Director of Public Prosecutions v Wang

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

Criminal Division

S ECR 2020 0011

DIRECTOR OF PUBLIC PROSECUTIONS

- v -

NING WANG

---

JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	16–18, 21–25 and 29–30 September 2020
DATE OF JUDGMENT:	22 October 2020
CASE MAY BE CITED AS:	DPP v Wang
MEDIUM NEUTRAL CITATION:	[2020] VSC 701

---

CRIMINAL LAW – Trial by judge alone – Remote Webex trial (Coronavirus restrictions) – Murder – Circumstantial evidence – Causation – Whether the death of the deceased caused by an act of the accused – Cause of death not able to be ascertained – Positional asphyxia – Pre-existing medical conditions – Intention – Whether accused had an intention to kill or cause really serious injury – Planning and motive – Good character – Nature and extent of injuries – Record of interview – Post-offence statements and conduct – Handwritten notes after the offence – No direct evidence as to how the injuries sustained – Circumstantial evidence – Whether any rational hypothesis consistent with innocence – Manslaughter – Unlawful and dangerous act – Dangerousness – COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) – Criminal Procedure Act 2009 (Vic) ss 420E, 420F, 420ZF – Evidence (Miscellaneous Provisions) Act 1958 (Vic) ss 42E, 42G – Jury Directions Act 2015 (Vic) ss 4A, 21–22, 41, 61–62 – Crimes Act 1958 (Vic) – Evidence Act 2008 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms K Churchill with Ms S Locke	Office of Public Prosecutions
For Mr Wang	Mr P Morrissey SC	Paul Vale Criminal Law

TABLE OF CONTENTS

SUMMARY......................................................................................................................................... 1

Introduction........................................................................................................................................ 5

Legal principles.................................................................................................................................. 6

Elements of murder...................................................................................................................... 7
Circumstantial evidence and inferences.................................................................................... 9

Evidence............................................................................................................................................... 9

Background.................................................................................................................................... 9
Events preceding 27 February 2019.......................................................................................... 11
Morning of 27 February 2019.................................................................................................... 13
The accused’s phone call to Li Li.............................................................................................. 17
Record of interview..................................................................................................................... 18

Causation........................................................................................................................................... 24

Evidence of Dr Melanie Archer................................................................................................. 26
Autopsy report and summary of findings..................................................................... 26
Positional asphyxia............................................................................................................ 29
Facial injuries...................................................................................................................... 30
Rib fractures....................................................................................................................... 31
Other injuries from trauma.............................................................................................. 33
The deceased’s pre-existing conditions.......................................................................... 35

Other evidence of the deceased health.................................................................................... 39
Prosecution submissions............................................................................................................ 41
Defence submissions................................................................................................................... 45
Causation — Analysis and findings......................................................................................... 47
Conclusion — Causation............................................................................................................ 58

Intention............................................................................................................................................ 59

Prosecution submissions............................................................................................................ 59
Defence submissions................................................................................................................... 65
Intention — Analysis and findings.......................................................................................... 71
Conclusion — Intention............................................................................................................. 83

Manslaughter by unlawful and dangerous act.......................................................................... 84

Prosecution Submissions........................................................................................................... 85
Defence submissions................................................................................................................... 86
Manslaughter – Analysis and conclusion................................................................................ 87

Verdict................................................................................................................................................ 90

HER HONOUR:

SUMMARY

The accused, Ning Wang, is charged with the murder of his sister Qin Wang.

This was a trial by judge alone. Due to the coronavirus restrictions in force at the time, the trial was conducted remotely.

Qin Wang spent the night of 26 February 2019 at Ning Wang’s home, in Clayton South, to visit their elderly father. On the morning of Wednesday 27 February 2019, at approximately 7am, Ning Wang and Qin Wang argued, it escalated, and Ning Wang assaulted his sister. Qin Wang died shortly after the assault.

Later that morning, Ning Wang dragged Qin Wang’s body out of his home and placed her body in the boot of his car. Ning Wang then drove to another sister’s house in Burwood East, armed with a metal bar and assaulted his nephew, Kuan Yang, on the front lawn.

Ning Wang repeatedly told those present, including the police when they arrived, that he killed his sister and that her body was in the boot of his car.

Ning Wang is charged with intentionally causing injury in relation to the assault on his nephew. He has pleaded guilty to that charge.

Ning Wang has pleaded not guilty to the charge of murder. The onus of proof is on the Prosecution and Ning Wang comes to this Court with the presumption of innocence. Ning Wang is regarded as innocent unless and until the Prosecution has proved his guilt on the charge of murder. It falls on me to consider all of the evidence and decide the facts of the case. I must then apply the law to the facts as I have found them, in order to determine whether Ning Wang is guilty or not guilty of murder.

The matters which the Prosecution must prove beyond reasonable doubt on the charge of murder are that:

1 the accused committed acts which caused the victim’s death;
2the accused committed those acts consciously, voluntarily and deliberately;
3the accused committed those acts while intending to kill someone or cause them really serious injury; and

4 the accused did not have a lawful justification or excuse for those acts.

The Prosecution’s case is that Ning Wang assaulted Qin Wang around the upper body, including the head and chest and that those acts were a cause of Qin Wang’s death and that she was deceased at the time he put her body in the boot of his car. Further, that at the time Ning Wang assaulted Qin Wang, he did so with an intention to kill or cause her really serious injury.

The Defence does not dispute that on the morning of 27 February 2019, Ning Wang assaulted Qin Wang at his home and that he subsequently placed her body in the boot of his car. It is not disputed that once at Burwood East at his other sister’s home, he assaulted his nephew and represented to family members and subsequently the police, that he had killed Qin Wang.

However, the Defence denies that the assault caused Qin Wang’s death and refer to other possible medical factors. The Defence also denies any intention to kill or cause Qin Wang really serious injury.

There has been no suggestion in this case that there was any lawful justification or excuse such as self-defence, for the assault on Qin Wang. It is also not in issue that Ning Wang’s acts were conscious and voluntary and not the result of an accident.

Only if I am satisfied beyond reasonable doubt of the four elements of murder can I return a verdict of guilty for murder.

For the reasons set out in my written judgment, I am satisfied in relation to the charge of murder that the Prosecution has proved three of the four elements beyond reasonable doubt, which are:

1 that Ning Wang’s assault on Qin Wang caused her death; and
2that the assault was committed consciously, voluntarily and deliberately; and
3that Ning Wang did not have any lawful justification or excuse for those acts.

However, in relation to the remaining element, intention, I find that the Prosecution has not proved beyond reasonable doubt that when Ning Wang assaulted Qin Wang, he intended to kill her or cause her really serious injury.

As such, I find Ning Wang not guilty of murder.

Given my verdict of not guilty of murder, I must now consider whether Ning Wang is guilty of manslaughter by unlawful and dangerous act.

In relation to the offence of manslaughter by unlawful and dangerous act, the Prosecution must prove beyond reasonable doubt the following four elements:

1that the accused committed an act that caused the death of another person;
2that the relevant act was committed consciously, voluntarily and deliberately;

3 that the relevant act was unlawful; and
4 that the relevant act was dangerous.

The first two elements are the same as in the offence of murder and as I have said I am satisfied they have been proven beyond reasonable doubt. I’m also satisfied that the third element, that the assault was unlawful, has been proven beyond reasonable doubt. This was not an issue in the trial.

The only remaining issue at trial relevant to the offence of manslaughter by unlawful and dangerous act was that of ‘dangerousness’.

I am satisfied beyond reasonable doubt that the assault on Qin Wang was dangerous and therefore that all four elements of the offence have been proven beyond reasonable doubt.

As such, I find Ning Wang guilty of manslaughter by unlawful and dangerous act.

Introduction

Ning Wang is charged with the murder of his sister, Qin Wang at Clayton South in Victoria on 27 February 2019. Ning Wang was also charged with intentionally cause injury contrary to s 18 of the Crimes Act 1958 (Vic), to his nephew, Kuan Yang, at Burwood East on 27 February 2019.

Without intending any disrespect, I will refer to Ning Wang as the accused and Qin Wang as the deceased throughout this judgment. Again without intending any disrespect and to avoid confusion, I will also refer to members of the family by their first names.

This is the first trial by judge alone in the Supreme Court of Victoria and the first on the charge of murder in Victoria.[1] The COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) (‘COVID Act’) commenced on 25 April 2020. The COVID Act made various temporary changes to how courts, corrections and the justice system operate in order to address the coronavirus crisis in Victoria. These changes included amendments to the Criminal Procedure Act 2009 (Vic) (‘Criminal Procedure Act’) that allow some criminal trials to be heard by judge-alone.
[1]I note that two trial by judge alone judgments have been handed down by the County Court of Victoria in DPP v Bui [2020] VCC 1063 and DPP v Williams [2020] VCC 1662.

By notice dated 13 July 2020, the accused applied for a trial by judge alone pursuant to s 420D of the Criminal Procedure Act. That application was granted on 16 July 2020.[2]
[2]DPP v Wang (Ruling No 1) [2020] VSC 438.

Additionally, the entire trial was conducted remotely due to the coronavirus restrictions in force at the time of the trial. The parties had agreed to this prior to the commencement of the trial. Pursuant to ss 42E(1) and 42G(1) of the Evidence (Miscellaneous Provisions) Act 1958, I was satisfied that the technical requirements for an audio-visual link were met and during the trial I directed that all persons would appear and make submissions on each day of the trial by audio-visual link.

On 16 September 2020, the accused was arraigned at the commencement of trial and pleaded not guilty to murder, and guilty to the second charge of intentionally cause injury contrary to s 18 of the Crimes Act 1958 (Vic). If I find the accused not guilty of murder, then I must consider the alternative offence of manslaughter by unlawful and dangerous act.[3]
[3]Crimes Act 1958 s 421(a).

Legal principles

In accordance with the amendments to the Criminal Procedure Act facilitating judge alone trials, I may make any decision that could have been made by a jury.[4] My decision has, for all purposes, the same effect as a verdict of a jury.[5] In this judgment I must include the principles of law that I have applied and the facts on which I have relied to reach my verdict.[6]
[4]Criminal Procedure Act 2009 s 420E(1).
[5]Ibid s 420E(2).
[6]Ibid s 420F.

Section 4A of the Jury Directions Act 2015 (Vic) (‘Jury Directions Act’) applies to this case.[7] This means that my reasoning with respect to any matter to which Parts 4, 5, 6 or 7 of the Jury Directions Act applies must be consistent with how a jury would be directed according to the Act. Similarly I must not accept, rely on, or adopt a statement, suggestion or direction that Parts 4, 5, 6 or 7 of the Jury Directions Act prohibit a trial judge from making or giving a jury.[8]
[7]Ibid s 420ZF.
[8]Ibid s 420ZF; Jury Directions Act 2015 (Vic) s 4A (‘Jury Directions Act’). See Makeham v Sheppard [2020] VSCA 242 for the operation of s 4A of the Jury Directions Act in the context of the Magistrates’ Court of Victoria.

While Part 3 of the Jury Directions Act does not apply to this trial, counsel nonetheless addressed me at the conclusion of evidence on the directions and principles to which I should have regard. In reaching my verdict, I have had regard to each of those matters, where appropriate.

As in a trial by jury, the onus of proof is on the Prosecution and the accused comes to this Court with the presumption of innocence in his favour. The accused is regarded as innocent unless and until the Prosecution has proved his guilt beyond reasonable doubt. In order to do so, the Prosecution must prove each of the elements of the relevant offence beyond reasonable doubt.[9] The Prosecution does not need to prove every fact that they allege to this standard; however, facts must be clearly proved before they can be treated as established.[10]
[9]Jury Directions Act ss 61–62.
[10]R v Dickson [1983] 1 VR 227, 235 (Starke ACJ, Crockett and McGarvie JJ); R v Van Beelen (1973) 4 SASR 353, 374-80 (Bray CJ, Mitchell and Zelling JJ).

It falls to me to consider all the evidence and decide the facts of the case. I must then apply the law to the facts I have found in order to determine whether the accused is guilty or not guilty of the offence charged.

