Dong v the Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0036

CHANG ZHONG DONG

v

THE QUEEN

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JUDGES	WHELAN and PRIEST JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 November 2013
DATE OF JUDGMENT	5 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 354
JUDGMENT APPEALED FROM	[2012] VSC 525 (Coghlan J)

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CRIMINAL LAW – Appeal against conviction of attempted murder – Whether jury verdict unreasonable – Recognition evidence – Intention to kill – Jury verdict supported by the evidence – Whether substantial miscarriage of justice by late production of evidence – Whether substantial miscarriage of justice by failure to identify and properly direct on prior inconsistent statements – Whether substantial miscarriage of justice by failure to give post-offence conduct direction - No substantial miscarriage of justice – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr L Carter and Mr M Stanton	Lethbridges Pty Ltd
For the Crown	Ms D Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

WHELAN JA:

I agree with Lasry AJA.

PRIEST JA:

I also agree with Lasry AJA.

LASRY AJA:

On 3 April 2012, after a 10 day trial in the trial division of this Court, the applicant was convicted by a jury of attempted murder. On 1 November 2012, following a plea hearing which had been conducted on 5 June 2012, the applicant was sentenced to 8 years’ imprisonment and with a period of 5 years to be served before the applicant was eligible for release on parole. Pre-sentence detention was declared at 375 days.

The applicant now applies for leave to appeal against his conviction on the following grounds:

1.The verdict is unreasonable or unable to be supported by the evidence because the jury ought not to have been satisfied beyond reasonable that the applicant was identified as the offender.
2.The verdict was unreasonable or unable to be supported by the evidence because the jury ought not to have been satisfied beyond reasonable doubt that the applicant stabbed the complainant with the intention to kill him.
3.There has been a substantial miscarriage of justice by reason of the prosecution’s failure to disclose the four photographs of the applicant’s jacket prior to the cross-examination of the complainant.
4.The trial judge erred in refusing to discharge the jury as a consequence of the prosecution’s failure to disclose four photographs of the applicant’s jacket until the conclusion of the evidence of the informant.
5.The trial judge erred in his directions regarding prior inconsistent statements by the complainant, in particular by:
(a)failing to identify which statements were capable of being treated as prior inconsistent statements;
(b)directing in relation to the use of the prior inconsistent statements as evidence in the case that ‘it is not really contended that that is how you ought to use it’.

6.The trial judge erred in failing to give an ‘Edwards direction’ concerning the applicant’s post-offence conduct, in circumstances where the prosecutor

raised the issue without notice in his closing address.

Summary of the case against the applicant

The case for the prosecution was that on the night of 6 July 2010, the applicant stabbed Zhang Zhang outside a restaurant in Dandenong. The applicant and Zhang were known to each other and, whether correctly or otherwise, the applicant believed that his wife and Zhang had a sexual relationship which had caused the failure of the applicant’s marriage. Apart from the evidence of Zhang, there was no other direct evidence linking the applicant to the stabbing. In his record of interview, the applicant denied having stabbed Zhang. The applicant did not give evidence on his trial. Thus, clearly Zhang was attacked and stabbed. The issue was whether the prosecution could prove beyond reasonable doubt that it was the applicant.

In his evidence, Zhang said he worked as a chef and he came to Australia on a work visa in June 2005. In September 2009, he bought a restaurant known as San Yuan in Dandenong and he worked there with Jia Yan and also with Nina, who is the wife of the applicant.

Zhang said that he met the applicant about a year before this incident and saw him on a weekly basis. Sometimes the applicant would assist with the restaurant. Sometimes the applicant and Zhang would drink alcohol together. He said that he had spoken to the applicant on the telephone and would refer to him as ‘brother Dong’. He said he was referred to as ‘Master Zhang’ or ‘Master worker’ because of his role as the chef in the restaurant.

He described an occasion when the applicant rang him and said he was having a drink and asked Zhang to come and have a drink with him. Zhang said he unable to do that because he was tidying up the restaurant. The applicant then said to him, ‘I want your hair, I want your blood. I will take these things for DNA test.’ That was the end of the conversation.

About a month later, the applicant rang Zhang and by the nature of the conversation appeared to be inferring that Zhang had been having a sexual relationship with the applicant’s wife. Zhang denied this. The applicant ended the phone call and Zhang rang him back to try to explain. The applicant said ‘If you really think that we – either you should come to my place or I should come – go to your place or we should find a place to meet.’ Zhang told the applicant that he was not welcome at his house and the applicant said they would find a place outside. Zhang said he was upset and said, ‘Well, you can find a place. Wherever you are going to find I will go and meet you.’ The applicant said ‘Oh, you are young’ and ‘When you opened the restaurant I helped you, you didn’t have enough finance, I helped you financially.’ Zhang said, ‘The help you give us we will never forget.’ He said the applicant then said, ‘That’s it. I don’t want to talk about it anymore.’ and hung up the phone.

In July 2010, the restaurant business was sold to a Mr Tao Zhang and Zhang had agreed to stay on and work as a chef at the restaurant for a period of time.

On 6 July 2010, Zhang said he parked his car, a small red Hyundai, in a car park behind the restaurant. The vehicle had a car alarm. He commenced working at 11.00am that day and the restaurant was not busy. At around 8.00pm, the staff in the restaurant started to clean up and whilst Zhang was doing that he heard the alarm on his car activate. As Zhang was going out the door of the premises the alarm stopped. He said he went outside and stood for a while and then went back inside.

A short time later, Zhang heard the alarm start again and he again went outside to check his car. He saw a person walking from the other side of the car. He said it was dark but he saw that the person was wearing a blue uniform with glowing stripes. Zhang said the person had his collar pulled up and he was wearing a hat. Zhang continued towards his car and turned to go back into the restaurant when the person reappeared. Zhang said that at that stage he did not know who it was. He said that in a low voice the person yelled ‘Master Zhang’ and stabbed him in the chest. The knife went into his chest immediately above his jacket pocket. Zhang said he yelled out ‘Hey’ as he was stabbed. He described the knife as a small-handled knife about 10-12cm long and the handle was wrapped in paper.

