Ban v The State of Western Australia

[2020] WASCA 91

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   BAN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 91

CORAM:   QUINLAN CJ

MAZZA JA

MITCHELL JA

HEARD:   20 SEPTEMBER 2019

DELIVERED          :   15 JUNE 2020

FILE NO/S:   CACR 232 of 2018

BETWEEN:   AH PING BAN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   MCGRATH J

File Number            :   INS 28 of 2018

Catchwords:

Criminal law - Appeal against conviction - Murder - Where father and daughter accused of murdering their former wife/mother - Where co-accused both ran a 'cut-throat' defence alleging that the other killed the deceased - Whether verdict unreasonable or not supported by the evidence - New evidence as to financial documents available to instructing solicitors and junior counsel but not disclosed to appellant or senior counsel - Whether absence of new evidence at trial and failure by instructing solicitors and junior counsel to disclose new evidence to appellant and senior counsel gave rise to a miscarriage of justice - Whether miscarriage of justice arose from delay in trial judge directing the jury about inadmissible material which had been read to them - Whether the trial judge's direction to the jury was deficient because it did not adequately direct the jury that it was open to them to find both accused not guilty of murdering the deceased

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 7, s 268, s 270, s 277, s 279, s 280

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Mark Andrews Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Alford v Magee [1952] HCA 3; (1952) 85 CLR 437

Beamish v The Queen [2005] WASCA 62

Blenkinsop v Herbert [2017] WASCA 87; (2017) 51 WAR 264

Bowman v The State of Western Australia [2008] WASCA 63

Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219

Gibbs v The State of Western Australia [2018] WASCA 68

Giorgianni v The Queen (1985) 156 CLR 473

Graham v The Queen [2016] HCA 27; (2016) 90 ALJR 820

Huggins v The State of Western Australia [2018] WASCA 61

Jeffery v The State of Western Australia [2018] WASCA 219

L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Mansfield v The State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233

Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495

MLS v The State of Western Australia [2018] WASCA 56

Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193

Noble v The State of Western Australia [2005] WASCA 33

Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394

R v Abbott [1955] 2 QB 497

R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

R v GW [2016] HCA 6; (2016) 258 CLR 108

R v O'Connor [1962] NSWR 953

Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96

SGT v The State of Western Australia [2017] WASCA 136

Smith v The State of Western Australia [2014] WASCA 90

Ward v The Queen (1997) 19 WAR 68

Warren and Ireland v The Queen [1987] WAR 314

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

Wells v The State of Western Australia [2017] WASCA 27

Wongowol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91

TABLE OF CONTENTS

QUINLAN CJ & MITCHELL JA:

Summary

Family relationships

Chronology

Transfers of money to the appellant from 25 February 2016

Ms Wan in Perth: 17 - 26 June 2016

Family discussions re appellant's visit: 27 June 2016

Events of 30 June 2016

Events of 1 July 2016

Events of 2 July 2016

Events of 3 and 4 July 2016

Text messages between 4 - 28 August 2016

Graduation and money transfer in August 2016

Report to the police

Medical evidence as to the cause and timing of death

Dr Cadden - forensic pathologist

Dr O'Donnell - forensic radiologist

Dr Fabian - forensic neuropathologist

Dr Collins - forensic pathologist

Forensic evidence at trial

Mosman Park house

Main bedroom

Other areas of the house

Swan River and surrounds

The appellant's evidence

Discussions on 27 June 2016

Discussions on 28 June 2016

Discussion on 29 June 2016

Events of 30 June 2016, prior to Ms Wan's confession

Ms Wan's confession

Events of 30 June 2016, after Ms Wan's confession

Events of 1 July 2016

Events of 2 July 2016

Subsequent events

Ms Wan's evidence

Events prior to 30 June 2016

Events of 30 June 2016

Events of 1 July 2016

Events of 2 July 2016

Subsequent events

Parties' cases at trial

Verdicts at trial

Statutory context

Grounds of appeal and the applications in the appeal

Ground 1: unreasonable verdict

General principles

Possibilities necessarily excluded by the evidence in the appellant's trial

Why it was open to the jury to reject the appellant's evidence

Why it was open to the jury to believe Ms Wan's evidence

Banking transactions

Phone records

Pill box

Painting of the wall

Hiring of the iMax

Timing of events on 30 June 2016

Clothing found with the deceased

Issues with Ms Wan's evidence

Post-offence conduct

Disposition

Grounds 2 and 2A: financial information

Objections to admissibility of evidence

Facts established by the additional evidence

Evidence led at trial

Appellant's submissions

General principles: incompetence of counsel

Disposition of ground 2: incompetence of counsel

Disposition of ground 2A: new evidence

Conclusion as to grounds 2 and 2A

Ground 3: 1990 Singapore matrimonial proceedings

Proceedings at trial

Appellant's submissions

Disposition

Ground 4: trial judge's direction

The direction given at trial

Appellant's submissions

Disposition

Orders

MAZZA JA: 

Ground 1:  unreasonable verdict

Ground 4:  failure to give adequate directions

Background

The trial judge's directions to the jury

The trial judge's identification of the real issue in the case

Ground 4 - the appellant's submissions

Ground 4 - the respondent's submissions

Ground 4 - disposition

QUINLAN CJ & MITCHELL JA:

Summary

1. Sometime between 26 June 2016 and 2 July 2016, Annabelle Chen (the deceased) was murdered in her bedroom in the house in which she resided in Mosman Park (the Mosman Park house).  Her body was found by fishermen in a suitcase in the Swan River on the morning of 2 July 2016.  The deceased was not identified until her daughter, Tiffany Yiting Wan (Ms Wan), reported the deceased as a missing person on 1 September 2016.

2. The appellant, who was the deceased's former husband, and Ms Wan were subsequently charged with murdering the deceased.

3. At trial, both accused gave evidence and ran a 'cut-throat' defence.  Each alleged that the other had killed the deceased without his or her involvement.  At the conclusion of the trial, the jury found the appellant guilty of murder and Ms Wan guilty of being an accessory after the fact to murder.

4. The appellant now appeals against his conviction on a number of grounds.  For the following reasons, leave to appeal should be granted on grounds 1 and 4 but, as none of the grounds are established, the appeal should be dismissed.

Family relationships

1. The appellant answered the indictment in the name of Ah Ping Ban.  He gave evidence that he had an alias of Wan Peng.  He also gave evidence that he was also known as Benny Wangsa, and had Indonesian identification documents in that name.[1]

   [1] Trial ts 761 - 762.

2. The appellant married the deceased in about 1985.  Ms Wan, their daughter, was born in 1991.  The appellant and the deceased separated in 2000.[2]  They were divorced in 2007.[3]  Ms Wan is sometimes referred to as 'Ting' in messages between family members.[4]

   [2] Trial ts 702 - 703.

   [3] Trial ts 858.

   [4] Trial ts 491.

3. The appellant had two children from a previous marriage, who were twin sisters born in 1983 (the twin sisters).  They were adopted by the deceased during her marriage to the appellant.[5] 

   [5] Trial ts 702, 762 - 763.

4. In 2011, the appellant adopted a baby boy.[6]

   [6] Trial ts 858 - 859, 927.

5. At the time of the deceased's death, the appellant lived in Singapore and Johor Bahru, Malaysia (which is close to Singapore).  The deceased was living at her house in Mosman Park.  Ms Wan was living and studying in Melbourne, and was to graduate with a Master's degree on 4 August 2016.  One of the twin sisters lived in a Perth suburb, while the other lived in Macau.  The sister who lived in Perth is sometimes referred to as 'Rong' in messages between family members.

6. It was common ground that Ms Wan had been in regular contact with the appellant and the twin sisters for some time prior to the deceased's death, but the deceased was unaware of this contact.  They had met at various times, and communicated as a 'Family Group' in the messaging application 'WhatsApp' (WhatsApp Family Group).  In messages posted to the WhatsApp Family Group, Ms Wan expressed anxiety about the prospect of the deceased discovering the relationships when all family members attended her graduation.[7]

   [7] See trial ts 768 - 769, 945; exhibit 47 (Blue/Green AB 115 - 117, 119).

Chronology

1. The following facts are not controversial, at least in the sense that there is no dispute in the appeal that the evidence at trial was capable of supporting findings as to the facts specified.

Transfers of money to the appellant from 25 February 2016

1. In the period from 25 February 2016 to 27 June 2016, Ms Wan made transfers of money from her bank account noted as being for '[f]amily duties' or for the appellant's expenses.  The amounts ranged from $675.99 to $1,012.30.[8]

Ms Wan in Perth: 17 - 26 June 2016

[8] Exhibit 55 (Blue/Green AB 150 - 152).

1. At 11.30 pm on 17 June 2016, Ms Wan arrived in Perth on a Virgin Airlines flight.[9]

   [9] Formal admissions by appellant (exhibit 1), par 3 (Blue/Green AB 5).

2. On 19 and 23 June 2016, Ms Wan exchanged text messages with her friends Steven Tran and Nicholas Wright.  In those messages, she indicated that she was getting on well with the deceased, but was nervous about revealing that the appellant and the twin sisters would be attending her graduation (which would indicate that she had been in contact with them).[10]

   [10] Exhibit 47 (Blue/Green AB 115 - 117).

3. At 10.49 am on 24 June 2016, Ms Wan posted a message to the WhatsApp Family Group indicating that she needed to tell the deceased about them coming to her graduation.  On 24 - 26 June 2016 there were messages from various family members on this topic, including the appellant who indicated that:

   (1)Ms Wan should tell the deceased closer to the date (by message posted at 10.13 am on 25 June 2016); and

   (2)the family might not need to attend the graduation (by message posted at 12.00 pm on 26 June 2016).

4. The last use of the deceased's credit card was on 26 June 2016.[11]

Family discussions regarding the appellant's visit: 27 June 2016

[11] Exhibit 52 (Blue/Green AB 145 - 146).

1. At 4.23 pm on 27 June 2016, the appellant posted the following message to the WhatsApp Family Group:

   Guys I would need to go Perth to see mum that we all going for the graduation.  I am optimistic that she would feel alright n I would even ask her to go as well.

2. At 4.26 pm on 27 June 2016, Ms Wan purchased a Jetstar Asia ticket for $257.74 using a payment card.[12]

   [12] Exhibit 10 (Blue/Green AB 9).

3. At about the same time, a text discussion was taking place between the appellant, Ms Wan and the twin sisters on the WhatsApp Family Group.  At 4.31 pm, the appellant posted a message indicating that he would talk to the deceased and 'she will understand'.  At 4.32 pm, Ms Wan posted the following messages:[13]

   Message 1:  Yeah Rong I would never want to get you unnecessarily involved at all.  I'm sorry about all this stress, guys.  It's just that I'm hoping she will understand when she talks to dad, adult to adult.

   Message 2: Parent to parent[.]

   [13] Exhibit 47 (Blue/Green AB 118).

4. When the twin sister who lived in Perth posted a message asking when the appellant would be coming over, Ms Wan posted a message at 4.36 pm stating:[14]

   His flight is on Thursday morning... I'm sorry, I don't mean to drag dad into my situations... But mum kind of ow[e]s dad a chance to listen to him, dad has helped her out on many occasions so maybe she will be understanding this time[.] (ellipses in original)

   When the sister asked where the appellant would be staying, Ms Wan responded at 4.37 pm:[15]

   He will probably stay with mum and I if that's okay with dad and...mum[.] (ellipsis in original)

   [14] Exhibit 47 (Blue/Green AB 118).

   [15] Exhibit 47 (Blue/Green AB 118).

5. Ms Wan posted messages to the WhatsApp Family Group at 4.38 pm and 4.39 pm indicating that if things worked out she would probably return to Melbourne straight away, but that she felt that she could not go back to Melbourne if her talk with the deceased 'turns out bad'.[16]  At 4.54 pm, the appellant posted a message that included the following:[17]

   You all don't need to worry I will talk her n she will understand that all of us still respect her as your mum.

