by comments to the same effect made by

Ms Chen to Cindy.²⁵ I am satisfied that the threshold test in

s 18(1)(a) is met and evidence of this statement should be admitted.

(b) Page 6

“Most of the money paid for this third property was paid by Cissy. Jack only had around fifty or sixty thousand dollars to invest.

I can not say whether the fifty or sixty thousand was invested in the

St Lukes property or the second property at Tetrarch Place.

At this time everything still seemed okay, she did not disclose any problems in her relationship with Jack.

Cissy told me she wanted to have a child but Jack did not want to.

Because I’m her eldest brother and hold a high position in the family

_{she may not have felt like she could talk to me about any problems.”}

²⁵ Statement of Yen Cindy (Cindy) at p 2.

(i) As Mr Kan’s argument evolved, he abandoned his objection to all but the first line of this extract. Mr Kan’s submission is that it is the Crown’s case the killing was, at least in part, financially motivated. Mr Kan submits that the line “Most of the money paid for this third property was paid by Cissy” suggests that Ms Chen was much wealthier than the defendant.

(ii) In my view that objection goes not to a reliability assessment but rather whether Philip’s knowledge of the funding for the third property came from his sister or from some other source, including his own knowledge. If the line in question was sourced from observations made to Philip by Ms Chen then I am satisfied that, given its provenance in the context of a sister telling her older brother about purchasing a new property, the statement is reliable and meets the threshold for admission.

(c) Page 7

“Jack and Cissy were under financial pressure and could not afford

things.

I would ask her to come home to see father but she said she could not afford it.

Before Cissy met Jack, she would spend money on expensive clothes, jewellery and cosmetics but after that she just wanted to save and pay the mortgage.”

(i) Mr Kan objects to this extract because he submits there is no evidential basis to support Philip forming that view, i.e. that Ms Chen was under financial pressure and could not afford things. As the evidence presently stands it is unclear whether the observation about financial pressure was something Philip concluded as a result of his discussions with his sister or whether she actually told him this. However, it is plain from the following sentence that Ms Chen told her brother she could not afford to return to China to see her father. The references to her changing her spending habits appear to be based on the

witness’s own observations. Furthermore, the change in Ms Chen’s spending habits is corroborated by Cindy who provides specific examples of this change in conduct based on her own observations. Cindy’s evidence on this issue is not challenged by Mr Kan.

(ii) Furthermore, I agree with the Crown that this exchange is consistent with a conversation between an older brother and a younger sister. For these reasons I am satisfied that this part of Philip’s statement is reliable and should be admitted although the Crown will need to take care when leading it to ensure that the source of the statements is properly identified.

(d) Page 7

“Her response [to Peter telling her that she was young and should live her life] was that Jack was old and wanted to pay the mortgage off as soon as possible, he did not want to spend money on other things.

They sold Tetrarch Place soon before or after they moved into Waiau

Street.

Around September 2011, Cissy and Jack came back to Guangzhou

as Jack’s brother, who lives in Xi An city in China, was very ill.”

(i) Although initially objected to, Mr Kan withdrew his objection in the course of oral argument. He accepts that Ms Chen’s statements to Philip meet the test of reliability in terms of s

18(1)(a).

(ii) I agree for the same reasons discussed earlier: in particular, the defendant’s reported desire to pay the mortgage off as soon as possible and not wanting to spend money on other things. This is the sort of discussion which might reasonably be expected to take place between family members given the specific relational dynamics in the present case.

(e) Page 8

“He was not an open man, I could not tell from his face what he was

thinking.

I asked him what sort of work he did and he said, ‘everything’.

I felt he was not honest.

At this time I told my sister that Jack was not reliable and it’s better

for her to make a will to protect her property.

Cissy told me that if Jack knew this he would not be happy.

I don’t believe that Cissy thought Jack was a bad guy. She told me that she would think about making a will.

I told Cissy not to tell Jack about the will because this is a private

thing, she agreed with this.”

(i) This conversation between Philip and his sister is alleged to have taken place on the last night of the couple’s visit to Guangzhou in September 2011. It is claimed this is the first time the question of making a will was raised with Ms Chen.

(ii) The Crown accepts that it would be impermissible to lead evidence of Philip’s subjective and negative views of the defendant’s character. Mr Raftery, however, submits that the Crown must be permitted to adduce evidence from Philip as to why he suggested to his sister that she should make a will and what Ms Chen’s response was.

(iii) Having heard the Crown’s justification for wishing to adduce

this evidence, Mr Kan withdrew his objection.

(iv) While the admissibility of this passage does not now require an inquiry in terms of s 18(1)(a) I include its discussion in order to clarify and record what has been agreed between the Crown and Mr Kan. In any event, I am satisfied that the requirements of s 18(1)(a) are met and the passage, subject to the agreed deletions, is admissible.

(f) Page 8

“We had a discussion about them spending money to come back to China to see his brother but her not spending any money to see her own family.

Cissy just wanted to keep Jack happy.

I noticed she wanted to see the family both in China and Canada more often, especially China as our father is getting very old but is still alive.

Cissy suggested that myself, my father and younger brother come to New Zealand however I would pay and father would think Cissy paid for the tickets.

Cissy was a very good person but became very tight in hand.”

Although in his application Mr Kan signalled that the whole of this passage was objected to, in argument his objection was confined to Philip’s comment “Cissy just wanted to keep Jack happy”. Mr Kan submits that as presently drafted it is unclear whether this line was Philip’s conclusion or what his sister actually said. If it is the former then a proper evidential foundation, if it exists, would be required. If it is the latter, I am reasonably assured that the statement is reliable because it is not only consistent with the sort of conversation such family members might engage in, but also the discussion about the family travelling to New Zealand is supported by the fact that a few months later this actually occurred.

(g) Page 10

“After Cissy moved into Waiau Street, she would tell me that her

relationship with Jack was getting worse and worse.

She said they were always arguing over small things like meals and if Cissy brought something a little expensive, Jack would not be happy.

For example, if Cissy brought a cap, Jack would say it was waste of money.

As far as I’m aware, their arguments would never escalate to violence although I don’t think Cissy would have told me if they did.

Cissy knew that if there had been violence in the home then I as the older brother would have come to New Zealand to help her.

Cissy said in the past Jack would co-operate with her and there were no major problems, however recently he changed and always complained that Cissy was spending money.

Cissy did not disclose the details or status of her financial accounts, although she said that most of the mortgage payments were paid by her.

She frequently told me that things were very tight because of the mortgage.

She told me that Jack’s income was not regular and he had a labour

job, forklift driving.

His income would change sometimes more sometimes less.

Her living style was very simple and she would go to the office and then go back home.

After dinner around 6pm Cissy said she used to like to go for a walk. She did not say whether she was on her own or with Jack when she

^{went for these walks.”}

(i) Mr Kan’s objection is that it is not clear when this conversation took place. He also submits the reference to the relationship getting “worse and worse” is not clear and he surmises that Philip knew more than that which is recorded in his statement. However, he also candidly accepts he cannot point to anything in particular which suggests unreliability on the part of Philip.

(ii) In relation to Ms Chen disclosing the details and status of her financial position and saying that most of the mortgage payments were paid by her, Mr Kan accepts that this is consistent with other similar statements made by Ms Chen or as observed at first hand by witnesses. He accepts he cannot point to any indicia of unreliability. He also accepts that some testing of reliability could be achieved at trial by cross- examination of Philip and other witnesses as to whether or not

the statement about paying the mortgage payments was correct.

(iii) Mr Kan accepts that the evidence in relation to income as well as Ms Chen’s statements to her brother about her walking routines is corroborated by the evidence of other witnesses.

(iv) Mr Raftery has undertaken that the Crown will not lead the evidence that Philip did not think that his sister would have told him if the arguments between the couple escalated into violence. However, in relation to the balance of this segment, Mr Raftery submits the statements attributed to Ms Chen have all the indicia of reliability, particularly on the question of the deteriorating relationship and matters financial. He points out that there is independent evidence, in any event, corroborating these statements.

(v) I agree. The statements made by Ms Chen in this segment are not only consistent with what family members would be expected to discuss but also, in relation to specific matters such as the worsening of the relationship, the financial concerns and Ms Chen’s walking routine, are matters corroborated or otherwise supported by other evidence. In all the circumstances I am reasonably assured that the statements contained in this passage are reliable and should be admitted.

(h) Page 12

“The arrangement was for Cissy to take the first week off and Jack would take the second week off to take care of us.”

This passage relates to the routine adopted by the couple during the family’s visit to New Zealand. It is plainly admissible as direct evidence of what the witness observed. Unsurprisingly Mr Kan withdrew his objection.

(i) Page 13

“Cissy then said she would consider making a will.

Cissy seemed to think she was too young to make a will and that it was only for older or sick people.

I still think in her mind she didn’t think Jack was so bad.”

Mr Raftery advised that the Crown would not attempt to adduce evidence from Philip that he believed his sister did not “think Jack was so bad”. On the basis of that undertaking Mr Kan withdrew his objection to this passage.

(j) Page 14

“Cissy didn’t want to lose face in front of her family so she did not really discuss details of her relationship in this meeting or during our visit.”

Mr Raftery advised that the Crown would not lead evidence that Ms Chen did not wish to lose face in front of her family. On that basis Mr Kan withdrew his objection to the balance of this passage.

(k) Page 14

“I asked her why she did not invite some friends to come to her new house to have a party and she told me that Jack did not like that.

I got the impression that Jack was trying to separate and isolate Cissy from her friends, also by moving further away from her friends.”

Mr Raftery advised that the Crown would not lead evidence of the second paragraph containing Philip’s impressions. On that basis Mr Kan withdrew his objection to the balance of this passage.

(l) Page 15

“Jack showed an unhappy look on his face when we stayed at their

house for a week.

All three of us had bad impressions of Jack and the way he was, we

thought it may be better if we went home earlier.”