When the person used the knife his collar lowered and Zhang said he saw it was the applicant who then drew the knife. He said he felt pain and used his hand to hold his chest as he walked back towards the restaurant. Tao and Zhang’s wife came outside. He said the applicant stood there for a short time but he was not clear on what happened next. He was later taken to the Dandenong Hospital and had surgery at the Alfred Hospital.

Zhang was cross-examined about his background and the background of the business. He was questioned about having originally said that the attacker was wearing a green top with a glowing stripe on the side. He said that because it was dark he thought the man was wearing clothing which was of a blue and green colour and said it was hard to tell.

Zhang said, ‘It was when I was turning back then he stabbed me’ and, ‘By the time I didn’t notice until he was in front of me and I didn’t have enough time to respond and he had already stabbed me.’ He described the stabbing action as being right in front of him and said his attention was concentrated on the knife. He said it was at this time that the attacker said ‘Master Zhang.’ He was questioned about what he had said in his previous statement, that , ‘Dong didn’t say a word to me, he just stabbed me without me knowing anything.’ He denied that he did not know who stabbed him. He denied concluding that the applicant had stabbed him only because he had been accused of having an affair with the applicant’s wife.

Other witnesses to the incident who gave evidence about what occurred included Tao Zhang. He said he heard a noise that sounded like ‘Arrgh’ – that is someone in severe pain and he went outside and saw Zhang clutching his chest and a shadowy person walking in the opposite direction.

The wife of the complainant, Wan Wang, gave evidence and she described how she became aware that her husband was injured and when she asked Zhang what happened he said ‘Dong did it’ and she took that to mean the applicant. In cross-examination, she reiterated that her husband said ‘Brother Dong did it’. She said she did not discuss the incident with her husband in the days after the attack as it was too painful for him.

Lijuan Jiang also worked at the restaurant on 6 July 2010 and she saw Zhang come into the restaurant with blood on him and he said he had been stabbed. She asked him if he knew who did it and he said he did. She did not hear clearly what he said in response to that as she was frightened.

Xian Zong gave evidence that he was a friend of the applicant and worked in the same company and had been drinking with him at his house until about 7.30pm or 8.00pm on the night of 6 July 2010.

No blood or DNA evidence from the applicant was found at the crime scene. Apart from the statement from Zhang, there was no evidence to link the applicant to the offending. There was no CCTV footage available of the applicant walking any of the possible routes between his house and the restaurant. No weapon was located and the applicant’s fingerprints were not found on Zhang’s car. Clothing was seized from the applicant’s house which was examined, and no blood or DNA belonging to Zhang was located on the clothes. The clothing was kept at the Dandenong Police Station and was not produced at trial.

On 7 July 2010, at the Dandenong Police Station, the applicant was interviewed by police. That interview was played to the jury and tendered in evidence. In it, the applicant described some of the background concerning the Dandenong restaurant and the fact that for a time he worked there. He said he stopped working there on 10 December 2009 after a dispute concerning his wife and went on to describe the separation form her due to her relationship with Zhang. When asked what he was doing the previous night – the night of the attack on Zhang – he said that did not know but he was drinking at home with two of his friends whom he identified and beyond that he could not remember. He arrived home at 4.00pm and his friends came over at 4.30pm. They were drinking beer and spirits. He said he did not know when his friends left – he was really drunk. He said that on that day he had been wearing a ‘work uniform.’ He said the bottom of the uniform is blue – a greenish-blue. He was questioned extensively about that uniform and was shown some photographs which he said seemed to be similar to what he was wearing. Later in the record of interview, the allegation was put that he was at the San Yuan restaurant at somewhere between 8.00pm and 9.00pm and stabbed Zhang. He said he was happy that Zhang was stabbed because he ‘broke my family.’ He also said, ‘I hate Zhang very much’ because ‘he seduces my wife.’ However, he said he did not know who did it and it was not him.

The defence called no evidence on the applicant’s trial.

Ground 1 – Unreasonable Verdict - Identity

The applicant asserts that the jury’s verdict is unreasonable or unable to be supported by the evidence because they ought not to have been satisfied beyond reasonable doubt that the applicant was identified as the person who stabbed Zhang.

The jurisprudence on the role of a Court of Appeal has been often cited and discussed and was not really in contention. The starting point is of course, the judgment of the High Court in M v R.[1] More recently in R v Klamo,[2] Maxwell P carefully analysed the principles that derive from M v R and said:
[1](1994) 181 CLR 487.
[2](2008) 18 VR 644.

The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:
1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged – as distinct from entitled – the jury to come to a different conclusion. In Libke v R, Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the ‘unsafe and unsatisfactory’ ground:
… But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

In other words, the question posed in M v R, namely:
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?

requires the court of criminal appeal to decide
… whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.

To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’ or whether, instead, the ‘path to a conviction was open’.[3]

[3]Ibid 643-44 (citations omitted).

There are cases where this ground is raised where an analysis of the evidence at the trial reveals an aspect of it that should have made a guilty verdict virtually impossible. In the debate before us this was metaphorically referred to as a ‘road block’ to conviction. Counsel for the applicant accepted that in this case such an argument could not be put. He accepted that he was required to establish that there was a ‘solid obstacle’ to conviction and relied on the individual and cumulative effect of seven factors which he contended meant that the jury was precluded from reaching a verdict of guilty. It should also be noted that counsel submitted that given that all of this evidence was given through interpreters (and, I might say, at times not without difficulty) any advantage the jury had over this Court in seeing the evidence given, was diminished.

