Chen v The Queen
[2015] VSCA 71
•21 April 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0178
| TIAN XIAO CHEN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and PRIEST JJA, and DIXON AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 April 2015 |
| DATE OF JUDGMENT: | 21 April 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 71 |
| JUDGMENT APPEALED FROM: | DPP v Chen (Unreported, County Court of Victoria, Judge Allen, 16 July 2014 (Conviction)) |
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CRIMINAL LAW — Appeal — Appellant convicted of intentionally causing serious injury — Whether verdict unsafe and unsatisfactory — Whether open on evidence for jury to be satisfied that appellant stabbed victim — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S Wilkinson | Lloyd Truman Sadiq Solicitors |
| For the Crown | Ms D Piekusis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WEINBERG JA
I will invite Priest JA to deliver the first judgment.
PRIEST JA:
Introduction
The appellant claims that his conviction for intentionally causing serious injury is unsafe and unsatisfactory. For reasons upon which I will later elaborate, I do not agree. In my view it was well open to the jury to be satisfied of the appellant’s guilt. Indeed, having for myself examined all of the evidence, I do not harbour any reasonable doubt.
Overview of the circumstances
As long ago as 28 October 2007, when he was aged 23 years (he is now 31), the appellant went to Charlton’s Pool Hall, situated in Coverlid Lane, Melbourne, ostensibly to meet up with some friends. He was only there a short time before he had a conversation with the complainant, Hui Lin (‘Lin’). It was the appellant’s case that Lin used intimidating language. The appellant claimed that he felt threatened and decided to leave. CCTV footage shows that, as the appellant walked in the direction of the exit, Lin was close by and walking in the same direction.
The CCTV footage also shows — despite its poor quality — that the appellant then grabbed Lin’s right shoulder with his left hand. He then swung his right clenched fist at Lin, and appeared to make contact with Lin’s torso at the front. One can then observe Lin recoiling, as if in severe pain. Thereafter he can be seen to clutch his stomach.
Witnesses present at the scene described Lin stumbling around, clutching his torso. He was seen to be bleeding. Eventually he slumped to the floor. He had suffered a single stab wound to his abdomen just above the navel. Medical
intervention revealed that the surface wound was of about 15 millimetres in length, and penetrated to a depth of about six centimetres. Lin’s liver had been penetrated from front to back, requiring surgical repair.
The appellant fled the pool hall, and, five days later, on 2 November 2007, left the country for China. He remained in China for five years, until returning in late 2011.
Upon his return, the appellant was contacted by the police. He voluntarily attended the police station and was arrested and charged with the present (and another) offence.
Procedural history
Following a five day trial in the County Court, on 16 July 2014 a jury found the appellant guilty of one charge of intentionally causing serious injury.[1] On 17 July 2014, the trial judge sentenced the appellant to be imprisoned for four years, upon which he fixed a non-parole period of two years.
[1]Crimes Act 1958, s 16. The maximum penalty is 20 years’ imprisonment.
On 18 November 2014, a judge of this Court granted the appellant leave to appeal against his conviction on the sole ground that: ‘The verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
The evidence
In order to resolve the question whether the jury’s verdict was open to them, it is necessary to say more of the evidence. I do so cognisant that the defence case was that the appellant punched Lin whilst not armed with any bladed weapon; and that the victim suffered the penetrating wound to his abdomen by virtue of his possession of a concealed weapon, which caused injury to him as a result of a blow delivered by the appellant.
Patrons of the pool hall
David Simmons, gave evidence that he was with Jason Mackie in the karaoke area of Charlton’s pool hall when he heard ‘yelling’. He saw two males ‘face to face’. One male (the appellant) ‘lunged at the [victim’s] stomach, like a punch’, and Mr Simmons then saw the victim’s body going ‘backwards’. Mr Simmons did not see anything in the appellant’s hand either before or after the lunge. When the appellant lunged, his fist was ‘clenched’. Mr Simmons observed that the thumb knuckle of the appellant’s hand was ‘tilted downwards’, and the knuckles of the fingers were also tilted downwards — ‘like he was gripping onto something’ — but he did not see anything in the appellant’s hand. He did not see the point of contact, but saw the victim go backwards at impact, and the top part of his body lean forward. The appellant ran off a few seconds after the lunge. Mr Simmons saw the victim walk around for five or ten seconds holding his stomach, then walk to the bar. The victim’s stomach was covered in blood. Mr Simmons did not see the appellant tuck anything into his jeans’ pocket.