This passage does not contain a hearsay statement. The first sentence is an observation by the witness. It is not hearsay. Neither is the second sentence. However, for completeness, and to record the parties’ positions, Mr Raftery advised that while the Crown intends to adduce evidence of the reasons the Chen family returned to New Zealand prematurely, the Crown would not lead the evidence in the plainly unacceptable format set out in this passage.

(m) Page 15

“Cissy called not long after we went home as she felt guilty that we

had gone home early and that she hadn’t taken more time off work.

She also felt guilty because we didn’t really go anywhere and she did not have a lot of money.

In subsequent phone conversations Cissy wanted me, my father, my brother and even my wife and two sons to return for visits.

Over the next few months we did not talk any further about the will.

I would always ask about the situation with her and Jack when I

called her however this wasn’t that often.

Sometimes she would say, ‘brother you are right’.

She was starting to feel like Jack was not reliable and she could not depend on him.

I got the impression things were getting worse and worse but she

would not go into the finer details about what was going on.”

(i) Again, Mr Kan’s objection to this passage is not because it is unreliable. His concern is that there is not a proper evidential foundation for the witness to give evidence on Ms Chen’s state of mind and, more particularly, that she felt guilty the family had left New Zealand prematurely. Mr Kan submits that the statement, as presently drafted, is objectionable because it is insufficiently explicit as to what Ms Chen, in fact, said. He accepted that if the evidence was more explicit as to what Ms Chen actually said he may not maintain his objection.

(ii) Mr Raftery submits that the passage, read as a whole and considered against the backdrop of the relationship’s deterioration, provides reasonable assurance of reliability because it is consistent with the already established pattern of increasing disharmony. He undertook that the Crown would not lead evidence of Peter’s impression that Ms Chen was starting to feel that Jack was not reliable and she could not depend on him unless the witness could explicitly state that that was what Ms Chen said to him.

(iii) Again, I am satisfied that the circumstances relating to the statement provide a reasonable assurance it is reliable for the reasons relied on by the Crown.

(n) Page 16

“Because I was in a meeting she asked me if I wanted to buy a car for Jack’s son as he has a licence and was studying at University.”

Mr Kan accepted that his objection to this passage goes to the question of relevance rather than reliability. At the present time I agree with Mr Kan. It will be for the Crown to persuade the trial Judge that this evidence has any probative value.

(o) Page 17

“On Sunday the 4^th November 2012 my brother Peter called me and told me he had received a call from Cissy.

He said that Cissy had been arguing with Jack and that she was really really unhappy and wanted to make a will.

Peter told me Cissy had asked him to copy his identification along with mine and my two sons for making a will.

On Monday the 5^th November 2012 at around 9.00am Peter called me again and said Cissy had called him again to push for him to send the identifications and passport copies to her.”

Although this passage is challenged, it is not hearsay because Peter is to be called as a witness. The subject matter in this passage is also

contained in the evidence of Peter and its admissibility in terms of s 18(1)(a) is discussed later in this judgment.

(p) Page 18

“In Mandarin ‘will’ has two meanings, one is an actual legal

document and the other is like goodwill, what you like to do.”

(i) This paragraph is not hearsay. Mr Kan withdraws his objection and seeks leave to raise the objection at a later stage if necessary. The extract in question arises from Philip’s email to Ms Chen on 5 November 2012. Peter forwarded a copy to Philip. The email made reference to Cissy’s “will”. The portion objected to by Mr Kan involves Peter explaining that in Mandarin the word “will” has two meanings. Mr Kan’s objection is that Philip is not an expert in Mandarin. In the course of argument I pointed out to Mr Kan that under s 25(1) of the Evidence Act 2006 such evidence may well be admissible if the jury is likely to obtain substantial help in understanding the evidence so long as Peter is capable of being qualified as an expert in terms of s 4(1) of the Act. Mr Kan, who has the advantage of being conversant in Mandarin himself, accepted he could cross-examine on this point.

(q) Page 19

“It is this morning at 2.30 Li FANG [Candy] called me and said that Jack told her that Cissy had gone missing for 10 hours and already reported to police.

Later Li HUA (my wife) heard from what Li FANG said and called me, we were all very nervous, she asked me how to do.

I also didn’t sleep for whole night but what’s the point of being worried, we can only wait for the investigation result from the police, if there is no news for 24 to 48 hours then may (sic) the problem becomes serious.

I don’t intend to disturb you originally but I thought about it I should let you know you can try to look for her.

Sincerely hope she has only walked out after argument with Jack nothing serious.

Philip”

(i) It is not evident from the formal written statement where the beginning of the quote is. It appears to be a conflation of what Candy said and a noted signed by Philip.

(ii) Mr Raftery indicated that the Crown would be calling Candy who would give this evidence of her conversation with the defendant. On that basis Mr Kan withdrew his objection.

(ii) Peter Chen’s formal written statement

[95] The following passages in Peter’s formal written statement are objected to.

(a) Page 6

“Cissy would regularly tell me she was unhappy in the relationship.

I have noticed this more and more over the years.

I have noticed that as we speak and as time has gone on that Cissy is unhappy with the relationship and is depressed a lot of the time.

She would tell me about her dissatisfaction with Jack regularly.

An example of this was earlier in the year when she told me she wasn’t happy with Jack because Jack refused to have a child with Cissy.

Cissy really wanted a child of her own but Jack did not.

Cissy made reference to this when she told me that she was unhappy with Jack.

I really noticed her depressed state of mind in some of her recent

phone calls.”

(i) Mr Kan’s initial objection to this passage was not that it was unreliable hearsay statement, but rather that there were aspects of it which were factually unclear. Mr Kan submitted, for example, that the use of the word “regularly” was not

sufficiently specific. However, he accepted he could cross- examine the witness on this point.

(ii) Mr Raftery accepted there was room for greater specificity in the leading of this evidence and the Crown at trial would ensure that occurred. On that basis Mr Kan withdrew his objection.

(b) Page 8

“I’m not sure of any other assets they have but I do know that Cissy

put most of the money into furnishing the properties.

I know this because I know Cissy had a high paying job and earned more money than Jack.

I think a lot of her money went into the mortgage because she did not have much disposable income.

She could not even come over to China for our grandmother’s

funeral.

I’m not sure of the exact details of the assets though and who owns

certain percentages of the houses.”

Mr Kan accepted that this passage did not engage the principles around the admission of hearsay statements and, accordingly, withdrew his objection. The Crown will need to exercise caution and judgement in leading this evidence to ensure clear distinctions are made around the source of some of the witnesses’ statements.

(c) Pages 10 and 11

“It was very uncomfortable and we tried our best to reassure Cissy and keep her happy but it was obvious she was not happy because they were always arguing.

During a day of sightseeing in Auckland my brother Philip talked to

Cissy about the possibility of a will.

It was something our family had talked about and had decided to suggest it to Cissy.

We made it clear that we needed to suggest it to Cissy when Jack was not around.

The reason we raised the issue of a will was that we noticed Cissy was unhappy with Jack and that they were arguing very often.

We were also aware that Cissy had some assets that may need protecting.

Philip discussed it with me and we were worried because Cissy is very oriental minded and the issue of a will is not something that a female of Chinese descent would consider.

Cissy’s first reaction to the suggestion was negative.

She did not think this was necessary and told us that a will was not a good idea.

She didn’t seem to appreciate the suggestion and didn’t seem to be in a good mood, so we didn’t continue to discuss the topic.

She didn’t say yes or no to the suggestion however.

I must make it clear that when Philip mentioned it to Cissy he said that he did not want to benefit from the will.

He said that he had enough assets.”

(i) The evidence contained in the first seven paragraphs of this passage is not hearsay. Those paragraphs relate to observations made by the witness and discussions he and his brother had with Ms Chen about the making of a will. Mr Kan withdrew his objection to these paragraphs.

(ii) The second part of the passage relates to Ms Chen’s reaction to the suggestion of making a will. Although this evidence is hearsay, Mr Kan withdrew his objection. I am satisfied he was correct to withdraw his objection. This evidence is entirely consistent with the sort of conversation one might reasonably expect between two brothers and their sister. Furthermore, it is factually consistent with other aspects of their evidence as well as that of Cindy. There is a considerable body of evidence from other sources that when the topic of making a will was first breached with Ms Chen her reaction was generally negative.

(d) Page 12

“We began talking about a wide variety of topics and it was obvious during these discussions that both Cissy and Jack had different attitudes to life.

It was obvious that they both disagreed with most things. ... It was

obvious that both Jack and Cissy did not live in harmony.

I am not the only person that thinks this. A lot of people in the

family share this view.”

With the exception of the last two lines which Mr Raftery undertook the Crown would not lead, the balance of the passage relates to the observations of the witness who had been living with Ms Chen and the defendant during their visit to New Zealand. While the evidence will need to be lead carefully to ensure that a proper foundation is laid, Mr Kan accepted that the portion he initially challenged is not hearsay. He therefore withdrew his objection.

(e) Page 14

“She told me that she had just had a fierce argument with Jack and

Jack’s son.

Cissy told me that the argument was very serious and that it involved

both Jack and Jack’s son.

She didn’t tell me what the argument was or where it was ...

In this conversation she told me that she was going to prepare a will. This was the first time she had mentioned a will since Philip first

^{mentioned it to me on the day we were sightseeing in Auckland back}

in February 2012.

She told me that it was only $300 to have a will prepared.

She told me she would nominate me as the first beneficiary and that my brother Philip would be the second beneficiary.

She then told me that Philip’s two sons, Jacky and Jackson will be

the third beneficiaries.

I didn’t ask Cissy for the reason she was considering a will.

The only thing I did tell her was that to be careful and not tell Jack that she was considering a will.

I told her this because it would have put her in danger if Jack knew.

Cissy then told me that she didn’t care.

She also said that Jack already knew she was preparing the will.”

(i) This conversation is alleged to have taken place on

4 November 2012, the day before Ms Chen went missing. In this conversation Peter described his sister as sounding very distressed and angry. After recording that observation, Peter related the contents of the conversation in the extract as set out above.