   [16] Exhibit 47 (Blue/Green AB 118).

   [17] Exhibit 47 (Blue/Green AB 119).

6. Between 6.04 pm and 6.50 pm, Ms Wan exchanged text messages with Steven Tran and Nicholas Wright.  The first message, posted by Ms Wan, read:[18]

   I was so anxious about telling my mum about my graduation because she's SO NICE to me.  I called my dad while my mum was outside gardening and asked him if he would come over to Perth just to help me tell mum everything.  I started crying on the phone just from hearing him say 'of course, anything for you dear.  You are my daughter, she was my wife'.  He's actually such a nice guy, i have great parents, they might have a complicated relationship and my mum might be a tad emotionally unpredictable sometimes but they both care so much about me.  Ah I need to be better to them both so that I deserve this[.]

Events of 30 June 2016

[18] Exhibit 47 (Blue/Green AB 119).

1. At 8.27 am on 30 June 2016, two SMS messages were sent from Ms Wan's phone to the appellant's phones.  The content of those messages was not recovered from Ms Wan's phone.[19]

   [19] Exhibit 47 (Blue/Green AB 120).

2. At 8.40 am, the appellant arrived in Perth on a Jetstar flight.[20]

   [20] Formal admissions by appellant (exhibit 1), par 4 (Blue/Green AB 5).

3. At 9.10 am, the appellant hired a silver Hyundai iMax People Mover (iMax) from Avis vehicle rentals at Perth Airport, for a duration of three days.[21]

   [21] Formal admissions by appellant (exhibit 1), par 5 (Blue/Green AB 5).

4. At 1.14 pm, the appellant purchased a mattress and drill from the Ikea store in Innaloo.[22]  On all parties' cases at trial, the deceased was dead by this time.

   [22] Trial ts 692 - 693, 731; exhibit 64 (Blue/Green AB 157).

5. At 2.13 pm, the iMax was observed by the body-worn camera of a traffic officer at the scene of a traffic accident at the intersection of West Coast Highway and Claremont Crescent.  The iMax was travelling in a southerly direction (away from the Ikea Innaloo store), and was diverted into Claremont Crescent, Swanbourne.[23]

   [23] Trial ts 665 - 666; exhibit 65 (Blue/Green AB 159).

6. At 2.18 pm, Ms Wan purchased a garlic bread, a pizza and two drinks from the Pizza Lounge on Claremont Crescent, Swanbourne.[24]

   [24] Exhibit 53 (Blue/Green AB 147).

7. At 2.19 pm or 2.20 pm, Ms Wan paid her rent and made a cash withdrawal at the Australia Post store on Claremont Crescent, Swanbourne.[25]

   [25] Trial ts 615 - 616; exhibit 54 (Blue/Green AB 148 - 149); exhibit 55 (Blue/Green AB 151).

8. At 7.53 pm, the appellant posted the following message to the WhatsApp Family Group:[26]

   Discussion was progressing I need to convince her to allow [Ms Wan] continue staying n working in Melbourne.  Can't rush thing with her so could be back on Saturday[.]

   [26] Exhibit 47 (Blue/Green AB 120).

9. At 10.48 pm, the iMax drove along Beach Street, Fremantle away from the Fremantle Traffic Bridge with the appellant's phone inside it.  Beach Street runs along the south bank of the Swan River, under the Fremantle Traffic Bridge.  At 10.53 pm, the iMax travelled along Beach Street towards the Fremantle Traffic Bridge.  At 10.55 pm, before reaching the bridge, the iMax turned onto Canning Highway and drove away from the Fremantle Traffic Bridge.[27]

Events of 1 July 2016

[27] Exhibit 45 (Blue/Green AB 106 - 107).

1. On 1 July 2016, a term deposit account in Ms Wan's name matured, with a balance of $196,632.74.[28]

   [28] Exhibit 55 (Blue/Green AB 151).

2. At 12.14 am, the appellant's phone registered at the Mosman Park cell tower.  Ms Wan's phone registered at the Mosman Park cell tower at 1.04 am, at the East Fremantle cell tower at 1.20 am and at the North Fremantle cell tower at 1.31 am.[29]

   [29] Exhibit 45 (Blue/Green AB 108).

3. That morning, the appellant and Ms Wan had breakfast at the Fremantle Esplanade.[30]  At 9.10 am, a payment of $64 was made from Ms Wan's account with the description 'Esplanade Fremantle'.[31]

   [30] Trial ts 829, 886, 973.

   [31] Exhibit 55 (Blue/Green AB 151).

4. At 11.07 am, a payment of $5.40 was made from Ms Wan's account to the City of Fremantle.[32]

   [32] Exhibit 55 (Blue/Green AB 151).

5. At various times between 2.11 pm and 6.26 pm, WhatsApp Family Group messages were sent between the appellant, the twin sister who lived in Perth and Ms Wan. Those messages dealt with the sister's requests to meet for a meal, which did not eventuate.[33]

Events of 2 July 2016

[33] Exhibit 47 (Blue/Green AB 120 - 121).

1. At 12.27 am, Ms Wan's phone registered using the internet through the Mosman Park cell tower.[34] 

   [34] Exhibit 45 (Blue/Green AB 109).

2. At 12.57 am, the appellant's phone registered at the North Fremantle cell tower.[35]

   [35] Exhibit 45 (Blue/Green AB 109).

3. At 1.37 am, the iMax drove towards Beach Street, Fremantle at a point between the Stirling Highway Bridge and the Fremantle Traffic Bridge.  At 1.58 am, the iMax travelled in the opposite direction along the same street.[36]  During this time, the appellant (and, on his account, Ms Wan) disposed of the suitcase containing the deceased's body and tiles in the Swan River.[37]

   [36] Exhibit 45 (Blue/Green AB 109).

   [37] Trial ts 748 - 750.

4. At 2.20 am, 4.23 am and 5.19 am, Ms Wan's phone registered using the internet through the Mosman Park cell tower.[38] 

   [38] Exhibit 45 (Blue/Green AB 109).

5. At about 7.00 am, the deceased's body, inside the suitcase, was found by fishermen in the Swan River in East Fremantle.[39]

   [39] Trial ts 112 - 116; exhibits 4 and 5.

6. At 9.00 am, the appellant returned the iMax to Avis at Perth Airport.[40]

   [40] Formal admissions by appellant (exhibit 1), par 15 (Blue/Green AB 7).

7. At 9.58 am and 10.04 am, Ms Wan paid for two Qantas flights, one for herself and one for the appellant.[41]

   [41] Exhibit 55 (Blue/Green AB 151).

8. At 10.47 am, a message was sent from the deceased's phone to Ms Wan using the 'LINE' App, asking Ms Wan to forward a message to the appellant.  The English translation of the message, which was in Chinese text, is as follows:[42]

   Thank you for coming and for the gift(s).  I am happy to know that [Ms Wan] is in contact with two sisters, brother and the father she loves most, blood is thicker than water, so I am not against it.  I originally agreed to attend her graduation ceremony and also meet out grandson, but Dr Chen (Chan) said he/she would take me to tour around Australia and also visit Switzerland in August to check my brain calcification problem, so I cannot attend.  Sorry about the change.  I will contact you if there is any change.  Thank you[.]

   Both the appellant and Ms Wan gave evidence that the appellant wrote this message using the deceased's phone.[43]

   [42] Exhibit 47 (Blue/Green AB 121).

   [43] Trial ts 751 - 752, 985 - 986.

9. At 12.00 pm, the appellant departed Perth on a Qantas flight to Singapore.[44]

   [44] Formal admissions by appellant (exhibit 1), par 16 (Blue/Green AB 7).

10. At 12.01 pm, Ms Wan sent the following LINE message to the deceased's phone:[45]

    Okay, mum, I've already checked in.  Thank you for everything this past two weeks.  I will message when I'm back home in Melbourne.  Take care, love you[.]

    [45] Exhibit 47 (Blue/Green AB 122).

1. At 12.57 pm, Ms Wan departed Perth on a Qantas flight to Melbourne.[46]

   [46] Formal admissions by appellant (exhibit 1), par 17 (Blue/Green AB 7).

2. At 5.31 pm, Ms Wan sent a text message to the deceased's phone indicating that she had arrived in Melbourne.[47]

   [47] Exhibit 47 (Blue/Green AB 122).

3. Between 5.32 pm and 6.35 pm, the appellant and Ms Wan exchanged text messages with each other, expressed in affectionate terms.[48] 

Events of 3 and 4 July 2016

[48] Exhibit 47 (Blue/Green AB 122).

1. At 4.22 pm on 3 July 2016, Ms Wan sent a text message to Steven Tran and Nicholas Wright which read:[49]

   Hey guys, I'm back in Melbourne.  Dad had a talk with mum and I guess things are now all fine thanks to dad the smooth player.  Both my parents actually love me so much and I wish I could be better for them too.  I'm going to look for a car to buy and actually get my drivers license haha omg[.]

   [49] Exhibit 47 (Blue/Green AB 123).

2. On 4 July 2016, Ms Wan's term deposit account was closed at a bank branch in Brunswick.  $196,632.74 was transferred to another account held by Ms Wan.  $110,000 was then transferred from Ms Wan's other account to an account held by the appellant.  After the transfer to the appellant, a balance of $93,353.43 remained in Ms Wan's other account.[50]

Text messages between 4 - 28 August 2016

[50] Exhibit 55 (Blue/Green AB 151 - 152).

1. Between 4 July 2016 and 28 August 2016, Ms Wan sent LINE messages to the deceased's phone which purported to express concern that the deceased was not contacting her.  Messages purporting to express concern about the lack of contact from the deceased were also exchanged between the appellant and Ms Wan.[51]

Graduation and money transfer in August 2016

[51] Exhibit 47 (Blue/Green AB 123 - 129).

1. On 4 August 2016, Ms Wan graduated in Melbourne.  The ceremony was attended by the twin sisters and the appellant.[52]

   [52] Trial ts 477 - 478, 757, 945, 989.

2. On 8 August 2016, a further $25,000 was transferred from Ms Wan's account to the appellant's account.[53]

Report to the police

[53] Exhibit 55 (Blue/Green AB 152).

1. Ms Wan returned to Perth from Melbourne on 31 August 2016.[54]  At 9.11 pm and 9.44 pm, Ms Wan sent text messages to the deceased's phone indicating that she was on her way and asking her to call Ms Wan.[55]  At 9.45 pm, Ms Wan placed a call to the deceased's phone, which was 0 seconds in duration.[56]

   [54] Trial ts 989.

   [55] Exhibit 47 (Blue/Green AB 129).

   [56] Exhibit 47 (Blue/Green AB 129).

2. On 1 September 2016, Ms Wan and the appellant both posted messages to the WhatsApp Family Group that expressed concern about the deceased's disappearance.[57]  Ms Wan reported the deceased missing to police that day.  On 2 September 2016, Ms Wan was at the Mosman Park house and police became involved in the search for the deceased.[58]

   [57] Exhibit 47 (Blue/Green AB 130 - 132).

   [58] Trial ts 478.

3. The appellant travelled to Perth on 3 September 2016, and was interviewed by police on 4 and 5 September 2016.[59]  At 5.20 pm on 5 September 2016, the appellant signed a police statement giving an account that was false on his own evidence at trial.[60]  In summary, his statement described arriving at the Mosman Park house, where he informed the deceased of his relationship with Ms Wan in a discussion between the appellant and the deceased in the study.  The deceased indicated that she needed time to sort things out, packed a suitcase and left the house with an Asian man driving a white Toyota sedan.

   [59] Trial ts 758.

   [60] Exhibit 12 (Blue/Green AB 10 - 47).

