Director of Public Prosecutions v Shang
[2025] ACTSC 277
•3 July 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Shang |
Citation: | [2025] ACTSC 277 |
Hearing Dates: | 19-26 May 2025, 11 June 2025 |
Decision Date: | 3 July 2025 |
Before: | McWilliam J |
Decision: | For CC2023/6522, being the charge of aggravated burglary contrary to s 312 of the Criminal Code by virtue of s 45A of the Criminal Code (Count 1 on the Indictment dated 23 October 2023), I find the accused guilty. For CC2023/6521, being the charge of assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act, again by joint commission (Count 2 on the said Indictment), I find the accused guilty. For CC2023/6523, being the charge of assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act, again by joint commission (Count 3 on the said Indictment), I find the accused guilty. |
Catchwords: | CRIMINAL LAW – TRIAL BY JUDGE ALONE – joint commission – aggravated burglary – assault occasioning actual bodily harm – whether a reasonable doubt exists as to the existence of an agreement between the accused and another person – whether accused and another person trespassed – whether accused acted in self-defence |
Legislation Cited: | Court Procedures Rules 2006 (ACT) Crimes Act 1900 (ACT) s 24(1) Criminal Code 2002 (ACT) ss 7, 18, 20, 22(1), 22(2), 45A, 56, 312 Criminal Code Act 1995 (Cth) Schedule s 5.4 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 72(2) Evidence Act 2011 (ACT) ss 20(3), 136 Public Interest Disclosure Act 2012 (ACT) Supreme Court Act 1933 (ACT) ss 68B, 68C(2) |
Cases Cited: | Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 Barca v The Queen [1975] HCA 42; 133 CLR 82 Barker v The Queen (1983) 153 CLR 338 Davidson v The Queen [2009] NSWCCA 150; 75 NSWLR 150 DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau (No 2)[2023] ACTSC 125 DPP v Higgins [2023] ACTSC 314 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Hann v Director of Public Prosecutions (Cth) [2004] SASC 86; 88 SASR 99 Huynh v The Queen [2013] HCA 6; 87 ALJR 624 Inglis v Adamson [2024] ACTSC 4 Jones v University of Canberra [2016] ACTSC 78; 311 FLR 1 Jovanovic v R (1997) 42 NSWLR 520 McAuliffe v The Queen (1995) 183 CLR 108 Miller v The Queen [2016] HCA 30; 259 CLR 380 R v Baden-Clay [2016] HCA 35; 258 CLR 308 R v Calis [2013] QCA 165 R v Hillier [2007] HCA 13; 228 CLR 618 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Massey [2000] ACTSC 107 R v RH [2011] ACTSC 38 R v Roux [2015] ACTSC 307 Saipani v The Queen [2021] ACTCA 5 South v R [2007] NSWCCA 117 |
Texts Cited: | Revised Explanatory Statement, Crimes (Serious Organised Crime) Amendment Bill 2010 (ACT) |
Parties: | Director of Public Prosecutions Xiantao Shang ( Accused) |
Representation: | Counsel M Lucero ( DPP) J Maher ( Accused) |
| Solicitors ACT Director of Public Prosecutions Andrew Byrnes Law Group ( Accused) | |
File Number: | SCC 246 of 2023 |
McWILLIAM J:
1․Two men, one of whom is Mr Xiantao Shang (the accused), claimed they were owed money by a woman named Peng Juan. The debt was over $100,000 and appears to have been gambling related. The woman (who also went by the English name Linda) had a history of avoiding the two men by not returning phone calls and at one point leaving Canberra. Through the assistance of the woman’s former lover, who did some detective-work of his own tracking the woman down, the men became aware that she had returned to Canberra and was advertising sexual services from an apartment in Belconnen. Using a third person as a proxy to avoid alerting the woman of their identities, the two men made an appointment with the person they thought was their debtor. However, when they arrived at the Belconnen apartment, a different woman opened the door. This case is about what happened next.
Charges against the accused
2․By indictment dated 23 October 2023 (Indictment), the accused faces the following charges:
(1)Aggravated Burglary contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code) by virtue of s 45A of the Criminal Code (that is, by joint commission) (Count 1);
(2)Assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT) (Crimes Act), again by joint commission (Count 2); and
(3)Assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act, again by joint commission (Count 3).
3․The particulars of the counts on the Indictment were as follows:
(1)That on 25 June 2023, the accused and Wengao Zheng (the co-offender) entered or remained in a building, namely an apartment in 2 Grazier Lane Belconnen, as trespassers with intent to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building and were in company with each other.
(2)That on 25 June 2023, the accused and the co-offender assaulted Hongmei Li (the female complainant) and thereby occasioned to her actual bodily harm.
(3)That on 25 June 2023 the accused and the co-offender assaulted Jun Liu (the male complainant) and thereby occasioned to him actual bodily harm.
4․The accused has pleaded not guilty to each count on the Indictment.
5․The language of “co-offender” is used at times because Wengao Zheng pleaded guilty and was sentenced for those offences in 2024.
Verdict pursuant to trial by judge alone
6․The trial was conducted by judge alone over seven days, from 19 to 26 May and 11 June 2025, following an election made by the accused in writing (lodged on 17 November 2023) in accordance with the certification requirements of s 68B of the Supreme Court Act 1933 (ACT) (Supreme Court Act). That election was filed before I was allocated the trial, and there is otherwise no other time limit prescribed under the Court Procedures Rules 2006 (ACT).
7․Because the verdict is to be given by judge alone, these reasons for judgment will provide the applicable principles of law and the findings of fact I have made: s 68C(2) of the Supreme Court Act. This includes an exposition of the reasons for making those findings and, ultimately, the verdict: Fleming v The Queen [1998] HCA 68; 197 CLR 250 at [28]. See similarly: R v Massey [2000] ACTSC 107 at [44]-[47]; and, more recently, DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau (No 2)[2023] ACTSC 125 at [5].
Prosecution case
8․The case for the prosecution was that on the evening of 25 June 2023, the female and male complainants were at home in their two-bedroom apartment in Belconnen. The female complainant ran a massage business out of the couple’s spare room. She had received and accepted a booking request from an unnamed customer. Shortly after 7:00pm, the downstairs buzzer rang. The female complainant gave the person she believed to be a customer access into the building. The accused and the co-offender entered the building, went to the apartment and knocked on the apartment door.
9․The female complainant opened the door a crack and was surprised to see two unknown men standing outside her front door. The accused was the taller of the two. The co-offender was the shorter man, who was wearing black. The prosecution alleges that the two men pushed the door open aggressively and barged into the apartment uninvited. Speaking in Mandarin, the two men demanded to see someone with a Chinese name that the female complainant did not recognise. As the two men moved into the apartment, the female complainant followed them and pulled on the clothing of the co-offender. He pushed her roughly and her head hit the wall.
10․The female complainant told the men to leave the apartment. They did not. Instead, they moved on towards the master bedroom, which was at the far end of the apartment, where the male complainant was located. The male complainant also heard them demanding to see a person with a Chinese name that he did not recognise. The male complainant told the men to get out of his home and called the police via triple zero at 7:12pm. He was unable to describe the emergency in English, but police were dispatched to attend the apartment.
11․The accused and the co-offender began to make their way to the front door. In the hallway near the front door, a struggle ensued, where it is alleged the accused and co-offender commenced a violent attack upon the complainants. The sound of the attack was recorded in the male complainant’s triple zero call to police, which was still connected.
12․The two complainants were kicked and punched multiple times in the face and body, sustaining bruises, abrasions and swelling on both their faces. The male complainant suffered a mildly displaced fracture of the nasal bone. There were no injuries to the accused or the co-offender.
13․Police arrived at the apartment at 7:25pm while the accused and the co-offender were still inside the apartment. Upon searching the co-offender, cable ties and a length of duct tape were discovered in pockets of his clothing.
Elements of the offences
14․Each of the counts is charged by joint commission and I will deal with that aspect first, followed by setting out the elements of the offences that must be satisfied beyond reasonable doubt.
Joint commission under s 45A of the Criminal Code
15․To establish an offence by joint commission under s 45A of the Criminal Code the prosecution must establish beyond reasonable doubt that:
(1)The accused entered into an agreement with at least one other person to commit an offence: s 45A(1)(a).
(2)The accused and at least one other person to the agreement intended that an offence would be committed under the agreement: s 45A(4).
(3)An offence was committed, either:
(i) in accordance with the agreement: s 45A(1)(b)(i); or
(ii) in the course of carrying out the agreement: s 45A(1)(b)(ii).
16․Thus, an offence by joint commission might be committed in two different ways (resulting in two different reasoning pathways) – either “in accordance with the agreement” under s 45A(1)(b)(i), or “in the course of” carrying out the agreement under s 45A(1)(b)(ii).
17․As explained in Inglis v Adamson [2024] ACTSC 4 at [62]:
Section 45A is a deeming provision: R v Holliday [2017] HCA 35; 260 CLR 650 at 672 [77]. It provides that a person “is taken to have committed an offence” if the person enters into an agreement to commit an offence and either an offence is committed in accordance with the agreement, or an offence is committed in carrying out the agreement. Like s 11.2A of the Commonwealth Criminal Code, s 45A of the Criminal Code does not create a new offence, but rather extends criminal responsibility to all of those who enter into an agreement to commit an offence: Franze v The Queen [2014] VSCA 352; 46 VR 856 at [97].
18․The provision codifies or (more accurately) adapts the offence at common law of joint criminal enterprise and the principle of extended common purpose: Revised Explanatory Statement to the Crimes (Serious Organised Crime) Amendment Bill 2010 (ACT) (Explanatory Statement) at 6-8. The wrong in such an offence has been described as being “the mutual embarkation on a crime with the awareness that an incidental crime may be committed in carrying out the agreement”: Miller v The Queen [2016] HCA 30; 259 CLR 380 at [34].
What constitutes an agreement?
19․An agreement may consist of a non-verbal understanding, and may be entered into before or at the same time as the conduct making up any of the physical elements of the joint offence was engaged in: s 45A(5).
20․The term is “intended to be broad in its meaning and capture any agreement, arrangement or understanding that can be implied or inferred taking into account all of the circumstances”: Explanatory Statement at 8.
What constitutes intention under s 45A(4)?
21․A person has the requisite intention that an offence will be committed if the person either means to engage in the conduct constituting the offence, or to bring the offence about, or is aware that the offence will happen in the ordinary course of events: s 18 of the Criminal Code.
What constitutes commission of an offence under s 45A(1)(b)(i)?
22․As to the first pathway (s 45A(1)(b)(i)), under s 45A(2) of the Criminal Code, an offence is committed “in accordance with the agreement” if:
(1)The conduct of one or more of the parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(2)To the extent that a physical element of the joint offence consists of a result of conduct, the result arises from the conduct engaged in; and
(3)To the extent that the physical element of the joint offence consists of a circumstance, the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance.