In SKA v The Queen[4] the High Court reaffirmed the function of the appellate court as follows:
[4](2011) 243 CLR 400. (This case was recently referred to in BCM v The Queen [2013] HCA 48.)

It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queenby Mason CJ, Deane, Dawson and Toohey JJ:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to ‘unsafe or unsatisfactory’ in M is to be taken as ‘equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.[5]
[5]Ibid 405-06 (citations omitted).

The Court later added:

In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.[6]

[6]Ibid 406.

I turn to the particular matters relied upon under this ground.

In the applicant’s written case, much was made of the obvious fact that the conviction of the application rested on Zhang’s identification of him as the assailant. There was no other evidence that linked the applicant with the stabbing of Zhang. Notwithstanding that the identification of the applicant was on the basis of recognition, it was submitted that this Court should entertain a reasonable doubt as the reliability and accuracy of the identification of the applicant and that such doubts should have been held by the jury.

The first of the seven matters was that the identification was made in the dark or relative darkness and the effect of that on the ability of Zhang to see who was attacking him. The applicant placed emphasis on a short passage in the evidence-in-chief of Zhang where he said in answer to a question about the lighting that ‘it was dark’. However in answer to the immediately preceding question, the witness had said he could see who attacked him and that it was the applicant. Reliance was placed on the evidence of Tao Zhang – the employer – who went outside at the time. He said it was dark and he could not tell what clothing was being worn. Certainly the photographs of the scene were aided by a camera flash.

The respondent argued that in fact when one examines the photographs it was open to the jury to accept that there was sufficient light for the complainant to recognise the applicant. The respondent also pointed out that this was a recognition case because the complainant knew the applicant and had known him for approximately 12 months. It was, the respondent argued, open to the jury to accept this recognition.

There is no question that, on the evidence, it would have been dark but the jury were entitled to conclude there was some light and certainly enough for Zhang to see a person he knew who was close enough to stab him in the left side of the chest.

The second point made by the applicant is that Zhang had made inconsistent statements made about whether the offender had said anything. Although at trial and committal, Zhang said that his assailant said, ‘Master Zhang’, in his police statement he had said that his assailant said nothing. The inconsistency was claimed to significantly affect the reliability of the evidence that Zhang gave about who stabbed him and his credibility as witness. Whilst there is no doubt merit in that argument, Zhang had said in both his police statements that the applicant was his attacker. I would accept that the attempt by the witness to explain why he did not refer to what his attacker said in his police statements was not particularly satisfactory, he said, ‘I recall that memory at a committal and I said that.’ However, the witness also seemed to think he might have said it in his original statement before conceding that he had said the words, ‘Dong didn’t say a word to me’ when they were read to him. In my opinion it was open to the jury to be satisfied that Zhang had missed the mistake in his statement, or that his memory had become clearer over time, or that his present evidence was a mistake but insufficient to satisfy them that his identification of the accused was incorrect.

Thirdly, the applicant submitted there was a great deal of inconsistency in the evidence as to whether, when and to whom the complainant alleged that the applicant was the offender. For example, Zhang told his wife that the applicant was the assailant, but the employer Tao did not give evidence that Zhang identified the applicant as his attacker. The witness Li Wan Yang who was an employee in the restaurant said she asked Zhang if he knew who stabbed him and he said he did. In response to the question ‘Did he say who?’, Jiang said ‘I didn’t hear clearly’ because ‘At that time I’m so frightened.’ The respondent asserted that the evidence demonstrated that the complainant said at the restaurant that it was Dong who had stabbed him. I agree that the evidence supports a conclusion beyond reasonable doubt that Zhang nominated the applicant as his attacker immediately following the event and on the issues as they developed in this trial that was an important conclusion for the jury to reach.

The fourth factor complained of as affecting the veracity of the complainant’s evidence were that he only had a very brief opportunity to make the identification. The fifth was that his descriptions of the clothing worn by the offender varied significantly. The word ‘overalls’ was changed to ‘top’; there were differences between a blue and green uniform, the locations of ‘glowing stripes’ and Zhang said it was difficult to be sure. The applicant said in his record of interview that he had not changed from his work clothes because his friends were coming around for drinks and that was in evidence. Further, as was pointed out to counsel by Priest JA during argument, this was a recognition case rather than an identification case where these matters would have more significance. Some considerable time was spent cross-examining Zhang about the clothing his attacker had worn. In my opinion, it is unsurprising that there were discrepancies between the clothing found in the possession of the applicant and what Zhang said he observed at the time he was attacked.

Sixth, Zhang gave no evidence that he smelt alcohol on the breath of the applicant or that he noticed his movement was affected by having been drinking to excess. Two friends of the applicant gave evidence that on the day of the attack on Zhang, the applicant had drunk a considerable amount of alcohol. On the prosecution case this attack must have happened after the alcohol was consumed. Counsel submitted that therefore this was another factor which undermined Zhang’s nomination of the applicant as the attacker. Bearing in mind that on any view this incident happened quickly and unexpectedly, it is not surprising that Zhang did not detect alcohol on his attacker. One would not expect to be conscious of whether there was alcohol on the breath of the attacker at the time he was being stabbed in the chest or to make any observations about how the person was moving. To me, this matter has little, if any, significance.

Finally, the applicant submitted that the evidence about the applicant’s motive to kill being a suspicion or belief that Zhang had had an affair with his wife, had two relevant features. First, whatever the applicant believed had happened and however he felt about Zhang, there was no evidence of any threats of violence towards him by the applicant. Second, because Zhang was aware of what the applicant believed about he and the applicant’s wife, it meant that there was a risk that Zhang would subconsciously seek to maintain that he could identify the applicant when in fact he was unable to. Be that as it may, the evidence of the applicant’s motive was a significant piece of evidence and if the jury concluded, as they must have, that the applicant harboured a hatred of Zhang then that would be a significant conclusion on the path to conviction. Whatever else might be made of the motive, it was clearly open to the jury place importance on it.

