Preston v R [

• Jurisdiction: New Zealand
• Judge: Kós P,Winkelmann,Brown JJ
• Judgment Date: 01 December 2016
• Neutral Citation: [2016] NZCA 568
• Docket Number: CA727/2015
• Court: Court of Appeal
• Date: 01 December 2016

BETWEEN

Michael Edwin Preston

Appellant

and

The Queen

Respondent

[2016] NZCA 568

Court:

Kós P, Winkelmann and Brown JJ

CA727/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against a High Court conviction for murder on the grounds that a miscarriage of justice had arisen because errors were made in admitting certain material as evidence, prosecuting counsel's conduct and deficiencies in the summing-up — appeal against sentence of life imprisonment with a minimum period of imprisonment of 19 years, on the ground that the minimum period of imprisonment was too high — the appellant was convicted of murdering his former partner —they had been involved in a bitter custody dispute —DNA evidence on the murder weapon was identified as the appellants —whether the appellant's text message should have been introduced as propensity evidence —whether the victim's statements to third parties should have been excluded as hearsay under the Evidence Act 2006 (“EA”) —whether statements made by the appellant to a pastor should have been excluded under s58 EA (privilege for communications with ministers of religion) —whether there had been prosecutorial misconduct due to the nature of emotive statements or speculation —whether the minimum period of imprisonment imposed under s104 Sentencing Act 2002 (imposition of minimum period of imprisonment of 17 years or more) was manifestly excessive.

Counsel:

S J Gill and L M Sziranyi for Appellant

A Markham for Respondent

Table of Contents

	ParaNo
Events leading up to the murder of Ms Fan	[2]
The Crown case against Mr Preston	[11]
First ground of appeal: Admission of appellant's statements in the form of Facebook postings and texts to adult daughters	[17]
The text messages to appellant's adult daughters	[17]
Discussion	[23]
Facebook “pro job” message	[28]
Second ground of appeal: Admissibility of evidence of victim's statements to third parties	[33]
Relevant principles under the Evidence Act 2006	[37]
Admissibility of victims' statements under the law prior to the Evidence Act	[44]
The Liu decision	[59]
Admissibility in this case	[68]
Third ground of appeal: Admissibility of statements made to pastor	[82]
Background	[82]
High Court judgment	[86]
Relevant legal principles	[88]
Discussion	[91]
Fourth ground of appeal: Trial Judge's failure to put defence case properly	[95]
The gloves and the palm print	[99]
DNA evidence	[112]
Analysis	[115]
Fifth ground of appeal: Prosecutorial misconduct	[118]
Relevant principles	[119]
Inflammatory comments	124]
Inviting speculation	[133]
Witch's hat	135]
Discussion	[137]
Ms Fan's “lie” about “hitman”	145]
The killer had staged a burglary	146]
That the nature of the attack on Ms Fan meant that it was a “personal killing”	[147]
That the attack had taken place over about five to fifteen minutes	149]
That the socks found by Ms Fan's body had been taken to the address by Mr Preston as part of the change of clothes	[151]
Summary on appeal against conviction	[154]
Sentence appeal	[155]
Result	[168]

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Winkelmann J)

1 Mr Preston was convicted of the murder of his former partner, Rongmei (Mei) Fan, following a jury trial before Williams J in the High Court at Wellington. 1 He was sentenced by Williams J to life imprisonment with a minimum period of imprisonment of 19 years. 2 He appeals his convictions on a variety of grounds contending that a miscarriage of justice has arisen because errors were made in admitting certain material as evidence, because of prosecuting counsel's conduct and, finally, because of deficiencies in the summing-up. Mr Preston also appeals against sentence on the sole ground that the minimum period of imprisonment imposed by Williams J was too high.

Events leading up to the murder of Ms Fan

2 The narrative of events that emerged in evidence before the jury is as follows. Mr Preston met and married Ms Fan in China. The couple initially lived in China and had two children— a daughter born in 2004 and a son in 2006. In 2010 Mr Preston took the children to New Zealand, ostensibly to visit his sick mother, but as he had planned he did not return to China. Ms Fan tried to travel to New Zealand to be with her children but initially Mr Preston did not support her visa application. He eventually relented and she arrived in New Zealand in 2011, reuniting the family. The relationship soon broke down and about a year after she arrived in New Zealand, in October 2012, Ms Fan moved out of the family home and into a women's refuge shelter. She obtained a temporary protection order allowing for week-about custody of the children. Mr Preston breached this initial order on several occasions.