Medical evidence as to the cause and timing of death

1. The following is a summary of the medical evidence adduced at the appellant's trial as to the timing and cause of death.

Dr Cadden - forensic pathologist

1. Dr Gerard Cadden, a forensic pathologist, first examined the deceased at about 10.30 am on 3 July 2016.[61]

   [61] Trial ts 136, 147, 165.

2. The deceased was 163 cm tall and weighed 54 kg.[62]

   [62] Trial ts 137.

3. The cause of death was traumatic brain injury.[63]

   [63] Trial ts 145.

4. The post-mortem examination revealed 25 lacerations caused by blunt force trauma to the deceased's head.  In the area of the deceased's left ear, there was lots of splitting and tearing and an underlying fracturing and indentation of the skull into the head cavity.[64]  Dr Cadden could not say anything about the object or objects that inflicted those injuries, or whether or not they were all caused by the same implement.[65]  However, repeated impacts with severe or considerable force would be required to produce the injury to the left ear region.[66]  While the injuries to the right side of the head, and potentially the facial injuries, might be explained by contact with tiles in the suitcase, tiles were not an explanation for the injuries in the left ear region.[67]  The injuries were unlikely to have been caused by a fist, and were likely to have been caused by a solid item which would have been heavy or wielded with great vigour.[68]  In particular, the multiplicity of the injuries near the left ear would be expected to result in very active blood emission, assuming that the deceased had an active circulation when those injuries were sustained.[69]

   [64] Trial ts 137 - 143.

   [65] Trial ts 143 - 144.

   [66] Trial ts 143, 161.

   [67] Trial ts 144.

   [68] Trial ts 161 - 162.

   [69] Trial ts 144.

5. The deceased had two lower incisor teeth which had recently been dislodged.  Further, a porcelain crown in the upper central incisor had a fracture of its front surface which appeared to be recent.[70]

   [70] Trial ts 146 - 147; exhibits 6 and 7.

6. The deceased sustained a laceration to the back of her left hand in the region of the ring and little finger.[71] 

   [71] Trial ts 141.

7. The post‑mortem examination also located bleeding beneath the skin (ie bruising) of the scalp and facial area which had occurred during life.  There was also bruising under one of the breast surfaces.[72]

   [72] Trial ts 141 - 142.

8. The deceased also had significant bruising to the backs of her forearms and hands,[73] which was caused by blunt force.[74]  These injuries were more consistent with the deceased having been struck in that area than with her hitting someone with the back of her hands or forearms.[75] 

   [73] Trial ts 142 - 143.

   [74] Trial ts 173.

   [75] Trial ts 163 - 164.

9. Dr Cadden made it clear that he was not able to pinpoint the time of the deceased's death, and that any range he could give was imprecise and with severe limitations.[76]  His views were summarised in the following passage of a report which was read into the transcript.[77]

   In respect of post-mortem interval, taking into account of the overall body appearances a time frame of approximately 48 hours plus or minus approximately 24 hours was indicated, on the clear understanding that this time frame was elastic, but one would certainly not suggest that the person had been deceased in the order of seven to 10 days.

   [76] Trial ts 147 - 148, 156, 158, 165, 168, 172.

   [77] Trial ts 168.

10. Dr Cadden said that the deceased could have died either before or after the period of 8 - 10 am on 30 June 2016, and he was not able to favour one of these hypotheses over the other.[78]  In re-examination, the following exchange occurred:[79]

    A period of one to three days, I understand you may favour that over a period of seven to 10 days, but would you favour it sitting here now over a period of, say, four to five days?---I'm thinking about your question.  Would I favour it over a period of four to five days? I - I - I don't really think I can embroider what I've already said quite honestly.  I made it clear what I thought at the time, I said to the police at the time.  And as long as everyone understands the limitations of what one's saying, then I - I - I can't really, as I say, embroider what I've already put in the report.

    [78] Trial ts 148, 153, 158.

    [79] Trial ts 172.

11. It is evident that Dr Cadden's evidence did not provide any significant assistance in determining when the deceased died in the period from 27 June 2016 (which was 6 days before the post-mortem examination began) and 2 July 2016 (1 day before the post-mortem examination began).

Dr O'Donnell - forensic radiologist

1. Dr Christopher O'Donnell, a forensic radiologist, gave evidence that the deceased sustained a depressed fracture of the left temporal bone of her head into the cranial cavity, which was about 23 mm in width and 9 mm in height.  She sustained two fractures to the right third rib, and possibly also a fracture to the right fourth rib.  There was also a fracture to the fifth metacarpal (the bone going to the little finger) of the deceased's left hand.[80] 

   [80] Trial ts 106.

2. These were all acute fractures (ie fractures without any evidence of healing).[81]  The fracture in the skull appeared to be the result of a single application of extreme force.  Severe force would be required to cause the fractures to the ribs and metacarpal.[82]  Falling heavily to the ground or hitting a solid object such as a wall were possible explanations of the fractures to the ribs and metacarpal.[83]  A knee to the chest, such as by someone kneeling on the deceased's chest with their body weight, was another possible explanation of the fractures to her ribs.[84]  The deceased striking a person or a hard object with her hand was also a possible explanation of the fracture to the metacarpal.[85]

Dr Fabian - forensic neuropathologist

[81] Trial ts 106 - 107.

[82] Trial ts 108 - 109.

[83] Trial ts 109 - 110.

[84] Trial ts 110.

[85] Trial ts 111.

1. Dr Victoria Fabian, a forensic neuropathologist, gave evidence to the effect that the deceased died as a result of traumatic brain injury.[86]  Microscopic examination of nerve fibres in the brain indicated a survival time of 2 - 5 hours, possibly longer.[87]  Dr Fabian was not able to say anything about the time of death (ie how long prior to her examination the deceased died).[88]

Dr Collins - forensic pathologist

[86] Trial ts 129 - 130.

[87] Trial ts 130.

[88] Trial ts 131.

1. Dr Raymond Collins was a forensic pathologist called by the appellant.  He gave evidence which was consistent with, and in general agreement with, that of Dr Cadden, as to the difficulties in estimating the deceased's time of death.[89]  In particular, he indicated that it was not possible to definitively indicate whether the deceased died before or after 30 June 2016.[90]

   [89] Trial ts 911 - 925.

   [90] Trial ts 916.

2. One further point may be noted as to his evidence.  In opening, the prosecutor had indicated that evidence would be called as to the level of alcohol in the deceased's blood at the time of death (said to be 0.049%).[91]  During the course of the appeal hearing, counsel for the appellant suggested that the level of alcohol in the deceased's blood made it less likely that she was killed in the morning.[92]  However, Dr Collins' evidence explained that the concentration of alcohol identified in the toxicology samples had no probative value because post-mortem processes may generate alcohol.[93]  Ultimately, no evidence as to the alcohol levels in toxicology samples was adduced at trial.  The prosecutor explained in his closing that this was because the evidence was not going to be relevant for the reasons explained by Dr Collins.[94]

   [91] Trial ts 69.

   [92] Appeal Trial ts 76.

   [93] Trial ts 915.

   [94] Trial ts 1217.

Forensic evidence at trial

1. The following is a summary of the forensic evidence adduced at the appellant's trial.

Mosman Park house

1. The whole Mosman Park house was forensically examined.[95]

Main bedroom

[95] Trial ts 302.

1. Seven separate stains in the main bedroom of the Mosman Park house returned a single source DNA profile matching the deceased and tested positive for blood.  They were found on:[96]

   (1)the front of a television screen;[97]

   (2)a bedframe;[98]

   (3)a window;[99]

   (4)a bedhead;[100] and

   (5)a bookcase.[101]

   The bloodstain on the bedframe was a transfer stain, meaning that an object with liquid blood had contacted that surface.  The remainder of the bloodstains were spatter stains, which indicated that something had been applied to the liquid blood of the deceased causing the droplets to travel through the air.  The number of blows could not be determined from the bloodstains, and the bloodstains could not be aged.[102]

   [96] Trial ts 339 - 340, 386, 388.

   [97] Trial ts 387; exhibit 27 (Blue/Green AB 64 - 65); exhibit 42 (Blue/Green AB 86).

   [98] Trial ts 387; exhibit 27 (Blue/Green AB 58); exhibit 42 (Blue/Green AB 90).

   [99] Trial ts 387; exhibit 27 (Blue/Green AB 61- 62); exhibit 42 (Blue/Green AB 87 - 88).

   [100] Trial ts 387; exhibit 27 (Blue/Green AB 51 - 56); exhibit 42 (Blue/Green AB 83 - 85).  Yellow circles on page 2 of exhibit 42 (Blue/Green AB 82) show further small bloodstains that were not examined for resourcing issues (see trial ts 388).

   [101] Trial ts 387; exhibit 27 (Blue/Green AB 48 - 49); exhibit 42 (Blue/Green AB 91 - 92).

   [102] Trial ts 392 - 394, 407.

2. One of the stains on the bedhead, found on the underside of a lip of the bedhead 1.15 m above the ground, indicated that the blood source was below the height of the lip. That indicated that the source of the liquid blood was in front of the bedhead and below 1.15 m from the ground.  The scenario of the deceased's body being on the bed in front of the bedhead was more likely than a scenario where she was crouching on the floor or near the floor.[103]

   [103] Trial ts 388 - 389, 406 - 407; exhibit 27 (Blue/Green AB 51 - 52, 59); exhibit 42 (Blue/Green AB 84 - 85).

3. Bloodstaining was not located in any other areas of the house, including three wheelie bins located in the garage of the house.[104] 

   [104] Trial ts 302, 394, 400, 409 - 410.  The location of the wheelie bins can be seen in exhibit 25 at 1 min 24 sec - 2 min 29 sec.

4. The mattress on the bed in the decased's bedroom had two mattress protectors: a lambswool protector and non‑lambswool protector.  A mixed DNA profile recovered from an area of the lambswool protector was consistent with Ms Wan being a contributor.  Various single source and mixed DNA samples recovered from various parts of the non‑lambswool protector matched that of Ms Wan.[105]

   [105] Trial ts 294 - 295, 340 - 346; exhibits 28, 37 and 38.

5. Two mixed DNA profiles to which Ms Wan contributed were recovered from a mattress cover unzipped from the mattress in the main bedroom.[106] 

   [106] Trial ts 346 - 347, exhibit 39.

6. Some samples of wall material with adhering paint were taken from the main bedroom.  The samples were analysed as individual layers at around 20 microns in thickness.  Paint samples taken from the wall behind the bedhead and below the windowsill had an additional darker purple layer, of a different composition to the layer below, that was not present on those behind the cupboard or bookshelf.[107]

   [107] Trial ts 296, 420 - 423; exhibit 29 (Blue/Green AB 70 - 73); exhibit 43 (Blue/Green AB 100 - 104).

7. A visual inspection of the wall behind the bedhead and skirting boards revealed an absence of dust behind the bedhead, but dust and cobwebs were present on the walls and skirting boards to the left-hand side of the bedhead.[108]

Other areas of the house

[108] Trial ts 397 - 398.

1. Various areas of a black plastic bag found in the garage of the Mosman Park house returned a single source DNA profile matching the deceased and tested positive for blood.  Empty packaging for Grunt Heavy Duty bags was found in the wardrobe of the bedroom occupied by Ms Wan.  Fingerprints found on that packaging matched reference fingerprints of Ms Wan.  The possibility that the bag found in the garage originated from a batch of Grunt Heavy Duty bags could not be excluded.[109]

   [109] Trial ts 288 - 289, 298 - 299, 349 - 350, 354, 416 - 419; exhibits 26, 31 and 40.

2. A variety of cleaning products were seized from the Mosman Park house.  A DNA swab from a bottle of White King, a bleach cleaning agent, matched Ms Wan.[110]

   [110] Trial ts 353, 402, 678 - 679; exhibit 69.