23․For this pathway, the offence that is committed is the one that was agreed upon, or the conduct engaged in is “of the same type as the offence agreed to”. The offence is therefore committed “in accordance with the agreement”.
What constitutes commission of an offence under s 45A(1)(b)(ii)?
24․The second pathway is where a different offence was committed “in the course of carrying out the agreement”. In this circumstance, under s 45A(3) of the Criminal Code an offence is committed “in the course of carrying out the agreement” if the person is “reckless about the commission of an offence that another person in fact commits in the course of carrying out the agreement”.
25․That alternative essentially recognises that when engaging in criminal conduct, bad things may happen that were not the intended offences. If a person is reckless about the risk of the different offence occurring, they will not escape liability simply because the offence that was committed differed in type from that which was originally planned.
Recklessness about the commission of an offence by another person
26․To understand what constitutes recklessness, one turns to s 20 of the Criminal Code. The accused will have been reckless in relation to the commission of an offence if:
(1)He is “aware of a substantial risk” that the offence will be committed; and
(2)“[H]aving regard to the circumstances known” to him, “it is unjustifiable to take the risk”.
27․The language of s 20 of the Criminal Code is that used in s 5.4 of the Schedule to the Criminal Code Act 1995 (Cth). In discussing that definition of “recklessness”, it has been stated that:
(1)The term “substantial” means “real or of substance as distinct from ephemeral or nominal”: Hann v Director of Public Prosecutions (Cth) [2004] SASC 86; 88 SASR 99 (Hann) at [25], cited in R v Roux [2015] ACTSC 307 (Roux) at [131], R v RH [2011] ACTSC 38 at [14] and R v Calis [2013] QCA 165 at [33];
(2)The word “risk” means “possibility, chance or likelihood”: Hann at[25]; and
(3)Awareness requires a conscious awareness – it is not enough to show that the risk was obvious or well-known: Hann at [26], cited in Roux at [132].
28․As to how to establish that it was “unjustifiable to take the risk” in the circumstances known to the accused, this is a question of fact requiring an objective assessment: s 20(3) of the Criminal Code.
29․The definition of recklessness in s 20 applies to a variety of offences where that term is used. The “circumstances known to the person” will inevitably change and the assessment of justification will be shaped by the context in which the term “recklessness” is used.
30․In the case here, “recklessness” arises in the context of s 45A(3), where the offence occurs in the course of carrying out an agreement to commit a different offence. The relevant “risk” that is being assessed for justification is the possibility that, while carrying out an agreement to commit an offence, an additional or different offence will occur.
31․As committing an offence is itself not justifiable conduct, the risk of a different or additional offence being committed will similarly not be a risk capable of justification. An example which succinctly explains the point may be found in the decision of DPP v Higgins [2023] ACTSC 314, where Berman AJ was dealing with a charge of assault occasioning actual bodily harm by joint commission. The facts alleged an agreement to commit an offence of burglary. His Honour considered each limb of “recklessness” in the context of s 45A of the Criminal Code. His Honour found on the facts there before the court (at [45]-[46]) that the offender was aware of a substantial risk that, in getting away from the premises where the burglary was committed, it would be necessary for the accused and his unknown co-offender to confront someone who represented a threat to their successful escape. His Honour also found that the accused must have been aware of the substantial risk that that threat would be dealt with by an assault of the nature carried out by the co-offender. His Honour then dealt with justification at [49]:
Given that the risk arose because of the accused’s criminal conduct, it was in no way justifiable for the accused to take the risk that the unknown male would commit the [additional] offence... .
Aggravated burglary
32․The offence of burglary is relevantly prescribed in s 311 of the Criminal Code as follows:
(1)A person commits an offence (burglary) if the person enters or remains in a building as a trespasser with intent—
(a)to commit theft of any property in the building; or
(b)to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building; or
(c)to commit an offence in the building that—
(i) involves causing damage to property; and
(ii) is punishable by imprisonment for 5 years or longer.
…
(4) For this section, a person is not a trespasser only because the person is permitted to enter or remain in the building—
(a)for a purpose that is not the person's intended purpose; or
(b)because of fraud, misrepresentation or someone else's mistake.
What constitutes “trespass” as an element of burglary
33․It can be seen that trespass is one of the necessary elements of burglary. By virtue of the words used in s 311(4) of the Criminal Code, the purpose for which a person enters a building is not a necessary ingredient of a trespass: Saipani v The Queen [2021] ACTCA 5 (Saipani) at [43]-[45]. What is required is that a person enter the building without an invitation or implied invitation by a (lawful) occupant: Saipani at [44].
34․At common law, there is a difference between a civil trespass and a criminal trespass, with the latter requiring an additional ingredient of the person knowing that they are present in the building without permission (or being reckless as to that fact): Barker v The Queen (1983) 153 CLR 338 per Dawson J at [4]-[5].
35․However, the statute overlays the common law. In this case, because trespass is incorporated as part of a statutory offence, the statutory default fault provisions contained in the Criminal Code apply. Here:
(1)Entering a building or remaining in a building is a physical element that consists only of conduct. Accordingly, intention is the fault element for that physical element: s 22(1) of the Criminal Code.
(2)The lack of an invitation or permission to enter or remain in a building is a circumstance in which the physical conduct occurs. Accordingly, recklessness is the fault element for that physical element: s 22(2) of the Criminal Code.
36․Thus, what is required to establish trespass is that a person enters or remains in a building, such presence is intentional, they did not have permission to so enter or remain, and they were reckless about whether they had permission or an invitation to be there.
The additional requirement of intention to commit an offence
37․What transforms trespass into burglary is the element of intent to commit any of the offences specified in s 311(1). Section 311(1)(b) is the intent that is relevant to the circumstances alleged here.
38․Section 18 of the Criminal Code, prescribes the requisite “intention” as follows:
(1)A person has "intention" in relation to conduct if the person means to engage in the conduct.
(2) A person has "intention" in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
(3)A person has intention in relation to a circumstance if the person believes that it exists or will exist.
The accused is charged with the aggravated form of the offence of burglary under s 312 of the Criminal Code. The relevant circumstance of aggravation alleged here is that the burglary was committed in company with one or more people.
39․Accordingly, the elements of aggravated burglary to be established beyond reasonable doubt are:
(1)The accused entered or remained in a building;
(2)The accused intended to enter or remain in a building;
(3)The accused had no permission to enter or remain in the building (that is, he was a trespasser);
(4)The accused was reckless as to whether his entry into or remaining in the building was without permission;
(5)At the time of entering or remaining in the building the accused intended to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building;
(6)The accused was in company with one or more people at the time of committing the burglary; and
(7)The accused was reckless as to the fact of being in company with one or more people.
The combined elements of aggravated burglary by joint commission
40․Synthesising the elements of aggravated burglary by joint commission insofar as they are relevant to the circumstances of this case, the elements that must be established beyond reasonable doubt are:
Agreement element
(1)The accused entered into an agreement with the co-offender to commit an offence;
(2)The agreement was to carry out aggravated burglary; that is, to enter or remain in a building (in company with each other) as trespassers, with the intent of causing or threatening harm to anyone in the building (agreed offence);
Intention element
(3)The accused and the co-offender intended that the agreed offence would be committed;
Conduct element
(4)In accordance with the said agreement (the first pathway for joint commission), an offence of the same type was committed in that:
1․ While trespassing, one or more of the accused or the co-offender caused harm or threatened to cause harm to anyone in the building (joint offence);
2․ The physical element of the joint offence was of the same type as the agreed offence; and
3․ To the extent that the physical element of the joint offence consists of a result of conduct (harm), such harm arose from either the accused’s or the co-offender’s conduct; and
4․ To the extent that the physical element of the joint offence consists of a circumstance (trespass), the conduct happened in those circumstances, namely:
(i)The accused and the co-offender intentionally entered or remained in a building without permission; and
(ii)They were reckless as to whether their entry into or remaining in the building was without permission;
Aggravated element
(5)At the time of the joint offence, the accused was in company with one or more people; and
(6)The accused was reckless as to the fact of being in company with one or more people.
Assault occasioning actual bodily harm and the combined elements with joint commission
41․The elements of the offence of assault occasioning actual bodily harm under s 24 of the Crimes Act are:
(1)The person deliberately applied force to another person;
(2)The application of force was without lawful excuse; and
(3)The application of force caused actual bodily harm.
42․Synthesising s 24 of the Crimes Act and s 45A of the Criminal Code, the elements of the offence of assault occasioning actual bodily harm by way of joint commission that must be established beyond reasonable doubt (under either of the s 45A(1)(b) pathways) are:
Agreement element
(1)There was an agreement between the accused and the co-offender that they would carry out an offence;
(2)The agreement was to carry out aggravated burglary; that is, to enter or remain in a building (in company with each other) as trespassers, with the intent of causing or threatening harm to anyone in the building (agreed offence);
Intention element
(3)The accused and at least one other party to the agreement (the co-offender) intended that the agreed offence would be committed.
Conduct element
(4)In accordance with the agreement, an offence of the same type was committed in that:
(i) One or more persons who were party to the agreement deliberately applied force to the respective complainant (relevant to Count 2 or 3) without lawful excuse, being conduct that makes up the physical elements of an offence (joint offence) of the same type as the agreed offence; and
(ii) To the extent that the joint offence consists of a result of conduct (the occasioning of actual bodily harm), actual bodily harm was caused by the conduct comprising the joint offence.
[Note: As the joint offence does not consist of a circumstance, the third limb of s 45A(2) does not arise here].
(e) Alternatively, in the course of carrying out the agreement:
(i)A person who was party to the agreement committed an offence by deliberately applying force without lawful excuse, causing actual bodily harm; and
(ii)The accused was reckless about the commission of that offence.
Issues
43․There are a number of matters that were not disputed issues in this trial. The accused did not dispute that he attended the apartment in Belconnen on 25 June 2023, in the company of the co-offender. He did not dispute that the male and female complainants suffered actual bodily harm.
44․With respect to Count 1, the accused disputed:
(1)That there was any agreement with the co-offender to commit an offence of trespass with intent to threaten or inflict harm;
(2)That the accused intended that any such offence would be committed under the agreement; and
(3)That there was any trespass. The accused disputed that he and the co-offender entered or remained in the residence with any intention to commit an offence.
45․With respect to Counts 2 and 3, the accused disputed whether the conduct occurred as alleged. He disputed that he assaulted either the male or female complainants. To the extent that there was any application of force by the accused to either complainant, the accused put in issue whether the application of force was unlawful on the basis that any actions he took were taken in self-defence.
46․To the extent that there was any application of force by the co-offender to the complainants (which there plainly was, as the injuries to the complainants were not disputed), and such force went beyond self-defence, the accused put the element of recklessness in issue. That is, the accused put in issue whether he knew, or was aware, that there was a substantial risk that the co-offender would act in the way he did.