David Yuan was a friend of the victim. He gave evidence that he met the victim at the pool hall, and a man he knew as ‘Chris’ (the appellant) arrived. Mr Yuan heard someone — he thinks Chris — swearing, saying, ‘Fuck you, you motherfucker’. He turned around and saw the victim with his hand ‘covering his belly’. Mr Yuan was a few metres away. Chris was ‘three to four metres or four to five metres’ from the victim, and was ‘running away’. The victim asked Mr Yuan to chase Chris, but Mr Yuan saw that the victim was bleeding and stayed to look after him. He did not see a weapon. In cross-examination, Mr Yuan said that about six days before the incident, he and the victim had been involved in an armed robbery in which the victim brandished a knife that had been concealed on his person. Indeed, the victim had earlier produced two knives, one of which he gave to Mr Yuan.
Li Yixin was an acquaintance of the victim. He said he came from the karaoke area and observed the victim ‘stepping on the ground’. When he went over to the victim he saw he was holding his stomach. Mr Li saw a person running past him, but did not see his face. He saw blood on the victim’s stomach. He did not see a knife or weapon either on the victim or on the ground, or in the hand of the person who ran past him.
Friends Deddy Kosasih, Lidya Paulina, Lizanna Wong and Christopher Wong, were together at the pool hall on the evening of the incident. Mr Kosasih was playing pool. He saw two men, standing approximately 10 to 20 metres away, and ‘some pushing around’. One man fled. The other said, ‘he took my stuff’, and walked to the wall holding his stomach. Mr Kosasih saw a red stain on tissue paper which had been against the second man’s stomach. He did not know the injured man or the other man.
Lidya Paulina had been playing pool with her boyfriend, Deddy Kosasih, and their friends Lizanna Wong and Christopher Wong. She heard a yell, ‘he took my stuff’, and looked up. A man was running towards the exit. Another man was yelling. She saw the man that was yelling walk around before sitting down and lifting his top. There was blood. She did not see any physical contact between the men, neither of whom she knew.
Lizanna Wong gave evidence that she saw two men ‘play-fighting’ for a couple of seconds. She then saw one of the men clutching his abdomen and sitting on the ground. The other man ran off. Ms Wong did not see any weapon used, but did see bleeding from the man who clutched his abdomen.
The statement of another patron at Charlton’s, Chun Hua Moy, was read into evidence. He said that he was playing pool when he heard a noise, like ‘ah’, and looked over to see two men ‘holding each other’, ‘they had their hands around each other’. One man ran away. The other had ‘his hand on his stomach’. He had a pained expression on his face, and blood all over his stomach and down his pants. The injured man started to chase the other, but Mr Moy told him to calm down. He saw a hole about three centimetres ‘in the top of his stomach’, which he helped wrap in cloth.
The victim’s girlfriend
Nannan Qi was the girlfriend of the victim. She gave evidence that she was in relationship with the victim, who called himself ‘Johnny’, at the time of the incident. The victim, and the person she knew as ‘Chris’, knew each other. Ms Qi had pleaded guilty to being an accessory after the fact to the armed robbery which had occurred six days earlier.
Staff of the pool hall
Danny Brun was the pool hall manager. He gave evidence that he saw an Asian male run past him. The male ran out quickly, and he only saw him for a second or two. Mr Brun then walked into the pool hall and heard screaming. He observed the victim, whom he knew as ‘Johnny’, on the ground holding his stomach. The victim was saying something about ‘your mother’ and a swear word in Chinese, and was pointing in the direction that the other man had run. Although he does not speak Chinese, Mr Brun recognises a smattering of words. Mr Brun saw that, as the victim tried to get to the bar to find a cloth, there was blood around his stomach. He telephoned the police and ambulance. Mr Brun did not see any weapon, and no weapon was found after the incident.
Jason Mackie was an employee. His evidence was that he heard shouting, and looked over to see someone throw what appeared to be a punch and run off. It happened too fast to see the man’s hand when the punch was thrown. Mr Mackie said, however, that it was ‘not a normal punch’. Rather, the punch was like a ‘sidewise punch’. It was more of a ‘round movement’. The male who delivered the punch went to run off, paused, then ran straight to the exit. Mr Mackie saw the other male bent over. The man held his stomach. He walked into the bar area then back to the pool area. Mr Mackie did not see an injury, but he saw a trail of blood following the male who had been punched. He did not see any weapon, and did not see the male, who threw what he thought to be a punch, put anything into his pocket.