(ii) Mr Kan submits that this passage is unreliable hearsay. He submits that it is not clear what “the fierce argument” was about and observed that these events were not captured in a Police statement until 17 April 2014 more than 18 months after the conversation is alleged to have occurred. However, as Mr Raftery explained, that submission is factually incorrect. As noted earlier in this judgment Peter Chen made his first statement to Police on 14 November 2012. Mr Kan’s second submission is that given that Peter claims that he was the primary beneficiary under the will, the statement is likely to have been actuated by “self interest” such that the Court cannot have any confidence that the circumstances relating to the statement provide reasonable assurance it is reliable.

(iii) I accept the Crown’s submission that this statement possesses sufficient indicia of reliability to justify its admission. These include the family circumstances within which the statement is alleged to have occurred as well as the internal and external evidence of consistency from other independent sources that Ms Chen was intending to make a will. That evidence is also corroborated by Cindy in her description of a similar conversation she had with Ms Chen the following day just hours before she went missing. There is also the evidence of

Ms Chen’s attempted contact with the lawyers. In any event, Mr Kan can cross-examine Peter if he believes that he has fabricated the statement.

(iv) I am satisfied that the circumstances relating to the statement provide reasonable assurance of reliability and this passage is admissible.

(iii) Ms Yen Chin’s (“Cindy”) formal written statement

[96] Cindy stated she had known Ms Chen since they worked together in a travel company in Pakuranga in 1995. Both being single they spent time together whenever they were free.

[97] She said that after she left the travel company in 1997 the two maintained contact, describing it in these terms:

Sometimes we talk once a month or once every two weeks.

[98] She said that Ms Chen told her everything because they had known each other for so long. However, as Mr Kan pointed out, it seems she was not aware of certain personal and important details in Ms Chen’s life including the suggestion Ms Chen had been married previously. While at first blush this apparent lack of candour is surprising given Cindy’s claim of a close friendship, it is notable in my view that the fact of Ms Chen being previously married (if indeed that is correct) is also a fact which Ms Chen kept from both her brothers. Peter’s belief that his sister had been married for a short time appears to come from a comment made to him via

a family member.²⁶ In any event, this marriage ended before Cindy met Ms Chen,

and so the fact that it was not mentioned does not necessarily undermine the closeness of the relationship.

[99] Mr Kan submits that despite Cindy’s assertion that Ms Chen told her everything, it is apparent that Cindy’s knowledge of Ms Chen’s personal life and the

_{mention of making a will came to her via Philip’s sister-in-law, Candy. Thus,}

²⁶ Formal written statement of Peter Chen at page 5.

Mr Kan submits, it is plain that Ms Chen and Cindy were not as close as Cindy would suggest.

[100] Furthermore, Mr Kan submits that Candy in her evidential video interview to the Police said that Cindy and Ms Chen had a serious falling out in 2012 and did not speak to one another for some months. Another feature supporting Mr Kan’s submission Ms Chen and Cindy were not as intimate as claimed is the inference which can be drawn from the fact that Cindy was one of the last people who the defendant told about Ms Chen’s disappearance. Mr Kan submits this indicates that even Ms Chen’s partner did not regard her as ranking highly in the hierarchy of friendships.

[101] In response, the Crown accepts there is evidence that there was a falling out between the two for about three months. But they reconciled and, according to Candy, resumed their contact until Ms Chen’s disappearance.²⁷ The Crown submits that in the context of a 19 year friendship a relatively minor disagreement followed by a patching up should not erode the weight to be given to the evidence indicating this was a close and trusting friendship.

[102] In all the circumstances, I agree with the submission of the Crown. It may well be that the friendship between Ms Chen and Cindy was not as close as Cindy portrays. However, for the purpose of the present inquiry, I must be satisfied that the circumstances relating to the statement provide reasonable assurance of its reliability. On this issue I am so satisfied. While the relationship between Ms Chen and Cindy is a relevant consideration, so too is the consistency of her account on certain of the key subjects that the Crown has identified and, in particular, the evidence of the deteriorating relationship, the financial circumstances and Ms Chen’s intentions in relation to making a will. In relation to the last factor particularly, there is no evidence that Cindy colluded with Philip and Peter nor, it seems, was she ever contemplated as a beneficiary. Mr Kan has not attempted to suggest that Cindy has any ulterior purpose in fabricating this evidence. It therefore provides strong support

_{for the brothers’ evidence on this point.}

²⁷ Evidential video interview of Candy Zheng.

[103] However, it remains necessary to deal with each of the passages to which objection is taken, an exercise which now follows:

(a) Page 2

“Cissy’s big brother is quite rich and helped Cissy buy her first house.

About 1½ years after Jack moved in with Cissy, Jack asked Cissy to sell the Glenfield house so that they could buy a house and put it under both of their names.”

(i) Mr Kan objects to the admission of this passage because he says it fails to disclose the circumstances around the defendant asking Ms Chen to sell the Glenfield house. He submits that the Crown needs to be clearer as to the circumstances which lead to the defendant making the request otherwise, he submits, it may lead to speculation.

(ii) This statement is consistent with the same observation made by Philip²⁸ in which he also said that his sister told him that the defendant wanted to sell the property at View Road.

(iii) I am satisfied the circumstances in relation to the making of this statement by Ms Chen provide reasonable assurance the statement is reliable because of the nature of the relationship between Cindy and Ms Chen, the contents of the statement are consistent with statements made by other witnesses in relation to the same subject matter and, as with other statements made by Ms Chen, there is no obvious reason why Ms Chen would not be telling the truth on this topic. I determine this passage is admissible.

(b) Page 3

_{“Every time we invited Cissy out, it was always rejected by Jack.}

²⁸ Formal written statement of Philip Chen at page 5.

Jack never wanted to spend money. He just wanted to keep money and pay off the mortgage quickly.

Cissy would always talk about Jack’s son and Jack’s niece. From

what she would say I don’t think she really liked them.

Cissy would never invite us around when Jack’s son or relatives

were there.

About five to six years ago I went away with my husband, [children]

and Jack and Cissy.

We went on a four day trip.

Cissy and Jack didn’t want to spend money whilst on holiday. Cissy wasn’t like this before.”

(i) Initially, Mr Kan’s objection was on the basis that it is not clear on the face of the statement whether the fiscal conservatism which is described is based on Cindy’s own observations or on hearsay statements of Ms Chen’s. Mr Raftery accepts that the witness’s belief as to how Ms Chen regarded the defendant’s son and niece is not admissible unless a proper evidential foundation is laid.

(ii) As the argument progressed Mr Kan accepted that Cindy’s evidence of the defendant’s financial conversation appears to be based on her own observations and, as such, is not hearsay. The objection was withdrawn.

(c) Page 4

“Cissy was always under Jack’s control.

Even when we meet her Jack would rush her to go. Jack would not let Cissy go places with me.

I’d ask her to go somewhere with me in the morning and she would say yes, then on the night time she would say no after talking to Jack.”

Mr Kan accepted that this passage is not based on hearsay evidence. The references are sourced from the witness’s own observations.

Care, however, will need to be exercised by the Crown in adducing this evidence. The first line in its unqualified form would be inadmissible.

(d) Page 5

“When she talked to me over the phone, Cissy asked me if I knew a

lawyer she could speak to.

I asked her why she wanted to speak to a lawyer. She said she wants to make a will to my brother.

She said I am not married, I do not have children and if I die, I want

to give all my money to my brother.”

(i) Mr Kan initially submitted that this statement is unreliable because it is accepted that this is the first occasion when Ms Chen discussed the question of a will with Cindy, a friend who claims Ms Chen discussed everything with her. It is Mr Kan’s submission that the question of a will, at least on the Crown’s case, had been discussed by the deceased on earlier occasions with other witnesses, but apparently not with Cindy. This, he submits, supports his claim that Cindy was not a close confidant and accordingly the statement is unreliable.

(ii) However, the provenance of this conversation places it on the morning of the day Ms Chen went missing at a time when the question of making a will was gaining momentum. The contents of the statement are consistent with statements made by other witnesses of similar conversations they had with the deceased at about this time. There is independent evidence Ms Chen contacted a lawyer that day. I am satisfied that the circumstances relating to this statement provide a reasonable assurance that this statement is reliable and should be admitted.

(e) Page 6

“Fong [Candy] told me four months ago that Cissy had a family dinner about six months ago with her brothers who were visiting from China.

I think Jack was there too and Fong because she is family.

At the dinner the matter of Cissy getting a will done was spoken about.

I wasn’t there so I don’t know what was actually discussed, only what Fong has told me.

Cissy never knew that I knew about the will being spoken about.”

The Crown will call Candy to give evidence of this conversation. On that assurance Mr Kan withdrew his objection and accepted that this hearsay statement is admissible.

(f) Page 7

“Cissy told me about wanting to get the will and sign her property over to her young brother, but not her older brother because he is very rich people.

She told me lots of important things on Monday morning.

Cissy said to me at the beginning of the conversation that she wanted to sign the will because when she dies one day, she didn’t want her money to go to Jack and his son.

She told me that she wanted to sell their rental property in

Mt Roskill but Jack not agree.

She was very angry and said, if he don’t want to sell it, then he can

go and live there.

She said she wanted to sell the Torbay property and then he get half and she get half and then she will go and buy a small place for herself.

She said this very strongly.

I said as a good friend if you want to do a will, I am happy to hear that, that is your own family.

Good to do that.

I gave her two examples.

I said you never know what will happen.

If one day you die suddenly, you can put everything to your brother if you have a will.

The second one was if you are having dinner and he put something in food, then what happen? Cissy said, ‘Cindy if I die one day, quickly ring the police, he’s [Jack’s] the one who kill me.’

I was very surprised and I ask her, what happen for both of you, do you argue before? She never said yes or no and the ending of the phone call was very rushed.

During the conversation she said she will go and check lawyers and some prices to do a will.

I don’t know who the lawyers are.

Cissy was very rushed on the phone and she said we will catch up later.

The phone call was only a few minutes long because we were both very busy at work.