3. The outside surface of two yellow washing‑up style rubber gloves returned mixed DNA profiles to which Ms Wan was a contributor.[111]

   [111] Trial ts 355 - 356; exhibit 41.

4. A swab from a latch on the lower rear sill of the iMax, and a swab from the cover surrounding the latch, returned a single source DNA profile matching the deceased and tested positive for blood.[112]

Swan River and surrounds

[112] Trial ts 350 - 351; exhibit 34 (Blue/Green AB 74 - 80).

1. The suitcase in which the deceased was found was compared to a suitcase found in the cupboard of an art room in the Mosman Park house.  The suitcases appeared very similar.  The suitcase in which the deceased was found contained tiles that appeared visually consistent with tiles found in the deceased's former home.[113]

   [113] Trial ts 272 - 275, 282 - 283, 297 - 298, 413 - 415; exhibits 13, 14, 24 and 30.

2. Police discovered a scooter under the water in the vicinity of the Fremantle Traffic Bridge.  The scooter was visually consistent with a scooter depicted in a photograph of Ms Wan as a child, found in one of the wardrobes of the Mosman Park house.  The scooter had a chopping board placed upon it, secured via some cable ties.  A locking head on one of the cable ties returned a single source DNA profile matching the deceased and tested positive for blood.[114]

   [114] Trial ts 174 - 175, 280 - 281, 299 - 300, 338, 624 - 625; exhibits 22 and 33.

3. A pair of glasses were recovered by divers from water near the vicinity of the Fremantle Traffic Bridge.  Those glasses belonged to the appellant.[115]

   [115] Trial ts 281 - 282, 625, 690 - 692, 839; exhibit 23.

4. Various parts of tile pieces found in the following locations[116] returned a single source DNA profile matching the deceased and tested positive for blood:

   (1)a grass verge in the vicinity of the Fremantle Traffic Bridge;[117]

   (2)the Main Roads compound on Beach Street;[118] and

   (3)underwater in the vicinity of the Fremantle Traffic Bridge.[119]

   The tile pieces appeared visually consistent with tiles found in the deceased's former home.[120]

   [116] Trial ts 274 - 280.

   [117] Trial ts 322; exhibit 16.

   [118] Trial ts 322 - 323, 336 - 337; exhibits 19 and 20.

   [119] Trial ts 338 - 339; exhibits 17 and 18.

   [120] Trial ts 282 - 283; exhibit 24.

The appellant's evidence

1. In his evidence at trial, the appellant gave the following account of the events surrounding the deceased's death.

Discussions on 27 June 2016

1. On the afternoon of 27 June 2016, the appellant, who was in Johor Bahru, Malaysia, received a call on his telephone from Ms Wan.[121]  Ms Wan was crying and told him that, on the previous day, the deceased had asked her about her graduation and also asked when Ms Wan was returning to Melbourne.[122]  Ms Wan asked him to come to Perth immediately.  This was so that, if the deceased asked her about the graduation again, he would be able to explain about Ms Wan's actual relationship with the twin sisters and the appellant.[123]  The appellant told Ms Wan that the earliest he could come was 'either 28 night or 30 morning'.  She was disappointed.[124]

   [121] Trial ts 713 - 714.

   [122] Trial ts 715 - 716.

   [123] Trial ts 715 - 716.

   [124] Trial ts 716.

2. Ms Wan called the appellant on two to three further occasions on that day.  The appellant did not book a ticket because he was not sure whether to come on 29 or 30 June 2016.  However, Ms Wan booked a ticket for him and told him it was for travel on the night of 29 June 2016, to arrive on the morning of 30 June 2016.[125]

Discussions on 28 June 2016

[125] Trial ts 716 - 717.

1. The appellant received a further phone call from Ms Wan on 28 June 2016.  She told him that the deceased had gone out on 26 June 2016 and returned on 27 June 2016 while she was sleeping.  When Ms Wan woke up in the middle of the night or the early morning to use the washroom, the deceased had called out and asked whether Ms Wan had booked her ticket back to Melbourne.  Ms Wan told the appellant that the deceased had said that she would like to attend Ms Wan's graduation.  Ms Wan told the appellant that she felt that she had no alternative but to tell the deceased that the appellant and the twin sisters would be attending.  Ms Wan said she told the deceased of her actual relationship with the appellant and that Ms Wan had attended the wedding of the twin sister that lived in Perth.  The deceased was angry that Ms Wan had not disclosed her contact with them earlier and shouted at her.  The deceased started packing her personal effects and left the house.  Ms Wan told the appellant that before leaving, the deceased asked Ms Wan to 'clean out the room, to clean out the mattress and also to do some painting'.[126]

Discussion on 29 June 2016

[126] Trial ts 717, 721 - 722.

1. The appellant had a further telephone conversation or conversations with Ms Wan on 29 June 2016.  She said that the deceased had asked her to clean the mattress but Ms Wan was unable to do so, so Ms Wan intended to replace the mattress.  Ms Wan (who only had a learner's permit) asked the appellant to hire a van when he came to carry the mattress.  Ms Wan indicated that the deceased had not come back to the house.[127]

Events of 30 June 2016, prior to Ms Wan's confession

[127] Trial ts 722 - 723.

1. The appellant flew from Singapore and was due to arrive in Perth at about 8.30 am on 30 June 2016.  While at Singapore Airport, he had sent the deceased a LINE message to say that he was coming.  He did not receive a reply.  When the plane landed in Perth, the appellant received two text messages from Ms Wan - one on his Singapore phone and the other on his Malaysia phone - reminding him to get the van from the airport.  He did not respond because he was busy with a credit card issue.  He went to the Avis car hire rental booth and tried to book a van, but was only able to book the iMax.[128]

   [128] Trial ts 723 - 724, 872 - 873, 898 - 899.

2. The appellant left the airport at around 9.40 am and drove to the Mosman Park house via the city, arriving at around 10.30 am.  Ms Wan greeted the appellant, and he observed a swelling on her left forehead that was about the size of a small egg.  The deceased was not at the house, and Ms Wan told him that she had not come home.  The appellant asked what had happened, and Ms Wan told him that there was a dispute with the deceased on the night of 27 June 2016, and that the deceased had thrown things at her, which was what caused the swelling.  The appellant also observed bruising on both of Ms Wan's arms.  She was crying and told him that the bruises were the result of the deceased throwing things at her.[129]

   [129] Trial ts 724 - 726.

3. The appellant went inside the house with Ms Wan, and the house appeared to be very normal.  After the appellant put his bags down on the ground floor, she led him to the deceased's bedroom on the second floor.  He observed the mattress on the bed folded with no bedsheets or pillow, tied with rope and covered in a milky coloured plastic sheet which prevented him from seeing the mattress.  One of the walls appeared to be painted a different colour from the others.  The floor was covered by plastic sheets.  Ms Wan said that she needed to do more painting.  She told him that there was a nearby Bunnings, where they could get everything, so they left the house soon after that.[130]

   [130] Trial ts 726 - 729.

4. The appellant and Ms Wan left the house at about 11 am, and she directed him to Bunnings, where she looked at and bought some painting supplies, and then to Ikea where they purchased a mattress in roll form.  The appellant also saw a hand drill which he thought he would bring back to Malaysia and add to his toolbox.  Ms Wan paid for the items in cash.[131]

   [131] Trial ts 730 - 731.

5. On the way home, the appellant saw a car on fire with police present.  The appellant turned left into a side road and they saw a pizza shop.  Ms Wan said that she was very hungry.  The appellant parked the iMax and they both went into the pizza shop.  The shop was quite empty, and Ms Wan ordered and paid for a big serve of pizza and two bottles of drinks.  While they were waiting for the pizza, Ms Wan went outside, and then returned saying that she had paid the rent for her Melbourne unit.  After they ate the pizza lunch, Ms Wan said that they would go to the same Bunnings again, because she thought that she could mix the paint colours.  They drove to Bunnings, and then back to the Mosman Park house.[132]

   [132] Trial ts 732 - 733.

6. When they got back to the Mosman Park house, the appellant and Ms Wan carried the new mattress up to the deceased's bedroom.  They then carried the old mattress down to the iMax.  When placing the old mattress into the cargo compartment, the appellant saw that the mattress was wet, with one side cut off, and there was a black stain on it.  He asked Ms Wan what had happened.  Ms Wan was crying and her hand was shivering.[133]

Ms Wan's confession

[133] Trial ts 733.

1. Ms Wan then gave the following account to the appellant.  On the night of 27 June 2016, she and the deceased had been in a fight where the deceased had thrown things, including a paperweight, at Ms Wan, who had thrown things back at the deceased.  The items Ms Wan had thrown back struck the deceased in parts of the body and the head.  Ms Wan ran out of the room and closed the door.  After waiting for a while, Ms Wan had knocked on the door and asked if the deceased was okay, and entered the room when there was no reply.  She saw the deceased bleeding from the head, and went down to the kitchen to get a towel and tissues for the bleeding.  When Ms Wan got back to the room, the deceased was still angry and shouting.  Ms Wan asked if the deceased wanted an ambulance, and was told to get out and not let the deceased 'lose face'.  The deceased grabbed the towel and tissue.  Ms Wan left and returned later, when the exchange about the ambulance was repeated with the deceased saying that she (the deceased) was 'all right'.  Ms Wan told the appellant that she went to bed thinking that the next morning she would prepare the deceased breakfast and apologise to her.  On the morning of 28 June 2016, after preparing breakfast, Ms Wan went to the deceased's bedroom to apologise, and found her lying on the opposite side of the bed with extensive injuries.  Ms Wan used a finger to feel the deceased's nose but it was all bleeding.[134]

   [134] Trial ts 734 - 737.

2. At this point, the appellant believed that it had been an accident.  He did not think of telling the police or of telling Ms Wan to tell the police, because it was too late already.[135]  Ms Wan told the appellant repeatedly that it was an accident and the appellant thought that there was no reason that Ms Wan could have killed the deceased.[136]

   [135] Trial ts 893 - 894.

   [136] Trial ts 899.

3. The appellant's evidence was that he asked where the deceased's body was, and was told that it was in a recycling bin in the laundry yard (an area outside the laundry).  Ms Wan told him that she had placed the body in the bin and rolled it down from the upper floor to the ground floor.  She had left it in the yard behind the kitchen because it could not be seen from both sides of the house, but moved it to the laundry yard when a neighbour moved in with a dog.  She said that there was heavy rain on 28 and 29 June 2016 and water had collected in the bin as the lid was open due to the deceased's leg sticking out.  She had scooped up some water and moved the body on the night of 29 June 2016.[137] 

Events of 30 June 2016, after Ms Wan's confession

[137] Trial ts 737 - 740.

1. The appellant went to the laundry, opened the lid of the bin and saw the deceased's body with the head facing down and the leg stretching up.  He noticed that her lower body was undressed.  The bin was half‑filled with water,[138] which had some blue substance floating on top.  With Ms Wan's assistance, he attempted to get some of the water out using a rubber hose, which was too thin and did not have enough suction.[139] 

   [138] Trial ts 739 - 740, 836.

   [139] Trial ts 741, 881.

2. The appellant said that Ms Wan explained that she was confused and thought that the police would not believe her.  Ms Wan begged him not to tell anyone and to help her dispose of the body.  Ms Wan told the appellant that they should say they had a discussion with the deceased on the appellant's arrival, and that at first she was angry but later calmed down.  They would say the deceased called a friend, packed some items and left in a white Toyota car (as Ms Wan had seen the deceased leave in a white Toyota on a number of occasions).[140]

   [140] Trial ts 740 - 742.

3. The appellant agreed to help Ms Wan.[141]

   [141] Trial ts 742.