Directions
47․In addition to setting out the principles of law applied and factual findings made as required by s 68C(2) of the Supreme Court Act,I am also obliged to take into account any warning or direction that would have been given, or a comment that would have been made, to a jury in the proceedings had the matter been tried before a jury: s 68C(3) of the Supreme Court Act.
Onus and standard of proof
48․The starting point is the presumption of innocence. The accused does not have to prove that he did not commit the offences charged. He is presumed to be innocent.
Pursuant to s 56 of the Criminal Code,the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. This is an applied provision (s 7 of the Criminal Code), meaning that it applies to offences located in other Territory laws (including the Crimes Act, which is relevant for Counts 2 and 3). That burden never shifts to the accused.49․The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offences charged unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. The standard of proof applies to each element of the offence.
50․If the evidence which I accept satisfies me beyond reasonable doubt of the accused’s guilt in relation to the offence charged, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
Separate consideration of each charge
51․The accused is charged with committing more than one offence. Applying R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82, I have warned myself as follows. The charges are being tried together as one trial for convenience and because the allegations arise out of a connected set of events. However, the prosecution must separately prove each offence. An accused is not guilty of anything unless and until his guilt is proved beyond reasonable doubt for each offence. I must separately consider the evidence referable to each charge. I am entitled to bring in a verdict of not guilty on one charge (relevant to this case, the principal offence of aggravated burglary) and guilty on another charge (either offence of assault occasioning actual bodily harm) if there is a logical reason for that outcome. I must also guard against being prejudiced against the accused on account of multiple charges. It would be quite wrong to think, ‘Oh well, he is charged with multiple offences so he must have done something wrong’.
52․If I have any reasonable doubt about the evidence of either complainant in relation to one of the charges, I must consider what effect, if any, that doubt has on my consideration of evidence of either of the other charges.
Impartiality and objectivity in fact finding
53․As a judge of the facts (as well as of the law), the facts that I find must be based only on the evidence. That includes the evidence given by the witnesses and that contained in any exhibits.
54․In assessing the evidence, I must apply my common sense, my individual experience and wisdom. I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
Directions pursuant to the Evidence (Miscellaneous Provisions) Act 1991 (ACT)
55․Here, two of the witnesses were complainants, giving direct evidence of what happened in the room where they were assaulted. Each of the complainants gave evidence during the trial by audio-visual link, from a remote witness room, rather than sitting in the same court room as the judge. This is usual practice. The mandatory direction applies not to draw any inference against the accused from the fact that a witness gave evidence by an audio-visual link: s 72(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
Witnesses
56․I must determine whether each of the witnesses is a credible and reliable witness. That is, in determining whether to accept a particular witness, I must turn my mind to whether I find the witness to be a witness of credit in terms of telling the truth, and also whether the witness’s evidence is an account that is reliable, in the sense of being an accurate memory of the event about which the witness has given evidence.
57․I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can:
(1)Accept everything that a witness has said if I consider all of it worthy of acceptance; or
(2)Reject everything that a witness has said if I consider none of it worthy of acceptance; or
(3)Accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
Unreliable and unfavourable evidence
58․In the usual case, the party who calls a witness is not permitted to cross-examine the witness. It is not for the party calling the witness to test the witness’ honesty or accuracy in respect of evidence given by them. In the usual case, it is the opposing party who has the right to test a witness by cross-examination.
59․However, in relation to the co-offender, I granted leave to the prosecution to ask questions concerning the evidence he gave. This leave was granted in part because the evidence the co-offender gave in the witness box appeared to be unfavourable to the prosecution. Another consideration in my decision to grant leave was that the co-offender had previously pleaded guilty to the same offences and, in doing so, relied on an agreed statement of facts that was before the court. That document appeared to contain prior inconsistent statements about what occurred on the night in question.
60․The statement of agreed facts was of course not a statement made on oath, and I have already limited the use to be made of it to assessing the co-offender’s credibility (that is, it cannot be relied upon for a hearsay purpose), applying s 136 of the Evidence Act 2011 (ACT) (Evidence Act).
61․I must decide what, if any, of the co-offender’s evidence I accept as honest and reliable. However, because this witness was one who was criminally concerned in the events giving rise to the proceeding, it is appropriate to warn and direct myself as to potential unreliability. Experience (of the courts) shows that the evidence given by a witness such as the co-offender may be unreliable. That does not mean such evidence is always unreliable. It is more a question of exercising caution. There are many reasons why the evidence of such a person may be unreliable. Possible reasons include:
(1)A witness who was, or might have been, involved in the alleged crime may want to shift the blame from himself onto others, and to justify (or minimise) his own conduct. In the process, the witness may construct untruthful stories, which tend to play down his own part in the crime and play up the part of others in the crime, even going so far as to blame quite innocent people. An example here is the possibility that the co-offender played up the role of the male and female complainants, blaming the initiation of violence on them.
(2)Conversely, and of greater significance here, a person who has admitted guilt for the offences in question may wish to take full responsibility for what occurred, for whatever reason. Just as persons who are, or might have been, involved in an alleged crime may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility, so too may they make false claims out of love, friendship or other loyalty. Here, the co-offender accepted that he was friends with the accused, knew that the accused had a wife and children in Australia and did not want to see the accused get into trouble. Having pleaded guilty and been sentenced, he may have been happy to take the full blame for the things that happened in the apartment on 25 June 2023.
62․There may be other reasons or motives for such a witness to give false evidence. It is not for the accused to establish what they might be. It remains for the prosecution to prove the essential aspects of its case and the accused does not have to prove anything.
63․Experience has also shown that once a witness has given a version of events to the police (or a court), which may also incriminate an accused, he may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue. Although there were parts of the statement of agreed facts that the co-offender expressly resiled from, there were also parts that at law may inculpate the accused (because of the nature of these charges, being by joint commission). For this reason, the use of the statement of agreed facts was limited to a non-hearsay purpose.
64․Finally on this aspect, the co-offender’s evidence was not given pursuant to any undertaking to give assistance in the trial of the accused. Accordingly, it is not necessary to consider any discount that he may have been given on sentence.
Motive to lie direction
65․The accused in this case suggested that the female and male complainants had a motive to lie to the police when they arrived due to the nature of the business operating from the spare room and the fact that such business may have been illegal. The prosecution also explored motives for lying with the co-offender, who was called in the prosecution case, which have been discussed above.
66․Where there is some evidence and a consequent submission that a witness has a motive to lie, my task is to consider that evidence and to determine whether I am nevertheless satisfied that the evidence given by the witness is true: South v R [2007] NSWCCA 117 at [42]. My view about the strength of the motive (whether that be faint or strong) might inform that satisfaction, but the focus of my consideration is on the truth of what the witness said rather than proof about any motive.
67․Importantly, and with regard to the male and female complainants, by submitting that each had a motive to lie the accused does not then have to prove any motive for a witness to say whatever that witness said: Jovanovic v R (1997) 42 NSWLR 520 (Jovanovic) at 521–522 and 535-536. In this case, that means the accused does not have to come up with an explanation about why the witness’ evidence may be unreliable or untrue.
68․What follows from that is that if I reject the suggestion that the witness had any motive to lie, that does not automatically lead to a conclusion that their evidence is truthful: Jovanovic at 523. The question comes back to whether I accept each complainant’s evidence about the facts that comprise the elements of each offence beyond reasonable doubt.
Complaint evidence
69․The prosecution here led evidence of complaint from First Officer Charles Dudley, who recorded evidence of the complainants telling him what happened on his body-worn camera footage. The triple zero call made by the male complainant (during which the female complainant also spoke) was also in evidence.
70․This type of evidence is referred to as “complaint evidence”. The first issue I must decide is whether to accept that the complaints were made. The accused did not dispute that the complaints were made and I accept that the complaints were made. Accordingly, the following directions apply to how each complaint may be used.
71․First, each complaint may be regarded as additional evidence of the events described by the complainants in the witness box.
72․Second (and regardless of whether I use the evidence in the first way or not), each complaint may be relevant to the truthfulness of each complainant’s evidence in court. The fact that each complainant made the complaints immediately after the incident in question, and in the manner in which they did, may make it more likely that they are telling the truth about the matters complained of. When assessing each complainant’s credibility and reliability, I can take into account any differences in the accounts they provided. In doing so, the applicable consideration is that different people have different personalities and react to experiences differently. I must bear in mind that just because a person says something on more than one occasion does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.
The accused did not give evidence
73․The accused did not give evidence. I must not speculate about what might have been said in evidence if the accused had given evidence. In particular, the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 at [51]. It is the accused’s right to say nothing at trial and make the prosecution prove his guilt to the high standard required. That he did not give evidence does not in any way suggest he is guilty of either offence charged: s 20(3) of the Evidence Act.
Self-defence direction
74․The accused claims that, if I find that he or the co-offender did use force on either complainant, what they did was justified because they acted in self-defence to the actions of each of the complainants towards them. The law recognises the right of a person to act in self-defence against an attack, or the threat of an attack, by another person.
75․This right arises when a person believes that the use of force is necessary in order to defend himself (in this case) against an attack, or the threat of one, by another person, and when what the person did in defending himself against that attack, or the threat of it, was a reasonable response in the prevailing circumstances as he perceived them to be.
76․The accused does not need to prove that he acted in self-defence; rather, the prosecution must prove that the accused did not act in self-defence. The prosecution may do this by proving beyond reasonable doubt either that:
(1)The accused did not believe at the time of doing what he did that it was necessary to do what he did in order to defend himself; or
(2)Even if he had such a belief, what the accused did nevertheless was not a reasonable response to the prevailing circumstances as he perceived them to be.
77․In determining the issue of whether the accused personally believed that his conduct was necessary for self-defence, I must consider the circumstances as the accused perceived them to be at the time. If I am not satisfied beyond reasonable doubt that the accused did not personally believe that his conduct was necessary for self-defence, I must then decide whether the prosecution has proved beyond reasonable doubt that the conduct of the accused was not a reasonable response to the circumstances as perceived by him. If the prosecution fails to do so, it will have failed to eliminate self-defence.
Good character
78․The accused led evidence of his unblemished criminal record. This was not disputed and I accept that the accused is a man of good character and reputation.
79․I must therefore take the accused’s good character into account in his favour in two ways:
(1)First, on the question of whether or not the prosecution has proved his guilt beyond reasonable doubt; and
(2)Second, on the question of whether or not to accept what the accused has said about the allegations against him.
80․However, the accused’s good character and reputation does not provide him with some kind of defence. People of good character and reputation do commit criminal offences. Every offender has committed a first offence and, before doing so, was a person of good character and reputation. The fact that the accused is a person of good character and reputation cannot prevail over, or provide a defence to, evidence of guilt, if the prosecution has proved beyond reasonable doubt that the accused is guilty of the offence.