That was the end of the phone conversation and the last time I have

spoken to Cissy.”

(i) The grounds on which Mr Kan objects to this passage differ depending on the particular part in question. For example, Mr Kan takes objection to the first exchange relating to Ms Chen’s intention to make a will. Mr Kan’s objection is that it is not possible for the witness to give evidence that it was the Ms Chen’s intention to make a will. He accepted that the circumstances disclosed in the conversation revealed several topics including making a will, the conflict around selling the house and not wanting the funds to go to the defendant or his son.

(ii) For reasons discussed earlier in this judgment I am satisfied that, subject to the specific reservations discussed below, the circumstances relating to the conversation about the will and not wanting her funds to go to the defendant or his son incorporates circumstances which provide a reasonable assurance that this statement is reliable. First, this

conversation appears to have taken place on 5 November 2012 just a few hours before Ms Chen went missing. Although it is not directly relevant to the question of reliability, I do not ignore that this was the last conversation that Cindy had with Ms Chen, it is therefore likely to be particularly memorable. In any event, if Mr Kan intends to challenge Cindy's recollection of this conversation, he will have the opportunity to cross examine her on this point. Secondly, its contents and subject matter are broadly comparable to similar comments made on the same topic by Ms Chen to other witnesses. Thirdly it is apparent that Ms Chen is angry with the defendant, a circumstance which is consistent with the observations of other witnesses. It is also consistent with the theme of an increasingly souring relationship. Finally, the contents of this conversation were captured in a statement Cindy made to the Police on 8 November 2012, just three days later.

(iii) The position with regard to Ms Chen’s comment that if she was to die one day Cindy should quickly call the Police because Jack would be the one who had killed her is more vexed. In short I do not consider that it is possible for me to determine whether the statement is admissible on the state of the evidence presently before me. Rather, this is a question which will need to be argued before the trial Judge who will be in a much more advantageous position to assess the witness’ evidence and, more particularly, the context, mood and tone of the conversation and the reliability which may be attached to it.

(iv) The comment, “If I die ...” is of quite a different sort from the others under discussion. First, it is made in response to a suggestion from Cindy that the defendant may poison Ms Chen. The topic of murder was introduced by Cindy not

Ms Chen. As such it is not a hearsay statement initiated by Ms Chen. Indeed the first few words attributed to Ms Chen repeat Cindy’s own words. The fact a hearsay statement was only elicited by questioning generally tends to adversely effect the reliability of that statement. Secondly, it is unclear from the statement what tone was used by Ms Chen. The statement may have been an attempt by Ms Chen to make light of or deflect an inappropriate comment by Cindy. It might also have been a comment uttered in anger or frustration. Alternatively it may have displayed a genuine fear for her life. Depending on the tone used in the context of the wider conversation, the statement may be more or less reliable. For these reasons I do not consider that I am able to determine the admissibility of this statement on the evidence before me and it is best left for the judge at trial to resolve, probably by way of voir dire. I also note that at the hearing Mr Kan signalled he would be bringing a separate application to exclude that evidence on the grounds its probative value is outweighed by the risk that the evidence will have an unduly prejudicial effect on the

proceeding.²⁹ I will address that issue in a later judgment.

(v) I do not ignore the Crown’s submission that the comment made by Ms Chen that if she was to die one day Cindy should quickly call the Police because Jack would be the one who had killed her demonstrates the level of disharmony to which the relationship had descended, i.e. Ms Chen feared for her life. I accept that there is also some support for this conclusion from the evidence of work mates, neighbours and flatmates who witnessed or overheard arguments between the couple. These are questions which go to reliability but which cannot be properly assessed until the tone, mood and full context of the

_{conversation is assessed after hearing from the witness herself.}

²⁹ Evidence Act 2006, s 8(1).

(vi) Mr Raftery indicated that the second half of the passage recorded at page 8 of Cindy’s evidence (not reproduced above) will not be lead because the timing of Ms Chen’s disappearance is already on the record and the hearsay statements attributed to Candy will not be lead because the Crown has undertaken to call her as a witness.

(g) Page 9

“I asked Jack this [why he didn’t accompany Ms Chen on the walk] because when Cissy talked to me and our conversations together on the phone she always tell me about her walks, they are always after dinner, never before.

She always say she never walk alone, it is always with Jack. She say to me, if Jack not go, I not go.

Mr Kan withdrew his objection in relation to this passage. He accepted this evidence was admissible in terms of s 18.

(h) Page 10

“Normally, I don’t think they walk so long, normally one hour walk. What people go for a walk alone for two hours?

Too long.”

Mr Raftery undertook that the Crown would not lead this evidence.

(i) Page 10

“They do everything together, if they go shopping it is always together.

If they go to Bunnings to buy the wood, it always together. So I think it very strange Cissy go for a walk alone.

She tell me everything, what she eat, what she doing shopping, I

know Cissy very well.”

Mr Kan withdrew his objection in relation to this passage on the grounds it appeared to be a combination of a hearsay statement

admissible in terms of s 18(1) as well as observations and personal knowledge of the witness. The opinion contained in the third paragraph is not to be lead in that bald form without a proper foundation.

(j) Page 11

“I thought what was going on at dinner time Sunday between Jack, his son and Cissy for her to ring me Monday morning and start asking about lawyer and getting a will.

I am Cissy’s best friend and I was the last one that Jack called to tell

Cissy is missing.

Everyone else know before me and he call me on Wednesday?

That’s quite strange.

He told the Police on Monday night (5 November) to call a friend of

Cissy who they haven’t seen each other for a long, long time.

Police call her at 1 o’clock in the morning Tuesday.

Why he not give the Police my name, I met with Cissy on Saturday.

To me that is quite strange.”

Mr Raftery has undertaken not to lead the opinion evidence and conjecture contained in this passage.

(k) Page 13

“To me, he feel like he have no emotion, never, he seems very

peaceful to me.

If I miss my husband, I feel very sad.”

The Crown accepts that this is inadmissible, irrelevant opinion evidence. It will not lead this evidence at trial.

Conclusion

[104] Ultimately the hearing of this application canvassed a wide range of issues, some of which were only tangentially related to the hearsay evidence. Despite this, on the present application I am only required to decide whether the statements alleged to have been made by the deceased are reliable.

[105] As discussed above, the standard for reliability on this application is a relatively low one. It is not my role to determine what weight should be given to this evidence, but only whether it is sufficiently reliable to be admitted.

[106] I am satisfied that there are sufficient indicia of reliability to justify admitting the statements. The statements are consistent with the relationships which the witnesses claim to have had with Cissy before her death and I consider that their descriptions of those relationships are accurate. The various statements also form a consistent narrative that corroborates across the different witnesses. Finally, the Crown has also provided other evidence to corroborate the main planks of the evidence.

[107] While I accept Mr Kan's argument that there are certain points on which the witnesses are unclear and even some contradictions, I do not consider that these materially undermine the overall reliability of the statements. Of course, these difficulties are issues which he can test through cross-examination at trial and are factors which the Jury will take into account in their deliberation.

[108] For these reasons, except to the extent which I have specifically directed the statements are not to be led or where Mr Raftery has accepted that the Crown will not lead certain evidence in its present form, I conclude that the hearsay statements can be admitted as evidence at trial.

The second challenge – admissibility of statements made by the defendant to

Philip Chen

[109] The defendant has also notified the Crown that objection is taken to the admissibility of certain evidence obtained by Philip. This evidence is in the form of conversations electronically recorded by Philip between the Chen brothers and the defendant. The Crown thus applies for pre-trial orders that the evidence is

_admissible.³⁰

³⁰ Section 101(1) and (2).

[110] Mr Pereira, who carried this part of the argument for the defence, submits the evidence is inadmissible on the grounds it was improperly obtained for the following reasons:

(a) it was obtained in Philip’s capacity as an agent of the Police. Acting as an agent of the Police falls within the ambit of s 3 of the New Zealand Bill of Rights Act 1990 (“NZBORA”) and the recordings of conversations between the defendant and Philip amounted to a search;

(b) it was obtained in breach of the defendant’s exercise of his right to refrain from making a statement and to be informed of that right contrary to the protections contained in the Chief Justice’s Practice Note on Police Questioning;³¹ and

(c) it was obtained unfairly under s 30(5)(c) of the Evidence Act 2006.

[111] Mr Pereira submits the exclusion of the evidence is a proportionate and appropriate remedy in the circumstances.

[112] In response, the Crown submits that the Chen brothers were acting on their own accord and were not agents of the Police. Furthermore, the Crown submits that the statements made by the defendant were given by him voluntarily and were not elicited in a manner which circumvented his rights under NZBORA.

[113] On this application the Crown called evidence from Detective Sergeant

Goldie, Detective Sergeant Salton and Philip Chen³².

Further factual background

[114] The Crown seeks to adduce evidence of face-to-face conversations between

Philip Chen and the defendant which Philip recorded without the defendant’s

_{knowledge. The conversations took place in various locations but the most}

³¹ _{Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.}

³² Mr Chen’s evidence was received via AVL from Vancouver.

significant occurred at the Waiau Street address within a few days of the Chen brothers’ arrival in New Zealand from China.

[115] In order to examine the circumstances in which these conversations took place it is necessary to review some further aspects of the factual background and supplement the chronology set out earlier.

[116] The defendant called 111 and reported Ms Chen missing at about 8:45 pm on Monday, 5 November 2012. Shortly before midnight the Police arrived at Waiau Street and spoke briefly to the defendant following his earlier call. The next day he gave the Police a formal statement. The contents of that statement have been discussed earlier in this judgment. At this time the defendant was treated as a witness in a missing person inquiry.

[117] In his statement of 6 November 2012, amongst other matters, the defendant said he did not call Ms Chen’s family in China because he did not wish to alarm them unnecessarily. The significance of that statement would not become apparent to the Police until later when they became aware of the 7:15 pm call made from the

Waiau Street landline to Philip’s cell phone.³³

[118] On 7 November 2012 a non-sworn officer, Raymond Wong, called Philip in China. Mr Wong had been appointed to liaise with both the defendant and the Chen family to provide their primary point of contact with the Police. Mr Wong learned from that telephone call that Philip and his brother Peter were intending to travel to New Zealand. Philip said he had some important information to share with the Police “face to face”. These comments were confirmed in an email sent to Mr Wong later that day. Philip asked for Police assistance in obtaining an urgent visa for both brothers.