The question for determination in this Court is whether, in the Court’s assessment of all of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was the person who stabbed Zhang. In my opinion it was and there was no solid obstacle to conviction on the issue of identity. Zhang never waivered from his position that he knew who his attacker was at the time of the attack and that he had nominated the applicant to his wife at the restaurant. When it was put to him that because of the phone call about the affair he ‘had reasoned that the person who stabbed [him] was likely to be Dong,’ he responded, ‘It’s not “likely to be,” it’s I saw him with my own eyes.’ Zhang had known the applicant for a year or so and had worked and socialised with him. The applicant had referred to Zhang as a ‘brother’ whom he would often help out. Zhang therefore obviously knew him reasonably well. The jury were entitled to accept his evidence that he recognised the applicant notwithstanding the matters above relied upon by the applicant.

The applicant did not give evidence at his trial but relied on his record of interview. In that interview he described, among other things, the hostility he felt toward Zhang because of his belief about his relationship with his wife. When first asked what he did on the day of the attack on Zhang he said he did not know but he was drinking with two friends after which he did not remember anything. He later said that drinking began at 4.30pm and they were drinking beer and spirits. He would not say whether he was drunk and said he did not know whether he left his house or not. He said he was wearing a work uniform that day and he wore it all day. When it was later put to him that he went to the restaurant where the attack took place, he responded by asking the police who saw him there. On being told that Zhang had been stabbed he indicated that made him happy because he hated him. Certainly it is true that when the applicant was asked whether he had attacked Zhang or was aware who might have, he answered in the negative.

Furthermore, on the prosecution case, the jury knew that the applicant had a motive to want to kill Zhang. They knew from the evidence of the two friends the applicant was drinking with on the afternoon of 6 July 2010, that he was alone from about 7.30pm onwards. They knew it was Zhang’s vehicle that had been used to attract his attention, that is, that it was likely a targeted attack.

Each of the matters relied upon by the applicant under this ground was an important consideration for the jury but in my opinion each of them was open to resolved adversely to the applicant. These kinds of issues of reliability and credibility arise frequently. None of these matters, either individually or in combination, were a solid obstacle that would have precluded the jury from reaching a conclusion that it was the applicant who stabbed Zhang. These are quintessentially jury matters and issues for them to assess and determine and I am satisfied that on the evidence the conclusion was well and truly open .

In my opinion therefore this ground is not made out.

Ground 2 - Intent

Ground 2 is relied upon by the applicant only in circumstances where grounds 1 and 3 to 6 fail – that is, where there is no acquittal on the basis of ground 1 and no re-trial ordered in relation to the other grounds. For reasons that follow, I am of the opinion grounds 3, 4, 5 and 6 should not be upheld. On that basis, I will now deal with ground 2.

The argument under this ground was that the verdict was unreasonable because the jury could not reasonably exclude the possibility that if the applicant did attack Zhang, he had no intention to kill, the intention necessary to establish attempted murder. The Court was invited to substitute a verdict pursuant to s 277 of the Criminal Procedure Act 2009, which enables the Court to enter a judgment of conviction of a lesser offence and impose a sentence for that offence that is no more severe than the original sentence. According to counsel, the appropriate alternatives were the offences of either intentionally causing serious injury or recklessly causing serious injury.

Counsel for the applicant readily conceded that the charge of attempted murder could be established on the basis of a single stab wound, as occurred in this case. However, he argued that here, there is one stab wound after which the victim, in a sense, walks away. Counsel particularly relied on the absence of any follow up attack by the assailant and said this was inconsistent with an intent to kill. Nothing was said or yelled out as the attack happened. Further, although the wound was in the chest, the stabbing appeared to have occurred as the complainant was turning around and it could not therefore be said that its location was by design. Finally, the applicant was intoxicated to some significant degree on the evidence of the two friends with whom he had been drinking.

Counsel for the respondent on the other hand submitted that on the evidence it was open to be concluded that the applicant sought out Zhang by the use of his car alarm. There was a history of animus on the telephone in two telephone conversations. The complainant was stabbed close to his heart and Zhang had in fact grasped his chest and was hardly wandering off. The applicant, it was able to be concluded, was fixated with the issue concerning his ex-wife and in combination with all the circumstances, the requisite intent to kill was open to be established. The alternative counts of intentionally cause serious injury and recklessly cause serious injury were left to the jury and they were well aware of the alternatives.

I agree it was a brief attack. However, having concluded that it was the applicant who attacked Zhang, the jury were entitled to conclude that after his friends left his premises, he deliberately armed himself with a knife and went to the restaurant where he knew Zhang was, he having worked there. He then lured Zhang outside by activating the car alarm on Zhang’s vehicle. This was, therefore, to a degree at least, a planned attack on Zhang. Zhang’s evidence supports the view that his assailant walked towards him and stabbed him to the chest as they faced each other. The applicant told police he hated Zhang and was glad he had been stabbed although he denied he had done it. As I earlier mentioned, in the record of interview when the applicant was confronted with the allegation that he went to the restaurant and attacked Zhang, he asked who saw him there.

In addition, the medical evidence about the wound, indicated that it was on the left side of the chest wall just above the nipple region and it appeared to be a deep wound. The wound had penetrated the left lung and it was a life threatening injury. Ultimately both lungs were affected. The doctor agreed the heart had not been penetrated. Zhang was released from hospital a few days later.

These matters in combination left it open to the jury to conclude beyond reasonable doubt that the applicant had an intention to kill Zhang.

Applying the principles to which I referred under ground 1, I would therefore not uphold this ground of appeal.