Inferences
81․Inferences are conclusions of fact rationally drawn from a combination of proved facts. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may draw reasonable inferences from the facts that I find are established. I must be extremely careful about drawing inferences. I must examine any inference I may potentially draw from the evidence critically, to ensure that it is a justifiable inference in all of the circumstances.
82․In this case, the prosecution’s case turns on whether the accused intentionally participated in an agreement, and the evidence relevant to that issue is circumstantial. I therefore consider it appropriate to make a further direction. Where the case rests substantially on circumstantial evidence, I may not return a guilty verdict unless the prosecution has excluded all reasonable hypotheses consistent with innocence: R v Baden-Clay [2016] HCA 35; 258 CLR 308 (Baden-Clay)at [46] and [50]; and Barca v The Queen [1975] HCA 42; 133 CLR 82 at 104. The inferences drawn from the evidence must rest upon something more than mere conjecture: see Baden-Clay at [47] and the cases there-cited.
83․In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Baden-Clay at [47], citing R v Hillier [2007] HCA 13; 228 CLR 618 (Hillier) at [46]. The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Hillier at [48]. Individual items of evidence, on their own inadequate to found a conviction, may take strength from other items: Davidson v The Queen [2009] NSWCCA 150; 75 NSWLR 150 at [61].
Joint criminal liability direction
84․Previously at common law, a direction regarding the principles governing joint criminal liability may have been appropriate: Huynh v The Queen [2013] HCA 6; 87 ALJR 624 at [31]. This may have included a direction about extended common purpose, which arises where the offence committed is different from the offence which is the subject of the joint commission or foundational offence: May v The Queen [2012] NSWCCA 111; 215 A Crim R 527 at [249]-[252].
85․In the Territory, the provisions of the Criminal Code prescribe the elements of an offence by joint commission, and they overlap considerably with any direction that may previously have been given at common law. However, there are some important differences. For example, the requirement of possible foreseeability at common law, discussed in McAuliffe v The Queen (1995) 183 CLR 108, has been deliberately replaced with the statutory definition of recklessness: see the Explanatory Statementat 7-8.
86․Assuming that the statutory elements are demonstrably understood (which I have endeavoured to explain above), there is probably not the same need to separately direct or warn myself as to the principles governing joint commission.
87․However, for an abundance of caution and at the risk of repetition, I have applied a form of the direction in the context of s 45A of the Criminal Code as follows:
(1)For an offence arising by joint commission by virtue of s 45A of the Criminal Code, each person is responsible for the acts of another participant carrying out the offence.
(2)That is so regardless of the role taken by a particular participant. It does not matter whether the agreed offence is committed by only one or some of the participants in the agreement, or whether they all played an active part in committing that offence.
(3)In this case, the prosecution must establish the elements as explained above, being an agreement to commit an offence, the accused’s intentional participation in that agreement, and the occurrence of an offence in accordance with, or in the course of carrying out, the agreement.
(4)The agreement need not be expressed in words: s 45A(5) of the Criminal Code. Its existence may consist of a non-verbal understanding, and it may be entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in.
(5)The agreement must also have been to do all the acts with the relevant intention necessary to establish the offence.
(6)The agreement may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence. However, mere knowledge that another person intended to commit a particular crime does not amount to “agreement”.
(7)The circumstances in which two or more persons are participating together in the commission of a particular offence may themselves establish that, at some point in time, an agreement has been reached between them that the crime should be committed. For example, if two people are at the very same time punching a third person, it may be inferred or concluded that they had agreed to assault that person.
(8)In the way that the prosecution primarily argued Count 1, it must prove beyond reasonable doubt that the crime which was the subject of the joint agreement (or one of the same type, as explained above) was in fact committed, regardless of who actually committed each of the elements of that offence.
88․Things do not always turn out precisely as planned. For Counts 2 and 3, the prosecution alleges that, either in accordance with the agreement, or in the course of carrying out the aggravated burglary, either the co-offender or the accused assaulted the male and female complainants, occasioning actual bodily harm to each of them. Where that conduct was not part of the original agreement but was an additional offence that occurred along the way, if the accused was reckless (in the sense explained above) about it occurring, then the law will hold him equally responsible for those assaults – even if he did not personally carry out the conduct that occasioned the harm to each complainant.
89․Consideration will therefore need to be given to whether the offence of aggravated burglary carried with it a substantial risk of assault occasioning actual bodily harm. If it did, I am required to consider whether, having regard to the circumstances known to the accused at the time, it was unjustifiable to take the risk. For example, I may consider what the accused knew about the circumstances in which the aggravated burglary was to take place.
90․With those directions in mind, I turn to the evidence before the court.
Evidence in the trial
91․Seven witnesses gave evidence in this trial, six called by the prosecution and one called by the defence.
92․In the evidence, the accused and co-offender were distinguished by reference to their size, with the accused being “the taller one” and the co-offender being “the shorter one”. In the summary that follows, I have used the terms “accused” and “co-offender” for consistency in these reasons.
Hongmei Li (female complainant)
93․The female complainant is 55 and resided with her husband in the apartment in Belconnen where the incident occurred. They owned the two-bedroom apartment, having bought it in 2020.
94․The female complainant operated a massage business out of the spare room to help with the mortgage repayments. She gave evidence that her massage services did not include sexual services. However, the female complainant later accepted that she occasionally provided a service that is colloquially referred to as a “happy ending”. She also accepted that she advertised her services on a website that was a directory for escort and adult services, even though she made it clear to people that she did not engage in sexual services. Her understanding of that term was that such services related to sexual intercourse.
95․The female complainant’s evidence as to how the two men came to be in her apartment may be summarised as follows:
(1)She responded to a request for a massage via text message to her mobile phone.
(2)She did not think the person gave their name. She made an appointment with the person for 7:00pm on 25 June 2023. She emphasised that she did not offer sexual services.
(3)She told the person the address of the apartment in Belconnen. She was adamant that she did not give the person the apartment number. Her practice was to wait until the person was downstairs before providing the apartment number.
(4)She could not remember in the witness box whether the doorbell rang at around 7:00pm, but sometime after 7:00pm she heard knocking on the door. However, she had earlier recollected that a person buzzed the intercom at the downstairs level and she gave them access to the apartment building by pressing a button on her intercom in the apartment.
(5)She opened the door a crack and saw one person. Then two people “barged in”, “without [her] consent”. She said to them, “Hold on. Why are there two of you?” The two men initially ignored her.
(6)She was questioned about whether the two men told her at that point that they were looking for someone and asked whether there were any other girls there, and in particular whether Peng Juan was in the apartment. However, the female complainant was firm in her recollection that no-one talked to her.
96․Her evidence as to what the two men did after they entered was as follows:
(1)The accused walked in first and headed in the direction of the main bedroom at the far end of the apartment, but did not enter that room (that is, the accused stopped in the living room).
(2)The co-offender pushed past her, following the accused. It was not clear whether she was knocked to the floor or against the wall by him as he did so, or whether the female complainant just stood there as he walked past. She believed that she grabbed the clothing on the arm of the co-offender as he brushed past her, and said, “Why did you barge in?” But she was ignored, or as I understood it from the female complainant’s reenactment in the witness box, the co-offender shrugged off her contact and kept walking into the apartment.
(3)At this point, the male complainant came out of the main bedroom, and the female complainant heard her husband say, “What are you doing here?” She accepted he was instantly aggressive towards the accused, saying that “everyone would do that” where two people came into their home.
(4)The accused said they were looking for someone, using a Chinese name, and that it was no business of the complainants. The male complainant said, “We don’t know this person”.
(5)She heard her husband ask the accused and the co-offender to leave. She heard her husband say, “This is my place. Why are you here? You should leave”.
(6)All the voices of the men became raised in an oral argument. The female complainant said she was scared and went into the spare room while her husband spoke to the accused and the co-offender. However, she also said she thought when the men were talking that it was not a big deal and so she just went into the spare room to rest.
(7)She rejected that the accused and co-offender were being quite polite and civilised, saying in re-examination that if they were polite, they would have left and there would not have been an oral argument.
97․The female complainant gave evidence that there was a call to the police during the incident. She did not make it. She accepted she was in the room when her husband made a phone call to police. However, she said she did not stay in the room. She said she did not see her husband push the accused in the living room and did not know that a physical fight had started. It was only when she heard her husband screaming that she came out.
98․Her evidence as to what happened when she opened the door to the spare room was as follows:
(1)She saw two men beating her husband non-stop on both sides of his body at the front entrance of the apartment. They were using their fists and may also have been kicking her husband.
(2)Her husband (the male complainant) was standing and then crouching down and then he could not stand straight.
(3)She tried to pull the accused off her husband. She was asking why he was beating her husband.
(4)The accused pushed and kicked her with his arm and his leg towards the kitchen, where the fridge was located. She was firm that there was one punch and one kick. The kick came first and landed on the right side of her body. The push or punch by the accused was to the female complainant’s chest and caused her to move at least two metres away. That was the only contact the accused had with her.
(5)Then the co-offender came and kicked her face and forehead like he was kicking a soccer ball at least five or six times. She tried to get up a number of times but each time the co-offender kicked her back down, using the force of his heels. She later said the co-offender punched her on the back of her head a few times.
(6)At the time that the co-offender came over to her and was beating her, the accused was still beating her husband.
(7)She was trying to call the police herself secretly from her position with her phone but one of the men stepped on her hand and grabbed her phone. She did not know whether that was the accused or the co-offender.
(8)She heard the co-offender say that in China he had trained with the Special Forces, but she could not remember the detail. Her recollection was that the co-offender said, “I am ex-Special Forces. Do you think you can beat me up?”
(9)The incident ended when the police came and banged on the door.
99․It was put to the female complainant that when she saw the two men beating her husband, she went to the kitchen and got a knife and came towards the taller man swinging the knife. That scenario was roundly rejected by the female complainant, who appeared to shake her head in confusion and disbelief at the suggestion. She said all she cared about was her husband. She agreed that she would risk her life for her husband, but it would not be to the point where she would grab a weapon.
100․It was further put to her that the accused then grabbed her wrist and took the knife out of her hand and told her that he did not want to hurt her. She rejected that suggestion.
101․She could not confirm whether the accused had pulled the co-offender off her when he was beating her. If it happened, she did not see it.
102․It was put to her that her husband then asked her why she got the knife out and gestured to her to put the knife away, which she did. She again rejected that scenario.
103․As a result of the incident, the female complainant sustained head and lower back injuries. She thought the latter was sustained when she was knocked straight to the floor. She had bruises on her hand and her head. She felt pain all over her body for a week. The bruises and swelling to her face lasted for one and a half months.
104․Her husband had blood and bruises all over his face and there was blood everywhere, including on the carpet.