[119] From an early point following Ms Chen’s disappearance, her brothers suspected the defendant was involved. They were aware of the dysfunctional

33. The defendant told the Police Ms Chen left for her walk at 5:30 pm and did not return. Thus the identity of the caller became a significant line of inquiry.

relationship, their sister’s unhappiness and her intention to write the defendant out of her will.

[120] Later, on 7 November 2012, Philip called his sister’s mobile phone. It was answered by the defendant. Philip, unbeknownst to the defendant, recorded the conversation using a recording device.

[121] On 8 November 2012 Philip sent a detailed email to Mr Wong. It was headed, “Important/Top Secret”. He said he would give the Police the information he held when he met with them in New Zealand but in the meantime, in order to save time, he wished to disclose certain facts before he and his brother arrived. He said he did not think his sister’s disappearance was an accident. He said he thought it was premeditated and asked that nothing be disclosed to the defendant. He then listed those factors which led him to suspect the defendant’s involvement in his sister’s disappearance, including:

(a) Ms Chen telling him of her unhappiness and the arguments;

(b) the decision of the family to visit New Zealand to try to “console

Cissy”;

(c) the witnessing of major arguments during their stay in New Zealand; (d) the telephone call from Ms Chen to Peter Chen on 4 November 2012

concerning the “massive argument” she had with the defendant and making a will which would cut the defendant out;

(e) the call from Candy advising Ms Chen had gone missing; and

(f) calling Ms Chen’s mobile on 7 November 2012 and the defendant answering.

[122] Philip Chen suggested the Police should speak to Cindy and Candy as part of their investigation. He also posed a series of questions about the defendant’s actions after Ms Chen went missing.

[123] Also on 8 November 2012, the Police interviewed Cindy, Philip’s sister-in- law, who told them of the comment Ms Chen had allegedly made to her on the morning she disappeared, namely:

“If I die one day, quickly ring the police, he’s [Jack’s] the one who kill me.”

[124] Naturally, this disclosure elevated the defendant to suspect status. Relying on this and other information in the Police’s possession, Detective Sergeant Goldie initiated the steps necessary to obtain a surveillance device warrant. The application was made on 9 November 2012 and a warrant was issued authorising the interception and recording of private audio communications in the Waiau Street address and on the defendant’s telephones. The audio device and telephone intercepts were deployed the following day.

[125] Between 7 and 12 November 2012, the defendant made a number of telephone calls to Philip. Again, these conversations were recorded by Philip without the knowledge of the defendant.

[126] On the evening of 13 November 2012, Philip and Peter Chen arrived in New Zealand. They were met by the Police family liaison officer, Constable Fraser. She was directed to drive the brothers from the airport to Candy’s home. The constable did not discuss the Police investigation with them.

[127] The following morning, 14 November 2012, the brothers were picked up and taken to the North Shore Policing Centre. There they were introduced to the Police investigation team. Aside from a discussion about where the Police had been searching for Ms Chen, the detail of the investigation was not canvassed because, at least in part, the brothers had yet to be formally interviewed by the Police.

[128] Over the next two days, both brothers were interviewed. Neither mentioned the 7:15 pm telephone call, but both described Ms Chen’s increasing unhappiness in the relationship and her desire, in the days before she went missing, to obtain the services of a lawyer to draft a will.

[129] On 16 November 2012, the defendant was spoken to for a second time. Given his elevated status as a suspect, he was given his rights under the NZBORA and the Chief Justice’s Practice Note. He agreed to describe his and Ms Chen’s movements on the afternoon and evening of 5 November 2012 and to accompany the Police to show them where he went to look for Ms Chen. That reconstruction was video recorded. On his return to the Police station he asked for a lawyer. After consulting the lawyer he chose, in the main, not to answer the officers’ questions.

[130] Between 16 and 20 November 2012 the Waiau Street address was forensically examined. The defendant was provided accommodation off-site.

[131] On 19 November 2012, in accordance with Chinese custom,³⁴ the Chen brothers, escorted by Detective Sergeant Salton, went to Waiau Street to pay their respects to their sister. Because the house was still subject to forensic quarantine they were not permitted inside. Outside the property they undertook a simple ceremony at which incense was burned and wine offered. The defendant was not present.

[132] From an early point after their arrival in New Zealand the Chen brothers indicated to the Police that they wished to visit the defendant to discuss the case. This prospect apparently alarmed the Police who by this time strongly suspected the defendant was involved in Ms Chen’s disappearance. According to Detective Sergeant Salton, the Police attempted to dissuade the Chen brothers from going to Waiau Street to speak to the defendant, suggesting that it would be better to leave the inquiry to the Police. However, it became clear the brothers held a different view. They were adamant there were a number of matters they wished to discuss with the defendant. Detective Sergeant Goldie described the Police’s position in this way:

“Philip was doing that [putting pressure on the defendant to give up information] of his own accord, we didn’t say to him you must go and visit and you must ask this, he was doing what Philip needed to do, to satisfy himself, as the head of the family, that he was doing what he could to get his sister’s body back.”

34. Offerings and prayers are given in seven day cycles from the date of death. 19 November 2012 fell 14 days after Ms Chen’s disappearance.

[133] One of the matters the brothers said they wished to raise with the defendant was Ms Chen’s financial and property interests. They were conscious she had worked hard and accumulated sizeable assets which they did not want to go to the defendant. According to Detective Sergeant Salton, the question of Ms Chen’s property interests was regarded as a distraction by the Police. Both Detective Sergeant Goldie and Detective Sergeant Salton suggested to the brothers they should avoid focusing on these matters, emphasising that the recovery of Ms Chen’s body was paramount; a view which the Chen brothers naturally shared.

[134] Furthermore, the Police had concerns about the safety of the brothers and the tenant who shared the address with the defendant if a meeting was to take place. Resigned to the inevitability that such a meeting would take place, Detective Sergeant Goldie took the precaution of briefing those who were monitoring the intercepted communications while she, herself, sat in a police car not far from the address while the meeting between the defendant and the Chen brothers took place in case the Police needed to intervene urgently.

[135] As it happened, the meeting took place without incident. The conversation between the brothers and the defendant was wide ranging. The three men discussed what might have happened to Ms Chen and the possibility she may have been kidnapped. They also discussed the 7:15 pm call from the Waiau Street landline. By way of illustration, an extract of the conversation is reproduced below:

“Jack: How to search? You ... you ... now ... now we have no idea – no idea how to search. Whatever I could have provided the Police, I have tried my best to provide.

Philip: Yes. I have been thinking – that has happened around the time?

Cissy rang me once. It was very odd. It was [inaudible] phone log.

The phone log then was...

Jack: That means you received a call? Philip: Let me have a look.

Jack: Then did you tell that to the Police?

Philip: I haven’t yet. But er ... it’s very odd ... that ... why Cissy ... on 5^th

of November, at around seven fifteen in the evening your local time

... in the evening ... seven fifteen ... rang my mobile.

Jack: That’s odd.

Philip: But when she rang my mobile, it just so happened that I was busy at the time.

[...]

Philip: Well then, at that moment, according to you she had already gone out for her walk.

Jack: That’s right, I was down there fixing the wall. That’s is.

Philip: Then ... then what ... what about the phone call? Who made the

call?

Jack: Don’t know. [...]

Jack: I didn’t make any call at all.

Philip: That’s right. You didn’t have my phone number anyway. I remember it was after the incident that I gave you my number when you asked me. Usually we two hardly communicate.

Jack: That’s right.

Philip: Usually it’s Cissy that communicated with us.

Jack: [Cut over] it’s always Cissy that communicated with you (plural). I remember, on Friday ... at night while I was lying in bed, Cissy was talking on the phone with him.”

[136] Even at this stage, the Police were unaware that Philip had brought with him a recording device from China. It was the same one he had used to record the earlier telephone conversations with the defendant.

[137] The first time the Police became aware that any conversations had been recorded by Philip was the day following the brothers’ meeting with the defendant. According to Detective Sergeant Salton, this news came as a surprise. Philip telephoned the sergeant and told him about the meeting. He disclosed he had a copy of the recording. He also advised of an arrangement for the defendant to show the brothers the route he said he followed when looking for Ms Chen on the evening of

5 November 2012.

[138] Detective Sergeant Salton asked Philip to take a note of the route so the Police could compare it with the route the defendant had described in his earlier video reconstruction.

[139] Following this meeting Philip attempted to send the digital recordings of his conversations to Detective Sergeant Salton. They proved to be too large to transmit by email and so the Detective Sergeant asked Peter if he could send the recordings the following day on a USB. Philip responded to this request as follows:

“I can deliver it to you anytime at your convenience.”

[140] Detective Sergeant Salton said that other than the general advice to avoid the topic of financial property matters and, instead, concentrate on finding Ms Chen’s body, the Police were insistent that they would not give Philip any advice or direction on what he should say in conversations with the defendant. He said the Police made a point of telling Philip that they could not give him any directions on what to say and what not to say. These instructions were given to Philip both orally and in writing.

[141] On 4 December 2012, the Chen brothers again visited the defendant at Waiau Street and spoke with him. This date was described by Philip as the fourth of the seven day cycles after 5 November 2012.³⁵ Prayers, fruit and incense were offered before a photograph of Ms Chen. Philip recorded the conversation.

[142] On 6 December 2012, there was further email contact between Detective

Sergeant Salton and Philip in which the Detective Sergeant is recorded as saying:

“However, reading through your meeting with Jack, it is obvious you’re putting pressure on him and the more pressure, the better. You’ve done a great job so far. One more week of pressure may be enough for Jack to give up Cissy’s body. I’ll leave the decision to stay [in New Zealand] longer up to you. I’m aware that time you spend away from work is very costly to you and Peter, as I said earlier, we are still unwavering to solve Cissy’s disappearance and will continue in our endeavours, when you are back in China.”