Grounds 3 and 4

I will deal with grounds 3 and 4 together. Ground 3 asserts that there has been a substantial miscarriage of justice by reason of the prosecution’s failure to disclose the four photographs of the applicant’s jacket prior to the cross-examination of the complainant. Ground 4 concerns the refusal by the trial judge to discharge the jury in consequence of the prosecution’s failure to disclose those photographs until the conclusion of the evidence of the informant.

The four photographs referred to and which became Exhibit 8 were photographs of a high visibility work top. The two colours evident in the photographs were yellow on the top half and a dark colour on the lower half. These photographs were produced in the further evidence of the informant. The applicant had said in his record of interview that on 6 July 2010 he was wearing ‘the work uniform’ and he did not change his clothes because his friends were coming for drinks.

This became a short point on behalf of the applicant. It was submitted that given the dominant colour of the garment in the photographs was yellow they were important to establish inconsistency with the original evidence of the complainant Zhang as he described his assailant as wearing green or blue. The unfairness said to arise from the timing and circumstances in which these photographs were produced was that, given they were relevant to the issue of Zhang’s reliability in identifying the applicant as his assailant, counsel for the applicant had missed an opportunity to cross-examine the Zhang. Any impact they might have had on Zhang’s evidence was therefore lost. However, counsel for the applicant was forced to acknowledge that if trial counsel had wished to do so he could have confronted Zhang with the actual clothing because it was available. As counsel for the respondent said, those items could have been called for and put in the hands of Mr Zhang during his evidence. No satisfactory explanation was given to us as to why that did not happen.

On behalf of the respondent, it was submitted that there was every possibility that the cross-examination of the complainant in relation to the clothing might have worked to the disadvantage of the applicant.

Importantly, in my opinion, in one form or another the issue of the supposed conflict between what Zhang had said in his evidence and what the photographs showed was before the jury. Counsel for the applicant put arguments to the jury about this item of clothing, what Zhang had said in evidence and the fact that the clothing was not shown to Zhang by the police. The issue was able to be highlighted and the contrast made between this item of clothing and Zhang’s description. I do not find that what occurred could be categorised in any sense at all as an irregularity or error resulting in substantial miscarriage of justice.

Ground 4 related to the refusal of the trial judge to discharge the jury arising out of these circumstances. For all the reasons that result in the failure of ground 3, ground 4 must also fail.

Ground 5 – Prior Inconsistent statements

This ground must be examined against the background that the applicant denied being the attacker of Zhang. Zhang’s credibility and reliability on the identity of his attacker was the primary issue. With that in mind, in this Court two complaints were made about the manner in which the trial judge dealt with the prior inconsistent statements of Zhang. First, it was said that he failed to identify those statements which were capable of being treated as inconsistent statements. Second, the judge told the jury in relation to the use of the a prior inconsistent statement as evidence in the case that ‘… it is not really contended that that is how you ought to use it.’

The first point to be noted is that no exception was taken by counsel for the applicant to the judge’s directions on this matter. A second consideration, though by no means determinative, is that apparently the jury had been provided with the transcript of the evidence. I would pause here to say, speaking only for myself, that giving the jury the transcript of all that occurs in their presence during a trial is a practice I invariably follow as a trial judge. In my opinion, in the cause of ensuring the jury can act in accordance with the evidence as they swear or affirm to do, such a practice has a great deal to commend it.

As counsel for the respondent pointed out the directions on prior inconsistent statements were not limited to the judge’s charge. During the cross examination of Zhang, the judge said:

Before this witness continues there’s something I should tell you as a matter of law. One of the means by which you would be asked to judge the credit of a witness is by looking at what they said on a previous occasion. It’s what the law calls a prior inconsistent statement.
It’s a technique for assessing credibility that we all use all of the time. If somebody said to us, ‘This particular event happened in this way,’ and then on the next occasion they told us they said it happened in a different way you’d use that change in the version of events as a means by which you assess the credibility of that particular witness who you’re dealing with.
That’s precisely the task that Mr Drake is undertaking at the moment. He’s trying to put to the witness, ‘You said on another occasion this, which is different from the evidence you gave here on Friday or the evidence you gave here early today,’ as a means by which you’d assess the credit of the witness.

In his charge on this topic, the trial judge said:

In this case, another matter I need to give you, this is quite a separate and distinct instruction of law. In this case you heard evidence in response to what Zhong Zhang had said more than, although in relation to some other witness as well, that he had previously given a different version of events. In particular there was said to be a number of inconsistencies about what description he had given of the clothing that the offender was wearing.
That he had said, for instance, in his first statement to the police he had said that the - and I will take you to this in detail shortly. He had said that it was greenish, it was something that looked like work clothes, it was a top and so on. Where as in his evidence here during the trial he said it was a blue uniform, like a blue uniform I think were the words that he used, but I will take you.
Now, if you accept that he has made those two inconsistent statements, there are two ways you can use it. First, you can use the contents of the statement as evidence in the case. For example you could use his statement when dealing with that particular example, that it was greenish, as evidence that that is what he saw, but the difficulties about that in this case you might think, and it is not really contended that that is how you ought to use it.
Secondly, if you find the two statements to be inconsistent you may use the statement in assessing credibility and reliability. You may find the fact that Zhong Zhang had previously given an inconsistent account means that the evidence he has given in court is less likely to be truthful and accurate and Mr Drake has urged that course upon you. You may therefore be less willing to accept his evidence. It is for you to determine whether or not to draw the conclusion from any inconsistencies you find. You should keep in mind the fact that a witness who gives inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make a mistake about details.

The proposition of giving evidence cannot be simply regarded at the end of the day as a memory test, you have got to take the whole of everything into account. And if you do not find that two propositions are inconsistent with one another, then that is the end of that aspect of it, and if you find they are and you have got two different versions, it is for you to regard which one you might believe or not, but I will deal with that more when I am dealing with the evidence.