In order to decide what the facts are in this case, I must assess the credibility and reliability of the witnesses who gave evidence. It is for me to decide whether a witness’ evidence is to be believed and the weight which should be attached to any particular evidence.

On the whole, the credit and the reliability of the witnesses was not an issue in this trial.

No adverse inference may be drawn from the fact that the accused chose not to give evidence at trial.[11]
[11]Jury Directions Act s 41.

The expert evidence in this case on the whole is not disputed. I must have a very good reason not to accept any undisputed expert evidence. A very good reason includes: the facts underlying the opinion not being present; the process of reasoning leading to the opinion being unsound; or a factor that casts doubt on the validity of the opinion.[12]
[12]Taylor v R (1978) 22 ALR 599; R v Matusevich & Thompson [1976] VR 470; R v Matheson [1958] 1 WLR 474; R v Hilder (1997) 97 A Crim R 70; R v Klamo (2008) 18 VR 644.

Elements of murder

In order for me to return a verdict of guilty for the common law offence of murder, the Prosecution must prove each of the four elements of the offence beyond reasonable doubt. The four elements of the offence of murder are that:

(a) the accused committed acts which caused the victim’s death;

(b) the accused committed those acts consciously, voluntarily and deliberately;

(c) the accused committed those acts while intending to kill someone or cause them really serious injury;[13] and

(d) the accused did not have a lawful justification or excuse for those acts.

[13]The Prosecution did not raise the issue of recklessness on the charge of murder.

The Prosecution allege, and it is not disputed, that at some point on the morning of 27 February 2019, the accused assaulted the deceased at the accused’s Clayton South home. It is also not disputed that, later that morning, the accused placed the deceased’s body in the boot of his car and drove to the Burwood East home of another sister of his, Jin Wang, where he assaulted Jin’s son, Kuan, with a metal pole. The accused was eventually disarmed; however, he and Kuan continued wrestling until police arrived at the property. The accused was arrested and the deceased’s body was found in the boot of his car a short time later.

The accused does not dispute that he represented to family members, and subsequently to police, that he had killed the deceased. However, the accused denies that he caused the deceased’s death and, if he is found to have caused her death, he denies that he had a murderous intention at the time he assaulted the deceased. For the sake of convenience, where I refer to a murderous intention in this judgment I am referring to an intention to kill or cause really serious injury.

If I am not satisfied beyond reasonable doubt that the accused caused the deceased’s death then I must return a verdict of not guilty for murder, as well as for the alternate offence of manslaughter by unlawful and dangerous act. However, if I am satisfied beyond reasonable doubt that the accused’s assault caused the deceased’s death but am not satisfied beyond reasonable doubt that the accused had the necessary intention for murder, then it falls for me to consider whether the accused is guilty of unlawful and dangerous act manslaughter.

Circumstantial evidence and inferences

The Prosecution’s case against the accused relies heavily on ‘indirect’ or ‘circumstantial’ evidence. The principles concerning cases that turn upon circumstantial evidence, are well settled.[14] When a case rests substantially on circumstantial evidence a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the accused’s guilt. I therefore cannot be satisfied of the guilt of the accused unless his guilt is the only reasonable inference that the circumstances of the case would enable me to draw.[15]
[14]R v Baden-Clay (2016) 258 CLR 308, 323 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (‘Baden-Clay’).
[15]Baden-Clay 323 [46] (French CJ, Kiefel, Bell, Keane and Gordon JJ); R v Barca (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ).

For an inference to be reasonable, it must rest upon something more than mere conjecture. 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. The evidence cannot be considered in a piecemeal fashion.[16]
[16]Baden-Clay 324 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

Evidence

At trial there was very little disputed evidence. Having considered all of the evidence presented at trial, I can readily find the following facts, unless otherwise mentioned.

Background

For convenience I refer to the family tree displayed below that was admitted into evidence.[17]

[17]Exhibit 2, Wang Family Tree.

The accused is shown on the far left of the second row of the family tree and is the eldest of his five siblings. While the deceased is the youngest of the accused’s five sisters. Jin, who lives at the Burwood East property that the accused drove to on 27 February 2019, is the fifth sibling out of the six children. Jin lives with her son, Kuan, his wife, Xue Zhang, and their two children.

The deceased lived in China. She arrived in Australia on 3 December 2018 primarily to see family. Jianyao Xu is the deceased’s son. He is 32 years old. The deceased lived with Jianyao while she was in Australia visiting.

The accused arrived in Australia in 1989 to study. He is now an Australian citizen.[18] By 2019, several members of the accused’s family had moved to Australia.
[18]Exhibit 28, Transcript of Record of Interview 3 (‘Transcript of Record of Interview’).

In 2009 the accused’s father, Shuhuai was diagnosed with kidney cancer. In order to take better care of him, his children decided to move him to Australia. Shuhuai arrived in Australia in 2012 and he lived with another of the accused’s sisters, Yue Wang, for a year before moving into Jin’s home.[19]
[19]Exhibit 25, Statement of Jin Wang [5] (‘Statement of Jin Wang’); T60.2–7.

There was evidence that the accused’s relationship with his sisters had deteriorated over the years. In particular, there was evidence of two longstanding disputes between the accused and his sisters in relation to the division of family property in China and of two sums of $50,000 which the accused had provided to his sisters. There was further animosity between the accused and his sisters relating to his recent care of Shuhuai, the financial cost of caring for their father and the accused’s inability to visit Taiwan for his uncle’s birthday.[20]
[20]T101.6–11; T220.14–221.6; T222.13–23; Transcript of Record of Interview 16–17.

The evidence in relation to these disputes will be considered further below. However, I note that while the history of the disputes provides a reason for the deterioration in the sibling relationship, the actual facts of what actually transpired and the specific dollar sums that were paid or owed as between the siblings are immaterial for this judgment. What is important is that there were disputes about money and the care of Shuhuai, how the accused perceived those events, and how these events were relevant to the accused’s state of mind when he assaulted the deceased.

Events preceding 27 February 2019

Shuhuai was admitted to the Peter James Centre, a rehabilitation hospital, in late November 2018 from Box Hill Hospital.[21] On his discharge from the Peter James Centre on 7 December 2018, Shuhuai moved into the accused’s home as Jin had been diagnosed with cancer and could no longer care for her father.
[21]Exhibit D1, Discharge Summary of Shuhuai Wang from the Eastern Health Peter James Centre dated 06/12/18 (‘Discharge Summary’).

The undisputed evidence is that from the time Shuhuai moved into the accused’s home he required high-level full-time care. By this time, Shuhuai had dementia, renal cancer and other comorbidities, an indwelling catheter, he was wheelchair bound and required assistance with all activities of daily living including feeding, medication and toileting. The accused provided the necessary care to Shuhuai, including overnight care, which involved the accused having his bed abutted next to Shuhuai’s so that he could ensure that Shuhuai did not remove the indwelling catheter.[22]
[22]Ibid; T102.23–105.20; T233.14–236.8.

Shuhuai was subsequently admitted to Box Hill Hospital on 22 February 2019. He was discharged on 26 February 2019, the night before the incident. The accused stayed with Shuhuai most of the time while he was in hospital, including overnight. By the time of the incident, the evidence is that the accused was suffering from fatigue and exhaustion related to his caring responsibilities for Shuhuai.[23]
[23]T94.18– 96.27; T110.19–111.9; T175.28–29; T236.4–23; T201.30–203.6; T242.27–243.16.

By February 2019, the accused wanted to put his father in a nursing home because he could not cope with looking after him anymore. This was prompted by an injury to his lower back resulting in the accused not being able to move for three days. On or about 8 February 2019, the accused messaged the family group chat asking the deceased specifically for help with Shuhuai, as the accused had twisted his back helping his father to the toilet. The deceased did not reply for about a week which angered the accused.[24]
[24]T237.17–26; Transcript of Record of Interview 77.

In the weeks preceding the incident on 27 February 2019, the accused had attended Jin’s house complaining about family members not being grateful to him, as well as and family members lying and cheating him of his money. The situation escalated to the point where Kuan told the accused that he should leave the family alone and that if he wanted money he should give Kuan a specific figure and leave them alone.[25]
[25]T91.1–19.

There was also evidence about some tension between the accused and the deceased in the days before the incident. Kuan recalled an incident on or about 22 February 2019 when Shuhuai had been admitted to Box Hill Hospital. Kuan observed what he described as quite a tense situation between the accused and the deceased while they were at Box Hill Hospital.[26]
[26]T95.6–25.

On 26 February, the night before the incident, Li Li, the accused’s girlfriend, visited the accused at his home. Shuhuai had been discharged from Box Hill Hospital on that day and the deceased was at the accused’s house to help with Shuhuai’s care and was staying overnight. Li Li noticed the deceased and the accused ignoring each other when she initially arrived.[27]
[27]T202.20–205.13.

Li Li said that she heard them talk about one of the longstanding disputes and $50,000. She observed the volume of the deceased’s voice going up a bit at allegations the accused made. Li Li also recalled the accused raising his voice during the conversation. Eventually things settled down and the deceased asked Li Li if she wanted to stay for dinner. Li Li left at approximately 6:20pm and indicated that she would not have left the house if they were still arguing. Li Li was at the house for approximately 45 minutes to an hour and noted that the accused looked tired and exhausted when she visited.[28]
[28]T212.3–214.14; T219.1–221.23.

Relevantly, when she was at the home she recalled discussing the deceased’s medical conditions. The deceased told Li Li that twice last year she had difficulty breathing while lying down, she could not sleep and she would need to sit up for the whole night. The deceased said she was on medication for these issues. The deceased said she had frequent dizzy spells which caused buzzing in her ears. The deceased said that she could not look after Shuhuai.[29]
[29]T223.14–29.

At about 7:00pm on the evening of 26 February 2019, the accused’s neighbour, Konstantinos Karatzias also briefly visited the accused at his home to see how he was. Mr Karatzias described the accused as looking ‘tired and withdrawn’.[30]
[30]T175.27–29; Exhibit 20, Statement of Konstantinos Karatzias (‘Statement of Konstantinos Karatzias’).

Morning of 27 February 2019

Following the assault on the deceased which I will discuss below, at approximately 9:15am on 27 February 2019, the accused left his home at Clayton South and drove to Jin’s home in Burwood East in his white Holden sedan. The accused arrived at Jin’s home some time before 9:38am, when Kuan’s wife, Xue , called triple zero.[31]
[31]Exhibit 36, CCTV Footage of Clayton South (‘CCTV Footage’); T421.14–16; T422.1–9.

When the accused arrived at Jin’s home, Kuan, Xue and their youngest child were at the front door and Jin was walking in the front yard. The accused drove into the driveway with his window down. Both Kuan and Xue heard the accused say he wanted to talk to Kuan. The accused then left his car with a metal bar in his hand and approached Kuan. The accused struck Kuan about three times with the steel bar and the two began to tussle, during which the accused dropped the metal bar.[32] It was this incident which is the subject of the intentionally cause injury charge to which the accused pleaded guilty.
[32]T61.15–62.3; T97.2–24.

During the tussle, Xue called the police while holding her youngest child who was crying.[33]
[33]T164.16–20.

At approximately 9:44am Senior Constable Chris Cooper and Constable Mitchell Lording arrived at the scene and approached the address. They observed the accused and Kuan wrestling or fighting on the ground in the bushes of the driveway. As they approached, Kuan stood up and moved back, while the accused spoke aggressively in Mandarin towards Kuan. There was evidence that during the assault and upon his arrest, the accused made statements to the effect of ‘I killed her’ and ‘she’s in the boot’.[34] This evidence is considered later in this judgment.
[34]T61.26–30; T97.25–98.22; T119.28–122.18; T135.1–137.4; T169.19–170.8.

In response to one of these statements, police checked the boot of the car where they found an Asian female, aged approximately 50 years old, in a ‘very unusual’ position and partially covered with a white Ambulance Victoria blanket.[35] Police believed the woman to be deceased and this was subsequently confirmed by the paramedics who attended the scene. The woman was later identified as the deceased.[36]
[35]T127.20–128.7.
[36]T151.17–156.31.

On discovery of the body, the accused was arrested for murder and subsequently transported to Melbourne West Police Station.