³⁵ The fourth seven day cycle after 5 November 2012 actually fell on 3 December 2012.

[143] The brothers’ visas were due to expire on 13 December 2012. Philip sent Detective Sergeant Goldie an email advising her of this but noting that if there was any news from the defendant or the Police they would try to delay their scheduled departure. Detective Sergeant Goldie advised that she understood the defendant’s son was due to return to the country on 12 December 2012 and the Police were intending to have “another serious talk with him”. She observed that, for that reason, it might be worthwhile having the two brothers remain in New Zealand. The brothers extended their visa.

[144] Detective Sergeant Goldie provided some assistance to Philip who was in the process of drafting a letter to the defendant’s employer. It would appear that he intended writing to the defendant’s manager but needed assistance in correctly phrasing some aspects of that.

[145] The brothers left New Zealand on 26 December 2012.

Discussion of issues

[146] It is common ground that the primary issue for determination is whether the Chen brothers, and more particularly Philip, were agents of the Police. If the answer to that question is “No”, then NZBORA does not apply and neither the question of the reasonableness of the search in terms of s 21 nor whether the defendant’s right to silence was breached arises.

[147] However, if Philip was a Police agent, the next issue is whether the recording of his conversations with the defendant and the surrounding circumstances make the search unreasonable.

[148] Furthermore, if Philip was a Police agent did he through his actions, supported and encouraged by the Police, effectively deny the defendant of his right to silence in breach of the protections contained in the Chief Justice’s Practice Note?

[149] In any event, if the evidence was improperly obtained, should it nevertheless be admitted in terms of s 30 of the Evidence Act 2006?

[150] I shall deal with each of these issues in turn.

Was Philip Chen a Police agent?

[151] Mr Pereira submits that Philip was a Police agent and, as such, his acts are captured by s 3 of NZBORA which provides that the Bill of Rights applies to acts done:

(a) by the legislative, executive or judicial branches of the government of

New Zealand; or

(b) by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

[152] Mr Pereira submits that although the initial USB voice recording provided by Philip to the Police on 23 November 2012 was the product of a private search on Philip’s part, the recording was surrendered to the Police after a request to do so was made by Detective Sergeant Salton. Mr Pereira submits that all materials supplied from and including that point by Philip were procured and supplied with the encouragement of the Police and as such the material obtained should be treated as “governmental in character”. Mr Pereira submits that Philip’s actions in obtaining evidence from the defendant was encouraged, influenced and, to some extent, directed by the Police. He submits that, in those circumstances, Philip was effectively acting as a Police agent and therefore the same considerations should apply to him as the principles which apply to the actions of undercover Police officers.

[153] In R v Barlow the Court of Appeal examined the applicability of NZBORA to the actions of a civilian informer.³⁶ In that case, Mr Barlow was charged with the murder of two businessmen. The case against him was largely circumstantial but he

_{had made two different statements to the Police and was later charged with the}

³⁶ R v Barlow (1995) 14 CRNZ 9 (CA).

murders. While on bail a number of conversations were recorded between

Mr Barlow and a close friend who had become a Police informer.

[154] Mr Barlow challenged the admissibility of the recordings as being obtained as a result of an unreasonable search and seizure in breach of s 21 of NZBORA. He also claimed that his right to silence had been breached.

[155] In examining the applicability of NZBORA to the actions of a civilian informer Cooke P cited from the judgment of Iacobucci J of the Supreme Court of Canada in R v Broyles.³⁷ There the defendant was in detention in a remand centre. A friend was induced by the Police to visit him. He wore a concealed recording device. He questioned the defendant about the killing and a damaging admission was made.

[156] Mr Pereira relies upon the following extract from Broyles, referred to with approval by the Court of Appeal in Barlow, as defining the relevant and applicable principles:

“In determining whether or not the informer is a State agent, it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the State is relevant for the purposes of s 7 only if it affects the circumstances surrounding the making of the impugned statement. A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects the exchange between the informer and the accused, will not make the informer a State agent for the purposes of the exchange in question. Only if the relationship between the informer and the State is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a State agent for the purposes of the exchange. I would, accordingly, adopt the following simple test:

Would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the State or its agent?”

[157] Cooke P described the Canadian test as helpful and applied it in Barlow. He commented that drawing the line would not always be easy and would be a question

_{of fact and degree. A number of subsequent cases have also adopted this approach.}

³⁷ R v Broyles [1991] 3 SCR 595.

These cases have also frequently made reference to the significant power imbalance that often exists between defendants and Crown actors, and have used this imbalance as a litmus test for unfairness under s 30.³⁸ Where the defendant has made statements freely, without coercion or pressure, and where the coercive pressure of the state has not been brought to bear, courts have been hesitant to conclude that recordings, even those made at the suggestion of the police, are inadmissible.³⁹

[158] As I understood Mr Pereira’s argument, he accepts that the initial voice recording provided to the Police by Philip on 23 November 2012 was the product of a private search on Philip’s part. However, he submits that once the recordings were supplied to the Police after they requested them in the form of a USB, all material so supplied was procured and supplied with the encouragement of the Police and as such assumes the character of being “governmental”.

[159] Although Mr Pereira did not specify what subsequent material Philip provided to the Police, it would appear that his concerns cover the 21 November

2012 recordings, the Chen brothers’ evidence of the reconstructed guided tour undertaken on 22 November 2012 (including the recorded conversations) and a conversation recorded on 4 December 2012.

[160] Mr Pereira submits that the combination of the Police telling the brothers to focus on recovering the body of the deceased rather than focusing on her assets, the continuing relationship between him and various members of the Police over approximately two months, the amount of material supplied to the Police by Philip and the directions given to him by the Police compels the conclusion that Philip was

_{in fact and effect an agent of the Police.}

³⁸ R v Ahamat, CA143/00, 19 June 2000 at [11] and [16]; R v Ross [2006] NZCA 523; [2007] 2 NZLR 467 (CA) at

_{[23] and [25].}

39. R v Ahamat, above n 38, at [11] and [16]; R v Ross, above n 38, at [23] and [25]; K (CA106/2013) v R [2013] NZCA 430 at [21]; R v Win HC Wellington CRI-2005-042-1575, 23

November 2006 at [34]-[35]; R v McCardle HC Auckland CRI-2008-092-1404, 2 July 2010 at

[29]-[30].

[161] I do not accept that submission.

(a) First, it is plain that Philip was operating independently and on his own initiative. This is supported by Philip’s own evidence as well as that of both police officers. It was Philip’s independent decision, uninfluenced by any New Zealand Police officer, to record his discussions with the defendant. It is noteworthy he surreptitiously recorded telephone conversations with the defendant even before he and his brother arrived in New Zealand. He used his own recording device which he brought with him to New Zealand from China. The first the Police knew of the tape recordings was the day following the brothers’ meeting with the defendant, a development which came as a surprise to the Police.

(b) Secondly, the Police did not ask Philip to orchestrate meetings with the defendant for the purpose of eliciting admissions from him. The evidence from Philip was clear. Philip, even before he left China, was determined to confront the defendant and put to him questions relating to his sister’s disappearance. This conclusion is reinforced by Philip’s decision to bring the recording device to New Zealand with him.

(c) Thirdly, the Police did not direct Philip as to what questions or which topics he should discuss with the defendant. While it is correct that the Police indicated to both brothers that their questioning should focus more on recovering Ms Chen’s body rather than being concerned about her assets, this advice does not elevate the subsequent exchanges to the category of those which would not have taken place but for the intervention of the Police. I do not overlook the email message from Detective Sergeant Salton on 6 December

2012, when he referred to Philip putting pressure on the defendant and

observing “the more pressure the better”.

However, the context of that statement needs to be understood. Mr Pereira submits that this correspondence conveys that the Police

were asking the brothers to apply pressure to the defendant to give up Ms Chen’s body. Detective Sergeant Salton explained that the pressure he was referring to was the fact that the brothers were in the country for one more week. Irrespective of the plausibility of that explanation, even if the Police were expressing their content with the Chen brothers’ strategies, this does not logically lead to a conclusion that the brothers were acting as Police agents. I agree with the Crown’s submission that there must be more than simply a common interest in having Ms Chen’s body returned. There must be a conscious effort on the part of the Police which results in the agent acting on behalf of the Police. This is simply not present on the evidence. Furthermore, any request by Detective Sergeant Salton for the brothers to make a note of reconstruction undertaken on 22

November 2012, simply reflected the Police’s desire to have an accurate record of the defendant’s stated route given the Chen brothers’ unfamiliarity with the area.

Subsequent to the hearing of submissions, Mr Kan provided, by consent, transcripts of two conversations which took place on

21 November 2012. One is a conversation between the two brothers which, from its contents, must have taken place after the defendant escorted the brothers around the Long Bay area. The other is a telephone conversation between Detective Sergeant Salton and Philip. It was recorded at about 11:00 am and appears to be Philip describing the Long Bay excursion.

The conversation between the brothers is set out in full below:

“Philip: I just let him know, I said -- the bastard it’s just nonsense, just walked a long a couple of streets then the beach and said that’s it, nowhere else to go. F---. So he said can’t be help then and asked I am going next, I said going to Candy’s place, he said: “Ok you go back and have something to eat, and I will ring you later.” Maybe he has some new ideas? The police keep coming up with new ideas and use us, so we have to keep thinking of some new ways.

Peter: Mm.

Philip: To be honest, maybe they are running out of ideas, and don’t know what to do. Sigh, Ah Bin’s f--ing dumb. That’s why towards the end I f-----g stopped being polite to him. Just not on. F-----g bastard, all talk no walk. (Pause) Sigh, in the previous life, really, Ah, Ah, Ah Cissy’s too simple.”