On the first limb of the argument, the applicant submitted in this Court that as the trial was a recognition case, the defence relied both on the facts which constituted the inconsistencies as well as the effect of them on the credit of the witness Zhang. The applicant identified two significant inconsistencies which, in his submission in the circumstances of this case, the judge was required to identify in the prior inconsistent statements direction.

The first relevant inconsistency was said to be that in his first statement to police, Zhang said that he had told Tao Zhang that ‘a guy’ stabbed him, whereas in his evidence he said that he had identified the applicant to Tao Zhang. Although not identified in the direction on prior inconsistent statements, later in his charge, the judge said:

He was asked a series of, on two different subjects, a series of questions about what he had said in his first statement. In his first statement, whether or not he had said, and accepted what he had said, that when speaking to Tao Zhang, when he returned to the restaurant and had asked what has happened, he had replied, ‘I was stabbed by a guy.’ But it did not appear in his statement that he said he had been stabbed by Dong.
In answer to questions on that subject before you he said that he had said to police at the time he was asked that he had been stabbed by Dong, but in his first statement there is no question that those – those words do not appear, but he gave evidence that those words were said.
But a major inconsistency, as pointed out by Mr Drake, if he knew at the moment he came back into the restaurant, why had he not said in his statement that it was Dong who had stabbed him.
There was evidence, however, that he had said earlier in the same statement that the person who stabbed him, when describing the narrative, was Dong. So there was a different question. There was a question then arose though, what was it was said to the proprietor of the restaurant, Tao Zhang, when he had returned inside, and that appeared to be inconsistent, and you heard that evidence.

The judge clearly identified the significance of the issue. Shortly after giving that direction, the judge said:

The next part of that analysis and the cross-examination was what had been said at the time he came back into the restaurant and the question of whether or not he had said it was Dong who stabbed him. I think it is true to say that on the subject, Tao Zhang, was not asked that question directly by either party. One of the things that had happened in relation to Tao Zhang was because he was leaving the country he gave evidence first, so he had given evidence before that actual issue was agitated quite as clearly as it was later in the case, but he certainly did not give evidence that anything was said to him at the time that Zhong Zhang had come back into the restaurant.
The other evidence on that subject was the evidence from Zhong Zhang’s wife, Zhoan Wong (sic), who had said that when he came in from the restaurant he did say it was Dong He said it was Dong. And then the witness, Lijuan Jiang, who worked in the restaurant said ‘He said who it was but I didn’t hear him say who it was.’ That is what she said about it.
It was important in Mr Drake’s analysis of it because Mr Drake was putting to the witnesses and it emerged in the argument that he put to you, that true it was, as Mr Dong freely admitted in the record of interview, that he had some difficulties in his arguments and so on with Mr Zhong Zhang about his matrimonial affairs, and that what really had happened was that Zhong Zhang in the darkness and looking at the circumstances generally had not actually recognised who it was. That was consistent with him saying when he came in and said in his first statement that he had been stabbed by a guy, but what happened was that putting two and two together in discussions with his wife in the short period afterwards he had come to the conclusion that ‘the person who bears me animosity is Dong, and I will name Dong as the person who stabbed me.’
That was denied by both Zhong Zhang and his wife, and that is where the evidence that the Crown sought to lead came into consideration which was that it is known that Zhong Zhang was first seen by the doctor at 8.58 p.m. and that one assumed and it would seem likely that that must be close to the time he had come to the hospital.
By 9.19 Zhoan Wang when talking to the police nominates the accused man as the stabber. That inevitably being a piece of information she must have got from her husband, and then later in consideration that when a very quick preliminary statement was taken from the accused man by Sergeant Pola, which he said a statement taken at approximately 10 p.m., that is the statement interpreted by Dr Kwok, he said ‘the man who stabbed me was Dong.’ The defence say that, that is plenty of time for there to have been discussions which put Dong into the frame as being the person who was the stabber. The Crown says if you look at what the wife is saying at 9.19 and in terms of the panic and the emergency trip to the hospital, the statement of the wife that Dong had been named, her ability to communicate at that 9.l9 demonstrates that the identification had been made at an early stage and was not one that was otherwise invented.
The next part of the evidence – you will understand that a significant attack was made on Zhong Zhang about the identification, all the matters that were said to be of significance and you will have the transcript about this and be able to read it about questions of height, questions of build, questions of opportunity, the light, the distance and opportunity and so on.
But at the end of the day, although those matters are relied upon, and still relied upon, the central attack turned at the end of the day on what had been said in his first statement, and omitting to say that he had said on returning to the restaurant that it was Dong and in relation to the changes he made in the various descriptions of what this man was wearing, and if it had been as clear cut as the top now shows, because of the photographs you have as the last exhibit, he must have been able to describe that more adequately than he did.

The jury were not left in any doubt as to the significance of the issue.

The second inconsistency that was not referred to by the judge during the direction on prior inconsistent statements concerned the evidence of Zhang as to whether his attacker said anything at the time of the attack. As has already been outlined, there was an inconsistency between what Zhang had said in his two police statements that, ‘Dong didn’t say a word’ and his later evidence that his attacker said ‘Master Zhang’. In his charge, the judge said:

in relation to the analysis of the evidence of Mr Zhang I omitted to mention to you that Mr Drake had cross-examined in some detail about the question of whether the words, ‘Master Zhang’ had been used, they not having been included in his first two statements but in relation to which in re-examination it became clear he had used that expression at the committal proceeding and he said it was true those words had been used. But Mr Drake emphasised, here is a man who had said these are words you would never forget but did not manage to get those words in his first statement.

In his summary of trial counsel for the applicant’s closing argument, the judge said the following:

if you then did an analysis of the evidence of Zhong Zhang and you looked at what had been said about the colour of the clothing as originally described, the change in the use of the word ‘uniform’, the use of the word ‘Zhong Zhang’ – ‘Master Zhang’ I’m sorry, and equally, ‘I was stabbed by a guy’ expression that was included in his first statement you would entertain a reasonable doubt about the matter and acquit the accused man.