4. Ms Wan then said that they should go and check a suitable place to dump the body. As the mattress was already in the iMax, they both went to the Swan River, at the Fremantle Bridge, and disposed of the mattress there in the early evening, around 6 or 7 pm. The appellant then sent the message referred to at [30] above to the WhatsApp Family Group, to help Ms Wan. The appellant then drove himself and Ms Wan around Fremantle looking for a place to dispose of the body, and then went back home. Ms Wan made the bed for the appellant, next to the study.[142] 

Events of 1 July 2016

[142] Trial ts 742 - 744, 832, 885.

1. The appellant and Ms Wan left the Mosman Park house at about 8 am on 1 July 2016 to look for a place to dispose of the deceased's body.  After driving all the way to Rockingham, they went to various stores to try to find pipe that could be used to clear water from the bin, and got the water clear at about 5 or 6 pm.  At around 8 or 9 pm, in the laundry, they placed the body in a suitcase obtained from a storeroom, and Ms Wan placed tiles from the garage in the suitcase.  They tied a chopping board onto a scooter using a plastic strap to assist in moving the very heavy suitcase.  They disposed of the body from the Fremantle Traffic Bridge at about midnight that night.[143]

   [143] Trial ts 744 - 750, 882 - 884.

2. They drove home and Ms Wan cleaned the appellant's laundry (which was wet from falling into the Swan River), the bins and the iMax.[144]

Events of 2 July 2016

[144] Trial ts 750.

1. The appellant described Ms Wan booking airline tickets, and their returning the iMax to Perth airport on the morning of 2 July 2016. The appellant used the deceased's phone to send the message referred to at [44] above, to help Ms Wan. He then gave the phone to Ms Wan and had not seen it again. He flew to Singapore, and understood that Ms Wan flew to Melbourne.[145]

Subsequent events

[145] Trial ts 751 - 752.

1. On 3 July 2016, Ms Wan called the appellant, and told him that the deceased's body had been discovered.  The appellant proposed to take responsibility for what had happened, but Ms Wan said she would rather die and, in any event, the medical examination would show that the deceased died before he arrived in Perth.[146]

   [146] Trial ts 753 - 754. 

2. The appellant agreed that Ms Wan transferred $110,000 into his account, but said he had not asked her to do so.[147]  He did not need the money because at the time he still had $100,000 in his account.[148]  He attended Ms Wan's graduation in Melbourne, and returned to Perth and gave police a statement on 4 and 5 September 2016 after Ms Wan reported the deceased missing.[149]  He did not tell the truth in the statement, to help Ms Wan.  The appellant also accepted that Ms Wan had given him a further $25,000, which he had not asked for and did not need because he was not under financial pressure.[150]

   [147] Trial ts 755, 888 - 889.

   [148] Trial ts 889, 896.

   [149] Trial ts 757 - 758.

   [150] Trial ts 758 - 759, 890 - 891.

3. The appellant agreed that he sent messages suggesting that the deceased was still alive, and did so to help Ms Wan.[151] 

   [151] Trial ts 760.

Ms Wan's evidence

1. Ms Wan gave the following account of events surrounding the deceased's death.

Events prior to 30 June 2016

1. Ms Wan came to Perth on 17 June 2016, and stayed with the deceased at the Mosman Park house.  Up until the appellant arrived, Ms Wan had not talked to the deceased about her graduation or her relationship with her father and the twin sisters.  Ms Wan was anxious about her graduation, which the deceased, the appellant and the twin sisters knew about and planned to attend.[152]

   [152] Trial ts 944 - 945.

2. On the afternoon of 27 June 2016, Ms Wan had become so overwhelmed with having a conversation with the deceased about her graduation that she decided to call the appellant.  The appellant offered to come to Perth and 'have a chat' with the deceased.  Ms Wan's understanding of the purpose of the trip was that it was so that the appellant could talk to the deceased about Ms Wan's relationship with him and the twin sisters, and their attendance at her graduation.[153]

   [153] Trial ts 946 - 948.

3. Ms Wan denied speaking with the appellant on the telephone on 28 or 29 June 2016.[154]

Events of 30 June 2016

[154] Trial ts 945, 948.

1. Ms Wan gave evidence that her texts to the appellant's telephones on the morning of 30 June 2016 were to the effect:[155]

   Hi.  [The deceased] has received your message from Wednesday.  She seems okay about it.  She's now cleaning the house.

   The reference to the message sent on Wednesday was to a LINE message Ms Wan understood the appellant to have sent to the deceased.  The deceased was in fact cleaning the house when Ms Wan sent the text messages to the appellant's phones.[156]

   [155] Trial ts 949.

   [156] Trial ts 949.

2. The appellant arrived at the Mosman Park house at about 10.30 am, driving the iMax.  The deceased was alive and sitting with Ms Wan in a room that overlooked the street, waiting for the appellant to arrive.  The deceased remarked at the size of the car the appellant was driving.  The deceased unlocked the front gate to let the appellant in, and he parked in front of the garage.  The deceased was a bit anxious about why the appellant was coming on short notice.  He smiled and said that they should talk in the deceased's study first.[157]

   [157] Trial ts 949 - 950.

3. The appellant and deceased went up to the study on the second floor of the house, while Ms Wan waited downstairs.  After 20 - 30 minutes, Ms Wan heard her parents arguing about the appellant trying to sell the deceased his house in Malaysia.  The appellant kept repeating the figure of four million, and the deceased was asking 'how could it be worth that much?'  The deceased was getting angrier, and repeated 'what could I do with that house?' and the appellant was trying to calm the deceased down.  Ms Wan heard a door slam upstairs and then heard 'loud, dull, metallic thuds'.  She called up the stairs for the deceased, but got no response.  The appellant repeatedly told Ms Wan not to come upstairs.  Ms Wan heard a tap and shower turning on.  About a minute or so after the shower being turned on, she heard the sound of a door being opened upstairs.[158]

   [158] Trial ts 952 - 955.

4. Ms Wan grabbed her phone and bag and ran from the house.  She could not get very far, because the gate was locked and she did not have the keys.  The appellant came out of the front door and told Ms Wan to come inside.  His face was very red, and his hair and shirt were wet.[159]

   [159] Trial ts 955 - 957.

5. Ms Wan asked the appellant what had happened upstairs.  The appellant took a long time to reply and indicated that the deceased had struck him with a cast iron paperweight and he had grabbed it from her when she was going to swing at him again, and hit her with it.  The appellant told Ms Wan that the deceased had passed away and that he did not mean for it to happen.[160]

   [160] Trial ts 958 - 960.

6. The appellant said that they needed to leave the house.  He grabbed Ms Wan's arm, opened the door to the iMax and helped her inside.  Ms Wan described the appellant driving the iMax along Stirling Highway and driving for some time.  The iMax eventually stopped near a pizza shop, and the appellant told her to get out of the car and wait for him there.  The appellant said that he would 'resolve everything'.  Ms Wan got out of the car, and the appellant drove away.[161]

   [161] Trial ts 961 - 963.

7. It was about 2.5 - 3 hours until the appellant returned.  After pacing for a while, Ms Wan waited in the pizza shop for some time, and the waiter kept coming up and asking if she was going to order something.  The first two times, Ms Wan said that she was waiting for her father, but on the third time she ordered what the waiter suggested.  The waiter was talking to other staff about her and pointing at her, so she left to go into the shop next door, which was an Australia Post outlet.  She felt she had to interact with the cashier, and so did what she normally did at a Post Office, which was to pay her rent.  The cashier asked if she wanted any cash out, and she blurted out '$200'.  She then walked back to the pizza shop and just sat there.  Ms Wan did not eat the food, but drank the two drinks because she was thirsty.[162]

   [162] Trial ts 963 - 965.

8. The appellant returned at about 3.30 pm.  He looked exhausted and out of breath.  His hair was still wet but he had changed his clothes.  The appellant asked where a supermarket was, and Ms Wan pointed to Cottesloe Central when they approached it.  Ms Wan gave him the $200 cash she had withdrawn, and he went into the shopping centre.  He returned with 2 - 3 shopping bags.  She could see a bottle of bleach.  The appellant then drove them back to the Mosman Park house.  On the journey, he told Ms Wan to stay calm, that she had always been the strongest of his children and that she was a very special child.[163]

   [163] Trial ts 965 - 966.

9. As they arrived at the Mosman Park house, the appellant asked to use Ms Wan's phone to hotspot his own phones.  They sat outside in the iMax for some time.  The appellant told Ms Wan that she needed to be strong, and that she must not go into the deceased's room.  The appellant led Ms Wan up to her room and told her to stay there, which she did.  Ms Wan saw a pile of the deceased's transparent plastic gloves on the banister of the stairs.  She could hear the appellant moving around and the sound of cupboards and drawers opening and closing.  After it was dark, the appellant came and spoke to her and asked if she wanted sleeping pills, which Ms Wan declined.  The appellant made Ms Wan some tea which she drank, and she then fell asleep in her bedroom.[164]

Events of 1 July 2016

[164] Trial ts 967 - 969.

1. When Ms Wan woke on the morning of 1 July 2016, she found the deceased's bedroom door closed with garbage bags outside, one containing white sheets.  The appellant was sitting on the couch in the study wearing plastic gloves and reading the deceased's letters or notes.  Ms Wan sat down next to him.  He told her that it was an accident, which Ms Wan did not believe.[165]  He indicated that he was thinking of confessing to the police.[166]

   [165] Trial ts 971 - 972.

   [166] Trial ts 975.

2. The appellant said that they should leave the house and get something to eat, as they had not eaten the previous night.  They drove to and had breakfast at the Fremantle Esplanade.  The appellant then drove them around without an apparent destination in mind, asking her about 'dumping grounds'.  He indicated that he was trying to dump the garbage bags that Ms Wan had seen outside of the deceased's room, but that there were 'other things too'.  Ms Wan asked him if he was trying to borrow money from the deceased, to which he replied that 'she refused to help'.  Ms Wan asked if he was trying to borrow money from the deceased again, and he indicated that his business associates in Malaysia were chasing him for money, and that he needed $100,000.  Ms Wan said she would give him money.[167]

   [167] Trial ts 973 - 977.

3. They returned to the Mosman Park house at about 11.20 - 11.30 am.  The appellant told Ms Wan to stay out of the deceased's bedroom, but said she could try to clean up the laundry.  Ms Wan cleaned up a pile of the appellant's soaked through clothes.  The appellant asked for electric heaters, which Ms Wan pointed out in a storeroom.  The appellant picked up three heaters and carried them upstairs. When he came back down, the appellant became agitated upon seeing a navy blue suitcase, and said that the deceased's wardrobe had an identical suitcase in it.[168]

   [168] Trial ts 977 - 979.

4. The appellant left the house with the suitcase and the garbage bags, leaving Ms Wan alone at the house.  She washed the appellant's wet clothes from the previous day, which were in the laundry sink, and cleaned some footprints in the laundry area using some rags and a bottle of bleach.  She also vacuumed the sitting room where there was carpet with some sandy shoe prints.  She went to her room.[169]

   [169] Trial ts 979 - 980.

1. The appellant returned to the Mosman Park house at about 1.30 pm.  Ms Wan stayed in her room, until the appellant made them mugs of tea and Ms Wan made something with eggs, which they both ate.  Over dinner, the appellant said that they should both leave and return home the next day.  He also said that he had made arrangements to meet with two friends the next day.  The appellant said it was important that Ms Wan appear normal, as it was important for his friends to see that they were fine and did not have any injuries.  After dinner, Ms Wan returned to her room and fell asleep soon after.[170]

Events of 2 July 2016

[170] Trial ts 980 - 982.

1. When Ms Wan got up on 2 July 2016, she found her father in the kitchen with the deceased's mobile phone, reading messages between Ms Wan and the deceased.  At this time, the appellant returned Ms Wan's phone.  The appellant's Singaporean phone was on the table, and he also pulled out his Malaysian phone, which had a damp cover and was not working.  The appellant said that it had been in the water.  He looked upset and said that, if things escalated, he was going to confess to the police.[171] 

   [171] Trial ts 982 - 984.