105․The female complainant was questioned about the presence of another woman in her apartment days before the incident occurred. She knew the woman as “Linda”. She did not know her Chinese name, Peng Juan. She knew that Linda had advertised sexual services, but did not accept that those services were provided from her apartment in 2023. The female complainant said that Linda only took phone calls for other jobs.
106․She did accept that:
(1)Linda had stayed in her apartment for a couple of days prior to the incident; and
(2)When the accused and co-offender came into her apartment asking for a woman by a Chinese name, she suspected that the person they were asking about was the person she knew as Linda, but she was not sure.
107․There were a number of questions put to the female complainant about the use of the massage room and what she told the police about the use of the room when the police arrived. She accepted that she was concerned about the police seeing the massage room and that she felt “this is not a good job”. She did not think she was doing anything unlawful, as she had been told that it was okay for her to perform massage services by herself. However, she did want to hide from the police the fact that she was running such a business from her apartment. She described wanting to maintain face, which I understood her to mean that she felt embarrassed about the business.
Jun Liu (male complainant)
108․The male complainant is 56 years of age. He is a fairly tall man. He said he weighed 182 to 186 kilograms at the time of the incident.
109․By way of background, the male complainant confirmed that he co-owned the apartment with his wife. His evidence about “Linda” was as follows:
(1)Linda had come to the apartment in the days before the incident and stayed two days.
(2)He did not know her Chinese name.
(3)Her arrival was unexpected. His understanding was that she had had a fight with her boyfriend.
(4)He believed that she worked as a telephone operator, taking phone calls for girls performing massage services.
(5)She slept in the spare room, the same room that was used by the female complainant for her massage business.
110․His evidence about how the accused and the co-offender came to be in his apartment and what happened when they arrived was as follows:
(1)He was in his bedroom with the door closed, looking at things on his phone.
(2)He did not hear the buzzer ring.
(3)When he was sitting on his bed, two men just pushed the bedroom door open quickly and that startled him. He did not know why they came in.
(4)He got up from the bed straight away. He did not recall the men saying anything, but he remembered asking, “Who are you looking for?” He was angry.
(5)The two men turned around very quickly when they saw him. The male complainant tried to push the accused out of the apartment. Initially he believed that was after he called the police, but he ultimately accepted that he may have tried to push the accused out of the apartment before he called the police. He did not remember whether the accused said, “Don’t touch me”.
(6)The accused and co-offender stayed in the living room. The accused said they were looking for someone and gave a female Chinese name. Either the accused or the co-offender said, “She owe us money”.
(7)The male complainant said, “Who owes you money? You should go after that person. Why are you here?”
(8)He saw his wife come up behind them. She said to him, these two men just barged in. He said to the accused and the co-offender, “You are trespassing and I don’t even know this person who you are talking about”.
(9)He asked the men to leave two times. They did not leave when he asked them to. They just stayed.
(10)After a period of time estimated to be 10 minutes, he told his wife to call the police. At the time of that direction, he had in fact also called the police. One of the accused or co-offender said, “We’re going to call the police too”.
(11)The male complainant told the police that two men had broken into his home and were still there. By “broken in” he meant that they came in without his permission.
(12)During the telephone call to the police, he saw the men walking back towards the front door to the apartment. At that point, the male complainant said, “I have called the police. You don’t leave”.
(13)The male complainant explained that as he had already called the police, there was no way he would just let them run free. He had to take hold of them before the police arrived.
(14)The male complainant then grabbed the accused by the right shoulder while still on the phone to the police. The accused hit the male complainant very hard with his fist, connecting with the male complainant’s head. He rejected any suggestion that he hit the accused first.
(15)A physical fight ensued with the male complainant being beaten by both the accused and the co-offender. One of the men put his arms around the male complainant. The other one hit his face and eyes and nose.
(16)The co-offender and accused threw him to the ground. He did say to police initially that the co-offender hit him to the ground, but that was not his recollection in the witness box. He explained that the co-offender (who was smaller) could not have knocked him to the ground by himself. The co-offender then lifted the male complainant’s clothes over his head while he was crouching on the ground. He was protecting himself because he did not have the strength to fight back.
(17)The accused and co-offender then kicked the male complainant a number of times.
(18)The male complainant called out to his wife. She came and tried to pull the co-offender off him. He saw one of the men push his wife to the ground about a metre away. He saw the co-offender kick and punch his wife. He rejected any suggestion that she at any time had a knife.
(19)He remembered that one of the men took his wife’s phone away from her.
(20)He accepted that the accused said, “Don’t beat [women]” or “Don’t hit [women]”.
(21)The police came into the unit a few minutes after the physical altercation had stopped.
111․After the fight had subsided but before the police came, the male complainant remembered one of the men (whom he later identified as the co-offender) said to him, “Do you know what we do in China? We were in the special forces”. The male complainant also figured out that the person the men were looking for was the woman he knew as Linda. At that point he told them that she was only there for two days and then she was gone.
112․It was put to the male complainant that the accused also said to him after the physical altercation that they “hadn’t come there to hurt you.” The male complainant denied hearing him saying that and further commented that he did not remember.
113․The male complainant was also asked about what he told the police concerning the use of the spare room. He accepted that he told the police that they rented the spare room out. He agreed that was not true and that he only said it to police because his wife was embarrassed. He said he had no knowledge of Linda being a sex worker and did not see Linda have any clients while she was at his apartment. He believed that she only took phone calls.
114․The male complainant gave details of his injuries. He suffered a swollen eye and an injury to his nose. The visible injuries lasted for a few weeks. He also suffered dizziness following the incident.
Wengao Zheng (co-offender)
115․The co-offender gave evidence that he was 46 years old and worked in construction as a gyprock worker. He pleaded guilty to one charge of aggravated burglary and two charges of assault occasioning actual bodily harm in respect of the same incident.
116․At the time of the incident, he was friends with the accused.
117․Relevant to the mobile phone records that were put into evidence, the co-offender had a colleague called Lester Chan. At times Lester would go back to China. When that occurred, Lester gave the co-offender either his mobile phone or his Australian mobile phone number for him to use. There was no issue that such phone records were those of the co-offender.
118․The co-offender gave evidence that he only knew Peng Juan by her Chinese name, not her English name. In October 2022, she borrowed $25,000 from him and promised to pay it back after one or two months. When she did not repay the money, he contacted her by phone calls and text messages. He went to her house in Gungahlin two or three times. However, he could not reach her. He felt that he had been scammed. He was angry with her and wanted his money back.
119․The co-offender knew Peng Juan had borrowed money from other people, and they were all looking for her. He was aware that Peng Juan also owed the accused about $100,000.
120․In June 2023, the accused told the co-offender that his friend had seen the woman at an apartment in Belconnen. He sent the co-offender a text message containing an advertisement for sexual services in Belconnen.
121․The co-offender said that he and the accused had a discussion on 25 June 2023 before they went to the apartment in Belconnen. They did not say much. The plan was to just go and see Peng Juan and talk to her and ask when she will repay the money. If she did not have enough money, she could pay by payment plans or pay by parts.
122․He knew that an appointment had been made to attend the apartment in Belconnen. He knew who made the appointment. It was his understanding that he and the accused would go up to the apartment pretending to be customers. They were hoping to find Peng Juan inside the apartment.
123․The two met at a parking lot near the apartment. There was a Kentucky Fried Chicken restaurant nearby.
124․The co-offender had in his pocket duct tape and cable ties. He said these were in his pockets because he used them at the construction site and had come straight from work. Sometimes he needed to tie wires when undertaking gyprock work. The tape was just a little bit of leftover tape. He rejected the suggestion that he was planning on tying Peng Juan up and using duct tape to cover her mouth if he and the accused had located her in the apartment. He rejected the proposition that he had planned to frighten Peng Juan or to threaten violence to her. He maintained that they were going to the apartment “to have a civilised conversation”.
125․They pressed the buzzer at the entry to the building and someone from within the apartment gave access to the foyer. The co-offender and the accused got into a lift and found the relevant apartment.
126․The door was already open two-thirds of the way when the accused and the co-offender arrived. He denied that the door was only open a crack. He said there was a female standing behind the door about one metre away. The accused and the co-offender said that they were looking for Peng Juan and asked whether she was there. Then the accused entered the apartment. He denied that he and the accused pushed their way into the apartment. He said they were invited inside.
127․There was only one female and one male in the apartment. The female said to them, “You can see whether you are satisfied or not”. The accused said, “We [are] only here to look for someone.”
128․About a minute after they entered the apartment, a male came out and said there was no such person here. He was full of cursing words. He said she was gone two days ago. The male complainant and the accused were in the living room. He was still in the hallway. The co-offender said that the man started to push the accused and punched him twice.
129․The co-offender said that based on the man’s words and conduct, he did not understand that the man wanted them to leave. The female complainant was just standing at the door to the spare bedroom not doing anything. He said that neither the male nor the female complainants asked the accused and the co-offender to leave.
130․However, the co-offender later accepted that when the male complainant was cursing at them and seemed aggressive, and he could not see Peng Juan in the apartment, he knew that he should leave that person’s home. He could not remember whether the male complainant also told him that they were trespassing in his home.
131․However, he said that by the time he had the awareness that he should leave, and was about to leave, the male complainant would not let them leave.
132․The co-offender was challenged on this when the male complainant’s triple zero call was played to him. He agreed that there were approximately four minutes when the male complainant was in the living room on the phone to the police because he and the accused were in the apartment.
133․It was put to him that he and the accused could have left at that time. His answer was at first that the male complainant would not let them leave but he then said, “We would also like the police to come and then deal with this”. When asked why he wanted the police to come, he said, “Because we have a pulling and pushing and we will also want him to tell us where Peng Juan is”. He said that they did not leave because through the male complainant and the police, they hoped to find Peng Juan.
134․He believed that the male and female complainants were withholding information about Peng Juan. He believed they knew her. However, he did not accept that he attacked them because he thought they were hiding Peng Juan.
135․When the male complainant commenced “beating” the accused, the accused said, “Don’t touch me. We were just looking for someone. This has nothing to do with you. We were leaving soon”.
136․The offender said the male complainant then would not let them leave. He said the male complainant grabbed the accused and hit him on the upper body around the chest. At that point, the co-offender pulled the male complainant to the hallway to try to stop him from hitting the accused again. The male complainant then started hitting the co-offender. That is when the co-offender started exchanging blows back and forth with the male complainant. Once the fighting started, the male complainant was blocking the door and so they could not leave.
137․Somewhat inconsistently, the co-offender said that after the co-offender pulled the male complainant down the hallway towards the front door, the female complainant went to the kitchen and grabbed a knife, described as a cleaver about 30cm long including the handle, and tried to hurt the accused. When the co-offender saw the female with the knife, he started to have physical contact with the male complainant.
138․The co-offender’s evidence was also that the accused and co-offender’s violent conduct started in response to a threat by the female complainant, where she attacked the accused with a knife. When that occurred, he began to attack the male complainant. He later developed this and said that in fact the male complainant had hit him first.