On execution of a search warrant of the accused’s home, police found two handwritten notes, one in the bedroom where they also found Shuhuai, and another on the dining table in the lounge room.

The second note which was found on a shelf on a desk located in a bedroom states:

PLEASE CONTACT
MIS LU TO LOOK AFTER
OUR FATHER. THANK YOU!
NING (JUSTICE MAKER)
MOB: [Lu’s mobile number]
[Lu’s address][37]

[37]Exhibit 8, Handwritten Note #2 (‘Handwritten Note #2’).

The first handwritten note on the lounge room table states:

DEAR OFFICERS:
I HAVE KILLED MY SISTER QIN AT 7 AM
TO ACHIEVE MY JUSTICE.
I WOULD LIKE TO THANK YOU TO CONTACT MY OTHER SISTER LU [Lu’s Mobile Number] OR YUE
TO TAKE CARE OF OUR FATHER
HE HAD HIS BREAKFAST AT 9 AM.
Lu [Lu’s mobile number] CHINESE (MANDARIN)
[Lu’s address]
27-02-19[38]

[38]Exhibit 7, Handwritten Note #1 (‘Handwritten Note #1’).

The Prosecution and Defence agreed that the accused wrote the two handwritten notes located at the Clayton South property.[39]
[39]Exhibit 30, Original Notice of Agreed Facts, [2] (‘Original Notice of Agreed Facts’).

In addition to the two handwritten notes the accused left at the Clayton South property on the morning of the incident, three months later, on 30 May 2019 at 1:55pm, Senior Prison Officer Philip Sellman conducted a search of the accused’s cell at the Metropolitan Remand Centre. During the search, a handwritten note was located on the counter in the accused’s cell.[40]
[40]T254.17-255.2; Exhibit 39, Statement of Philip Sellman.

The handwriting on the piece of paper included:

I’VE KILLED ONE OF BLOOD SUCKERS. ONLY ONE OF MANY.
IT’S A SHAME.
… I’VE HAPPEN TO KILL ONE OF THE DEALY
BLOOD SUCKERS. IT’S A SHAME. THERE ARE
MOOR OF THEM WHN MY FAMILY. [41]

[41]Exhibit 29, Handwritten Note #3 (‘Handwritten Note #3’).

Returning to the day of the incident, there was evidence that observations made of the Clayton South property by Sergeant Kingston-Lee was that the home was ‘fairly neat and tidy’ and that ‘there didn’t appear to be any signs of disturbance throughout the house at all’.[42] Sergeant Kingston-Lee observed in the lounge room an orange coloured L-shaped couch in the corner. It appeared to be made up as a bed and there were some cushions, a doona and a towel on the couch. Sergeant Kingston-Lee did not observe blood on any of the fabric items in the lounge room.[43]
[42]T286.16–19.
[43]T286.20–287.4; T292.5–9.

At the Clayton South property the police observed what looked like three droplets of blood on the lounge room floor. DNA analysis of the three droplets concluded that it was 100 billion more times more likely if the deceased is the source of the blood than if the deceased is not the source of the blood.[44]
[44]T267.20–22; T268.11–19; T269.11–26.

Following the accused’s arrest at the Burwood East property, he was transported to the Melbourne West Police Station where he arrived at approximately 11:55am, and subsequently gave a record of interview.

After his arrival at the Melbourne West Police Station the accused was read his rights and cautioned by Detective Acting Sergeant Megan Adams.[45] The accused requested they call his sister Lu and his girlfriend. The accused said he needed his sister ‘to go and look after my 91 year old father.’[46] The accused was subsequently informed that Lu was already with his father and he said that he no longer needed to speak to her.[47]
[45]T189.29–190.27.
[46]T190.16–22.
[47]T192.16–19.

The accused’s phone call to Li Li

At 2:48pm on 27 February 2019, the accused had a telephone conversation, in Mandarin, with his girlfriend, Li Li, which was recorded by police.

At the beginning of the call, Detective Adams told Li Li that the accused was under arrest for the deceased’s death. The following exchange then took place between Li Li and the accused:

LI: What have you done again?
WANG:I can only find a way out by getting into trouble and going to jail. uh.

LI: (Unintelligible)
WANG: They have driven me mad. They have driven me mad.[48]

[48]Exhibit 34, Transcript of Call between Ning Wang and Li Li 2 (‘Call between Ning Wang and Li Li’).

The accused then told Li Li that he had killed the deceased. The accused told her that ‘[t]his kind of person doesn’t deserve to live in this world’.[49]
[49]Ibid.

When Li Li asked the accused about the future care of Shuhuai, the accused said ‘Wei Wang [sic] will now come to look after him [sic] … I have already left a note on the table. He will be looked after.’[50]
[50]Ibid 3.

The following exchange then took place between the accused and Li Li:

WANG:Don’t be nervous. We all will die as human beings. I can’t stand this. I won’t swallow this anger and live on like this.

LI:                  Oh. (Unintelligible)
WANG:        You should have known it.
LI:                  Why can’t you be rational?
WANG:        I have been rational enough.
LI:                  You have killed Qin Wang? (Unintelligible)
WANG:        Right, right, right.
LI:What is the point for you to kill her? You should go and kill Yao Wang instead.
WANG:Nonsense. You really don’t understand it. You have no idea. She was the leader of the pack. She instigated it. She was the first one to instigate it in our family. Huh?

LI:                  Is she dead?
WANG:        Dead.
LI:                  Oh my. How did you kill her?
WANG:        I bashed/hit/beat her to death.[51]

It is accepted that the accused did not use all three of the words ‘bashed’, ‘hit’ and ‘beat’, but rather that the Mandarin word used by the accused could have any one of those meanings.

[51]Ibid.

After this exchange, Li Li asked the accused whether he will be sentenced to death and the accused said the following:

I am not afraid of death. If I die … if I am afraid of death, why would I do this? … there is no point for me to live on. What is the point to live on? … Don’t be nervous. It’s no big deal. People die everyday.[52]
[52]Ibid 3–4.

Record of interview

The accused was interviewed at Melbourne West Police Station on Wednesday 27 February 2020 by Detective Senior Constable Brendan Devenish and Detective Senior Constable Anna Kirishian. Also present were two different Mandarin interpreters during different segments of the interview.

The interview took place between 4:56pm and 9:51pm. The interview was lengthy and covered a range of topics. Having had regard to the entirety of the recording and transcript of the interview, I include here the most relevant parts of the interview for determining the elements of the offence.

The accused spoke to Li Li and a Victoria Legal Aid lawyer prior to the interview. In the course of the interview the accused was examined by Forensic Medical Officer Dr Supriya Krishnan. A DNA buccal swab and fingernails scrapings, from both hands, were also taken from the accused. Subsequent DNA testing of the fingernail scrapings identified mixed DNA profiles on both the left and right hands. The deceased was excluded as a contributor to those profiles.[53]
[53]T271.4–272.5.

The accused was asked how the deceased died. He replied ‘No comment.’ The accused would be asked questions to this effect several times during the interview and he repeatedly provided a ‘no comment’ answer. I obviously draw no negative interference against the accused for these answers. Indeed I have paid no regard to these statements whatsoever.

After providing an extensive explanation of his family tree and relations, the accused was asked about Shuhuai. He explained that he took care of his father ‘day and night’ and did ‘everything’.[54]
[54]Transcript of Record of Interview 17.

Detective Senior Constable Devenish asked the accused if he remembered speaking to people at Burwood East during the assault on Kuan:

Q 435 O.K. Do you remember what you said to those people about your sister in the boot?

A No, I can’t remember that much.
Q 436 O.K.
A There’s a lot of things going on in my head.[55]

[55]Ibid 44 (emphasis added).

Detective Senior Constable Devenish questioned the accused about one of the handwritten notes left in the Clayton South address:

Q 453 When did you write that note?
A Before I left.
Q 454 O.K. What does that note say?
A Basically call somebody to look after my father.[56]

[56]Ibid 46.

The accused descended into detail as to the background of the family dispute, his relations with his family members, his care of Shuhuai and the morning of the deceased’s death.

The accused said he looked after his father overnight while the deceased slept in the living room.[57]
[57]Ibid 41–42.

The accused detailed that he had a sleepless night prior to the morning of the deceased’s death, getting up between three and five times overnight as Shuhuai was agitated. He said that the deceased slept and did not assist him with caring for their father.[58] He recalled that she got up once, but ‘she didn't help, just watched. Watch what I do’.[59] When asked how her sitting and watching made him feel, he replied ‘[s]he doesn’t know what to do’.[60]
[58]Ibid 51.
[59]Ibid.
[60]Ibid 52.

The accused was questioned about the trip to Taiwan for his uncle’s 90^th birthday. The accused explained that he ‘had to cancel because nobody come [sic] to look after my father.’ When asked who did he ask to look after Shuhuai, the accused replied ‘[e]verybody’.[61]
[61]Ibid 47.

After explaining that his sisters are not generally around to assist with the care of Shuhuai, the accused propounded at length the dispute between him and his family members, including how he perceived his family’s actions. He said he felt ‘cheated’ out of $50,000 and that his family ‘lied’ to him.[62]
[62]Ibid 54.

The accused further explained the communication issues he had with his sisters and the requests he made for them to contribute to the care of Shuhuai:

Q 535 Mm.
A Now I ask them – “If you can give me some back then everybody contribute a little bit.” No talk, don’t come any more. I write to them, “We should talk.” No talk, don’t talk. Making more lies.…[63]

[63]Ibid 55 (emphasis added).

The accused continued, more specifically focusing on the deceased:

Q 545 Mm’hm.
A One thing - but this one, she come to my place. She came from China, come to my place, we had negotiations. Previously was, I think - say two or three weeks ago I tried to negotiate with him - with her to contribute a little bit of money because father at my place. If she - he gets sick I - I wouldn't be able to cope. Also I need money to buy grave. At father’s age we needed to - to build - to – to pay for the - for the - for the cemetery funeral. She’s got millions and billions of dollars. I said, “You pull out one hair, that would be enough to solve the problem.” No, no money. Not even cents, a penny. Now, this time I try to talk to her again, same thing happens. It’s just one drop in the - a sesame on the ground. I give them money without asking. They don’t ask me for money, I don't know ......... I know they’re lying …
…

Q 547 Mm’hm.
A I said, “You had a responsibility. You gain more, you have more responsibility.” The family have to be supported by everybody, not by one person. It will collapse, you destroy the whole the family, the - the - the - the - the relationship destroyed. Nobody cares, just take. Nothing come back. How I can survive with it this way since they - I was getting angry. Extremely selfish. You can’t talk to them, can’t - you can’t .......... they don’t even believe, yeah.[64]

[64]Ibid 56 (emphasis added).

Further on in the interview, the accused detailed his interaction with the deceased on the morning of her death:

Q 561 O.K. So how has all this impacted on what happened this morning?
A What happen in this morning, I had a chat with - with her. I said, “You just pull one hair, we solve all the problem. For you it’s nothing.” But nothing happens, they just don’t .......... enough to give nothing. “And it won’t – won’t hurt you.” One – say you spend the $50,000 some - for - for her it’s absolutely nothing. He’s got billions, maybe billions …

…
Q 565 - - - but she didn’t, what happened next?
A I got angry again, yeah. That’s all, I - I just say stop here.
Q 566 Tell me about how angry you were.
A This is not the first time I got angry.
Q 567 Mm.
A Many times I think I should die. I can’t live in this - I can’t - I can’t - cannot stand all these things. Here I’m taking care of my father, there they are making it hard - difficult for me. Now, only to .......... a - a week - no, they won’t allow you to go.[65]

[65]Ibid 58–59.

The accused confirmed what he said when police arrived at Burwood East:

Q 662 But can you tell me what you told the police when they arrived?
A Yeah, they arrived, yes, I said, ’I killed my sister, she’s in the boot.’[66]

[66]Ibid 70.

The accused then explained that he gave his father breakfast at approximately 9:00am. After giving his father breakfast, he put the deceased’s body in the boot prior to leaving, by dragging her body from the living room. In the record of interview, the accused suggests that he left for Burwood East at 9:30am or 9:45am. However, CCTV footage from a neighbour’s property establishes that he left for Burwood East at 9:15am.[67]
[67]Ibid 77–78, 84; CCTV Footage.