Mr Kan submits that this extract demonstrates the nature of the relationship between the Police and the brothers and, in particular, that the brothers were being used as the Police’s agents in the investigation. Mr Kan says that the reference to “... he has some ideas” is a reference to Detective Sergeant Salton. But in my view this is unclear and, subject to clarification by Philip, might equally be referable to the defendant.

While it is apparent from the dialogue that Philip regards himself as providing assistance to the Police, I do not accept that this conversation, in any way, elevates his involvement in the investigation to the status of a Police agent. This is a conversation where Philip is expressing his frustration at what he regards as the defendant’s stupidity and, perhaps, lack of co-operation.

The other conversation between Philip and Detective Sergeant Salton does not take matters any further. In this conversation Philip described his assessment of the excursion to Long Bay as of little use. He also expressed his disappointment at the defendant’s attitude. Detective Sergeant Salton made no comment other than advising Philip that he would call him later.

Mr Kan submits that this exchange also emphasises Philip’s view of his role as an agent of the Police in that he was providing a debriefing.

The conversation is entirely consistent with Philip’s earlier conduct in that he saw his and his family’s interests as being aligned with the

Police investigation. Even if that was the case, the relationship, viewed objectively, falls well short of Philip being an agent of the Police.

It is not disputed that the Police regarded the brothers as useful and important figures in the investigation. It is also apparent that information which the brothers provided the Police assisted them in their investigation. As brothers of the deceased, having travelled to New Zealand specifically to find out what had happened to their sister, they were naturally prepared, if not eager, to assist the Police in any way they could given the common interest they shared with the Police in recovering Ms Chen’s body and ascertaining the circumstances which led to her death.

It is hardly surprising that they aligned themselves to the Police investigation. Indeed, they may have viewed themselves as being “used” by the Police. Even assuming the translation is an accurate reflection of this verb, I remain satisfied for the reasons discussed in this section that the brothers were not, in fact, agents of the Police.

(d) Fourthly, the Police, and Detective Sergeant Salton in particular, actively attempted to dissuade the brothers from going to Waiau Street to speak with the defendant. Indeed they suggested it would be better to leave the inquiry for the Police to undertake. When it became clear that the brothers were determined to speak with the defendant the Police were careful to avoid directing how any questioning of the defendant should be framed, other than the general suggestion that any questioning should focus on recovering Ms Chen’s body rather than assets and finances.

(e) Fifthly, it is important to place in context the respective relationships.

It was entirely proper, indeed necessary, for the Police to appoint a liaison officer for the family who, until the defendant was elevated to suspect status, also happened to be the defendant’s liaison officer.

Furthermore, to the extent that it did not compromise the integrity of the wider Police investigation and the interviewing of the brothers as witnesses, it was understandable and expected that the officer in charge would discuss the status and progress of the investigation with the deceased’s family and next of kin. This role and function is entirely distinguishable from the Police briefing a State agent with the intention of deploying them for the purpose of eliciting admissions.

(f) Sixthly, the style of the conversation was not elicitory. It involved a courteous discussion between the brothers of the deceased and her partner who was the last person known to have seen her alive. The nature of the conversation took the very form which might reasonably be expected in that context; discussions about what might have happened to Ms Chen and the identity of the person who made the

7:15 pm telephone call. While I accept that these issues were important features of the Police investigation, I am also fully satisfied that the questions were opened ended. There can be no real suggestion of improper coercion by the brothers. The conversations, viewed in their entirety, reflect the qualities one might expect in the circumstances; that is of concerned, worried and puzzled family members discussing their sister’s disappearance with her partner.

(g) Seventhly, by at least 20 November 2012, the defendant had spent considerable time with the Police. He had given his account of the events of 5 November 2012 including the reconstruction. Little useful purpose would be served in having the Chen brothers essentially engage in a repetition of the same elements of the same exercise. While there was some benefit in the defendant telling the Chen brothers he did not make the 7:15 pm call, that evidence was already known to the Police from the defendant’s statement of 6 November

2012 when he told the Police he did not call the Chen family that night for fear of unnecessarily worrying them. It seems inescapable that if the Police, in fact, were using the Chen brothers as their agents

they would have given them much more expansive and detailed instructions.

[162] The comments of the Court of Appeal in Kumar v R provide support although the facts are quite different.⁴⁰ Mr Kumar was in custody and was questioned by two undercover Police officers posing as prisoners. The principles discussed by the Court of Appeal are instructive. The Court, referring to Barlow and Hartley, noted the persons to whom the statements were made enjoyed close and trusting relationships with the defendant whose willingness to confide was an incident of the

relationships. The exchanges would have occurred regardless of the Police intervention. The Police simply created the opportunity to continue a pre-existing course of dialogue. Kumar is a case in a very different league. But for the Police intervention, the exchange with Mr Kumar would never have taken place.⁴¹

[163] These comments reinforce the conclusion that the present case is entirely different from Kumar. Here both brothers knew the defendant. He was their sister’s partner. He was the last person known to have seen her alive. It was entirely natural they would wish to discuss with him the circumstances of their sister’s disappearance; all the more so given their knowledge of her unhappiness and her intention to change her will.

[164] Furthermore, the Police, despite attempts to do so, were unable to dissuade the brothers from visiting the defendant and discussing the case with him.

[165] For these reasons I am satisfied that neither of the Chen brothers was an agent of the Police. It thus follows that NZBORA does not apply to their actions.

[166] But in the event I am wrong, I now turn to the question of whether, even if the brothers were Police agents, NZBORA applies and whether the recorded

_{conversations constitute a search and, if so, whether it was unreasonable.}

⁴⁰ _{Kumar v R [2014] NZCA 489 (CA).}

⁴¹ At [49].

Do the recordings constitute a search?

[167] Any participant in a conversation is entitled to record their discussion surreptitiously.⁴² Given that participant recording is not unlawful is it, or in certain circumstances can it amount to, an unreasonable search in terms of s 21 of NZBORA?

[168] Section 21 of NZBORA provides:

“Everyone has the right to be secure against unreasonable search or seizure, whether of a person, property, correspondence or otherwise.”

[169] As was identified by Blanchard J in Hamed v R, this inquiry requires a two step process namely:⁴³

(a) Was what occurred a search or seizure?

(b) If so, was that search or seizure unreasonable?

Was there a search or seizure?

[170] This is the first question. The Court of Appeal in R v A held that participant recording, although lawful, constitutes a search and seizure within the meaning of s

21 of NZBORA.⁴⁴ However, cases subsequent to R v A have indicated that this

decision is likely to be revisited and there is far from complete agreement in the Court of Appeal that participant surveillance is properly characterised as a search. The observations on this issue began in Barlow. The Court found that surreptitious participant recordings did not constitute a search. Instead, the proper inquiry should be viewed in the context of s 23 and the right to refrain from making a statement.⁴⁵

As previously noted, the Court applied the Canadian test in Broyles, namely whether

the exchange between the parties would have taken place in the same form and manner but for the intervention of the State or its agents.⁴⁶

⁴² _{R v A [1994] 1 NZLR 429 at 436, lines 47-52; Crimes Act 1961, s 216B(2).}

⁴³ _{Hamed v R [2011] NZSC 101; [2012] 2 NZLR 305; (2011) 25 CRNZ 326 (SC).}

⁴⁴ _{R v A [1994] 1 NZLR 429 (CA) at 436.}

⁴⁵ _{R v Barlow, above n 36.}

⁴⁶ R v Broyles, above n 37.

[171] Mr Pereira submits that Elias CJ’s comments in Hamed support the defendant’s argument that what occurred in the instant case amounts to a search and seizure. There her Honour observed that what amounts to search and seizure and what is unreasonable must be assessed in the context of the values that underlie s 21, noting that s 21 protects personal freedom and dignity from unreasonable and arbitrary state intrusion. More particularly, her Honour stated that a Police investigation which invades private space constitutes a search within the meaning of

s 21.⁴⁷ The difficulty with Mr Pereira’s submission is that Philip’s actions were not

part of a Police investigation but were, instead, perfectly natural and independent enquiries which concerned brothers might ask another in the context of the relationships between the parties as they existed at that time.

[172] But if I am wrong and the questioning by Philip amounted to a search within the meaning of s 21, was it unreasonable?

Was the search unreasonable?

[173] Mr Pereira submits that the searches were unreasonable because:

(a) they were obtained without the defendant’s knowledge or consent and

he would have had no reason to expect he was being recorded;

(b) the recordings breached his legitimate privacy expectations to be free from being recorded in his own home. This feature, Mr Pereira submits, is aggravated by the fact that the statements had been elicited from Philip’s questioning after the defendant had invoked his right to silence in circumstances encouraged by the Police;

(c) the audio recordings were obtained in breach of any implied licence as they were recorded covertly “behind closed doors” in the defendant’s home. He submits that a person can reasonably expect a high degree

_{of privacy in their private residence.}

⁴⁷ R v Hamed [2011] NZSC 101, [2012] 2 NZLR 305 at [10].

[174] Furthermore, Mr Pereira submits that there can be no implied licence because Philip did not simply attend the defendant’s home to make enquiries but went further and elicited information for the purpose of passing it on to the Police after the right to silence had been invoked.

[175] In R v Jefferies the Court of Appeal held that the questions of whether a search was legal and whether it was reasonable were separate questions that involved different considerations.⁴⁸ On the question of reasonableness, Thomas J observed:⁴⁹

“What is required... is an assessment as to whether, in the particular situation, the public interest in being left alone by Government must give way to the Government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. These interests and goals, of course, are not just those of the Government; they are the interests and goals of the community. It is when that assessment points to the community's interest in law enforcement being paramount that a search cannot be said to be unreasonable. It is this framework for balancing one set of values and interests against another which has been incorporated in s 21 by the considered use of the word “unreasonable”.

[176] This view has been repeatedly affirmed by the Court of Appeal.⁵⁰

[177] What this test requires is a balancing of the privacy interest on which the search impinges with the government interest in favour of the search. Where the defendant’s right to privacy is weak, a limited government interest will prevail. Where the privacy interest is stronger, a much stronger government interest must be shown in order to conclude that the search was reasonable.