139․The co-offender then said, “Yes, yes. Because she have the knife – well, because she have the knife so we will be consider a self-defence”. The co-offender later reiterated this, saying:
Because she took the knife first, that’s when we started the physical altercation. If she … [did] not [get the knife], we [would] not start [the altercation].
140․The co-offender said that the female complainant tried to cut the accused with a knife. The accused took the knife away and then the female complainant tried to beat the co-offender “so I just [acted] out of self-defence”. The co-offender accepted that he did punch the female complainant. He could not remember how many times.
141․The co-offender later said that when the knife was on the ground, the female complainant walked towards him and hit him. He said, “If they beat me, I definitely need to beat them back”.
142․The co-offender said that because the male complainant was beating the accused, the co-offender said to the accused, “Call the police”. He saw the male complainant punch the accused twice. Around five or six minutes later, the male complainant also called the police.
143․The co-offender said that he and the male complainant hit each other, and that the male complainant punched him twice and then “he was knocked down”. The co-offender initially said that he was punching the male, and then he fell by himself in the hallway at the front entrance to the apartment, by the shoe cabinet. However, he later accepted that he knocked the male complainant to the floor. He could not remember how many times he punched the male complainant.
144․The co-offender said that while the male was on the ground, he was still using his fist to beat him. The male complainant was half sitting on the floor and was said to have still been punching at the co-offender’s legs. He could not remember kicking the male complainant on the floor. He later accepted that he did kick the male complainant, but not for multiple times. He did not pay attention to whether the male complainant was on the ground with his head in his hands at the time.
145․While the co-offender was still physically engaging with the male complainant, he said the accused took the knife from the female and the knife was on the ground.
146․He could not remember whether the accused was with him when he kicked the male complainant. He could not remember whether the accused kicked, punched or pushed either complainant. He later said that he did not see the accused punch or kick the male or female complainants at any point.
147․The co-offender also later accepted that he could not recall how many times he hit the female complainant because he had lost control.
148․He agreed that the accused told him to stop fighting with the male complainant and that the accused pulled him away from the male complainant. He also agreed that the fighting subsided because the accused pulled him away from the female complainant.
149․When the fighting subsided, the co-offender said that they were talking to the couple and said, “We were here to look for someone, we were not here to fight. If you could have talked nicely we would not be in this”.
150․He accepted that he told the man and the woman that he was from the special forces in China, but that it was not true, and he had never been in the military. He only made that comment to frighten the male and female complainants. His reason for wanting to frighten them was “because they have created a threat to my physical body”.
151․The co-offender said that after the physical altercation had subsided, the male complainant said to his wife, “Why did you [take] the knife?” and the female put the knife back in a kitchen drawer.
152․The co-offender was shown a statement of facts that was tendered to the court at the time he was sentenced. He disavowed the facts set out in the document and said that the interpreter read different words to him to the statement of facts that was interpreted in the witness box.
Qing Lian (accused’s wife)
153․The accused’s wife gave evidence. She confirmed that she knew her husband had loaned a woman named Peng Juan money. She believed approximately $100,000 had been loaned for gambling-related reasons. She knew Peng Juan (or Linda, as she knew her) worked in the sex industry.
154․The accused told her that a friend had told him they found Linda back in Canberra. The accused’s wife knew her husband had then made an appointment with a mate to go to the place where he thought Linda was.
155․She had discussed with the accused what she wanted, which was for Linda to pay back the money via a payment plan. She told him to carry a payment plan with him and to get Linda to agree to pay them back little by little. She instructed the accused to put his phone on recording because an oral contract is also a contract. She had printed off a document for him to carry but he did not come home and get it. She confirmed she had sent him over to “only talk and not touch”.
156․She did not have any discussions with the accused about whether or not he was going to threaten Peng Juan. She did not believe he would be that stupid, given his family circumstances and the fact that he had just obtained permanent residency in Australia.
157․She said the accused called her after 7:00pm that night, after things went bad. He called and asked her to call the police. He told her, “Call the police but I can’t explain it. They just hit me”. She did not call the police but instead drove over, with her husband texting her the address and apartment number. The police were there by the time she arrived.
Constable Beau Sadler (police officer responding to triple zero call)
158․Constable Sadler was one of the police officers who responded to the triple zero call made by the male complainant. He gave evidence about attending the apartment at 7:22pm on 25 June 2023. When he approached the apartment door, he could hear yelling from behind the door. Four people were crowded in the front entrance. The male complainant was sitting down on a bench seat in the hallway. He had significant facial injuries. He then saw that the female complainant had facial injuries as well. The co-offender had drying blood along his knuckles and on the outsides of both of his hands. Constable Sadler was present when interpreter assistance was arranged and standard forensic procedures at the apartment were carried out.
First Officer Charles Dudley (police informant)
159․First Officer Dudley, the police informant, was a constable stationed at Belconnen Police Station at the time of the incident. He also responded to the call to attend the Belconnen apartment on 25 June 2023 with Constable McLucas, Constable Sadler and Constable Ward. They met at the base of the apartment building. They took the elevator up to the apartment. First Officer Dudley had a body worn camera which he activated just as Constable Sadler started knocking on the door of the apartment. The footage from that camera was admitted into evidence.
160․Also admitted into evidence through this police officer were two emergency calls to triple zero made on 25 June 2023. The first was made by the accused at approximately 7:10pm. The second was made by the male complainant at approximately 7:12pm.
161․Once inside the apartment, First Officer Dudley had a conversation with the accused. The accused told him he was there to find someone to whom he had loaned $100,000.
162․The accused and the co-offender were taken into custody and the accused’s phone was seized.
163․A number of items obtained during the investigation were tendered, including:
(1)Screenshots of text message exchanges between the accused and the co-offender depicting the advertisements referred to in the oral evidence;
(2)Screenshots of WeChat exchanges between the accused and a third-party friend of his, in which photographs provided by the female complainant of the location of the apartment were passed on to the accused;
(3)Photographs of the state of the apartment with blood on the walls and the carpet;
(4)Photographs of the hands of each of the accused and the co-offender (showing the accused with a small injury on his hand and the co-offender with his hands stained with blood);
(5)An IPND report (identifying certain phone numbers as being attached to a given subscriber, which in turn assisted in understanding the communications and screenshots in evidence);
(6)A Cellebrite report (which extracts mobile phone records, one of which confirmed that the appointment was made via a third-party friend of the accused); and
(7)Medical records provided by Canberra Health Services to police (detailing the male complainant’s injuries following him being taken to hospital after the incident).
164․Photographs of the injuries visible to the bodies of the male and female complainants were also separately in evidence.
Hai Feng Chu (friend of accused who identified location of Peng Juan)
165․Mr Chu gave evidence that he was friends with the accused and had known him for more than five or six years. He went by the English name Sam.
166․He was also previously in a romantic relationship with Peng Juan from 2018 to 2019. He initially came to know her because he was performing a management role in a brothel, and she worked there for two to three years.
167․The accused had told him that Peng Juan owed him money and requested him to please tell the accused if he ever saw her, or to even help to locate her. If Mr Chu did locate Peng Juan, he wanted to pass that information on so that the accused could get his money back. Mr Chu was aware that Peng Juan also owed other people money, including his cousin.
168․His evidence was that he did not proactively look for Peng Juan. However, he came across an advertisement which looked to him to be very much in the style of what he remembered to be Peng Juan’s style of advertising.
169․To be completely sure that the advertisement was for the services of Peng Juan, a day or two before the incident, he made an appointment and was given the address where the male and female complainants lived. He then attended the appointment, and Peng Juan opened the door. Having confirmed Peng Juan’s location, he then told the accused, providing information to him via WeChat.
Assessment of witnesses
170․Starting with the police officers, no challenge was made to their credit. I accept their evidence as to what they heard, saw or otherwise perceived.
171․A number of the witnesses spoke little to no English, and I have made allowances for that in my assessment of their evidence, including any minor translation difficulties. For example, the male complainant was at times described as falling on a “sofa”, but it was clear from the context and other evidence that this was the bench seat at the entrance to the apartment. The female complainant was said to have taken and returned a knife to a “cabinet” in the kitchen, but this appeared by location on the floor plan, as well as photos and visual footage of the kitchen, to be a reference to a kitchen drawer.
172․In relation to the male and female complainants, I generally accept each of them as witnesses of truth and consider that the evidence they gave was in large part reliable. I say in large part because there were some aspects of the complainants’ evidence that were shown by other evidence to be potentially mistaken or misleading.
173․First, the female complainant was firm in the witness box that she did not initially press a buzzer to provide access to the foyer, nor did she provide the apartment number to the apparent customer that night. However, when she was speaking with the police, she mentioned buzzing the door release. There was also a WeChat message sent to the accused (although not from the female complainant), which suggested the sender knew the apartment number and passed it on to the accused. The female complainant gave evidence that she did not use WeChat. There were gaps in the evidence about how that information came to be given to the person who provided the apartment number to the accused. I am mindful that one of the friends of the accused visited the apartment a couple of days earlier and would equally have been provided with the apartment number. It is important not to speculate about these evidentiary gaps. However, assuming the female complainant was mistaken about at least providing access to the people purporting to be her customer (who turned out to be the accused and co-offender) when they pressed the buzzer, and potentially also providing the apartment number to the people purporting to be her customer, it is not a mistake that carries much weight in my overall assessment of the critical aspects of her evidence. Contrary to the accused’s submissions, I do not accept that this was a product of a preparedness to embellish evidence, but was instead the evidence of a witness whose memory of small details was simply affected by the passage of time.
174․In relation to the male complainant, other evidence suggests he was mistaken in his belief that he called the police first. The records obtained indicate that in fact the accused did call the police two minutes before the male complainant made his call. However, I am not persuaded that that mistake was indicative of a failure on the part of the male complainant to tell the truth or a confected account. The accused’s communication difficulties during the brief triple zero call that he made mean that it may not have been apparent to the male complainant who the accused was ringing and attempting to speak to, even if he was in the living room watching the accused make the call.
175․Second, both the male and female complainants made concessions against interest in terms of what they told the police about the massage room being rented out. Recalling the direction that the accused does not need to prove anything by alleging a motive, I accept that the female complainant’s embarrassment motivated each complainant to lie to police about the use of the spare room. However, those statements were not made in circumstances where they were formally giving evidence to police about the use of the massage room. The fact that they did not want the police to know about the use of the spare room for massage services (whether sexual or otherwise) did not cause me to have any doubt about the evidence given under oath or affirmation in court in terms of what happened when the accused and the co-offender attended the apartment. The provision of massage services and whether they included sexual services or not was a discrete matter, largely unrelated to the conduct under consideration here, save that the use of the room provided the opportunity for deceit on the part of the accused and the co-offender in attending the apartment as a purported customer.