The accused provided additional information on the confrontation when questioned by Detective Senior Constable Kirishian. He described that they were in the living room. She was sitting on the couch while he was standing up, and they had a fifteen to twenty minute conversation.[68] The accused was then questioned as to how the conversation started:

Q 814 And then how did that conversation start?
A Yeah, I just ask her - I said, “Hey, I've been” - I didn’t sleep all night, I’d been thinking about it. I got very upset. “You got that much money, you just spend a penny it’s all solved”. If I was in the situation I wouldn’t hesitate.[69]

[68]Ibid 79–80.

[69]Ibid 86 (emphasis added).

Replying to questions from Detective Senior Constable Devenish, the accused commented on the deceased’s behaviour during this confrontation:

Q 779 How - how was she behaving?
A Behaving?
Q 780 Yeah - - -
A ..........
Q 781 - - - or what - in terms of her - her tone of voice, her body language.
A Oh, O.K. She’s very calm, she never panic and not - she telling lies with - with no - you can’t see the face change. She cheating you with a smile. I learned – I learned - - -[70]

[70]Ibid 82 (emphasis added).

When the accused was asked why he wanted to put the deceased’s body in the boot, the accused replied:

A Because I don’t want the body there at house, I want to bring to my sister’s place as the consequence.

Q 793 And why do you - what were you trying to achieve by doing that?
A Well, it could’ve been a peaceful situation, now you push me to the corner. I couldn’t live with this any longer. You - you go nowhere. I’ve got my father, I will pay everything. They just wash their hands, walk away. Nobody come. …. And they the winner; they got all the properties, they get rid of father. Now I’ve got nothing.[71]

[71]Ibid 83–84 (emphasis added).

He then expanded on his exasperated situation:

Q 807 O.K.
A I don’t care where he dies. I’m prepared to die a million times, not this times. I don’t want to live this way, being cheated all the time. I have no capability with - play games with these people. They have a thing because they have same interests. I’ve got no information, I’m in Australia. I’ve got no information, they don’t tell you.[72]

[72]Ibid 85.

The accused continued that ‘I wanna go to gaol, I’ll be happy to go – go to gaol.’[73]
[73]Ibid 86.

After a lengthy to and fro with the interviewers, the accused, referring to the family members he had a dispute with, stated that ‘these people got no heart’.[74]
[74]Ibid 91.

When Detective Senior Constable Kirishian brought up Jianyao and the fact that he had his mother taken away from him, the following exchange took place:

Q 868 So his mum’s been taken away from him.
A Yeah, yeah, yeah.
Q 869 Why?
A That’s a tragedy.
Q 870 Mm.
A It’s my fault. It’s my fault, I don't blame anybody else. I'm human. That shouldn’t happen.

Q 871 Ning, you’ve – you’ve said to us - - -
A I don’t think it’s the right thing to do. It’s not a perfect world. I don’t look at excuse for myself. So I may be short in the brain. I said, “I’d better go to gaol, I can’t stay like this any longer.” It’s not just one day, it’s been seven years. You get stressed, upset, you cannot concentrate and do any work. You think about the – nasty things.[75]
[75]Ibid 92–93 (emphasis added).

Causation

Each of the offences of murder and manslaughter by unlawful and dangerous act require a finding, beyond reasonable doubt, that the accused’s actions caused the deceased’s death.

The principles in relation to causation are well established. The question of causation is not a philosophical or scientific question. Instead causation is determined by applying common sense to the facts. The purpose of the enquiry is the attribution of legal responsibility in a criminal matter.[76]
[76]Campbell v The Queen (1980) 2 A Crim R 157, 161 (Burt CJ); Royall v The Queen (1991) 172 CLR 378, 387 (Mason CJ), 411 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ) (‘Royall’).

In order to demonstrate that the accused’s assault on the deceased caused her death it is sufficient for the Prosecution to prove, beyond reasonable doubt, that the assault was ‘a substantial or significant’, ‘sufficiently substantial’ or ‘substantial and operative’ cause of the deceased’s death.[77]
[77]Royall 411–2 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ), 442–4 (McHugh J); Swan v The Queen (2020) 376 ALR 466, 472–3 [24] (Bell, Keane, Nettle, Gordon and Edelman JJ); Freeburn v The Queen [2020] VSCA 155 [72] (Kyrou, Kaye and Emerton JJA) (‘Freeburn’).

The Prosecution need not prove the assault was the sole or principal cause of the deceased’s death.[78] Thus, it is open for me to be satisfied that the accused’s assault caused the deceased’s death even if it was not the sole, immediate, or most proximate, cause of her death.[79]
[78]Freeburn [72] (Kyrou, Kaye and Emerton JJA).
[79]Ibid.

The Defence does not dispute that the accused physically assaulted the deceased on the morning of 27 February 2019. Having done so the accused must take the deceased as he found her.[80] Any medical condition the deceased may have had, rendering her more susceptible to death than a person of normal health, cannot of itself enable the accused to claim that the deceased’s death should not attract criminal liability.[81]
[80]R v Blaue [1975] 1 WLR 1411, 1415 (Lawton LJ); Robb v The Queen [2016] VSCA 125 [73] (Ashley, Osborn and Priest JJA) (‘Robb’).
[81]Robb [73].

While I have considered all of the evidence, the most important evidence relating to causation includes: Dr Archer’s evidence; and the lay evidence given in relation to the deceased’s health. I will first consider this evidence before moving on to consider the parties’ submissions on causation.

Evidence of Dr Melanie Archer
Autopsy report and summary of findings

Dr Melanie Archer, a forensic pathologist employed by the Victorian Institute of Forensic Medicine, attended the Burwood East property on 27 February 2020 at 3:41pm and observed the body the boot of the car.

On the same day at 6:36pm, Dr Archer performed an autopsy and later prepared a report.[82]
[82]Exhibit 33, Report of Dr Melanie Archer dated 14 June 2019 (‘Autopsy Report’).

For the purpose of the autopsy report, Dr Archer conducted an external and internal examination of the body, special investigations including tissue taken for histopathology, post-mortem whole body CT scan, post-mortem plain x-rays of the larynx and hyoid bones, extended post-mortem toxicology, post-mortem biochemistry and photographs. Dr Archer organised for specialist radiologist review of the post-mortem CT scan performed by Dr Chris O’Donnell on 28 February 2019.[83]
[83]Ibid 17, 21.

Dr Archer included in her autopsy report a verbatim extract from a report prepared by Dr Linda Iles, a forensic pathologist that specialises in neuropathology. Dr Iles conducted a neuropathology examination on the deceased’s brain on 4 March 2019.

Dr Archer explained that she listed the injuries under the heading ‘Trauma’ because they were, in her opinion, traumatic injuries sustained in life. This includes the neuropathological findings which were listed separately in her report by Dr Iles.

Dr Archer summarised her autopsy findings as follows:

Summary of Autopsy Findings:
1Petechia over the upper chest, neck and face (including the eyelids and oral mucosa).
2Trauma:
a. bruising to the left and right scalp;
b. bruising to the jaw and cheeks bilaterally;
c.bilateral periorbital haematomata with right medial wall orbital blowout fracture;

d.        bruising to the tip and left lateral edge of the tongue;
          e.        abrasions over the nose;
          f.        strap muscle bruising over the anterior neck;
          g        bruising into the posterior neck musculature;
          h.        right thyrohyoid ligament haemorrhage;
i.        possible kinking of the greater horn of the hyoid bone;
          j.        bilateral anterior and lateral rib fractures;
          k.        deep bruising of the left pectoralis major and minor muscles;
l.bruising over the right hand (dorsum and metacarpophalangeal joints of the index, middle and right fingers);

m. bruises over the knees bilaterally and left shin;
n. patchy bruising over the upper back.

3 Neuropathology finding (see separate report):
a. ‘minor focal sulcal subarachnoid haemorrhage only’.
4Impressed parallel lineal marks over the left arm and left leg (favoured to be impression marks from objects under the body).

5        Posterior aortic adventitial haemorrhage (just distal to the arch).
6        Pouch of Douglas haemorrhage.
7        Focal moderate coronary artery atherosclerosis.
8        Uterus not identified.[84]

[84]Ibid 3–4.

Having conducted all of the tests she could think of doing and the full autopsy, Dr Archer could not find the cause of death. Dr Archer determined that the cause of death was ‘UNASCERTAINED’.[85]
[85]T365.17–19; Autopsy Report 4.

Dr Archer went on to make the following comments in the autopsy report:

COMMENTS:
1The cause of death remains unascertained despite a full autopsy with ancillary investigation.
2There was evidence of blunt force trauma in a pattern strongly indicative of a recent assault. There was bruising to the left and right scalp, jaw and cheek. Further bruising was noted over the upper back, chest and limbs.
3There were two periorbital haematomata (‘black eyes’), and there was an orbital blowout fracture involving the right medial ball of the orbit (‘right eye socket fracture’). This fracture type is normally associated with direct blunt force trauma to the eye socket, such as a punch or blow from a solid object.
4There were bilateral rib fractures of ‘buckle’ type. These fractures involved the front and side of the chest over multiple ribs on both sides. Autopsy demonstrated that these fractures were acute (recent), although there was no associated inflammation. The rib fractures were multiple in some ribs, including the relatively well-protected second rib.
5The precise mechanism by which these rib fractures occurred is unknown. Anterior (frontal) fractures may be caused by direct anterior blunt force or anterior compressive force. Lateral fractures may also be indicative of interior compression or direct blunt trauma to the side of the chest. Examples of blunt force trauma that can cause rib fractures include falls, punching and kicking. Anterior compressive force may be delivered by crushing due to a heavy object placed on top of the chest, by kneeling on the chest or by pushing on the chest. Anterior rib fractures are most frequently seen in the setting of cardio pulmonary resuscitation, although ambulance records reveal that this was not delivered by paramedics.
6There were petechial haemorrhages over the upper chest, neck and face. Petechiae are pinpoint haemorrhages that are caused by raised blood pressure in tiny blood vessels due to obstructed venous blood return. Petechial haemorrhages can be associated with traumatic asphyxia (chest compression) and neck compression. They may also form independent areas after death, for example on the face of a prone body. However, petechiae were present in this case in non-dependent areas (eg behind the left ear).
7The significance of the petechial haemorrhages is uncertain. However, the possibility of neck compression and/or traumatic compression of the chest is raised due to the combination of findings of bruising to the strap and posterior muscles of the neck, and the rib fractures. There was also possible kinking on x-ray of the right side of the hyoid bone of the neck, with some haemorrhage into the surrounding tissue. But a hyoid fracture was not demonstrated, and this possible kinking is of uncertain significance.
8Neuropathology examination showed some minor acute subarachnoid haemorrhage in a distribution consistent with blunt head trauma. Loss of consciousness from blunt head trauma is a possibility, which means that positional asphyxia cannot be excluded. This form of asphyxia involves positioning of the body in a way that compromises breathing, and it can cause or contribute to death. The development of hypoxia (oxygen shortage) is reliant on the decedent failing to escape from the adverse position due to a reason such as unconsciousness, intoxication or entrapment.
9There was focal moderate coronary artery atherosclerosis affecting the left anterior descending coronary artery, with thickening (hyperplasia) of the vessel wall also at this location. However, there is no evidence that this contributed to death. There was also no evidence of any other significant natural disease that caused or contributed to death.
10Impressed parallel linear marks were noted over the left arm and left leg. There was no evidence of any vital reaction underlying these marks at autopsy, and they are favoured to be post-mortem impression marks (indentations). Review of selected scene photographs reveal that Qin was lying on some ropes when she was in situ in the car boot, and their placement corresponds with the linear marks.
11Post-mortem toxicology shows no ethanol (alcohol) and no common drugs or poisons.
12Post-mortem vitreous humour biochemistry showed levels of sodium, potassium, chloride, glucose, creatine and urea within normal post-mortem limits.
13This report has been reviewed in full by another forensic pathologist in accordance with the Victorian Institute of Forensic Medicine’s technical review policy.[86]

[86]Autopsy Report 4–5 (emphasis added).