3 During the course of their separation a dispute arose over custody of the children and Mr Preston began a campaign against Ms Fan, writing to agencies for the purpose of having her deported. When in April 2013 Ms Fan moved to a rental property, Mr Preston wrote to Housing New Zealand to try and get her evicted. He also became preoccupied with jealousy about Ms Fan's new partner, Mr Hoyhtya.

4 In May 2013 the temporary protection order was discharged because Ms Fan had initiated some contact with Mr Preston. But subsequently, in July 2013, Mr Preston was trespassed from Ms Fan's home. The trespass order was discharged in August 2013 when Ms Fan became concerned for Mr Preston's mental health and they reconciled, but for a very short period as Ms Fan again left Mr Preston when his behaviour deteriorated.

5 In September 2013 Mr Preston complained to the police and to Child Youth and Family Services that Ms Fan was hitting the children, an allegation that was not substantiated. Child Youth and Family Services had previously recorded concerns about the “unhealthy” conversations Mr Preston seemed to be having with his children and with his fixation on trying to discredit Ms Fan as a wife and mother.

6 Ms Fan expressed fears for her safety to the police and said that Mr Preston was so crazy she was worried he might kill her. A renewed trespass order was made on 8 October 2013. On 17 October 2013 Mr Preston told a friend that “me and the kids will be together forever soon”.

7 It was also in October 2013 that Ms Fan bought a car and began driving lessons. Mr Preston complained to the police that she had used fake identification to obtain the licence. Texts and social media from around this time reveal Mr Preston's suspicion that Ms Fan was in a sexual relationship with two male friends. A friend described Mr Preston as tearful and frustrated with his personal situation, and as saying he could not take it anymore.

8 On 5 November 2013 Ms Fan sent Mr Preston a series of text messages, which formed a narrative in which she told him she was sick of his behaviour and manipulation and wanted nothing more to do with him. Mr Preston's response was to go on to Ms Fan's property, in breach of the trespass order, to confront her. Ms Fan called police because Mr Preston was on her property, verbally abusing her.

9 The following day, 6 November 2013, Ms Fan applied for a further protection order which was granted. It was served on Mr Preston on the evening of Thursday 7 November 2013.

10 Ms Fan was last seen alive at around 9 am on Friday 8 November when she dropped her children to school. Her body was found on Sunday 10 November lying just inside an entrance door to her home. She had suffered 38 stab wounds to her face, neck and upper extremities. Some of the wounds went right through her neck and the knife used in the attack was left in one of these wounds with its tip protruding. The evidence suggested Ms Fan had died in the time between dropping her children off at school and 2 pm on Friday 8 November.

The Crown case against Mr Preston

11 Mr Preston was interviewed by police on the evening of 10 November and then again on 11 November. Mr Preston's conduct during these interviews was part of the Crown case against him. The Crown case was that the grief he displayed was histrionic. It also pointed to lies and inconsistencies in the initial accounts Mr Preston gave police about his activities on 8 November.

12 The Crown relied on forensic evidence. DNA found on the handle of the murder weapon was said to come either from Mr Preston or his son. DNA accepted to come from Ms Fan was found in one of two small blood stains on the driver's side of the console of Mr Preston's car. The Crown case was that gloves were worn during the attack on Ms Fan. A palm print found in Mr Preston's car was identified as his. It was formed in a powdery substance and expert evidence linked that powder to the kind of powder found inside disposable gloves. There was evidence linking acrylic hair found at the scene to a fibre found in a commonly-sold witch's hat and evidence that the children had previously had such a hat at Mr Preston's house, a hat which now could not be located.

13 A balled-up pair of men's socks was found next to Ms Fan's body and it was the Crown case that this together with other evidence suggested that the murderer had cleaned himself up after the attack on Ms Fan and changed clothing. The Crown said the socks were Mr Preston's.

14 The Crown pointed to what it said was suspicious behaviour by Mr Preston following Ms Fan's death. He extensively cleaned his house over the subsequent weekend and told his daughter, A, this was because a landlord's inspection was imminent. That was not true. He also showered and changed on his return from an appointment on the day of the attack on Ms Fan, which was not in accordance with his...