Medical evidence
Christian Kenfield, a trauma surgeon at the Royal Melbourne Hospital, gave evidence that he saw the victim for the first time at 12:30am on 29 October 2007. The victim sustained a single stab wound ‘about half-way between the breast bone and belly button’. During surgery, he observed that the wound had penetrated to a depth of ‘about’ six centimetres. Although it was only 15 millimetres in length on the surface of the skin, the skin may operate as a ‘fulcrum’. There was a cut to the liver ‘about six to seven centimetres in length’. The cut had penetrated both the front surface and back surface of the liver. It was a ‘serious injury’. The victim was discharged from hospital on 1 November 2007.
Police
Christopher Ball was a police officer who attended the scene. The victim was slumped against a wall. Mr Ball observed that he had a wound to his abdomen. A search of the area did not locate any knife or weapon. Mr Ball did not see any knife on the victim, who was wearing a short sleeved shirt and jeans, although the victim was not searched. He tried to encourage the victim to speak to him but he would not. The victim was not forthcoming with information. Mr Ball said that he victim’s shirt had a two centimetre slit in it (the slit being consistent with a knife or similar implement having perforated it). There was no evidence as to what became of the jacket the victim could be seen wearing in the CCTV footage.
Pixie Fuhrmeister was a sergeant of police at Melbourne West police station. She received a call to go to Charlton’s pool hall at 10:40pm. She gave instructions for the scene to be preserved. When she attended the scene she took photographs and obtained CCTV footage. She directed other police to conduct a search of the premises, and surrounding areas including laneways and rubbish bins. No knife or weapon was found.
Daniel Drever, a detective, produced the victim’s clothing, which had been obtained at the hospital. The witness gave evidence that the appellant left Australia on 2 November 2007 and did not return until 14 November 2011. He was arrested in February 2013. The victim went to China on 14 October 2009, and had not returned to Australia.
Duncan Frame, was part of the police investigation. He spoke to the victim at the hospital at 7:15pm on 29 October 2007, with the assistance of the victim’s girlfriend, Ms Qi. The victim said he did not know who had stabbed him or why.[2]
Defence evidence
[2]The judge refused an application made by the prosecution pursuant to s 65(2)(c) of the Evidence Act 2008 to tender two statements made by the victim.
The appellant, Tian Xiao Chen, gave evidence in his defence. He said he went to the pool hall to see friends. They were not there. Lin Hui, whom he did not know, but whom he knew of through his friends, walked towards him and spoke to him. He said, ‘Stupid cunt, why are you here?’; and ‘how dare you run here — come here all by yourself’. Lin Hui also said, ‘Why you fucking meddle in my business? If you do that again, I’m going to do you’. He was talking loudly and the appellant was ‘a little bit afraid’. The appellant gave evidence that he ignored him. He started to leave when the victim walked out in front of him, asked, ‘Why aren’t you fucking talking to me, retard?’, and said, ‘Come with me, go downstairs’. The appellant gave evidence that he, ‘just punched, give him a punch and … fled’. He said, ‘I just hit him with my fist’. After he punched the victim, he stood shocked for a few seconds before running away. He said that the victim had said to him, ‘You’re fucking there minding my business and do [you] want to die or not’. He ‘pulled’ the victim ‘a little bit and punched him’. The appellant fled the country after hearing that the victim was injured because he was afraid of retribution. In cross-examination, he said that he was standing behind the victim at the time of the incident because the victim had asked him to follow him downstairs. Although the CCTV footage showed that the victim was not looking at him, the appellant gave evidence that he was still talking to him immediately prior to the incident. The appellant denied that he pulled the victim with his left hand because he wanted to make sure the knife or weapon went fully into him. He denied that he had an ‘implement’ or that he stabbed the victim.
The appellant’s submissions
Counsel for the appellant submitted that motive was not relied on to establish guilt. The post-offence conduct, flight, is ‘tenuous’ given the appellant’s sworn testimony. It was submitted that the objective evidence of the victim having recently committed armed robbery, was sufficient to engender fear in the appellant’s mind, and thus flight was consistent with the defence case.
It was significant, the appellant argued, that no eyewitness observed a weapon in the appellant’s hand before, during or after the relevant confrontation. Further, the victim did not complain to any person present that he had been stabbed by the appellant. Police had undertaken a thorough search of the scene.
Counsel argued that the CCTV footage showed the victim wearing a long-sleeved jacket, but it was missing when police arrived on the scene. This was important, since the victim had earlier carried concealed knives. Given the victim’s absence from the trial, however, the appellant was unable to explore this aspect. Furthermore, police described the victim as being uncooperative at the scene. He told neither the police nor the treating medical staff how he came to be injured.