In oral evidence Dr Archer said that her positive overall finding was ‘that there was a lot of blunt force trauma … in this case … and the pattern to me was strongly indicative of recent assault’ rather than some species of fall.[87]
[87]T365.27–30; 378.29–379.1.

Positional asphyxia

Dr Archer confirmed that in her autopsy report she summarised what Dr Iles found in her examination of the brain and put that in context. Dr Iles found some minor acute (fresh) subarachnoid haemorrhage.[88] Dr Archer said that as evidence of blunt force head trauma was found in the form of scalp bruising and the subarachnoid haemorrhage, this raised the possibility that the subarachnoid haemorrhage could potentially have caused a loss of consciousness, which in turn compromises breathing. In the context of considering what caused the deceased’s death, Dr Archer said that in this case, the possibility of death by positional asphyxia cannot be excluded.[89]
[88]T373.28–31.
[89]T379.11.

Dr Archer said that in other scenarios, loss of consciousness is seen with intoxication or entrapment. However, in this case Dr Archer said:

I’m raising the possibility that if you’re in an awkward position and you’re unconscious there’s actually a possibility that you can have some airways compromised and this can cause or contribute to deaths in some instances.[90]

[90]T374.27–31.

Dr Archer said that in cases with an unascertained cause of death it is often prudent to raise positional asphyxia as a possibility.[91] Dr Archer said in this case, it refers to a person’s failure to rescue themselves from an adverse position which would imply that they would need to have lost consciousness.[92]
[91]T374.31-375.–2.
[92]T375.5–8.

Dr Archer agreed that the existence of the traumatic brain injury detected by Dr Iles provided a rational piece of evidence supporting the possibility of positional asphyxia, or more specifically that it raises the possibility of potential loss of consciousness which was one of the ingredients to allow positional asphyxia to occur.[93]
[93]T379.8–18.

Facial injuries

At the Court’s request and through the questioning of the Defence, Dr Archer was asked about the degree of force required to cause the right eye socket fracture.

Dr Archer confirmed that when pathologists are asked to comment on the degree of force used, the general practice is to use the terms ‘mild, moderate and severe’.[94] Dr Archer agreed that the terms ‘mild, moderate and severe’ are subjective and impressionistic categories designed to assist a court to understand matters without being too precise.[95] Dr Archer agreed that in forming the assessment of the degree of force used, there are ‘infinite variables’ that can be relevant depending on the facts of the case.[96] This includes: the position of the victim; movement of the victim at the time of the trauma; any particular vulnerability of the victim; and any particular strength of the victim.[97]
[94]T404.8–10.
[95]T404.11–13.
[96]T404.14–17.
[97]T404.18–25.

Bearing those matters in mind and the fact that the orbital wall is particularly thin,[98] Dr Archer assessed the degree of force to cause the right eye socket fracture ‘as at least moderate’.[99] Dr Archer said that it was possible that a single blow could have caused the injury to the right eye.[100]
[98]T405.7–12.
[99]T406.4–8.
[100]T380.113–14.

During cross-examination, Dr Archer was asked about the other facial injuries sustained by the deceased:

Question:… the other facial injuries may be caused by contacts that are mild or moderate; is that correct?
Answer:That’s correct, yes, absolutely. I mean you couldn’t – you couldn’t rule out severe either but – but you – you’d also accept mild, so it doesn’t take much to produce some of these abrasions. A lot of the bruising to the cheeks and jaw, you know, you might be thinking more moderate but certainly the abrasions, it doesn’t take much.[101]

[101]T406.9–17.

Dr Archer was asked if there was any connection between the subarachnoid haemorrhage and the right eye socket fracture:

Question:… Now I’m going to tie the next question back to the eye socket injury [but] we have in this case because of Dr Iles’ analysis knowledge of an acute subarachnoid haemorrhage, is that correct?

Answer: Yes.
…
Question:All right. So one rational possibility is that the blow, and hypothesising that it is a blow, the blow which caused the orbital wall fracture is at least rationally capable of being the blow that caused the subarachnoid haemorrhage as well; is that correct?
Answer:That possibility if it was a substantial enough blow. It could definitely do that.[102]
[102]T405.13–406.3.

Rib fractures

Dr Archer had a specialist radiologist, Dr Chris O’Donnell, perform and review a post-mortem CT scan and plain x-ray. Based on her autopsy examination and Dr O’Donnell’s radiology tests, Dr Archer’s findings in relation to the deceased’s ribs were as follows:

There are bilateral anterior and lateral rib fractures:
1        Anterior fractures of right Rib 2 and 3, left Rib 4 and 5;
2        Anterolateral fractures of left Rib 4 and 5;
3        Lateral fractures of right Rib 2, 4, 5;
4        Lateral fracture of left Rib 9.
The rib fractures are not displaced and are of ‘buckle’ type. There is a patchy subpleural haemorrhage and intercostal haemorrhage surrounding the rib tissue.[103]

[103]Autopsy Report 15.

Dr Archer confirmed that there were multiple fractures in some ribs which she considered was of note, including ‘the relatively well protected second rib’.[104] Dr Archer explained in relation to the second rib, ‘it’s protected by the jutting collarbone, it’s protected by the arm, and it’s protected at the back … the scapula’.[105] Dr Archer said that the fractures to the higher ribs, such as the second rib are something a pathologist notices.[106]
[104]Ibid 4; T368.7.
[105]T368.12–18.
[106]T368.22–23.

During examination-in-chief, when Dr Archer was asked why multiple fractures in the same rib was something of note, she gave the following response:

Well, because you don’t ah - you don't often see it. Ah it’s usually you just get the one ah and to get multiples that’s of note. It may either indicate multiple applications of force ah to me or it um may indicate a greater severity of force, by also ah the other thing is in people who are osteoporotic. They just — they — their bones are like glass and they can have multiple fractures. I didn’t get that sense from her. I would have commented on it. [107]

[107]T370.9–17.

In the deceased’s case, Dr Archer said the way in which the rib fractures were sustained were not known.[108]
[108]T368.28–30.

In relation to the anterior fractures, she said the mechanism that causes the injury could be direct anterior blunt force trauma or anterior compressive trauma.[109] Examples of every day scenarios include CPR, kneeling on someone’s chest, falling face first on something, people hitting steering wheels in a motor vehicle accident, or kicking someone in the chest.
[109]T369.1–4.

In relation to the lateral or side fractures, Dr Archer said they can be caused by anterior compressive force,[110] or direct blunt force trauma to the side of the chest.[111]
[110]T369.20–21.
[111]T369.24–27.

Dr Archer said that the radiologist did not notice the deceased to have any osteoporotic tendencies,[112] and nor did Dr Archer find any osteoporotic tendencies during the autopsy.[113]
[112]T370.19–20.
[113]T370.20–21.

Dr Archer acknowledged that the rib fractures might reflect a combination of blunt force trauma and a later attempt at CPR. Dr Archer agreed that, in the present case, there was no scientific way to unpack a possible combination of blunt force trauma with a later attempt at CPR.[114]
[114]T380.28–381.6.

In relation to the degree of force required to cause the rib fractures, Dr Archer classified it as ‘[p]otentially severe but at least moderate’.[115]
[115]T404.27–31.

Other injuries from trauma

In relation to the injuries to the upper chest, neck and face, Dr Archer noted the presence of petechial haemorrhages in those areas.[116] Petechiae are pinpoint haemorrhages that are caused by raised blood pressure in tiny vessels due to obstructed venous blood return.[117] Dr Archer was clear that the presence of petechial haemorrhages is ‘very non-specific’[118] and ‘uncertain’.[119]
[116]Autopsy Report 4.
[117]T312.9–16.
[118]T371.17–18.
[119]Autopsy Report 5.

In examination-in-chief Dr Archer said she could not be definitive of whether the petechial haemorrhages over the upper chest, neck and face were as a result of chest compression or neck compression. Dr Archer stressed that pathologists needed to be cautious about interpreting the causes of petechial haemorrhages and that they are not diagnostic.[120] However during cross-examination, Dr Archer did acknowledge that a person falling on another’s chest with their knees is a potential cause of petechial haemorrhage.[121]
[120]T373.3–7.
[121]T381.7–22.

Dr Archer said the most significant finding in the neck region was bruising of the strap muscles and patchy bruising in the ligaments between the larynx and hyoid bone.[122] During examination-in-chief Dr Archer said that:

[Y]ou could imagine that if I were to um injure that neck in any way, be that hands, be that striking, be that falling against something, then you might get some bruising into those [strap] muscles.[123]

[122]T338.1–5.

[123]T338.18–21.

Dr Archer concluded that while the significance of petechial haemorrhages is uncertain, the possibility of neck and or traumatic compression of the chest is raised due to a combination of findings of bruising to the strap and posterior muscles of the neck, and the rib fractures. In evidence in chief, Dr Archer elaborated on the collection of petechial haemorrhages in this case, stating that while she could not be 100 per cent certain what she attributes them to, because pathologists have to be cautious, ‘I would say that [raises] my suspicions for chest compression um and we do have that in tandem with the rib fractures … certainly the chest compression um I would —I would see as a —as a contender, especially with the rib fractures …’[124]
[124]T372.23–31.

The deceased’s pre-existing conditions

Dr Archer was questioned about the deceased’s pre-existing medical conditions, in particular her asthma and coronary artery atherosclerosis. Dr Archer was also asked about what access she had to the deceased’s medical records and medical history and what difference access to that information would have made to her findings.

Dr Archer said that on the day of the autopsy the deceased’s past medical history was unknown to her and subsequent enquiries revealed the deceased had no general practitioner in Australia. Dr Archer explained that there is a liaison unit that speaks with relatives and detectives to try to find medical records. She understood that enquiries were made.[125]
[125]T300.4–17.

In her observations of the cardiovascular system, Dr Archer said that the heart was in the right place, the dimensions of the heart were all within normal limits for a woman of the deceased’s age and that she did not see anything significant on the autopsy.[126]
[126]T331.8–16.

In relation to the main coronary blood vessel, the aorta, Dr Archer picked up some mild arthrosclerosis, hardening of the arteries, that was age-related and not of a very significant nature. Dr Archer described a small amount of haemorrhage just over the back of the aorta around the outside of it of uncertain significance, but said it certainly was not something that caused or contributed to the deceased’s death.[127]
[127]T331.25–26.

In relation to the histology performed on the heart, Dr Archer said that the coronary arteries she did not observe anything significant.[128] Under the microscope Dr Archer observed what she described as a moderate 60 per cent occlusion of the luminal in the left anterior descending artery.[129] Dr Archer got the laboratory to do multiple slices into her block of the preserved coronary artery in order to give more pieces of it to ensure that the blockage was no worse than 60 per cent[130]
[128]T334.7–9.
[129]T334.11–15; T335.1–6.
[130]T334.15–20.

The 60 per cent occlusion in the left anterior descending artery was ‘literally only in one spot,’[131] and that there was no evidence that the moderate coronary artery arthrosclerosis affecting the deceased’s left anterior descending artery contributed to the death.[132] Dr Archer based her conclusion on her interpretation of the blockage being moderate, as well as a lack of evidence in the heart itself in terms of fibrosis formation or significant amounts of scar tissue.[133]
[131]T335.4–7.
[132]T376.11–12.
[133]T376.11–17.

In cross-examination Dr Archer agreed that tests conducted on the heart during life can measure heart function and capacity in a way that cannot be done on autopsy.[134] This was in particular relation to measuring blood flow with tests such as an angiogram. Dr Archer explained that a person with a 60 per cent blockage in their coronary artery could still have good blood flow by reason of collateral flow from other vessels rerouting around the blockage, which might mean that the person has surprisingly good blood flow.[135]
[134]T390.19–27.
[135]T389.5–18.

