Jiangang Ji v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0063

JIANGANG JI	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2023
DATE OF JUDGMENT:	27 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 96
JUDGMENT APPEALED FROM:	DPP v Jiangang Ji [2023] VCC 600 (Judge Cannon)

---

CRIMINAL LAW – Appeal – Interlocutory Appeal – Applicant charged with rape and associated offences – Applicant deleted video and photograph of complainant taken at time of alleged rape – Trial judge refused application to prevent prosecution from using deletion as evidence of incriminating conduct – Trial judge refused to certify under s 295(3) of the Criminal Procedure Act 2009 – Trial judge’s refusal to certify and evidentiary ruling correct – Application to review refused.

---

Counsel
Applicant:		Mr CK Wareham
Respondent:		Ms K Churchill and Ms L Gurry
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

For the reasons that follow, we consider that this application to review a trial judge’s refusal to certify under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) cannot succeed.
An indictment filed in the County Court charges the applicant with aggravated burglary (charge 1); false imprisonment, rape, sexual assault and common assault of ‘YN’ (charges 2, 5, 6 and 7 respectively); kidnapping of ‘WB’ and ‘WA’ (charges 3 and 4); and theft of a motor car. A jury has been empanelled to try the applicant on the charges of rape, sexual assault and common assault (charges 5, 6 and 7).
‘AW’ is YN’s husband. WB and WA are their children. The applicant was once employed as a plasterer in AW’s construction company. He told police that he hated AW and wanted ‘to teach him a lesson’. In two years working for AW he ‘was constantly verbally abused’ so that he had ‘great pressure psychologically and mentally and … that led [him] to do what [he] did’.
In brief compass, the prosecution case is that, in the morning of Monday, 23 August 2021, after AW had left home for work, the applicant entered AW and YN’s home as a trespasser armed with a knife (charge 1). He went to YN’s bedroom, where she was lying with her children, WA (then aged five years) and WB (then aged three). The applicant then confronted YN. He then bound her hands and feet, and used tape to cover her mouth and eyes (charge 2). The applicant also bound the children’s hands and covered their eyes as they cried. He then took the children to YN’s Mercedes Benz sedan and put them in the boot (part of charges 3 and 4). Having secured the vehicle, the applicant returned inside to the bedroom where he forced his penis into YN’s vagina without her consent (charge 5). He also squeezed YN’s bare breasts (charge 6) and caused a laceration to her stomach with the knife he was holding (charge 7). The applicant then drove away with the children in the boot of the Mercedes Benz (charges 3, 4 and 8). YN managed to free herself from her foot bindings and ran out into the street where she alerted people who called the ‘000’ emergency services number.
By a Defence Response to the Summary of Prosecution Opening, dated 1 December 2022, the applicant denied ‘sexually assaulting, sexually penetrating or assaulting the complainant with a knife and pleads not guilty to charges 5, 6 & 7’.
The prosecution subsequently served and filed an Amended Notice of Incriminating Conduct (‘the notice’) under s 19(1) of the Jury Directions Act 2015 (‘JDA’), dated 4 April 2023. Among other things, the notice contains the following:
2. The conduct that the prosecution proposes to rely on as evidence of incriminating conduct is as follows:
a. The accused deleted a video clip of the complainant from his phone. The video clip depicts the complainant on the bed with her legs raised towards her midriff. She is bound and gagged.
b. The accused deleted a photograph of the complainant from his phone. The photograph depicts the complainant bound, gagged and naked.
When arraigned in the absence of a jury panel on 19 April 2023, the applicant pleaded guilty to aggravated burglary (charge 1); false imprisonment (charge 2); two charges of kidnapping (charges 3 and 4); and theft of the Mercedes Benz (charge 8); but pleaded not guilty to the other charges, involving the alleged rape; sexual assault; and common assault of YN (charges 5, 6 and 7).[1]
[1]The transcript wrongly records that the applicant ‘pleaded not guilty to Charges 4, 5 and 6 and guilty to Charges 1, 2, 3 and 7’. In fact, he pleaded guilty to charges 1, 2, 3, 4 and 8, and not guilty to charges 5, 6 and 7.