176․Otherwise, to the extent that there were inconsistencies in the sequence of events or precise details, such as whether the accused and co-offender spoke to the female complainant at all as they entered the apartment, I do not consider those inconsistencies to be indicative of dishonesty in the witness box. Rather, I consider those details to be either the product of differences in perception or of natural difficulties with memory in recalling the details of an incident that occurred years earlier and where a lot was going on in a very short space of time.
177․The was also a discrepancy between the female complainant’s view that the accused and co-offender “barged in”, which differed from the co-offender’s evidence about how he and the accused entered the apartment. That disputed fact was focussed upon partly because one aspect of the burglary charge was entry into the apartment without permission or invitation. From the female complainant’s perspective, she was expecting one person for a massage. She had expected that person to come in and take off their shoes and follow her to the massage room. What she was confronted with was two people who were expressly not there for a massage, who did not stop to take off their shoes, who both walked past her instead of waiting for her to lead them to the appropriate place in her own home, and at least one of which walked swiftly further into the apartment looking for somebody. A person may believe that they are behaving in an ordinary or polite way and yet not realise that due to the circumstances in which they arrive, they present as barging in uninvited. That the female complainant had a different perception does not amount to unreliability or lack of honesty.
178․Overall, I find that the version of events as given by the male and female complainants are broadly consistent with each other and are corroborated by what could be heard in the triple zero call made by the male complainant. Their injuries were consistent with the incident having occurred as they each described it. Parts of their evidence were further corroborated at times by evidence given by the co-offender (dealt with next).
179․The co-offender’s evidence is in a different category. His evidence stood out for two reasons: inconsistency and implausibility in critical respects.
180․The co-offender gave a confused sequence of events that was patently unreliable and inconsistent with what could be heard in the male complainant’s triple zero call: specifically, the raising of the voices of all those in the apartment and an escalation towards violence.
181․Insofar as he maintained he was acting in self-defence in response to the female complainant coming at his friend (the accused) with a knife, before any violence had commenced between himself and either complainant, that account was inconsistent with:
(1)What he initially told the court, which was that the co-offender had pulled the male complainant off the accused and towards the front door immediately after the male complainant had grabbed the accused and (on the co-offender’s account) started to beat the accused;
(2)A further account which had the co-offender and the male complainant beating each other at the doorway and the female complainant taking a knife at the end of that fight, with the accused taking the knife from her while the co-offender was still fighting with the male complainant; and
(3)The photographs of the extent of the injuries to the complainants that were inflicted upon them (which are inconsistent with defensive action).
182․The co-offender’s version of how the complainants conducted themselves was largely irreconcilable with any of the other evidence before the court. Firstly, the version he gave was inconsistent in material respects with the complainants’ evidence.
183․Secondly, the co-offender’s evidence was not even consistent with the version of events put in cross-examination of the female complainant. It was put to her (and rejected) that she saw her husband getting beaten up at the front door by the accused and the co-offender and instead of going to help her husband who said he was crying out for her help, she ran to the kitchen and got a knife.
184․Thirdly, his evidence was internally inconsistent as it unfolded in the witness box. Examples in addition to those already given include:
(1)He initially said that by the male complainant’s words and conduct he did not realise that the male wanted the accused and the co-offender to leave, but he later accepted that at the point where he had heard the male complainant cursing at them and where the male complainant had pushed the accused, he knew he should leave the complainants’ home.
(2)He said that the male complainant was beating the accused badly for five to six minutes before the male complainant called the police, but he also said that the male complainant only hit or pushed the accused twice in the chest during that time and then the co-offender came and pulled the male complainant towards the front entrance.
(3)He later said that in fact he saw the male complainant grab hold of the accused near the front door and start hitting the accused and that is when the co-offender intervened, and the male complainant started hitting him instead of the accused.
(4)When asked by the prosecution whether the accused kicked and punched the male complainant, and kicked the female complainant, he said he did not remember. However, when asked by counsel for the accused whether he saw the accused punching or kicking the male or female complainants, he changed his answers and said, “I did not see that”.
(5)He said that the female complainant put the knife away after the violence had subsided, but he also said the female complainant picked the knife up and put it away while he was still in a physical altercation with the man.
(6)He said that he only hit the female complainant once when she approached him to try to beat him in the hallway, but he later said that he could not remember how many times he hit the female complainant and by that point he had lost control.
185․It was telling how the co-offender blamed the commencement of his violence on the female complainant getting out a knife: “Because she have the knife – well, because she have the knife so we will be consider a self-defence”. Yet even on the co-offender’s own version of events, he continued to make physical contact with both complainants after the accused had purportedly disarmed the female complainant and the knife was just lying on the floor.
186․There were points where the co-offender’s responses took on the appearance of opportunistic revision as the difficulties with his version of events were put to him or became apparent to him. One example is where, having given evidence that he was not involved in a fight with the male complainant until there was a knife threat, which was “why we started to fight back”, and then questioned about why he would respond to the female threatening them with a knife by attacking the male complainant, he then volunteered that the male complainant had in fact hit him first before the knife was produced. On occasions such as these, he either changed tack or decided that he could not remember. This was until counsel for the accused started asking the questions, at which point the co-offender’s memory recovered and he was able to answer what was being put.
187․In relation to implausibility, I do not accept the story about the male complainant commencing to beat the accused at the front door after he had grabbed hold of him, nor that the co-offender then pulled the male complainant from the accused in defence of the accused. At the time, the male complainant was holding his phone talking to police. He was expressly grabbing the accused for a purpose – to prevent him from leaving the apartment because the police were on their way. The male complainant did not have a hand free to start punching or hitting anyone. It was the co-offender who at that point had both hands free and all accounts were that he stepped in.
188․Again, one of the explanations of how a knife was present during the incident was also implausible. Initially, one version given by the co-offender stated the female complainant wielded a cleaver at the accused before any physical contact by the co-offender had occurred. The evidence about the knife then further evolved as has been discussed above. However, the co-offender’s response to observing the female complainant apparently wielding a cleaver, was not to go to his friend or to attempt to disarm the female complainant, or indeed to take any evasive action, but rather to go and begin fighting with the male complainant. The co-offender’s account of his actions simply did not accord with common sense.
189․Then there is the explanation for why he had a short length of duct tape and a number of cable ties in his pocket. The co-offender said that those items are used in his gyprock work and were just leftover materials that he picked up and put in his pocket from the construction site. He said that he had no intention to use them at the apartment. I was wholly unconvinced by that evidence. Even if it were accepted that the items came to be in the co-offender’s pocket on the night of the incident in the circumstances described, it is implausible that he would have chosen to pick up left-over construction materials and put them in his pocket without any thought that he may later use them, and he was not going to the apartment to carry out gyprock work.
190․Those reasons suffice to explain why I do not accept the co-offender’s evidence as being reliable and I have put it to one side, save as to where it corroborated the version of events given by male and female complainants and where he accepted that:
(1)He knew he should leave the complainants’ home;
(2)He stayed in the complainants’ home when he knew they should leave because he thought the complainants had information about Peng Juan and he wanted to track her down through them;
(3)The first physical interaction the female complainant had was with the accused and he became involved with her after he had been punching the male complainant; and
(4)By the time he was punching the female complainant, he had lost control.
191․Otherwise, in relation to the evidence of other lay witnesses who were not in the apartment at the time of the charged conduct – the accused’s wife and the accused’s friend who had found Peng Juan in the apartment days earlier – I accept their evidence as to their involvement and what was communicated to them prior to the incident.
Findings of fact on the elements
192․It is unnecessary to address the accused’s intention and the nature of any agreement that had been made before he entered the apartment. Any plan the accused may have had about surprising the elusive Peng Juan at a place where he believed she was either staying or conducting business and persuading her in a non-threatening manner to enter into a payment plan to repay $100,000 in small weekly instalments evaporated almost immediately upon entering the apartment, when he discovered that Peng Juan was not there.
193․It is similarly unnecessary to deal with whether the accused’s entry into the apartment was knowingly without permission. There may have been an implied invitation to enter, arising from the fact that the female complainant was intending to allow a person into the premises. She did not yet appreciate that the people standing at the front door were not the person who made the appointment, nor were they there for the purpose for which she had opened the door (recalling that, as set out above, the purpose for which someone enters a building is not a necessary ingredient of trespass).
194․Again, however, those circumstances changed almost immediately upon entering the apartment. The accused revealed that he and the co-offender were not there for a massage and that they were looking for someone. The accused then proceeded to walk through the apartment looking for that person and discovered that she was not there.
Aggravated burglary by joint commission established
195․The resolution of the charges instead centres around whether there was an agreement “to remain” in the apartment as trespassers, with an intention to threaten harm. I will deal first with whether the elements of trespass are established for two reasons. First, that component forms part of the elements of the charged conduct. Second, the conduct constituting trespass occurred chronologically before the formation of what I have ultimately found to be the agreement “to remain as trespassers with intent to threaten harm”.
Elements of trespass established
196․I am satisfied beyond reasonable doubt that when the male complainant was alerted to the presence of two men in his home that were plainly not there for anything to do with his wife’s massage business, by his words and conduct, he communicated in no uncertain terms that the two men did not have permission to be there:
(1)He told them they should leave the apartment;
(2)He told them they were trespassing;
(3)He swore at them; and
(4)He pushed the accused in a way that constituted a deliberate physical communication of the lack of his permission for the accused to be in his home.
197․I also accept that at that point, the accused said, “Don’t touch me”, but did not leave.
198․Further, I find that the co-offender was standing in the hallway when this occurred and knew that he and the accused should leave the apartment (as he accepted). It was the co-offender who was in fact standing in the path of the only exit to the apartment, while watching the male complainant and the accused in the living room. With that knowledge, he also chose not to leave.
199․At that point in the incident, I am satisfied beyond reasonable doubt that the accused and the co-offender had remained in the apartment intentionally, they had no permission to remain in the apartment, and they knew they had no permission to remain in the apartment.
Agreed intent to threaten harm and conduct elements established
200․The real question in this case is whether it has been established beyond reasonable doubt that the accused and co-offender agreed upon a course of conduct which involved remaining as trespassers with “an intent to threaten harm” to anyone in the building.
201․In that regard, the facts I find are as follows:
(1)The accused and co-offender attended the apartment in a covert manner at 7:00pm on 25 June 2023 (a time when it was also dark). They intended to surprise the occupants of the apartment. The accused and the co-offender jointly intended that initial subterfuge in gaining access to the apartment.
(2)Using that element of surprise to gain entry to the apartment, at least the accused then went in search of the person they thought was in the apartment when Peng Juan did not open the door. In that regard, the accused and co-offender jointly intended to enter the apartment (and did enter) regardless of whether they were implicitly invited in by the female complainant or not.