In my view both of these issues were clearly before the jury. They would have understood the inconsistency and how they should approach it and they certainly would have understood the significance the defence placed on it.

Counsel for the applicant relied on the conclusions of Harper AJA (as he then was) in R v Salih[7] where his Honour observed:

I accept that the credibility of the complainant was an important, although not the key, issue in the trial. In those circumstances it was in my opinion incumbent upon his Honour to identify for the jury each prior inconsistent statement upon which the applicant relied as indicating that the complainant might be an unreliable witness. It was then necessary for the judge to tell the jury in clear and readily comprehensible language that no previous statement, whether sworn (as in the committal) or unsworn (as in the complainant’s statement to the police), constituted evidence unless the complainant, while giving evidence at the trial, adopted it; but they were entitled - although, because it was a matter for them, not bound - to conclude that the inconsistency, if they found it to be so, reflected adversely upon the complainant’s credit. At the same time, the judge would be entitled to point out to the jury that, for a dishonest witness, the devil is often in the detail, where inconsistencies can catch them out; while the capacity of the most honest witness to recall matters of detail (such as where their hands were at various times during sexual intercourse, whether rape or not) can be adversely affected without that bearing at all on their credit on issues of central importance. Whether this complainant fell into one category or the other was a matter for the jury alone. The learned trial judge failed to identify the prior inconsistent statements in question here, and failed to direct the jury in comprehensible terms about the relevant law relating to them. He also failed to give to what little he did say the authority of his office as a judge.[8]

[7](2005) 160 A Crim R 310.

[8]Ibid 321 (emphasis added).

Under the Evidence Act 2008, the first portion I have highlighted is no longer the law. Whilst it is true that the three prior inconsistent statements were not all referred to at the time, the trial judge gave a correct direction on prior inconsistent statements which the jury would have understood to have been applicable to all the alleged inconsistencies. At various points of his charge, the judge highlighted the inconsistencies in the context of the issues the jury needed to resolve. His directions were comprehensible and done with the authority of his office. The jury would have clearly understood, for example, that the later reference by the judge in his charge to whether the words ‘Master Zhang’ were used, was to be examined in the context of the prior inconsistent statement direction.

The second limb of the applicant’s argument on this ground impugns the judge’s comment that in relation to the possibility of using prior statements as evidence of their truth ‘… it is not really contended that that is how you ought to use it.’ As I understand it, the applicant’s submission is, in effect, that as identity was the issue and the earlier statements tended to decrease the likelihood that the assailant was the applicant, they were relied on for their truth as well as being important considerations in assessing the complainant’s credibility and reliability as a witness.

In closing arguments, trial counsel for the applicant put to the jury arguments based on Zhang having said in the restaurant that ‘some guy’ stabbed him and the difficulty of using the evidence of Zhang’s wife to bolster his account that he had identified the applicant at that stage. He said that the failure to immediately identify the applicant reduced the reliability and credibility of the later identification. He also suggested that Zhang’s evidence that the assailant said ‘Master Zhang’ was not true and was ‘gilding the lily’. He did this to lend support to his argument that Zhang had assumed the applicant to be the attacker based on his perception of the applicant’s motive – that is, he used the previous representations to attack Zhang’s credibility.

The question in this Court, therefore, is whether in this context, the judge’s comment has led to a substantial miscarriage of justice. In my opinion, this could not be so. First, the judge correctly characterised counsel’s use of prior inconsistent statements, they were used to attack the credibility and reliability of the complainant and much was made of them in this respect. That of course, did not mean that the jury could not use those statements to reason that it was less likely that the assailant was the applicant (because the clothing did not match, because they were not satisfied that the attacker knew the complainant, and because the complainant did not immediately identify the applicant). However, the judge’s comment did not preclude the jury from reasoning in that way. They had been directed that that line of reasoning was open, but it was not pressed, likely because it was not a strong argument.

Overall, the inconsistencies in Zhang’s evidence on which the applicant relied were squarely before the jury accompanied by appropriate directions. I would reject this ground.

Ground 6 – Edwards direction – post offence conduct

For the purpose of considering this ground of appeal, it is necessary to recall that on the day of the attack on Zhang, the applicant had been drinking and probably in some quantity. There was evidence that his drinking commenced in the afternoon with his friends and continued until about 7.30pm. The evidence of the investigating police was that when they went to his premises after the attack at about 12.44am on 7 July 2010, they found him on the ground in an intoxicated state. When the informant was cross examined about that, she agreed that when the applicant was found he was ‘in the semi-prone position, sitting in his own urine, and with grazes to his forehead.’ I assume that evidence was adduced at that time in order to establish that the applicant was either incapable of walking to the restaurant a kilometre away and committing the attack at all or, if he did, he was incapable of forming an intent to kill Zhang. In his record of interview, the applicant said he was really drunk.

Under this ground of appeal it was submitted on behalf of the applicant that an observation by the prosecutor in his final address raised the issue of this conduct demonstrating the applicant’s awareness of his own guilt and that this then required direction by the trial judge that was not given. In his address the prosecutor had said:

Now you have to infer, as I said, from all the circumstances but there’s planning, there is execution and there’s a deliberate conscious stabbing to the chest area, near the heart of Mr Zhang. He then, the Crown says, travels back home and what do you make of him lying out on the back concrete, intoxicated and having urinated himself. Well that’s consistent I say to you of a man who has done what he’s done, stabbed him gone home and then thinking to himself, I’ve killed him, and reacting to that.

Despite the fact that in this Court it was suggested that the prosecutor’s comment raised post-offence conduct going to the issues of identity, intent and the level of the applicant’s intoxication at the time of the attack, it is important to note that no exception was taken by trial counsel for the applicant in response to those remarks.