Following his arraignment, the applicant’s counsel sought a ruling that the prosecution not be permitted to rely on the applicant’s alleged deletion from his mobile telephone of a video and photograph of YN, as described in the notice, as evidence of incriminating conduct. In submissions to the trial judge, the applicant’s counsel acknowledged that the relevant images were extracted from the ‘deleted folder’ on the applicant’s telephone. She did not take issue with the fact that they were deleted, the issue being ‘whether or not that deletion is capable of being incriminating conduct’. Counsel submitted that the notice did not ‘particularise exactly what it was it was said to be incriminating conduct of’. Further, counsel submitted, the evidence does not disclose when the images were deleted. For the prosecution to be able to establish that the only reasonable inference was that the applicant deleted the material because ‘he knew he’d committed an offence and it was to avoid detection of consciousness of guilt’ [sic], it is ‘necessary to know the point in time where it was deleted, because it may have been deleted at a much earlier point for an entirely different reason’. Finally, counsel contended that the evidence is ‘intractably neutral’, since there are competing inferences available.
The judge refused to exclude the use of the proposed evidence as evidence of incriminating conduct. In a brief, informal ruling, she said:
[H]aving viewed [the video and photograph], in my view it is reasonably open for the Crown to rely … on the deletion of each of them as incriminating conduct. In my view, it would be – the deletion of those would be reasonably – would be open to a jury to be viewed as incriminating conduct. … What I’m saying is that it passes a threshold to [s 20(1) of the JDA to] be used as an incriminating conduct …
Following the judge’s ruling, the applicant was arraigned in the presence of a jury panel. He pleaded not guilty to the rape, sexual assault and common assault of YN (charges 5, 6 and 7), but guilty to the remaining charges. A jury was then empanelled to try the applicant. After the jury was empanelled, the judge made some opening remarks; prosecuting counsel opened the prosecution case; defence counsel responded; and YN commenced to give her evidence-in-chief from a remote facility.
The next morning, 20 April 2023, the judge delivered a more formal ruling on the evidence of incriminating conduct (‘the ruling’ or ‘the interlocutory decision’).[2] Having observed that the images themselves ‘tend to support the complainant's allegations of sexual assault and rape’ — the judge used the term ‘images’ to embrace both the video and the photograph — she observed:
The prosecution argues that the accused’s deletion of the images is evidence that is reasonably capable of being used by the jury as evidence of incriminating conduct in keeping with the Jury Directions Act 2015 ss19 and 20. [Prosecting counsel] argued that the accused’s deletion of the images reflected an awareness on his part that their discovery would reflect his involvement in sexual offending against the complainant – that these images went beyond an awareness that they reflected the false imprisonment which the accused has admitted in his record of interview and before the jury ultimately but were of an explicit and sexual nature taken during the course of the alleged offending such that the accused’s deletion of the images reflected the accused’s awareness of his involvement in sexual offending against the complainant and his concern to hide this.
[Defence counsel] argued that the deletion of the images was just as consistent with the accused’s explanation for taking them in the first place and having a change of heart, that it could not be said that these images were intentionally created by the accused, and it could not be said at what stage he deleted these prior to being arrested 11 hours or so after the alleged incident. In those circumstances she argued the deletion of the images was just as consistent with a relatively innocent or alternative explanation or explanations and, therefore, the impugned conduct was intractably neutral and ought not be permitted to be used as incriminating conduct, there being other reasonable inferences available as to why the images were deleted.
As I previously indicated after viewing the photo and the video, each of these are of a particularly damning nature, in my view, insofar as the alleged sexual assault and rape are concerned. That being the case, in my view, evidence of deletion of the images is reasonably capable of being used by the jury as incriminating conduct for the reasons advanced by the learned prosecutor. The defence will not be deprived of giving alternative explanations for deletion of the images which will be incorporated into any directions that I give to the jury.
[2]Counsel for the applicant also sought a discharge of the jury in relation to an issue which has no relevance to the present application.
After the judge delivered the ruling, YN continued giving evidence-in-chief; was cross-examined by defence counsel; and was re-examined by prosecuting counsel. After YN had been excused in the afternoon of that day, defence counsel announced that she now had instructions to bring the interlocutory appeal that she had ‘flagged’ that morning. Counsel then asked the judge to certify under s 295(3)(b) of the CPA, but the judge refused to do so.