The trauma surgeon described the penetrating abdominal wound as being six or seven centimetres deep, which would require quite a long penetrating object, yet no weapon was seen by the witnesses, and no instrument can be seen in the CCTV footage or stills taken from the footage. Enhanced footage and stills, which show the appellant’s hand shortly before swinging his right hand at the victim’s torso, confirm the absence of a weapon. What can be seen is a punch.
At trial, counsel submitted, the appellant had advanced a positive case of self‐inflicted injury when a weapon concealed on Lin penetrated his abdomen as the appellant punched him with a clenched fist. The appellant admitted punching Lin to the torso in an attempt to flee the intimidation. In his evidence, the appellant denied being armed with a weapon, and he denied using a weapon to inflict a stab wound. The appellant, counsel submitted, had not been discredited in cross‐examination. That is of particular significance, given that the alleged victim did not give evidence.
Given this concatenation of factors, the appellant’s counsel submitted that there was sufficient evidence to found an inference consistent with innocence. When regard is had to the evidence as a whole, so it was submitted, the Court could not be of the view that the jury could properly be satisfied beyond reasonable doubt of the appellant’s guilt; and would positively be persuaded that there was a reasonable hypothesis consistent with innocence.
The respondent’s submissions
Counsel for the respondent submitted that there was evidence of a blow from the appellant’s right arm to the victim’s abdomen. Immediately afterwards, the victim was seen to have a stab wound to his abdomen. The prosecution relied upon an inference that the appellant’s blow had involved the use of a weapon, and had thus caused the stab wound.
Substantial reliance was put on the CCTV footage, which shows that the appellant grabbed behind the victim’s shoulder with one hand and swung his other hand towards the victim’s stomach. The victim’s immediate response suggested that he had been injured. One witness had described the way the victim swung his arm as not looking like a normal punch; and another described the appellant’s hand as looking as though it was gripping something. It was submitted that those are also the impressions that one gains from viewing the CCTV footage. Counsel argued that the appellant’s actions do not seem to be a punch at all. Rather, they appear consistent with what one would expect in an attack with a bladed weapon.
Counsel for the respondent relied on the fact that that the appellant fled the scene and fled the country. It was open to the jury to reject the appellant’s evidence that he did not stab the victim. The defence’s suggested mechanism for the cause of the injury was implausible, and could properly be rejected by the jury.
Analysis
Although the principles which guide the Court are well-known, I should briefly acknowledge them. A complaint that a conviction is unsafe and unsatisfactory requires the Court to assess whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. [3] In determining whether it was open to the jury to be satisfied of guilt, the Court must carry out its own independent assessment of the evidence. Furthermore, in assessing whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, the critical question is whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[4] It is insufficient for the appellant merely to show that there was material which might have led the jury to fail of satisfaction of guilt beyond reasonable doubt.[5]
[3]M v The Queen (1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ).
[4]Ibid 492–3; Libke v The Queen (2007) 230 CLR 559, 596–7 [113].
[5]See also Klamo v The Queen (2008) 18 VR 644, 653–4 [38]–[40]; Greensill v The Queen (2012) 37 VR 257, 277 [82]–[83].
The appellant’s case was a hybrid of self-defence and accident. On his case, he punched the victim because he felt intimidated — perhaps a pre-emptive strike in self-defence — but he did not intend to cause serious injury, because he was unarmed. Somehow his ‘punch’ must have caused a concealed blade on the victim’s person to puncture his abdomen.
In my opinion, the defence explanation for the victim’s abdominal wound is far-fetched. The suggested mechanism by which the victim came to suffer the injury is wholly implausible. To say as much is not to invert the onus of proof. Rather, it is to take notice of the fact that, based on the whole of the evidence, no reasonable hypothesis exists other than that the appellant caused the penetrating wound to the victim whilst armed with a bladed weapon.
I have viewed the CCTV footage several times. Two sets of footage — both of which have been enhanced — capture the incident with which this appeal is concerned. One set of footage — which has also been enhanced — shows the appellant fleeing along the laneway in which the pool hall is located. (In total, therefore, there are six sets of footage — three enhanced, and three unenhanced — depicting two incidents.) Not much can be drawn from the footage of the appellant fleeing along the laneway, other than that he appears to be running, and, so far as I can see, is not seen to discard anything.