(3)The accused and co-offender intended to take (and did take) the further liberty of searching every room of an apartment occupied by people who were complete strangers to them. To the extent that the co-offender did not physically carry out that conduct, he knew what the accused was doing and agreed with it by his conduct in remaining in the premises while he knew that action occurred. He therefore supported the accused while that action occurred.
(4)As a result of that search, both the accused and co-offender became aware that the person they sought to confront, Peng Juan, was not in the premises.
(5)Both the accused and co-offender knew or were at least reckless about the fact that they were trespassing by remaining in the apartment without permission of the lawful occupants (as explained above) in that:
(i) The accused intentionally stood in the living room and refused to leave.
(ii) The co-offender intentionally stood in the hallway and did not leave. By that presence, he also effectively created a physical barrier to exit.
(6)The accused and the co-offender each intentionally remained in the apartment with the knowledge that the other was in the apartment. The size of the apartment was not such that it could be suggested neither knew what the other was doing.
(7)The only reason the accused and co-offender remained in the apartment was because of their mutual intention to extract information from the people they found in the apartment, which they believed the occupants held about the whereabouts of Peng Juan. That was the co-offender’s express intention for remaining. That such intention was jointly adopted by the accused and co-offender is evidenced by each declining to leave even when the male complainant pushed the accused and said he would call the police, combined with either the accused or co-offender repeatedly asking the occupants where Peng Juan was even after they knew she was not in the apartment.
(8)That intention continued for a time period of at least two minutes (by reference to the timing of the triple zero calls, which each occurred while the accused and co-offender remained in the apartment) before the male complainant called the police. Even then, they intentionally remained in the apartment for a further four minutes after the male complainant called the police.
202․Applying the legislation and legal principles explained above, the inescapable inference, indeed the only rational inference, is that there was an agreement to trespass with an intent to threaten harm impliedly formed at the same time as the conduct making up the physical elements of the joint offence was engaged in by the accused and co-offender.
203․In making that finding, three points should be made about the assessment of intention:
(1)It is necessary to take the whole of the circumstances into account, along with the real time in which the conduct occurred. The temptation to dissect the conduct that occurred and focus on statements made or actions at one point in time as being indicative of intention should be resisted.
(2)It is also important not to conflate an intention to harm with an intention to threaten harm. Someone may have no actual intention to physically harm an occupant of a building, but every intention to make that occupant think that they are at risk in order to persuade the occupant to do something (such as hand over cash or property, or in this case, information).
(3)The concept of a threat of harm is broader than simply the risk of a physical attack upon occupants of a building made by a trespasser or intruder. It includes harm to occupants in trying to evict a trespasser, or harm that might be suffered when they try to escape the trespasser, or even harm to occupants in trying to prevent unlawful trespassers from escaping.
204․Here, the accused and co-offender intended to arrive unannounced. They intended to remain in someone else’s apartment. By their continuing physical presence, the accused and co-offender intended to remain in close physical proximity to the occupants in circumstances of known conflict, in that it could not have been made clearer by the occupants that they were requesting the men to leave. The accused and co-offender also intended to get the information they needed from the complainants by using their ongoing presence as trespassers to pressure the complainants into disclosing information they either did not know or did not want to disclose.
205․The period of time during which the accused and co-offender flatly refused to leave the apartment despite the male complainant pushing the accused was of sufficient length to cross the threshold from mistake or even inadvertent rudeness to intentional menacing behaviour. It was at that point that the initial joint search for a common debtor spontaneously evolved into the accused and co-offender jointly looking to the occupants of the apartment to get information about that debtor, in circumstances where they were knowingly trespassing and where the occupants had expressly declined to give them any information. In the totality of those circumstances, the risk or threat of harm to the occupants in them trying to get the accused and co-offender out of their apartment or in trying to escape them was obvious. That is why the male complainant called the police. He felt under threat.
206․That the accused and co-offender had a conscious awareness of the threat of harm that they were posing may be further inferred from the fact that they each observed the male complainant call the police and yet they still remained for a period of time attempting to get information about Peng Juan while the male complainant was reporting their conduct to police. There were a number of voices raised during the call to police and they were not just the voices of the complainants. The accused and the co-offender had a conscious awareness that their ongoing presence and conduct in seeking answers about Peng Juan had created a threat of harm which moved the occupant to resort to external assistance, and yet they remained. Moreover, when the threat of harm actually materialised moments later, neither the accused nor the co-offender behaved or reacted with any surprise. These matters put the joint intention to threaten harm beyond doubt.
207․The accused submitted that his conduct in initially calling the police demonstrated a hypothesis consistent with a lack of any intention on his part to threaten harm. I do not accept that submission for two reasons. First, that conduct is consistent with an intention to compel the male and female complainants into revealing where Peng Juan had gone while the accused was trespassing in their own home. Second, and more importantly, the conduct cannot be viewed in a vacuum. When the accused’s efforts to communicate with the police were unsuccessful and he hung up from the police, there was a significant period of time that passed when he and the co-offender still did not leave the apartment. As I have said, the agreement materialised at least when the accused remained in the apartment after he had called the police.
208․There is no reasonable hypothesis consistent with innocence and accordingly, this element is established beyond reasonable doubt.
Aggravated element established
209․For completeness, on the basis of the factual findings set out above, I am satisfied beyond reasonable doubt that at the time of the joint offence, the accused was in company with the co-offender. I am also satisfied beyond reasonable doubt that the accused knew he was in company with the co-offender and therefore was reckless as to the fact of being in company with him: s 20(4) of the Criminal Code.
210․I am therefore satisfied that all elements of aggravated burglary by joint commission are established beyond reasonable doubt.
Assault occasioning actual bodily harm by joint commission established
211․Those findings then inform the agreement element of the two assault offences.
Agreement and intention elements established
212․For the reasons previously explained, I find beyond reasonable doubt that prior to the conduct charged as the assaults, there was an agreement between the accused and the co-offender that they would carry out an offence.
213․The agreed offence was aggravated burglary, with the intention element of the agreement being established beyond reasonable doubt in the manner I have set out above.
Conduct element established
214․For the reasons that follow, I am satisfied beyond reasonable doubt that, in the course of carrying out the agreement, a person who was party to the agreement committed an offence by deliberately applying force without lawful excuse, causing actual bodily harm (that is, the second reasoning pathway under s 45A(1)(b)(ii) is established).
215․First, I accept that the violence erupted when the accused reacted to the male complainant physically stopping him from leaving the apartment after he had called the police. However, that was not properly characterised as conduct in self-defence, because – as the male complainant effectively said in his evidence – an offence had been committed, and he was acting to prevent the accused from escaping before the police arrived.
216․Second, I find that the accused punched the male complainant. In that respect, I accept the direct evidence of the female complainant that she saw both the accused and the co-offender punching her husband at the doorway, whether that was by each of them punching him or by one holding him while the other made the blows. She had the three men in her direct line of sight and the person she pulled away from her husband was the accused. One thing that even the co-offender was clear on was that the first physical interaction the female complainant had was with the accused, not him. She would not have needed to pull the accused away if he was not doing anything to her husband.
217․Third, and in any event, the co-offender was equally party to the agreement, and the element is satisfied if, in the course of carrying out the agreement, either the accused or another person carries out an additional offence.
218․In that regard, I am satisfied beyond reasonable doubt that the co-offender’s involvement in the fracas went far beyond what could be viewed as a lawful defence of the accused. He beat the male complainant brutally with his fists and kicked him with his legs once the male complainant was no longer standing. That was the evidence of the female complainant, male complainant and the co-offender. It was consistent with the repeated blows that could be heard on the emergency call and the photographic evidence that the person who was significantly injured as a result of blows to the head was the male complainant.
219․In respect of the female complainant, I find that the accused physically reacted to the female complainant’s attempt to pull him away from the male complainant. Again, however, that reaction was not properly characterised as conduct in self-defence because the female complainant’s conduct only arose in defence of her husband. I do accept that the accused’s punch to the female complainant’s chest may have been a push, and that it was really the kick that sent the female back towards the fridge. I further accept that the accused did not punch the female complainant in the face. That is relevant to the question of the nature and extent of the female complainant’s injuries.
220․Once again though, the co-offender’s conduct is critical in establishing the conduct element. Putting his evidence about the presence of any knife to one side for the reasons explained above, I find that he set upon the female complainant in a manner that even he admitted was consistent with him losing physical control. He punched and kicked her multiple times, far beyond any conduct that would lawfully constitute defence of the accused.
221․The accused may well have pulled the co-offender from the female complainant and may also have admonished the co-offender for beating a female. However, as submitted by the prosecutor, that does not constitute a withdrawal from the agreement because his actions (while somewhat commendable) were too late. The conduct establishing the elements of the offence had already occurred.
Recklessness element established
222․Because this reasoning pathway under s 45A(1)(b)(ii) of the Criminal Code requires the reckless element to be established beyond reasonable doubt, my findings in respect of that element are as follows:
(1)The intention to carry out aggravated burglary includes within it an intention to threaten force. In the circumstances in which the threat was created here (close physical proximity in a confined space), I am satisfied beyond reasonable doubt that such intention also constitutes a conscious awareness on the part of the accused of the substantial possibility (or threat) that force would be used, even if the substantial possibility of force was only limited to the point where the accused and co-offender sought to escape.
(2)As to the second limb of the statutory requirements for recklessness, as set out above, given that the risk arose because of the accused’s criminal conduct in respect of the aggravated burglary offence, it was in no way justifiable for the accused to take the risk that either he or the co-offender would commit the additional offences, being Counts 2 and 3.
Actual bodily harm element established
223․There is no dispute that the conduct occasioned actual bodily harm to each of the male and female complainants. However, for completeness, I accept the direct evidence of the male and the female complainants as set out above, which was corroborated by the photographic evidence and medical records, as to the extent of the harm they each suffered. Such evidence establishes beyond reasonable doubt that actual bodily harm was occasioned by either the accused or the co-offender deliberately applying force without lawful excuse.
224․I am therefore satisfied beyond reasonable doubt that the elements for assault occasioning actual bodily harm by joint commission are established beyond reasonable doubt in respect of each of the male and female complainants.
225․Having found the offences established beyond reasonable doubt by one of the reasoning pathways, I do not need to consider the other pathway (under s 45A(1)(b)(i) of the Criminal Code) upon which the prosecution relied.
Conclusion
226․For the above reasons, the findings of the Court are as follows:
(1)For CC2023/6522, being the charge of aggravated burglary contrary to s 312 of the Criminal Code by virtue of s 45A of the Criminal Code (Count 1 on the Indictment dated 23 October 2023), I find the accused guilty.
(2)For CC2023/6521, being the charge of assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act, again by joint commission (Count 2 on the said Indictment), I find the accused guilty.
(3)For CC2023/6523, being the charge of assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act, again by joint commission (Count 3 on the said Indictment), I find the accused guilty.
| I certify that the preceding two hundred and twenty-six [226] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam Associate: Date: 3 July 2025 |
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