2. Before they left the house, Ms Wan did a 'last round of checks'.  She placed some wet clothes of the appellant's in a black plastic bag (which he later disposed of in a bin at the airport).  They left for the airport after 9 am.  The appellant brought the deceased's phone with him.  As they were driving, Ms Wan asked the appellant why his clothes were wet, and he responded that he had fallen into the river, and had lost his glasses.[172]

   [172] Trial ts 983 - 985.

3. Also on the way to the airport, the appellant used Ms Wan's phone to call a friend and arrange to meet at a café at Perth Airport.  The appellant told her that at the café she would receive a LINE message from the deceased, which she must show to the friends.  This is what occurred, with the appellant holding the deceased's phone under the table as the message was sent.  Subsequently, the appellant boarded a flight to Singapore, and Ms Wan flew to Melbourne.[173]

Subsequent events

[173] Trial ts 985 - 986.

1. On 3 July 2016, the appellant sent Ms Wan a very long WhatsApp message in which he confessed to getting angry, striking the deceased with a paperweight and drugging Ms Wan 'on both nights'.  Ms Wan deleted this message.[174]

   [174] Trial ts 986, 988 - 989.

2. Ms Wan agreed that she transferred $110,000 to the appellant on 4 July 2016, and another $25,000 in August 2016.  She sent a further $3,000 to an account in Singapore after the appellant told her that his car was going to be towed as he was not able to make the payments.[175]

   [175] Trial ts 986 - 987.

3. Ms Wan said that she came back to Perth on 31 August 2016, and stayed in the Mosman Park house.  The appellant told her that she should fill out a missing person's report.  She went into the deceased's bedroom, turned the lights on, and everything looked normal.[176] 

   [176] Trial ts 989 - 990.

4. Eventually, Ms Wan reported the deceased to police as a missing person.  She accepted that she told lies to police in two statements and a recorded interview.[177]

   [177] Trial ts 990 - 993.

Parties' cases at trial

1. The State's case was that the nature of the deceased's injuries, the circumstances in which she was found and the concealment and disposal of the body, demonstrated that she was unlawfully killed by another person.  The number of injuries to the deceased's head and face, including the skull fracture, which would have required extreme force, was such as to give rise to an irresistible inference that the person who inflicted the injuries intended to kill her or at least to cause a life-endangering injury.[178]

   [178] Trial ts 71 - 72.

2. The State's primary case at trial was that each of the appellant and Ms Wan acted together in the murder of the deceased at the Mosman Park house.  The State invited the jury to infer, from the lengths to which each accused had gone to conceal the death of the deceased and distance themselves from it, that each was criminally responsible for her death and had the concurrent intention necessary for the offence of murder.[179]

   [179] Trial ts 74 - 76.

3. However, the State acknowledged from the outset that it could not show the jury precisely when the murder took place.  It accepted that evidence existed which might suggest that the deceased was killed by Ms Wan before the appellant arrived in Australia, and he 'just came to help clean up the mess'.[180]

   [180] Trial ts 72 - 73, 77.

4. The appellant's case at trial was that the jury could not be satisfied that the deceased died after he arrived in Perth on 30 June 2016.  If that was so, the appellant could not have caused the deceased's death because 'he was simply not here'.  The appellant's case was that he arrived on 30 June 2016 to be confronted with a horrible scenario.  He did not dispute the State's allegations about what he did with the body.[181]

   [181] Trial ts 78 - 81.

5. Ms Wan's case at trial was that the State could not prove that she was guilty of either murder or manslaughter, but accepted that she was guilty of being an accessory after the fact in relation to the deceased's death.  Ms Wan's counsel invited the jury to conclude, based on her state of knowledge when she covered up the death of the deceased, that she was guilty of being an accessory after the fact to manslaughter, rather than murder.[182]

   [182] Trial ts 88 - 89.

Verdicts at trial

1. The jury retired to consider its verdict at 12.38 pm on 31 August 2018.  There was a single question asked on the afternoon of 3 September 2018.  The jury returned its verdicts at 12.33 pm on 6 September 2018.

2. The jury found the appellant guilty of murdering the deceased.  The jury found Ms Wan not guilty of murder and not guilty of manslaughter.  The jury found Ms Wan guilty of being an accessory after the fact to the offence of murder.[183]

   [183] Trial ts 1421 - 1422.

Statutory context

1. Under s 270 of the Criminal Code (WA), any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. Section 268 of the Code provides that it is unlawful to kill any person unless such killing is authorised or justified or excused by law. Section 277 of the Code provides that any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be murder or manslaughter.

2. Section 279(1) of the Code relevantly provides that:

   If a person unlawfully kills another person and -

   (a)the person intends to cause the death of the person killed or another person; or

   (b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

   …

   the person is guilty of murder.

3. The intention referred to in s 279(1)(b) is a subjective intention to cause a bodily injury which is objectively of such a nature as to endanger or be likely to endanger life.[184]

   [184] Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 [23] ‑ [27].

4. Under s 280 of the Code, if a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter. Manslaughter is an alternative verdict on an indictment charging an accused with murder.

5. Relevantly to the present case, s 7 of the Code provides for the criminal responsibility of a person for an offence.

6. Section 7(a) of the Code identifies the criminal liability of '[e]very person who actually does the act or makes the omission which constitutes the offence'. The reference to every person who actually does 'the act' includes all persons who do the act or one or more of the acts in a series of acts which constitutes or constitute the offence. In that manner, s 7(a) provides for criminal liability of several persons, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person.[185] 

   [185] Warren and Ireland v The Queen [1987] WAR 314, 327 - 329; L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [32].

7. Section 7(b) and s 7(c) of the Code extend criminal liability to a person who aids another in the commission of the offence, or who does or omits to do any act for that purpose.

8. Section 7(d) extends criminal liability to a person who counsels or procures another person to commit the offence.

9. Aiding, counselling or procuring the commission of an offence requires intentional participation by conduct aimed at encouraging or assisting something which goes to make up the facts which constitute the commission of the relevant offence.[186]  A person cannot be an aider through an act which unwittingly assists the principal offender.  Nor does a person aid another in the commission of an offence unless some support for the commission of the offence is actually provided.[187]

   [186] Ward v The Queen (1997) 19 WAR 68, 74 - 76, applying Giorgianni v The Queen (1985) 156 CLR 473, 506 ‑ 507.

   [187] Bowman v The State of Western Australia [2008] WASCA 63 [39].

Grounds of appeal and the applications in the appeal

1. The appellant appeals against his conviction on five grounds.  By application in an appeal filed on 10 September 2019, the appellant in effect seeks leave to amend his grounds of appeal.  That application, which is not opposed, should be granted.

2. Ground 1 contends that the verdict of murder was unsupported by the evidence and/or was unreasonable as, in particular, it did not establish beyond reasonable doubt that the deceased was killed after the appellant arrived in Australia.

3. Grounds 2 and 2A are both concerned with financial documents relating to trusts which were disclosed by the State to the appellant's former instructing solicitors, but which were not brought to his attention or that of senior counsel at trial.  Ground 2 in effect complains that the failure by his legal representatives to inform him or his senior counsel of these documents was such that he did not have a fair trial, and there was a miscarriage of justice.  Ground 2A contends that the new evidence reveals that a miscarriage of justice occurred at trial.

4. In support of grounds 2 and 2A, the appellant has made a number of applications to adduce additional evidence in the appeal:

   (1)By application in an appeal filed on 7 January 2019, the appellant seeks to adduce his own affidavit sworn on 11 December 2018 and the affidavit of Trevor Mark Andrews sworn on 7 January 2019.

   (2)By application in an appeal filed on 6 February 2019, the appellant seeks to adduce the affidavit of Paul Lynton Haynes sworn on 4 February 2019.

   (3)By application in an appeal filed on 8 April 2019, the appellant seeks to adduce his own affidavit sworn on 3 April 2019 and the affidavit of Trevor Mark Andrews sworn on 3 April 2019.

   (4)By application in an appeal filed on 1 August 2019, the appellant seeks to adduce the affidavit of Martin C M Muk sworn on 31 July 2019.

   (5)By application in an appeal filed on 27 August 2019, the appellant seeks to adduce his affidavit sworn on 27 August 2019.

   (6)By application in an appeal filed on 6 September 2019, the appellant seeks to adduce the affidavit of Paul Lynton Haynes sworn on 6 September 2019.

   (7)By application in an appeal filed on 9 September 2019, the appellant seeks to adduce the evidence of David Leslie Brustman QC declared on 9 September 2019.

5. Ground 3 contends that there was a miscarriage of justice when the trial judge failed to exclude prejudicial material concerning the appellant's 1990 matrimonial proceedings in Singapore and/or failed to promptly direct the jury in relation to that prejudicial material once it was adduced.

6. Ground 4 contends that there was a miscarriage of justice when the trial judge failed to adequately direct the jury that it was open to them to find both accused not guilty of the unlawful killing of the deceased.

7. The appellant's application for leave to appeal on the above grounds, and his applications to adduce additional evidence in the appeal, were referred to the hearing of the appeal.

Ground 1: unreasonable verdict

1. As noted above, ground 1 contends that the verdict of the jury finding him guilty of murder was unreasonable and was not supported by the evidence.

General principles

1. Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow an appeal against conviction if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

2. The general principles governing an appeal on this ground, derived from the decision of the High Court in M v The Queen,[188] are well established.  In summary:[189]

   (1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence.  It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict.  The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.

   (2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

   (3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.

   (4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.

   (5)A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.

   (6)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.

   (7)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.

   [188] M v The Queen (1994) 181 CLR 487.

   [189] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The State of Western Australia [2018] WASCA 68 [28] - [34].

3. In Fennell v The Queen,[190] the High Court observed:

   Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. (citations omitted)

   [190] Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219 [81].

4. The functional demarcation between the province of the jury and the province of the appellate court was described by the High Court in Pell v The Queen.[191]  The court emphasised that the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community.[192]  By contrast:[193]

   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (citation omitted)

Possibilities necessarily excluded by the evidence in the appellant's trial

[191] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394.

[192] Pell [37] - [38].

[193] Pell [39].

1. There were a number of matters that, in our view, were clearly established by the evidence. 

2. In particular, the nature and extent of the deceased's injuries, and the manner in which her body was dealt with, established that the deceased had been murdered.  The deceased clearly did not take her own life or die of natural causes, and there was nothing to suggest that killing her was authorised, justified or excused by law.  The nature and extent of the deceased's injuries compelled the inference that the person who inflicted them intended to kill her or inflict an objectively life-threatening injury.

3. Quite apart from the evidence of the appellant and Ms Wan, these matters, while not sufficient to establish his guilt, necessarily excluded a number of possibilities that would have been inconsistent with the appellant's guilt of the offence of murder. 

4. When one has regard to the evidence of the appellant and Ms Wan, certain other possibilities were also excluded by the evidence.

5. Of course, in order to find the appellant guilty of murder, the jury would have had to reject the appellant's account of the manner in which the deceased died. If the jury believed the appellant's account, or thought that there was a reasonable possibility that it might be true, then they could not have been satisfied that he was responsible for her killing under any of the limbs of s 7 of the Code.

6. In particular, in order to find the appellant guilty of murder, the jury would have to conclude, contrary to the appellant's evidence, that the deceased died after the appellant arrived in Perth on 30 June 2016.  There was no evidence capable of supporting a finding that the appellant was criminally responsible for the death of the deceased if she had died before he arrived in Perth. 

7. For the reasons explained below, however, it was open to the jury to reject the appellant's evidence as to the circumstances of the deceased's death.