During cross-examination, Dr Archer was asked about the relevance of the absence of the deceased’s medical records in relation to determining whether the deceased had good distal flow despite the 60 per cent occlusion:

Question:[W]ithout having access to her [the deceased’s] medical records such as they are, you’re not able to say whether she had good distal flow apart from the 60 per cent occlusion, are you?
Answer:What I’m able to say is that I find no evidence that she doesn’t have good distal flow um so I thought if she didn’t um I should have seen some consequences to her heart um in terms of some fibrosis or scar tissue and sometimes enlargement of a heart as well um even old heart attacks in certain cases but I definitely didn’t see any evidence that she’s suffered from consequences of a bad heart but I cannot entirely exclude it. It’s not something that I found any evidence of.
…

Question:…[i]n the setting of exposure to positional asphyxia, a cardiac arrhythmia triggered by poor or compromised distal flow could hasten death; couldn’t it?
Answer:That is a theoretical possibility. I found no evidence that that would necessary have occurred in this case, but if somebody did have poor distal flow to their myocardium, so their heart muscle, then they would have that potential for a lethal cardia arrhythmia. That’s one of the consequences of an oxygen starved heart.
Question: Yes?
Answer: But I didn’t find any evidence that moved me or my colleagues to the — to this case to think that this was a possibility we should elevate. …. But I can’t exclude it.[136]

[136]T391.1–12; T391.25–392.7 (emphasis added).

Dr Archer agreed that it was impossible to entirely exclude if the coronary artery occlusion played a role in the deceased’s death in the absence of medical results.[137]
[137]T393.15–19.

During examination-in-chief, Dr Archer was asked whether there was anything in the deceased’s heart that may have caused or contributed to her death. Dr Archer said:

The blockage to the coronary artery certainly gave me pause for a thought ah and I did – because you have to consider whether that could possibly have contributed at least, and I don’t believe so. Ah I believe that moderate coronary anthracosis with no evidence that she’s had a lot of scarring to the heart muscle in the past, no previous heart attacks that I could identify. I do not believe that that has been a contributor. I can’t rule it out, to be completely fair, but I don't believe that it has been. I did show it around a few colleagues as well, blind, not telling them any of the other case circumstances, just to see what they would grade it at, just to make sure that I wasn't downgrading it through some sort of context bias, ah so I could show it around my neighbours. Um just what do you grade - we do that to each other all the time? And people did not come up with anything more than moderate and I (indistinct) showed it to about five people um so - - -
… . I’ve discussed this in a departmental meeting and … nobody else would have elevated it as a significant contributing factor but to be completely fair, I would never entirely exclude it.[138]

[138]T341.29–342.25.

Dr Archer said that if the deceased had complained of sudden dizzy spells, she agreed it was a matter she would like to have known about, and that she did not know about it.[139]
[139]T394.1–5.

In relation to the history of the deceased’s asthma, to begin with Dr Archer talked about her findings in relation to the deceased’s respiratory system in general. In relation to the deceased’s lungs Dr Archer noted a little bit of black staining associated with smoking or living in a polluted city, but noted that it was mild and she did not assign the description of mild to many people.[140] She said most of us are in the moderate category and the deceased was actually mild. Dr Archer said ‘[the deceased] had nice pink lungs is what I’m saying there’.[141] In conclusion Dr Archer said that there was ‘nothing special going on’ in the deceased’s lungs.[142]
[140]T339.10–11.
[141]T339.14–15.
[142]T339.23–24.

During the autopsy Dr Archer took samples to be later analysed for toxicology purposes.[143] Dr Archer gave evidence that the routine toxicology testing included tests for five common drugs to treat asthma: salbutamol (Ventolin), salmeterol, terbutaline, theophylline and formoterol.[144] It also included testing for ipratropium, which is not an asthma drug but is used for chronic obstructive airways disease.[145] None of these drugs were found in the deceased’s system.[146]
[143]T353.12–13.
[144]T357.7–31.
[145]T358.2–11.
[146]T358.1–15.

Dr Archer confirmed that she could not find anything in her examination of the deceased’s lungs that may have caused or contributed to the deceased’s death.[147]
[147]T341.25–27.

Dr Archer confirmed that she first became aware that the deceased suffered from asthma at the committal hearing on 21 January 2020. She confirmed that there are changes that can be seen on autopsy when someone dies of an asthma attack, but said that she did not see anything on autopsy relating to the deceased’s asthma. Dr Archer agreed that this did not rule out the existence of an ongoing asthmatic condition but she would expect when people have asthma to see those changes. There was no evidence of scarring or signs of severe chronic asthma at autopsy.[148]
[148]T384.18–23.

Dr Archer confirmed that there was a thickening of basal membranes at the inner layer of the respiratory tree observed on the histology slide.[149] This was a finding Dr Archer did not make at first instance but agreed with it after discussion with another expert and further review of the histology slides herself.[150]
[149]T385.12–20.
[150]T385.1–22.

In cross-examination Dr Archer agreed that this finding was consistent with a pre‑existing asthmatic condition and with other airway diseases. However, Dr Archer was firm in her opinion that if all other injuries were taken away in this case and the deceased was found dead in bed, for example, she would still have an unascertained cause of death.[151]
[151]T386.20–24.

Other evidence of the deceased health

In addition to Dr Archer’s evidence, there was evidence regarding the state of the deceased’s health from Jin, Jianyao, Xue and Li Li.

An extract of Jin’s evidence at the committal was read into evidence.[152] Jin identified a medical record of the deceased’s from a clinic in China which contains a diagnosis of asthma. Jin acknowledged that the deceased had asthma but that ‘it doesn’t happen every year’ and did not affect her work until she retired.’[153] Asked how asthma effected the deceased after her retirement Jin answered that she lived ‘as normal as other normal people.’[154] Jin said that she saw the deceased approximately three times between her arrival in Australia on 3 December 2018 and her death but had not seen her affected by asthma.[155]
[152]T62–64; Exhibit 26, Committal evidence of Jin Wang (‘Committal evidence of Jin Wang’).
[153]T63.1–4; Committal evidence of Jin Wang 91.
[154]T63.6–7; Committal evidence of Jin Wang 92, 94.
[155]T63.22–64.1.

Jianyao gave evidence that his mother had been diagnosed with asthma.[156] His evidence was that she had a Ventolin inhaler but that she only used it in China and not Australia; his mother had given him her own inhaler because he experienced hay fever.[157] He said he had never seen his mother use a Ventolin puffer in Australia.[158]
[156]T46.18–19; T56.2–9.
[157]T46.20–24.
[158]T56.10–11.

Jianyao said that his mother had told him in 2018 that she had been diagnosed with sudden deafness.[159] Jianyao said he was told this in a phone conversation where his mother was crying and said she was getting older and he did his best to comfort her.[160] However, Jianyao denied that his mother told him that she suffered from any occasional shortness of breath, even if lying down.[161]
[159]T47.17–20.
[160]T55.7–14.
[161]T47.24–28.

Jianyao also denied that his mother ever told him that she suffered from any sort of heart condition.[162] Asked if his mother ever told him that she had had a heart test, he responded ‘I think so. By her age she should get checked.’[163] He said that in 2018 he was back in China and that the whole family went to a hospital to have a check-up.[164] Jianyao was not aware of any results of his mother’s heart tests.[165] He said it was his father who was on heart medication and not his mother.[166]
[162]T47.29–30.
[163]T48.5–8.
[164]T48.15–26.
[165]T56.16–17.
[166]T55.23–26.

·there was a longstanding dispute between the accused and his family relating to the division of family property in China dating back to sometime in early 2000;
·there was a longstanding dispute over the use of two $50,000 contributions made by the accused to family members;
·there was a dispute between the accused and his family arising out of the financial and physical care of Shuhuai; and
·there was a dispute related to the accused asking his family if they could care for Shuhuai so that he could attend his uncle’s 90^th birthday in Taiwan.

I find that the accused was aggrieved over many years in relation to these longstanding disputes including, and up to, the day of the incident. I find that at the time of the incident, the accused’s relationship with his family was fractured. The accused thought that in the past he had been cheated by his sisters and that they had extracted money from him. It is clear he believed his sisters had in the past, lied to him about money he had given them and had never paid it back. He believed that his sisters had made a gain in relation to his parents’ property in China and the money he gave them, while he got nothing.[310]
[310]Transcript of Record of Interview 54.

The accused commenced caring for his father on 7 December 2018 when he was discharged from the Peter James Centre until the day of the incident. When Shuhuai was discharged from the Peter James Centre into the accused’s care, Shuhuai’s health was parlous. His medical conditions included renal cancer and dementia as well as other serious comorbidities.

Due to Shuhuai’s visa status he was not a candidate for Medicare subsidised equipment services in the community. Importantly, the Discharge Summary noted ‘there will be a high risk of carer stress’.[311]
[311]Discharge Summary.

The accused was responsible for, and performed, a very high level of care for Shuhuai in the period he cared for Shuhuai. He provide full-time care to Shuhuai. The care provided by the accused included all transfers to the toilet using a homemade commode chair, cooking for and feeding Shuhuai, dispensing medication, showering Shuhuai, attending to the indwelling catheter, assisting with toileting, and sleeping on a bed abutted to Shuhuai’s own bed because Shuhuai would pull out his catheter at night and could not control his toileting needs at night.[312]
[312]T233.16–27; T235.12–236.8.

I find that the accused was experiencing fatigue and exhaustion in the days before and the morning of the incident. I find that the accused was not coping with the demands placed upon him after Shuhuai’s discharge from the Peter James Centre into his care up to the day of the incident. The accused’s coping ability was further impacted by an injury to his lower back resulting in the accused not being able to move for three days in early February. The accused received one day’s help from his sister Lu, and at one point, Li Li stayed for two days to assist him with Shuhuai’s care when the accused hurt his back.

I am satisfied that the accused messaged his family on or about 8 February 2019 asking for help and that he specifically asked the deceased to help as he had twisted his back. The deceased did not reply for about one week, which angered the accused.

I find that there was animosity and tension between the accused and the deceased in the weeks prior to the incident. His account is that he had asked for financial assistance to care for his father and to pay for his father’s grave, and that the deceased was not forthcoming with that assistance.[313]
[313]Transcript of Record of Interview 56.

The night before the incident Li Li observed tension between the deceased and the accused. However, she said she would not have left if the accused and the deceased were still arguing and the deceased chose to stay overnight, suggesting she did not have any concerns for her safety.[314]
[314]T221.14–23.

The accused had little sleep on the night before the incident, in part because he woke several times to attend to his father’s needs and he had been thinking about the lack of financial support from the deceased and being cheated all the time. On the one occasion throughout the night that the deceased woke, the accused’s account was that she did not help him with Shuhuai but just watched what he was doing. Although when the accused was asked how that made him feel in the record of interview he fairly acknowledged that she did not know what to do.

On the morning of the incident I find that the deceased and the accused conversed. In his record of interview, the accused said that he and the deceased spoke for approximately 10 to 20 minutes before the incident. They spoke about the longstanding disputes and the accused said he had been treated unfairly.

I find that during the argument on the morning of 27 February 2019, the accused became angry towards the deceased. This anger emerged in the context of the accused’s animosity towards the deceased over the longstanding disputes and, more recently, over his frustration that she would not help with Shuhuai’s financial needs in circumstances where he believed her to be wealthy, in conjunction with her refusal to assist him so he could attend his uncle’s birthday in Taiwan.

The events of the weeks prior to 27 February 2019, including the arguments with Kuan at Burwood East, at Box Hill Hospital and at the accused’s home, in addition to the content of the handwritten notes and the accused’s comments in his record of interview, establish that he had a generalised hostility towards his family and a specific resentment and hostility towards the deceased.

I take into account that a murderous intention need not be of a long duration, and it need not be accompanied by any significant planning or premeditation. Although the evidence establishes specific resentment and hostility by the accused against the deceased, there is no evidence that he had pre-planned or pre-meditated a course which involved an assault, let alone a plan to murder his sister. At the risk of repeating myself, the events the night before the incident and on the morning of the incident consisted of a brother and sister talking and arguing over the long standing issues and are bereft of any suggestion that the accused had a plan to kill or even assault the deceased. I consider the events that transpired the night before the incident and in the 10 to 20 minutes before the assault are inconsistent with any planning or premeditation. These events and circumstances are sadly suggestive of a man of 68 years of age who was exhausted and tragically in the moment, snapped out of frustration and anger and assaulted his sister without necessarily harbouring in that moment a murderous intent.