[178] Again, in my view, the context in which these recordings were made provides the answer. This is not a case involving undercover Police officers, informers or even acquaintances operating under the direction and instruction of the Police. The Police were not aware Philip intended to record his conversations with the defendant and the independent nature of Philip’s decision to make the recordings is illustrated

_{in his evidence when he said:}

⁴⁸ _{R v Jefferies [1994] 1 NZLR 290 (CA).}

⁴⁹ _{At 319.}

⁵⁰ R v Bradley (1997) 15 CRNZ 363 (CA); R v Smith (Malcolm) [2000] NZCA 99; [2000] 3 NZLR 656; R v Thomas

CA301/01, 10 December 2001.

“Because I realised that the disappear (sic) of my sister is a big thing and I feel that the dictaphone or the recorder would be the very basic ensurement (sic), I’d be wise to collect the information and that would be quite useful for this scenario.”

[179] I am satisfied that in the event the recordings constitute a search it was not unreasonable.

Was the defendant’s right to silence breached?

[180] Mr Pereira accepted that because the defendant had not been arrested or detained by the Police at the time Philip obtained the evidence the right under s 23(4) of NZBORA was not triggered.

[181] However, he submits that the right protected by s 23(4) is supplemented by the Chief Justice’s Practice Note on Police Questioning. He notes that by the time of the defendant’s second interview, he had been cautioned in accordance with the Practice Note and invoked his right to silence.

[182] Plainly this Court has the power to exclude evidence of admissions made by a defendant obtained unfairly in breach of the Chief Justice’s Practice Note.⁵¹

[183] Furthermore, it has been clear, at least since the Court of Appeal’s decision in Barlow, that if the Police seek to elicit statements from a charged person through the use of an undercover officer or informer, the right to silence would be violated. However, the Crown submits that it does not follow that the mere creation of an opportunity for a defendant to make a statement breaches the right to silence.

[184] The key issue in the present case is whether the right to silence has been breached by the inappropriate undermining of the defendant’s right to silence by Police conduct.⁵²

[185] It is instructive in assessing such a challenge to refer to the purpose of the right. The right to silence is not limited to a single right but is, instead, a shorthand

51. R v Winitana HC Rotorua CRI-2009-263-163, 28 July 2011; R v Collins [2009] NZCA 388 (CA); Kumar v R [2014] NZCA 489 (CA).

⁵² R v Wallace CA197/07, 29 June 2007 and Te Moananui v R [2010] NZCA 515.

term used to describe a cluster of rights. These rights were listed by Lord Mustill in R v Director of the Serious Fraud Office (ex parte) Smith.⁵³ Amongst those listed is the general immunity from being compelled on pain of punishment to answer questions posed by other persons or bodies as well as a general immunity from being compelled to answer questions, the answers to which may incriminate. Additionally, there is a specific immunity possessed by all persons under suspicion of criminal

responsibility whilst being interviewed by Police officers or others in similar positions of authority, from being compelled to answer questions of any kind.

[186] However, in the present case, the defendant was speaking voluntarily and willingly to the Chen brothers. No right of the sort described above was breached. Certainly, there is no suggestion that the defendant was labouring under any physical or mental compulsion in the course of his conversations with the brothers at his home.

[187] This conclusion is reinforced by reference to the two rationales commonly identified as forming the basis of the right to silence, namely:

(a) promoting individual autonomy and preventing State coercion;⁵⁴ and

(b) minimising unreliability.⁵⁵

[188] The first principle emphasises the right to elect whether or not to speak and, more particularly, the disadvantage a suspect may suffer when faced with an experienced Police interviewer. The second principle, the older of the two, emphasises the need for care when examining admissions made to people in positions of authority because the admissions may have been induced through fear or favour.

[189] Again, any admissions made by the defendant to the Chen brothers are not amenable to attack through reliance on either of these principles, for the reasons

⁵³ _{R v Director of the Serious Fraud Office (ex parte) Smith [1993] AC 1 (HL) at [30]-[31].}

⁵⁴ Amelia Evans “Breaking the Silence; An analysis of Police questioning under s 23(4) of the New

Zealand Bill of Rights Act 1990” (2008) 6 NZIPIL 43 at [47]; R v Herbert [1990] 2 SCR 151 at

_{182 per McLachlan J.}

⁵⁵ R v Warwickshall [1783] EngR 60; (1783) 1 LEACH 263 at 263; [1783] EngR 60; (1783) 168 ER 234 at 234.

already discussed and, more particularly, the fact the recorded conversations were neither directed nor requested by the Police.

[190] Another factor which, in my view, is relevant to this assessment is that unlike Barlow and the other cases discussed above, the Chen brothers were not trusted friends in whom the defendant might be expected to confide. They were the brothers of the deceased who were questioning the defendant for the purpose of obtaining information about their sister’s disappearance. This was plainly evident not only from the nature of their relationship but also from the nature of the questions they posed. Furthermore, unlike Barlow, no admissions of guilt were obtained. It is correct that some of the statements made by the defendant added to the body of evidence tending to implicate him in Ms Chen’s disappearance, but no direct admission of guilt was made to the brothers by the defendant. This is hardly surprising. The defendant would have been naturally cautious about what he said given the context and identity of the other participants in the conversation. He must have known anything he said to the brothers would likely be relayed to the Police by the brothers.

[191] For these reasons I am satisfied that there was no breach of the defendant’s

right to silence.

If the disputed evidence was improperly obtained should it, nonetheless be admitted in terms of s 30(2) of the Evidence Act 2006?

[192] For the reasons set out above, I am satisfied that the evidence was not improperly obtained as that expression is used in ss 30(5) and (6).

[193] However, even if I am wrong I am, nonetheless, satisfied that the exclusion of the evidence would not be proportionate to the impropriety. In other words, in terms of the balance and process I am required to engage in, I am satisfied that even if the evidence had been improperly obtained, its exclusion would be disproportionate to the impropriety in terms of s 30(2)(b).

The balancing exercise

[194] There can be no doubt that the evidence was obtained as a direct result of the Chen brothers’ questioning. If that conduct means the evidence was improperly or unfairly obtained then the disputed evidence is inextricably connected to the impropriety. As the Court of Appeal observed in R v Horsfall the relative strength of the causative link is a factor which may be weighed in the s 30(2) balancing

exercise.⁵⁶ This is a factor which operates in favour of exclusion.

[195] Another factor which would operate to support exclusion is the importance of the right breached.⁵⁷ Plainly, the right to silence and the right to consult and instruct a lawyer are significant and important rights. I do, however, accept that the importance of this right is tempered somewhat when the evidence is obtained from a person who was not in Police custody. This reflects the relative power imbalance dismissed earlier. I have already discussed the nature of the conversations and the

circumstances in which they took place. These are relevant in this assessment.

[196] However, against those factors I am satisfied that the evidence should be admitted having regard to the following factors.

[197] The first is the nature and quality of the evidence.⁵⁸ The quality of the evidence is strong. It was tape recorded. It is also important to assess the value of the evidence to the prosecution’s case. When the defendant told the Chen brothers that he was not responsible for the 7:15 pm telephone call, he was simply confirming the explanation he had already provided to the Police in his witness statement of 6

November 2012. Although duplicated by other evidence, this remains significant because it indicates that Ms Chen was, in fact, alive at 7:15 pm. It also undermines

_{the veracity of the defendant’s account.}

⁵⁶ _{R v Horsfall [2008] NZCA 449, (2008) 24 CRNZ 402 at [44].}

⁵⁷ _{Evidence Act 2006, s 30(3)(b).}

⁵⁸ Section 30(3)(c).

[198] This feature was recognised by Blanchard J in Hamed when he said:⁵⁹

“It is simply unrealistic not to take account of the importance of the evidence in the case when assessing whether exclusion will be proportionate to the impropriety.”

[199] A further factor operating in favour of admitting the evidence is the seriousness of the offence.⁶⁰ As the Court of Appeal observed in R v Williams:⁶¹

“Weight is to be given to the seriousness of the crime not because the infringed right is less valuable to a person accused of a serious crime but in recognition of the enhanced public interest in convicting and confining those who have committed serious crimes, particularly if they constitute a danger to public safety.”

[200] Plainly the crime of murder is very serious.

[201] However, in my view, the most significant factor in favour of admitting the evidence relates to the assessment of the nature of the impropriety and in particular, whether it was deliberate, reckless or done in bad faith.⁶² For the reasons more fully discussed above, the Police’s actions could not be characterised as reckless or undertaken in bad faith.

[202] This is not a case where the defendant was tricked or duped. Neither is it a case where, because of a special relationship of friendship or trust the defendant was lured into a false sense of complacency or misplaced trust. At all times he knew who he was dealing with and, given the brothers’ close relationship with Ms Chen, the defendant must have apprehended that anything he said was likely to be conveyed to the Police.

[203] There is no basis upon which it can be claimed that the Police were acting in bad faith.

[204] Accordingly, I am satisfied that having regard to the nature of the evidence and its importance to the Crown case and, more particularly, the absence of bad faith

⁵⁹ _{R v Hamed, above n 43, at [201].}

⁶⁰ _{Evidence Act 2006, s 30(3)(d).}

⁶¹ _{R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 (CA) at [138].}

⁶² Evidence Act 2006, s 30(3)(b).

on the part of the Police, exclusion would amount to a disproportionate response to any impropriety.

Conclusion

[205] I am satisfied that the disputed evidence is admissible. It was not obtained in breach of the defendant’s right to be free from unreasonable search and seizure. Neither was it obtained in breach of the defendant’s right to silence.

[206] The evidence is reliable and its probative value outweighs any illegitimate prejudicial value.

[207] Accordingly I direct that the evidence of the recorded conversations between the defendant and the Chen brothers is admissible.

[208] To protect the defendant’s fair trial rights I make an order prohibiting the publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final

_{disposition of trial. Publication in law report or law digest is permitted.}

Moore J

Solicitors/Counsel:

Crown Solicitor, Auckland

Mr Kan, Auckland