8. Simply rejecting the appellant's evidence, could not, by itself, support a finding of his guilt.  The jury would still need to be satisfied beyond reasonable doubt as to his guilt.

9. Nevertheless, even if the jury rejected the appellant's evidence as to the deceased being killed prior to his arrival in Perth, his evidence was not irrelevant to the determination of his guilt.  That evidence was still capable of excluding inferences favourable to the appellant which might otherwise have been drawn from the prosecution evidence. 

10. This point was noted by the High Court in R v Baden-Clay,[194] where the court observed:

    To say that the respondent's evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with the respondent's innocence of murder.  His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.

    [194] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [57]. See also [54].

1. I do not accept the appellant's submissions.  The assessment of whether a verdict is unreasonable or cannot be supported requires an assessment of the whole of the evidence adduced at the trial and not just those parts relied upon by the appellant. 

2. The evidence of Dr Cadden and Dr Collins left open the possibility that Ms Chen was alive on the morning of 30 June 2016.  There is no doubt that the appellant went to Ms Chen's house as soon as he hired the iMax.  He would have arrived there some time after 10.00 am.  There is no dispute that the appellant drove from the Mosman Park house to the Ikea store and purchased a mattress at 1.15 pm.  I agree with Quinlan CJ and Mitchell JA that the appellant must have left the Mosman Park house no later than 12.40 pm, and probably earlier than that.  In the time that the appellant was at the Mosman Park house, it was well open for the jury to conclude that he had the opportunity to kill Ms Chen.

3. It was also well open to the jury, having regard to the appellant's post‑offence conduct, to conclude that he killed Ms Chen.  The appellant (but not Ms Wan) accepted that he: 

   (a)purchased a new mattress from Ikea;

   (b)disposed of the stained mattress that had been in Ms Chen's bedroom;

   (c)scouted a location at which to dispose of Ms Chen's body in the river;

   (d)placed Ms Chen's body in the suitcase, weighed it down and then threw the suitcase in the river; and

   (e)gave the impression to others that Ms Chen was alive when, to his knowledge, she was dead.

4. At trial, the appellant testified that his post‑offence conduct was motivated by a father's desire to protect a child who, in this case, had alone accidentally killed her mother.  It was well open to the jury to reject this evidence and to conclude that the only reasonable explanation for it was that he had killed Ms Chen.  This was a case like R v Baden‑Clay,[339] in that it was open to the jury to regard the lengths to which the appellant went to conceal Ms Chen's body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of his daughter having unintentionally killed her mother.

   [339] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [76].

5. In all of the abovementioned circumstances, it was open to the jury to reject the appellant's testimony that he had not killed Ms Chen and for the jury to be satisfied beyond reasonable doubt that he had murdered her.  It was open to the jury to conclude that the appellant's post‑offence conduct dispelled any doubt that the jury may have had which was caused by the evidence relied upon by the appellant.  Moreover, as Quinlan CJ and Mitchell JA demonstrate in their reasons, none of the evidence, even when viewed in combination, compels a conclusion that it was not open to the jury to find that Ms Chen was alive on the morning of 30 June 2016. 

6. Up to this point I have not said anything about the evidence of Ms Wan.  Ms Wan denied any involvement in the killing of Ms Chen.  In particular, she denied killing Ms Chen prior to the appellant's arrival in Australia.  The effect of her evidence was that the appellant killed Ms Chen without any involvement on her part. 

7. As Quinlan CJ and Mitchell JA point out in their reasons, aspects of Ms Wan's evidence are inconsistent with the objective evidence, such that it would not have been open to the jury to believe the whole of Ms Wan's account of events.  However, it was open to the jury to find that Ms Wan's evidence as to the circumstances in which Ms Chen died was supported by the appellant's post‑offence conduct.  It must also be borne in mind that the jury had the distinct advantage of hearing and seeing the witnesses testify, including both Ms Wan and the appellant.  In my opinion, it was open to the jury to accept Ms Wan's denials of being involved in the murder or have a reasonable doubt about her involvement, while being involved in some, but not all, aspects of the cover-up.

8. In all of the circumstances, and upon a consideration of the whole of the evidence adduced at trial, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant alone had murdered Ms Chen. 

9. While I would grant leave to appeal on ground 1, the ground has not been made out.

10. I now turn to ground 4.

Ground 4:  failure to give adequate directions

1. Ground 4 reads as follows:

   There was a miscarriage of justice when [h]is Honour failed to adequately direct the jury [that] it was open to them to find both accused not guilty of the unlawful killing of Ms Chen.[340]

Background

[340] WAB 145.

1. At the trial, it was an admitted fact that Ms Chen was unlawfully killed in her home.  As I have said, there were only two people who could have inflicted the fatal injuries - the appellant and his daughter, Ms Wan.  The possibility that Ms Chen was killed by a stranger was eliminated.  However, when the fatal injuries were inflicted was less certain.  The appellant could only be guilty of unlawfully killing Ms Chen if the killing occurred after his arrival on the morning of 30 June 2016.[341]

   [341] Trial ts 1317.

2. The State's case was that both the appellant and Ms Wan unlawfully killed Ms Chen, on the morning of 30 June 2016, either as joint offenders under s 7(a) of the Criminal Code, or on the basis that one of them was a s 7(a) offender and the other was an offender under s 7(b), (c) or (d).[342]  Alternatively, Ms Chen was unlawfully killed by one or other of Ms Wan and the appellant.  Whoever did not kill Ms Chen was an accessory after the fact.

   [342] Trial ts 1330.

3. For each accused, their case was that they did not act together to kill Ms Chen.  Nor, according to each of them, did he or she alone kill Ms Chen.  Instead, each testified to the effect that the other unlawfully killed Ms Chen and was solely criminally responsible for her death.  The appellant's case was that Ms Wan killed Ms Chen before he arrived in Perth.  The appellant accepted that he was an accessory after the fact to Ms Wan's unlawful killing of Ms Chen.[343]

   [343] Trial ts 1338.

4. The fundamental issue for the jury to decide in the case of each accused was whether, on the evidence admissible against that accused, the State had proved beyond reasonable doubt that the accused had unlawfully killed Ms Chen.

The trial judge's directions to the jury

1. His Honour summed up the case to the jury over two days.[344]  He gave comprehensive and correct general directions to the jury as to the presumption of innocence,[345] the burden and standard of proof,[346] and the necessity of deciding the case solely on the evidence adduced at trial.[347]  The trial judge told the jury that it could accept part of a witness' evidence, but reject other parts.[348]  He directed the jury that when assessing the credibility of a witness' testimony, it was open to consider the 'tone, demeanour and body language' of the witness.[349] 

   [344] 30 and 31 August 2018.

   [345] Trial ts 1305.

   [346] Trial ts 1305 - 1306.

   [347] Trial ts 1306.

   [348] Trial ts 1306.

   [349] Trial ts 1308.

2. His Honour also gave a direction to the effect that the jury was required to give separate consideration to each accused's case (separate consideration direction), as follows:[350]

   It would have been possible to charge each separately and for each to be tried before a different jury, however, common sense would tell you that much time and effort would be saved if they are both here before the same jury.  The witnesses only have to be called once.  But what you must remember at all times is that each accused, [the appellant] and Ms Wan, is entitled and was entitled to a separate trial although they both come before you at the same time.

   There is in effect two separate trials being conducted in this room.  And you got to have two accused persons in respect of whom you must determine whether you are satisfied beyond a reasonable doubt the State has proven its case.  Therefore you must consider the evidence against each separately.  You cannot find the accused guilty of an offence with which he has been charged or she has been charged unless evidence that he or she has committed that offence satisfies you beyond a reasonable doubt.

   I will give you a specific direction concerning the evidence, the specific evidence that is admissible against one accused only and not against the other accused.  I will do that when I turn to outline the evidence in considering the respective cases for the parties.

   But what is important this time is for me to give you this direction.  If you find an accused not guilty on the evidence that does [not] necessarily mean the other is not guilty.  In other words, you may be satisfied beyond a reasonable doubt as to the guilt of one but fail to be satisfied beyond a reasonable doubt as to the guilt of the other person.

   You cannot draw any adverse inferences against one accused just because you find the other accused guilty.  If you find one accused guilty that does not mean the other accused must necessarily be guilty.  You don't draw adverse … inference by the fact that both appear at the same trial because that is the way the State has laid the charges.  (emphasis added)

   [350] Trial ts 1309 - 1310.

3. It is to be noted that his Honour did not direct the jury that both accused could be found not guilty. 

4. His Honour gave orthodox Liberato (Liberato v The Queen[351]) and inference[352] directions.

   [351] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.

   [352] Trial ts 1312 - 1314.

5. His Honour explained to the jury the elements of the crime of murder.  He told the jury that there were four elements.  First, that a particular accused person, either alone or acting in concert, 'did an act or an omission'.[353]  Secondly, that the person's act or omission caused the death of the victim.[354]  Thirdly, that the killing was unjustified, that is, the killing was not authorised, justified or excused by law.[355]  Fourthly, that at the time the accused killed the victim, he or she had an intention to cause the death or a bodily injury of such a nature as to endanger or be likely to endanger life.[356]

   [353] Trial ts 1318.

   [354] Trial ts 1318.

   [355] Trial ts 1318.

   [356] Trial ts 1318 - 1319.

6. The trial judge directed the jury about the alternative offences of manslaughter[357] and being an accessory after the fact.[358] He also directed the jury concerning the operation of s 7(a) ‑ (d) of the Code.

   [357] Trial ts 1318 - 1319.

   [358] Trial ts 1319, 1336 - 1337.

7. Later in his summing up, the trial judge directed the jury as to the use that could be made by them of lies allegedly told by the appellant and Ms Wan in their respective interviews with the police, and their post‑offence conduct as evidence of consciousness of guilt.[359]

   [359] Trial ts 1344 - 1350, 1356 - 1359.

8. His Honour, entirely accurately, summed up the evidence in respect of the appellant and Ms Wan.  He did so in a manner which made it clear which parts of the evidence were admissible only against one accused and not the other.[360]  He also accurately summed up the respective cases.[361]

   [360] Trial ts 1368 - 1369.

   [361] Trial ts 1369 - 1383.

9. Partway through the summing up, after the trial judge directed the jury as to the elements of murder, manslaughter and being an accessory after the fact, he provided the jury with a document headed 'Question Trail'.  The jury was given a separate document for each accused.  His Honour directed the jury that the document was an aid to understanding his directions and not in substitution of them.[362]  The questions posed in that document were substantially the same as between the appellant and Ms Wan.  As noted below, the State, in its submissions with respect to ground 4, place some particular importance on this document.  A copy of the question trail is annexed to these reasons.  His Honour took the jury through the question trail in detail.[363]

The trial judge's identification of the real issue in the case

[362] Trial ts 1342.

[363] Trial ts 1342 - 1344.

1. As he was required to,[364] his Honour identified for the jury the real factual issue it had to decide in the case.  The issue was framed, variously, as 'who did it?' or 'whodunit?'.

   [364] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466.

2. In the context of instructing the jury as to the first element of the offence of murder, his Honour said:[365]

   First, that a particular accused person, either alone or acting in concert, did an act or an omission.  In this case, it means the person who inflicted the assault and the serious injuries to the head of [Ms Chen].  This is the identity question, being who was it that did the thing in issue?  Was it the accused who did the things which the State asserts constitute the offence?  And this is what the trial is about, who did it.  (emphasis added)

   [365] Trial ts 1318.

3. His Honour encapsulated the issue a short time later in these terms:[366]

   Now, before lunch I was talking about these elements of murder and as against manslaughter and I said to you there are these four elements of murder.  Number (1) you've got to have an accused, whodunit, a person:  a person[.] (emphasis added)

   [366] Trial ts 1323.