Additionally, for a man so devoted to the care of his father, the complete absence of any arrangement for Shuhuai’s care post-assault strongly militates against an inference that the accused planned to kill the deceased before the assault. For these reasons the absence of preplanning and premeditation is a significant factor and weigh against the existence of a murderous intention at the time of the assault.

The Prosecution submitted that I can infer that the accused held a motive to kill the deceased. Motive is not the same as intention. Motive can be ‘the emotion which gives rise to the intention.’[315] Motive may be relevant, sometimes highly relevant, in a criminal trial for the drawing of inferences and for determining the chain of proof.[316] In some circumstances in criminal trials, evidence of motive may be ‘of the greatest importance.’[317]
[315]Hyam v DPP [1975] AC 55, 73 (Lord Hailsham).
[316]De Gruchy v The Queen (2002) 211 CLR 85, 99 [55] (Kirby J) (‘De Gruchy’).
[317]Ibid 100 [56] (Kirby J) quoting Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311, 321 (Griffith CJ).

Motive is one item of the evidence of the case that may tend to show that a person committed an offence. The fact that a person has a motive, and even expresses or expressed it, does not per se constitute proof of involvement in a crime.[318] Ultimately, I must weigh up all of the circumstances of the case when determining whether there is evidence beyond reasonable doubt as to the charge of murder.[319]
[318]De Gruchy 101 [57] (Kirby J).
[319]Plomp v The Queen (1963) 110 CLR 234, 242 (Dixon CJ).

In a circumstantial case such as the present, with the limited facts available to me, the complete lack of any planning by the accused leads me to conclude that it is unlikely the accused held a motive to kill the deceased.

The ‘pressure cooker,’ as phrased by the Prosecution, certainly built up to the tragic assault that caused the deceased’s death. In such a situation, the context of animosity may provide an explanation for the accused’s assault on the deceased, but it does not necessarily suggest he held a murderous intention at that time.

I turn now to the nature and extent of the injuries and the context of the assault.

At the risk of repeating myself, I have found that the accused inflicted the upper body injuries which I have set out above, at [173]. The upper body injuries were as a result of multiple applications of blunt force trauma inflicted by the accused during the assault. The force required to cause the upper body injuries ranged from mild to moderate, and specifically in relation to the right eye socket fracture, ‘at least moderate’.[320]
[320]T406.4–17.

I have also determined that based on Dr Archer’s evidence in combination with other evidence, that I cannot exclude as a real possibility that the rib fractures were a consequence of the accused kneeling on the deceased’s chest while delivering the blunt force trauma to her upper body.

As I have said, based on Dr Archer’s evidence I cannot exclude as a real possibility, that the accused inflicted no more than one act of compressive force, that is kneeling on the chest, which resulted in the rib fractures. At no stage did Dr Archer conclude that a compressive force, such as kneeling on the chest alone, could be excluded as a reasonable possibility and that such an act was insufficient to result in the rib injuries. Dr Archer could do no more than postulate a number of potential mechanisms by which the rib fractures occurred. As such, the evidence leaves open the real possibility that the ribs were all or mostly fractured during the assault to the upper body while the accused was kneeling on the deceased’s chest.

The kneeling is, nonetheless, a deliberate and severe act. The evidence does not establish if kneeling on the chest was itself an act done with a murderous intention, or if it was part of the position the accused found himself in while inflicting the assault on the deceased’s upper body. The degree of force required to fracture the ribs, was according to Dr Archer, at least moderate or potentially severe. The combination of multiple applications of blunt force trauma to the upper body while kneeling on the deceased’s chest at the same time, clearly evinces an intention to cause the deceased injury. The combination amounts to a serious and severe assault on the deceased which is concentrated and continuous. The kneeling on her chest along with the assault on the upper body and the injuries they caused bespoke a hostile intent by the accused towards the deceased.

The act of kneeling, however, is to be contrasted with the alternative hypothesis which is that the mechanism of injury to the ribs was by kicking and punching, which suggest a more protracted assault requiring multiple applications of punching and kicking to the chest in addition to the assault to the upper body. If this were the case, the kicking and punching in combination with the assault on the upper body evinces an intention more suggestive of a murderous intention.

In conclusion, taken together and in isolation, I agree that it could be argued that the upper body injuries and rib fractures sustained by the deceased are capable of suggesting that the accused, at the relevant time, intended to kill the deceased, or cause her really serious injury. However, the nature and extent of the injuries do not exclude the real possibility that the combination of injuries were inflicted with no more than an intention to cause injury or serious injury. This means that the combination of injuries is not indicative of a murderous intention.

Relevantly, I must consider the likelihood that none of the deceased’s injuries were sufficiently serious to result directly in her death. I also note that there was no evidence of a weapon being used to inflict the injuries. The crime scene was contained, suggesting a relatively confined assault. There was no fatal blow that killed the deceased.

The accused’s statements at Burwood East, his phone call with Li Li and, in particular, his handwritten notes are concerning evidence supporting the Prosecution’s submission that the accused had a murderous intention. The handwritten notes demonstrate an animosity held by the accused against the deceased.

I agree with the Prosecution that, when viewed in combination with the record of interview, an inference can be drawn that the accused harboured a belief that he was wronged when he assaulted the deceased. The contemporaneity of the first and second handwritten notes amplify this inference.

The accused’s statements in the third note, written sometime after the assault, to the effect that he has killed one of the ‘bloodsuckers’ in his family, is similarly persuasive evidence levied by the Prosecution. It is patent that the accused continued to harbour his feelings of resentment and injustice against the deceased even after the events that unfolded on 27 February.

The conversation with Li Li is also supportive of the Prosecution’s case, although not to the extent contended. The accused’s claim that the deceased was ‘the kind of person [who] doesn’t deserve to live in this world,’ that ‘they have driven me mad’ and that ‘she instigated it’ speak to the level of resentment and anger the accused harboured against the deceased.

However, the Prosecution’s assertion that, because the accused stated he hit/bashed/beat the deceased to death means that the accused hit the deceased until she died is unfounded. This assertion is inconsistent with the evidence regarding positional asphyxia. The statement is best viewed as a cause and effect assertion by the accused insofar as he believed that he caused the death of the deceased. There is no evidentiary basis to support this aspect of the Prosecution’s submissions.

The cumulative impact of this evidence against the accused is persuasive. At this juncture, however, it is important to recall:

[I]t is essential not to start from a presumption of guilt and look to see if the conduct is consistent with guilt. The starting point is the presumption of innocence and in assessing the conduct of the accused the possibility of ‘innocent’ explanations for the conduct must always be carefully considered.[321]

[321]Western Australia v Rayney [No 3] [2012] WASC 404 [658] (Brian Martin AJ).

In that regard, the Defence’s submissions as to the statements of the accused require careful analysis. I accept that it must be borne in mind that English is not the accused’s first language. The expressions used in the statements are vague and amorphous and at times bizarre. It is impossible to suggest what an appropriate response would be for a person in the accused’s position. He committed a life-altering assault on his sister.

I accept that it was most likely the accused was in shock and reeling from this life-altering event. It would be dangerous to interpret his notes as calculated and well-thought out, especially when the absence of planning is considered. The bizarre and cryptic notions of ‘TO ACHIEVE MY JUSTICE’ and ‘JUSTICE MAKER’ make determining the precise meaning of the statements very difficult. Keeping in mind that I must start from the presumption of innocence when assessing alternative explanations for conduct, this vague reference to ‘JUSTICE MAKER’, stands in stark contrast to a specific identifiable action that is unambiguous, such as the instructions to contact Lu (with her phone number and address) to look after their father.

This leads me to my next point. Resentment, anger and injustice were not the only reasons for the first and second handwritten notes. A key reason that the accused wrote the notes was to ensure someone was available to care for Shuhuai. The accused described the purpose of the notes to ‘basically to call someone to look after my father.’[322] This concern for Shuhuai continued at all times after the assault and during the record of interview.
[322]Transcript of Record of Interview 46.

The accused also did not make any statements in the record of interview that when he assaulted the deceased he intended to kill her or to cause her serious injury

When considered cumulatively with the rest of the evidence, the accused’s statements are not necessarily indicative of a murderous intention. For example, I cannot exclude the real possibility that the accused’s statements are ex post facto or retrospective rationalisations and self-justifications. These hypotheses are rational and reasonable explanations of the accused’s conduct and, when considered cumulatively, cannot be discounted or excluded.

The accused’s post-offence conduct of placing the deceased in the boot of his car, driving to the Burwood East property and assaulting Kuan are indicative of him being in a heightened and angered state. However, like the accused’s various statements, this conduct must be treated with caution.

I note that this is not a case where there was post-death mutilation of the body which would clearly show ‘contempt’ for the body or that he was trying to conceal that he killed his sister. I also note that the accused covered the body in an Ambulance Victoria blanket, however imperfectly, when the body was put in the boot which again is inconsistent with contempt for the deceased’s body.

Although the accused’s actions of putting the deceased’s body into the boot of his car and driving to Burwood East are unsettling, I cannot view the accused’s conduct as an implied admission of murderous intent.

The Prosecution also contend that the accused showed a ‘lack of remorse’ after the deceased’s death. As the Defence correctly pointed out, the Notice of Incriminating Conduct is limited to the action of putting the deceased’s body in the boot of the car and bringing it to the Burwood East address. Therefore I consider this submission only insofar as it relates to other circumstantial facts in the case.

Similarly to the statements made by the accused, the actions of the accused do not necessarily reveal a murderous intention. I accept that the accused professed anger and resentment against the deceased in his statements. He also tried to justify his actions on a number of occasions and to a number of individuals. However, I am not satisfied that all of the accused’s actions can be characterised as showing a ‘lack of remorse.’ When Detective Senior Constable Kirishian pointed out to the accused that Jianyao had his mother taken away from him, the accused responded:

A That’s a tragedy.
Q 870 Mm.
A It’s my fault. It’s my fault, I don’t blame anybody else. I’m human. That shouldn’t happen.

Q 871 Ning, you’ve – you’ve said to us - - -
A I don’t think it’s the right thing to do. It’s not a perfect world. I don’t look at excuse for myself. So I may be short in the brain. I said, “I’d better go to gaol, I can’t stay like this any longer.” It’s not just one day, it’s been seven years. You get stressed, upset, you cannot concentrate and do any work. You think about the – nasty things.[323]

[323]Transcript of Record of Interview 92–3 (emphasis added).

The accused’s response acknowledges the death is a tragedy, that it is his fault and that it should not have happened. The accused does not attempt to excuse himself. These sentiments are consistent with feelings of remorse and do not reveal a murderous intention.

I accept the Defence’s submission and find that the accused was a person of good character at the time of the alleged offence.

There was evidence that the accused had no prior criminal history. The accused’s neighbour, Mr Karatzias, described him as a ‘good man’ and a ‘good neighbour’.[324] The accused was a devoted carer of his father. Jin confirmed that ‘nothing physical happened in the past’ despite the protracted disputes with the accused’s family.[325]
[324]Statement of Konstantinos Karatzias [13].
[325]Statement of Jin Wang [14].

In assessing the circumstantial evidence going to intention, I will bear in mind that a person of good character is unlikely to have formed a murderous intention. I acknowledge, however, that the mere fact a person is of good character cannot alter proven facts. I also bear in mind that a person who has previously been of good character can commit a crime for the first time.

While good character is a factor that can affect the likelihood of an accused committing a crime charged, the weight of the factor will depend on the nature of the evidence and the character of the crime.[326]
[326]R v Arundell [1999] 2 VR 228, 251 [58] (Callaway JA).

The assault was a violent and serious act. However, aside from the one impact of at least moderate force which caused the right eye socket fracture, the injuries to the deceased’s upper body could be explained by multiple blows of mild force. The injuries to the ribs were possibly caused by the accused kneeling on the chest or by kicking or punching to the chest. There is an absence of a fatal blow or ‘finishing off’, no weapons were used, an absence of DNA of the deceased under the fingernails of the accused and a relatively clean crime scene.