However, the prosecutor’s comment did not pass the trial judge. During the course of giving a direction to the jury on the effect of intoxication on the issue of intent, his Honour said to the jury:

In his address to you Mr Rochford suggested that such behaviour was because he committed the offence. I instruct you that that argument is not open on the facts of the case. You simply cannot reason in that way.

As I understand the submissions on behalf of the applicant, it was put that the judge should have given a full post-offence conduct direction. The judge’s direction, it was argued, was inadequate and, based on the reasoning of this Court in R v Chang,[9] it was submitted that jury needed to be told that ‘consciousness of guilt reasoning was not applicable’ and that if they concluded that the applicant had attacked Zhang as alleged, then this evidence was ‘intractably neutral on the issue of intent.’ The submission made to us about how this should be dealt with was, as I have said, not made to the trial judge; no complaint was made about the manner in which the trial judge dealt with this.
[9](2003) 7 VR 236.

In Chang, the issue for the consideration of the Court was described by Charles JA:

The conduct of the applicant after the death of the deceased included, apart from lies, careful preparation for flight, a very detailed scheme to lay a false trail, with the intention also of misleading the victim’s family to believe she had decamped, taking with her a substantial amount of her father’s money, and the making of preparations to dig a grave for the body. The purchase of hydrochloric acid and lime which were found beside the open grave can only have been intended to ensure that the body, and thus the evidence of the injury to the head, was destroyed. All of this taken together, in my view, amounted to a continuing course of activity which the jury would have been entitled to regard as evidencing in the strongest possible terms the applicant’s consciousness of his guilt of murder. The ruling of the trial judge at the outset prevented the prosecutor putting to the jury any of the applicant’s post-offence conduct or lies other than the ‘significant lie’. This, in my very respectful view, confined the prosecution case on this issue quite unduly.[10]

The problem created by the trial judge’s approach was described as follows:

With great respect to the very experienced trial judge, I can see no reason why the prosecution should not have been permitted to rely on the applicant’s post-offence conduct and lies as consciousness of guilt in the way proposed at the outset of the trial by the prosecutor. But, relevantly to the appellant’s argument, the consequence of the judge so confining the prosecution case was that the jury were given a full and proper Edwards direction only in respect of the ‘significant lie’, and were thoroughly warned that this lie may have been told for a variety of other reasons such as panic. The jury was, however, given no such warning when they came to consider the remainder of the applicant’s post-offence conduct.[11]

[10]Ibid [43].

[11]Ibid [44] (citations omitted).

As we pointed out to counsel during argument, Chang was therefore a case of an entirely different character factually from this case. There, the evidence in question was ‘likely to have been viewed by the jury as shouting his guilt to the four winds.’[12] Notwithstanding the submissions of counsel for the applicant that the same applied in this case, in my opinion, the evidence has no such character. Further, the course of the trial and manner in which the consciousness of guilt issue arose in that case was quite different from this case. In Chang the jury were given an Edwards direction in relation to a particular lie which the prosecution relied upon as consciousness of guilt. So, the logic of consciousness of guilt reasoning was outlined to them, but they received no warning of the dangers of applying that reasoning to the other post-offence conduct of the accused and the consequent matters of which they should be satisfied before reasoning in that way. Counsel for the applicant before us suggested that the accused in Chang was in a safer position than the applicant in this case. I would reject that submission.
[12]Ibid [46].

In this case there was no question of the jury using the prosecutor’s comment and the evidence on which it was based to reason to guilt in any way at all because the trial judge told them such a course was not open to them. It was not that they were not properly cautioned but rather they were told they were precluded from reasoning in that way. As counsel for the respondent submitted in this Court, a full post-offence conduct direction may have highlighted to the jury the potential logic in such reasoning. The trial judge’s direction instead, simply closed the issue.

Ultimately, counsel for the applicant was driven to argue that whatever harm there was in the prosecutor’s comment, the trial judge’s direction had failed to ameliorate the problem he contended it created. In this respect, he relied on the four days between the comment being made, and the judge directing that the reasoning was not open. Whatever considerations the prosecutor’s comment might have raised in the minds of the jury at the time it was said, I am quite unable to see why the judge’s direction would not have been complied with. The evidence was not of a kind that would compel the jury to disregard the judge’s direction.

On the question of the efficacy of jury directions, counsel for the applicant called in aid the comments of Callaway JA in R v TJB[13] counselling against ‘blind and unquestioning faith in the efficacy of jury warnings’. With respect those remarks need to be seen in context. His Honour was dealing with propensity evidence and severance in cases concerning sexual offences and said:

At least some sexual offences, and particularly those of an unnatural or repellent character like offences against young children, are peculiarly likely to arouse prejudice. The law cannot shut its eyes to the facts of life. Moreover, although criminal trials are generally conducted on the assumption that a jury will comply with the judge’s directions, it is acknowledged in the authorities that warnings about propensity evidence are not always effective. A blind and unquestioning faith in the efficacy of judicial warnings would lead to the conclusion that severance should never be ordered on account of prejudice, because any prejudice at all could be overcome by judicial instruction. No one supposes that that is so.[14]

As I have endeavoured to indicate, the evidence was not of a kind that the jury would have used it to reason towards the applicant’s guilt against the direction of the trial judge.

[13][1998] 4 VR 621.

[14]Ibid 629 (emphasis added).

In my opinion there is no merit in this ground of appeal.

Conclusion

For the foregoing reasons, I would grant leave to appeal in relation to grounds 1 and 2 and dismiss the appeal in each case. In relation to grounds 3, 4, 5 and 6, I would refuse leave to appeal.

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Dong v The Queen [2013] VSCA 354

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M v the Queen [1994] HCA 63

R v Klamo [2008] VSCA 75

BCM v The Queen [2013] HCA 48

[2013] VSCA 354

5 December 2013