4. Then, his Honour directed the jury:[367]

   Now, in this trial it's not disputed that the remains of the person who was inside the suitcase was Annabelle Chen.  The evidence has proved that fact.  It's an accepted and proven fact and the State case is it was the two accused persons who committed the murder, and the two accused persons say they did not … commit murder, nor manslaughter. 

   That's the paramount issue in this trial, whodunit, who was the person, and that is the issue that will trouble you, as in that will gravely consume you when you [are] deliberating, but I am required at law to direct you in respect of the other elements because it's just when you look at whodunit, it is then, did that person cause directly or indirectly by any means the death of the other person which is Annabelle Chen?  (emphasis added)

   [367] Trial ts 1323 - 1324.

5. The trial judge continued:[368]

   Now, there does not appear to be any dispute in this trial that somebody killed [Ms Chen], that is, someone inflicted an attack on Ms Annabelle Chen.  The fact of the wounds, the nature of the injuries, the secreting of the body and not alerting the authorities obviously support what is now an accepted fact.  [Ms Chen] must have been killed and that Ms Chen was killed by a person who inflicted injuries upon her.

   …

   So the question in this trial though is whether it was the accused, which accused or both accused who killed [Ms Chen]?

   [368] Trial ts 1324 - 1325.

6. Later in the summing up, his Honour returned to 'the fundamental question of "who did it?"'.[369]  His Honour told the jury that on the State's case there were three possibilities,[370] being:

   First, that the two accused acted together to kill [Ms Chen] either by both inflicting wounds that caused his [sic] death or by one of them doing so and the other aiding or enabling, procuring or counselling.  That is the State's case against both accused.  That is, the State is urging upon you that you should convict both persons.

   The second scenario is that [the appellant] killed [Ms Chen] and he killed [Ms Chen] without any involvement by Ms Wan in that killing.  So you - it's the conviction of [the appellant] for the killing.  Of course in that alternative a question does arise whether Ms Wan was involved in the clean[‑]up and concealment afterwards.  That is, took acts to protect [the appellant] from punishment.

   Now, that is the defence case in Ms Wan that [the appellant] did the killing and that she, Ms Wan's only involvement was as an accessory after the fact and the defence case put by Mr Freitag [Ms Wan's counsel] was that his client, Ms Wan, was an accessory after the fact only to the offence of manslaughter.

   That is, if you convict [the appellant] for murder you should only bring in a verdict of be[ing] an accessory to the offence of manslaughter for Ms Wan.  So that's the second scenario.  [The appellant] committed murder and that Ms Wan's involvement was only as an accessory.  That was what was put.

   (3) [T]hat this is the scenario - this time that it's Ms Wan killed [Ms Chen] and killed [Ms Chen] without the involvement of [the appellant].  Again, in that the question arises whether [the appellant] was involved in the clean[‑]up and concealment afterwards.  That is, he was an accessory after the fact to the offence of murder or manslaughter and that is what is said by counsel on behalf of [the appellant], that it was Ms Wan who's the killer, committed the offence of murder and that [the appellant's] only involvement was being an accessory afterwards.

Ground 4 - the appellant's submissions

[369] Trial ts 1365.

[370] Trial ts 1367 - 1368.

1. The appellant submitted that it was open to the jury to return verdicts of not guilty in the cases of both the appellant and Ms Wan.  Counsel for the appellant submitted that, having regard to the jury being told that the paramount issue in the case was 'whodunit?', there was a perceptible risk that the jury might reason that if it acquitted one accused of unlawfully killing Ms Chen, it had to convict the other accused of doing so.[371]  Accordingly, the trial judge was obliged to direct the jury in a way which obviated this risk. 

Ground 4 - the respondent's submissions

[371] Appeal ts 37, 81.

1. On behalf of the respondent, it was submitted that, having regard to the learned trial judge's directions when read as a whole, there was no perceptible risk that the jury would have reasoned that their task was to decide which of the two accused was guilty.  Counsel for the respondent focused upon his Honour's separate trial directions and the question trail to support this submission.  It was submitted that there was no perceptible risk that the jury would have reasoned in the manner suggested by the appellant, and that while a direction to the effect that it was open to the jury to acquit both accused would not have been inappropriate, it was unnecessary.[372]

Ground 4 - disposition

[372] Appeal ts 73 - 76.

1. The fundamental obligation of a trial judge is to ensure a fair trial of the accused.  This obligation may require a trial judge to direct a jury about how they should not reason:  RPS v The Queen.[373]

   [373] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41].

2. A direction to the effect that it was open to the jury to return verdicts of acquittal in respect of both accused, and that it should not reason that if it acquitted one accused of unlawfully killing Ms Chen it necessarily had to convict the other accused of doing so, depends upon whether, first, on the evidence, it was in fact open to the jury to acquit both accused, and secondly, if it was, did the specific directions now contended for by the appellant have to be given, or were the directions actually given adequate when read as a whole?

3. The answer to the first question is that, in my opinion, it was open on the evidence for both the appellant and Ms Wan to be acquitted, according to the following chain of reasoning.

4. Each accused is entitled to a separate consideration of the case against him or her.  An accused could only be convicted if the jury were satisfied of guilt beyond reasonable doubt.  Each accused gave evidence denying any involvement in Ms Chen's unlawful killing, but blamed the other.  The jury might have rejected the evidence of each accused.  It was well open to the jury to decide that neither of them was a honest or reliable witness.  The jury may well have concluded that it was not prepared to act on the evidence of either accused and put it to one side.

5. While it must be acknowledged that only two people - the appellant and Ms Wan - could have killed Ms Chen, it might have concluded that there was no clear evidence which enabled them to conclude when Ms Chen died.  Ms Chen could have died before 30 June 2016, or on that day.  Given that the jury may have been uncertain as to when Ms Chen died, it may not have been possible for it to be satisfied beyond reasonable doubt that either Ms Wan or the appellant killed Ms Chen.

1. While the post‑offence conduct was highly incriminating, particularly on the part of the appellant, a jury may not have been willing to convict the accused, and particularly the appellant, on this evidence without being satisfied beyond reasonable doubt that Ms Chen was alive on 30 June 2016.

2. Of course, the abovementioned chain of reasoning would result in the jury delivering verdicts in which no one would be brought to justice for Ms Chen's death.  To say the least, this would be an unfortunate outcome, and one which is understandably unlikely to commend itself to the jury.  Nevertheless, in my view, it was an outcome which would have been consistent with the jury applying the fundamental principles relating to the onus and standard of proof.

3. I now turn to the second question, which relates to the adequacy of the directions given by the trial judge.

4. As I have said, his Honour gave directions to the jury as to onus and standard of proof, and the need to separately consider the case of each accused.  No issue was taken, or could be taken, with these directions, either at trial or on appeal.  In my view, the difficulty with the directions comes not as to whether the jury understood that it must consider the case of each accused separately, but how it might reason in the course of separately considering the case of each accused.

5. The jury was told that:

   1.both accused could be found guilty;

   2.a verdict of not guilty in respect of one accused did not preclude a verdict of guilty of the other; and

   3.a verdict of guilty against one accused did not mean that the other accused was automatically guilty.

6. However, what his Honour did not tell the jury was that it was open to it to deliver verdicts of not guilty in respect of both accused.  This may not have been apparent to the jury, particularly when the paramount factual issue for the jury to consider was framed as 'whodunit?' or 'who did it?'.  In the context of the present case, where there were only two suspects, at least one of whom unlawfully killed Ms Chen, the framing of the case in this way, to my mind, implied, or at least may reasonably have been understood as implying, that someone was guilty.  It brings with it the perceptible risk of the jury reasoning, impermissibly, to guilt by a process of elimination that proceeds in this way:  if we are not satisfied beyond reasonable doubt that one accused killed Ms Chen, it follows we must be satisfied beyond reasonable doubt that the other accused killed Ms Chen.[374] 

   [374] See R v O'Connor [1962] NSWR 953, 954; Carter's Criminal Law of Queensland (23rd ed) s 620.20.  Both of these sources cite R v Abbott [1955] 2 QB 497 as authority for the proposition that 'guilt cannot be established by a mere process of elimination'. However, on my reading of Abbott, none of the judges expressly make this statement.

7. Further, by expressing the issue for the jury to decide as 'whodunit?' or 'who did it?', there is, in my opinion, a perceptible risk that the jury may have understood that it could impermissibly reason to guilt by weighing up which of the accused's versions they preferred.[375]

   [375] Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [19]; Noble v The State of Western Australia [2005] WASCA 33 [23].

8. Moreover, allied to the cut-throat nature of the defence cases and the understandable desire to bring somebody to justice for the unlawful killing of Ms Chen, there was, in my view, a perceptible risk that a jury may think that there would be something inconsistent about acquitting both accused.

9. In this regard, the observations of Deane J in Webb v The Queen[376] are apt:

   Far from the desirability of avoiding 'inconsistent verdicts' assuming particular importance, there is a particular danger in such cases that popular notions of the need for consistent verdicts may tend to subvert the requirement of proof beyond reasonable doubt.  If, for example, each of two defendants seeks to exculpate himself or herself from guilt of a crime, which both or one of them undoubtedly committed, by casting the entire blame on the other, it is difficult to see any particular relevance of the need for consistent verdicts apart from the superficial and mistaken notion that there would be something 'inconsistent' about an acquittal of both. 

   [376] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 80. His Honour was in dissent in this case, but these observations are not dependent upon his dissenting views.

10. His Honour continued:

    Indeed, where there is a joint trial in such a case, it is desirable that the trial judge stress to the jury that, while the jury may think it apparent that the crime was committed by at least one of the accused, there would be nothing inconsistent in their finding that the guilt of neither had been proved beyond reasonable doubt.

11. Unhesitatingly, I accept the State's submission that the adequacy of the summing up must be considered as a whole in light of the issues raised and the manner in which the trial was conducted.[377]  While his Honour's general separate consideration direction was correct, it was, in my judgment, inadequate, having regard to the summing up as a whole and including the question trail, because in the particular circumstances of the present case, the jury needed to be instructed that it was open to it to return verdicts of not guilty in respect of each accused, and directed that a verdict of not guilty in respect of one accused did not necessitate a verdict of guilt against the other.

    [377] Graham v The Queen [2016] HCA 27; (2016) 90 ALJR 820 [59].

12. I am aware that counsel took no exception to his Honour's directions to the jury.  While this is a matter which has caused me to pause before reaching the conclusion I have, I remain of the view that his Honour's directions were inadequate, in the particular circumstances of the case.

13. For these reasons, I would grant leave to appeal in respect of ground 4 and uphold the ground.  The orders I would make are as follows:

    (1)The appellant's application to amend his grounds of appeal, in terms of annexure A to the affidavit of Trevor Mark Andrews sworn 10 September 2019, is granted.

    (2)The appellant have leave to adduce the following affidavits as additional evidence in the appeal:

    (a)the affidavits of the appellant sworn 11 December 2018, 3 April 2019 (other than the annexure thereto) and 27 August 2019;

    (b)the affidavits of Paul Lynton Haynes sworn on 4 February 2019 and 6 September 2019;

    (c)the affidavit of Trevor Mark Andrews sworn on 3 April 2019 (other than the annexures thereto);

    (d)the affidavit of Martin C M Muk sworn on 31 July 2019; and

    (e)paragraphs 1 - 3 and the first sentence of par 4 of the affidavit of David Leslie Brustman QC declared on 9 September 2019.

    (3)The appellant's applications to adduce additional evidence in the appeal filed on 7 January 2019, 8 April 2019 and 9 September 2019 are otherwise dismissed.

    (4)Leave to appeal is granted on grounds 1 and 4.

    (5)Leave to appeal is refused on grounds 2, 2A and 3.

    (6)The appeal is allowed.

    (7)The appellant's conviction for murder is set aside.

    (8)The appellant is to have a new trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NF

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

15 JUNE 2020