The character of the crime is consistent with an assault fuelled by a person who was angry and despairing about how he could possibly continue to care for his elderly ill father, with the belief that he had no real support from his family or the community. The accused was a devoted carer and someone who had never behaved violently or physically aggressively in the past, even in tense and combative situations with his family.

The nature of the crime in this case coupled with evidence of behaviour in the past with family and neighbours leads me to conclude that his good character is a significant factor in this case in assessing his intention at the time of the assault. The importance of his good character is buttressed by my findings that there was no pre-planning, premeditation or motive involved and that the assault was inflicted in circumstances where the accused ‘snapped’ in a tired and frustrated state.

Conclusion — Intention

In assessing the Prosecution’s circumstantial case on intention, I must consider and weigh all of the circumstances established by the evidence in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[327]
[327]Baden-Clay 324 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

I am satisfied beyond reasonable doubt that the accused caused the deceased’s death. I am satisfied that the injuries to the deceased were the result of an assault by the accused upon the deceased. I am satisfied beyond reasonable doubt that the assault was a conscious and voluntary act and committed without lawful justification or excuse.

However, on the totality of the evidence, I am not satisfied beyond reasonable doubt that the only rational hypothesis is that the accused held a murderous intention at the time he assaulted the deceased. In particular, I cannot exclude the possibility that the accused — in a tired and frustrated state — snapped and assaulted the deceased with no more than an intention to cause injury or serious injury.

For completeness, if I were to consider that all the rib fractures were a consequence of the accused punching or kicking the deceased in the chest, the rib fractures would be a more significant factor in the overall assessment of intention. However, even when I consider this scenario, with the totality of the evidence including the accused’s good character, the character of the assault including the injuries, the lack of planning and pre-meditation, the explanations for his post-offence conduct and statements, I would nonetheless not be satisfied that only rational inference was that the accused had a murderous intention.

I therefore must find the accused not guilty of murder. It now falls to me to consider the alternative offence of manslaughter by unlawful and dangerous act.

Manslaughter by unlawful and dangerous act

In order to prove the offence of manslaughter by unlawful and dangerous act, the Prosecution must prove the following elements beyond reasonable doubt:

(a) the accused committed an act that caused the death of another person;

(b) the relevant act was committed consciously, voluntarily and deliberately;

(c) the relevant act was ‘unlawful’; and

(d) that the relevant act was ‘dangerous’.

The first two elements are identical to the first two elements of murder and, in relation to the third element, it is not in dispute that the accused’s assault on the deceased was unlawful. However, the accused denies that the assault on the deceased was ‘dangerous’. For this element, the Prosecution must prove that a reasonable person in the accused’s position would have realised that their actions were exposing the deceased to an appreciable risk of serious injury.

It does not require a reasonable person to have realised that death or even really serious injury would result. The reasonable person is required to realise that they were exposing another to an appreciable risk of serious injury.[328]
[328]Wilson v The Queen (1991) 174 CLR 313, 332–3, 335 (Mason CJ, Toohey, Gaudron and McHugh JJ) (‘Wilson’); DPP (Vic) v Singleton (2010) 29 VR 351, 355 [27] (Williams J).

The test is assessed by reference to a reasonable hypothetical person in the position of the accused, that is, in the circumstances of the accused and imbued with the qualities of age, experience and knowledge of the accused.[329]
[329]R v Bessim (2004) 148 A Crim R 28, 38 [38]–[39] (Redlich J) (‘Bessim’).

Prosecution Submissions

The Prosecution notes that the deceased was 57 years of age, was petite and weighed 47 kilograms.[330] The Prosecution contends that when one takes into account the nature and severity of the injuries in this case, coupled with the injuries having been caused by multiple applications of blunt force trauma, the reasonable person would have been absolutely aware that they were exposing the deceased, as an older woman with a very small body frame, to an appreciable risk of serious injury.[331]
[330]T475.10–11.
[331]T474.16–22.

In support of this, the Prosecution highlight that there are multiple acts causing multiple injuries. The Prosecution particularly notes blunt force trauma in a number of places to the face, head, neck and upper body. Although the Prosecution accepts that it is not known how many applications of blunt force trauma were involved or how these acts were applied, it is submitted that the deceased had bruising and swelling to her head, face and significantly her eyes including, a fracture in the wall of the right eye socket.[332]
[332]T474.23–31.

The Prosecution further highlights that even if one forceful punch could cause those injuries in and of itself this would necessarily still engender in a reasonable person an appreciation of serious injury. The Prosecution argues the multiple episodes of blunt force trauma elevates that awareness, which in this case, is in addition to the possibility of ‘asphyxiation,’ neck and chest compression and the loss of consciousness.[333]
[333]T4751–9.

Furthermore, the Prosecution contends that the applications of force to vulnerable parts of a person’s body, such as the face or head, is necessarily a dangerous act,[334] because such a strike is unpredictable and risky, and that this is something the reasonable person would appreciate.[335]
[334]T475.11–14.
[335]T475.19–23.

Defence submissions

The Defence argues that to meet the definition of dangerousness, what the reasonable person has to realise is not that the act was likely to expose the deceased to the appreciable risk of serious injury; rather, it is that the act was exposing the deceased to that level of risk. That is, the reasonable person ‘would have’ rather than ‘might have’ realised they were exposing the deceased to an appreciable risk of serious injury.[336]
[336]T29.5–9; T543.10–14.

Second, the Defence submits that the test is one of serious injury rather than just injury. It is submitted that determining what constitutes serious injury is a question for the finder of fact relying on logic, common sense and experience.[337]
[337]T29.9–19.

The Defence suggest that there is room for reasonable doubt that a reasonable person of 68 years old would have realised that the assault was exposing the deceased to an appreciable risk of serious injury.[338] Without seeking to trivialise the assault, the Defence characterises it as:

[A] confined assault with a confined number of blows, none of which were severe in force, only one of which can clearly be said to be moderate in force, which did not occur in a struggle involving great bloodshed or gross external injury, which did not feature weapons, which did not cause great physical disruption to the environment it was in. It’s a number of punches and some other acts.[339]

[338]T534.4–28.

[339]T533.5–12.

The assault is seen as being short in time, incapable of killing and did not of itself kill.[340] The Defence also emphasise that the assault is hard to reconstruct in any exact detail.
[340]T533.24–25.

The Defence submit that ‘the unfolding of the struggle … and its nature are not to be taken for granted.’[341] It is asserted that I should not ‘assume that any blows struck were struck clinically and with care and with understanding’ and that ‘there is room for a number of different possibilities to account for the force of any particular blow’.[342]
[341]T542.11–13.
[342]T542.13–25.

The Defence argues that the reasonable person is ‘not a perfect citizen,’ but is to be considered as the same age profile and vested with any specialised knowledge and experience the accused had or lacked.[343] Moreover, the reasonable person is not vested with any greater knowledge of particularities and weaknesses of the victim than what the accused knew.[344] The Defence states that this is pertinent to the heart and asthma issues the deceased suffered.[345] Furthermore, it is submitted that the accused had no special fighting skills or knowledge.[346]
[343]T30.6–12.
[344]T30.16–19.
[345]T30.19–22.
[346]T543.14–15.

The Defence submits that is it not so clear that a blow to the head, even with moderate force in the context of a number of blows, delivered by a 68-year-old man is necessarily dangerous or that a reasonable person would have regarded it so.[347]
[347]T541.21–25.

Finally, the Defence contends that because the nature of the incident and the assault is uncertain, it is not clear ‘what nature of assault the reasonable person’s dealing with’.[348]
[348]T543.3–6.

Manslaughter – Analysis and conclusion

For the reasons stated above, I am satisfied that the first and second elements have been proved beyond reasonable doubt. As to the third element, I am satisfied beyond reasonable doubt that the relevant act, that is, the application of blunt force trauma to the upper body and the rib fractures, was unlawful.

For the purpose of manslaughter by unlawful and dangerous act, the test for ‘dangerousness’ is objective and requires me to be satisfied beyond reasonable doubt that a reasonable person in the position of the accused, performing that act, would have realised that they were exposing the deceased to an appreciable risk of serious injury.[349] The term ‘serious injury’ is an ordinary English term and it is a question of fact whether there was an appreciable risk of ‘serious’ injury rather than any degree of lesser injury. The phrase ‘serious injury’ differs from the phrase ‘really serious injury’ used in the context of murder.[350]
[349]Wilson 335 (Mason CJ, Toohey, Gaudron and McHugh JJ); R v Gould [2009] VSCA 130 [47] (Vincent, Nettle and Neave JJA).
[350]Wilson 333 (Mason CJ, Toohey. Gaudron and McHugh JJ); R v Schaeffer (2005) 13 VR 337, 358 [95]–[96] (Eames JA, Warren CJ and Ormiston JA agreeing); DPP (Vic) v Singleton (2010) 29 VR 351.

It is not sufficient that there was a risk of some injury resulting, albeit not serious. In the decision of Redlich J in R v Bessim,[351] his Honour considered the development of the common law, in the United Kingdom and Australia, concerning manslaughter by unlawful and dangerous acts. Justice Redlich referred to the leading authority of Wilson v The Queen (which confirmed that the degree of potential injury required to render an act dangerous must rise to the level of serious injury),[352] when considering the objective test. Justice Redlich in R v Bessim considered the objective test. He concluded:

The expression ‘a reasonable man in the accused’s position performing the very act the accused performed’ relates to the physical circumstances of the accused and the nature of the act performed by the accused as viewed by a reasonable person. It is an objective test concerned with foreseeability of serious harm to the victim. Emotions, passions or the mental state of the accused at the time the act was performed and which may have impaired the accused’s capacity to assess the risk are not to be attributed to the reasonable person.
While the idiosyncrasies or mental state of the accused which may diminish the accused’s capacity of reason are not to be taken into account, any knowledge possessed by the accused that would bear upon whether the act was dangerous is to be attributed to the reasonable person.[353]

[351](2004) 148 A Crim R 28.

[352]Wilson v The Queen (1991) 174 CLR 313.

[353]Bessim 38 [38]–[39] (Redlich J) (citations omitted).

I am satisfied beyond reasonable doubt that when the accused committed the assault, his acts were dangerous in the sense that a reasonable person in the accused’s situation would have realised that his acts carried with them an appreciable risk of serious injury to the deceased.

The accused was 68 years old at the time of the deceased’s death.

In my view, a reasonable person in the accused’s position would have known that an assault by delivering multiple applications of blunt force trauma to a person’s upper body, while kneeling on their chest, or also punching and/or kicking their ribs, would expose that person to an appreciable risk of serious injury. In this case, I consider that a reasonable person would have been aware that they were exposing the deceased, a woman of 57 years of age, weighing 47 kilos and 162 centimetres tall, to an appreciable risk of serious injury.

While it is not known precisely how many applications of blunt force trauma were delivered to the deceased’s upper body, there were multiple and the deceased had significant bruising and swelling to her head, face and bruising to her neck strap muscles. Significantly, she had bilateral haematomas to her eyes, a right eye socket fracture and a subarachnoid haemorrhage on her brain. The degree of force required to cause the right eye socket fracture was at least moderate. Additionally, the deceased had multiple rib fractures which required moderate or potentially severe force.

I consider that in the circumstances of this case, a reasonable person would have appreciated that they were exposing the deceased to an appreciable risk of serious injury.

For the avoidance of doubt, even if I were to accept that all of the rib fractures were caused by CPR administered by the accused, I consider that a reasonable person would have appreciated that they were exposing the deceased to an appreciable risk of serious injury based on the accused’s assault to the deceased’s upper body alone.

Accordingly, I find the accused guilty of manslaughter.

Verdict

I direct that in relation to the indictment numbered K10532361.1, on Charge 1, that Ning Wang at Clayton South in Victoria on 27 February 2019 murdered Qin Wang, that Ning Wang be acquitted on the charge of murder.

I further direct that he be convicted, in the alternative, of the crime of manslaughter by unlawful and dangerous act.

For completeness, the accused has also pleaded guilty on 16 September 2020 when he was arraigned, to Charge 2 on the indictment, that on 27 February 2019, he, without lawful excuse, intentionally caused injury to Kuan Yang.

[2020] VSC 701

22 October 2020