Of more moment are the two sets of enhanced footage, taken from different perspectives, which show the critical interaction between the appellant and the victim. The footage shows the victim apparently milling around in the pool hall, where billiard tables and patrons are evident. He is wearing a long-sleeved jacket, undone and the front, and what appears to be a tee-shirt. The victim is then seen to commence to walk towards the exit, with the appellant walking slightly behind him and to his right. It appears that the appellant is wearing a short-sleeved shirt. The appellant’s right hand can be seen to be clenched, with his thumb to the fore, and the knuckles angled thumb downwards, in the attitude that might be expected if an object was being held concealed in the hand. He can then be seen — without any apparent warning — to grip the victim’s right shoulder with his left hand and swing his right fist at the victim. In one piece of footage it appears that the appellant lunges over the victim’s shoulder from slightly behind, and strikes the victim’s torso with the top of his fist, in the area where the thumb and index finger meet, with his fist angled slightly downwards. It is not so obvious in the second piece of footage that the appellant’s arm comes over the shoulder, but it is still conspicuous that he strikes the victim, from the victim’s right side and from slightly behind, in a generally ‘roundhouse’ motion, whilst gripping the victim’s right shoulder. Again, it is apparent that he strikes with the top of his right fist, rather than with the knuckles. Indeed, the attitude of the fist, and in particular, the placement of the knuckles, is unlike any punch that I have ever seen.
The second piece of footage shows a further detail that is obscured by the architecture of the doorway in the general area of where the incident took place — having struck once, the appellant seems to attempt a further blow, although it is not apparent that the blow makes contact.
It is obvious from the footage that, once he is struck, the victim doubles over and recoils in apparent pain, and quickly backs away from the appellant, who then flees the scene. The victim can then be seen to look down at his abdomen and clutch himself, whilst walking around in the room where billiard tables are located. He appears agitated, and people near him appear to be solicitous to his distress. Plainly, the victim was taken by surprise by the appellant’s attack. His hands were more or less by his sides when he was struck. In my opinion, no question of self-defence — pre-emptive or otherwise — could properly be entertained by any sensible tribunal of fact.
My viewing of the CCTV footage dispelled any doubt that I might have had as to whether the appellant stabbed the victim with a knife or similar implement, or simply punched him. Immediately prior to striking the victim, the appellant’s hand is carried as if concealing something. He appears to strike without warning. Significantly, the blow is delivered in a stabbing motion. It is unlike a punch. The victim immediately recoils as if in pain. Witnesses almost immediately observe blood. In these circumstances, the jury would have had little difficulty in rejecting the hypothesis that the appellant merely punched the victim, and that somehow that ‘punch’ caused a concealed weapon to penetrate the victim’s torso to a depth of six centimetres. Indeed, it would have been surprising if the jury reached a different view. Qualifications in Physics or Biomechanics are not required to conclude — beyond reasonable doubt — that the mechanism of the cause of injury posited by the defence is fanciful. In my view, having viewed the footage, the jury would have had no doubt that the appellant’s evidence that he merely punched the victim was fabricated.
I should add that my view is fortified by the evidence concerning the two centimetre cut located in the victim’s shirt, adjacent to the position of the wound to his abdomen. This evidence demonstrates that the penetrating object travelled through the shirt into the victim’s abdomen. On the defence case, the damage to the shirt could only have been inflicted by the victim having had a knife or similar implement located in his waistband at the time the appellant struck his blow. When one views the CCTV footage, however, a weapon in the victim’s waistband is conspicuously absent.
As I have mentioned, counsel for the appellant relied significantly on the fact that none of the eye witnesses saw a knife or other weapon in the hand of the appellant, and no knife or similar implement can be discerned in the CCTV footage. Moreover, counsel submitted that a penetrating abdominal wound being six or seven centimetres deep would require quite a ‘long’ penetrating object. There are ready explanations for these matters. First, six or seven centimetres is, in imperial measurement, less than three inches. Not much would be required to conceal a blade of that length. Secondly, the attitude in which the appellant is holding his right hand shortly before he strikes the victim strongly suggests that he is concealing something in his right hand. Thirdly, the blow is struck quickly. It is plain that the victim did not expect it. And it is self-evident that the eye witnesses did not anticipate that there was about to be a descent into violence by the appellant or his victim, which might have galvanized their attention. In those circumstances, it is unsurprising that no weapon was observed by witnesses present, or is readily detectable on the CCTV footage.
Having examined the whole of the evidence, I am satisfied that it was open to the jury to convict the appellant. Indeed, it seems to me that it would have been perverse for the jury to have done otherwise.
Conclusion
I am unpersuaded that the verdict of guilt was one that was not open to the jury.
The appeal must be dismissed.
WEINBERG JA:
I agree that, having regard to the entirety of the evidence, it was well open to the jury to convict the appellant on this charge. I would dismiss the appeal.
DIXON AJA:
I also agree.
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