By notices filed the following day, 21 April 2023, the applicant seeks review of the certification ruling; and, if that application is granted, seeks leave to appeal against the interlocutory decision. The proposed grounds of appeal seeking leave to appeal against the interlocutory decision contend that the judge erred in —
1… allowing the prosecution to rely upon the evidence of incriminating conduct in circumstances where:
a. The notice relied upon was too broad and lacked specificity.
b. The Crown did not identify how the incriminating conduct could be used.
2… finding that the evidence of the deletion of files was capable of being used as incriminating conduct, in particular:
a. In finding that the evidence was not intractably neutral.
b. In drawing an impermissible inference as to the contents of the video.
c. Where the prosecution could not identify exactly when the deletion occurred.
~~3… finding that the probative value of the incriminating conduct did not outweigh the prejudicial effect on the accused.[3]~~
[3]Counsel abandoned ground 3 during the hearing in this Court.
In our view, these grounds lack substance.
By virtue of s 18 of the JDA, conduct includes an ‘act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged’.[4] Section 18 also provides that
incriminating conduct means conduct that amounts to an implied admission by the accused —
(a) of having committed an offence charged or an element of an offence charged; or
(b) which negates a defence to an offence charged;
[4]Although the effect of s 18 is to limit evidence of incriminating conduct to a lie or an act or omission which occurs after the events alleged to constitute the alleged offence, it has been held that, at common law, a lie told before the commission of an offence was capable of being used as an implied admission of an intention to commit an offence (or that one is in the course of committing it). See R v Appleby (1996) 88 A Crim R 456, 459 (Callaway JA).
Moreover, s 20(1)(b) of the JDA provides that the prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless ‘the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct’.
The evidence suggests that the applicant entered YN’s home through an unlocked side-window shortly after 6.30 am on Monday, 23 August 2021, but did not confront her in the bedroom until a time after 8.00 am. The events during which the applicant placed the video and photograph of YN on his telephone must have occurred at some point between then and when police arrived on the scene at 8.57 am (in response to a 000 call made by a passer-by whose help YN had sought).
Police arrested the applicant at his home that evening at 7.05 pm. A search of the applicant’s premises located an iPhone. A forensic examination of the iPhone located a short video clip in the ‘deleted’ section of the photo and video gallery, which depicted YN on her bed, bound and gagged, with her legs raised towards her midriff. A photograph of YN was also located depicting her bound and gagged, naked from the waist down, with her breasts exposed. Self-evidently, the images must have been deleted the same day they were taken, at some undeterminable time between approximately 8.57 am and 7.05 pm.
In this Court, the applicant’s counsel did not challenge the admissibility of the images, but resisted the prosecution’s contention that the applicant’s deletion of the images could demonstrate an awareness on his part that their discovery would reflect his involvement in sexual offending against YN. Counsel submitted that the trial judge erred in admitting the evidence of deletion of the files as incriminating conduct because: first, the notice relied upon was broad, lacked specificity and the prosecution did not identify how it sought to use the conduct (although in oral argument counsel properly conceded that the lack of specificity did not vitiate the notice or, of itself, preclude the prosecution from relying on the evidence); secondly, the deletion of the two files must be regarded as ‘intractably neutral’;[5] thirdly, an inference was drawn by the judge as to the contents of the video which was not reasonably open, leading to ‘bootstraps’ reasoning; fourthly, the prosecution could not establish when prior to arrest the files were deleted, thus making it unlikely that they could establish a reasonable hypothesis for the deletion to go to the requisite and specific knowledge of a particular offence; and, fifthly, the deletion has limited probative value as to the outstanding charges on the indictment.
[5]Counsel cited R v Ciantar (2006) 16 VR 26, 39 [40] and DPP v Scriven (Ruling No 4) [2015] VSC 220, [26]–[27].
These submissions cannot be accepted.
When considering whether to permit the prosecution to rely on the images as evidence of incriminating conduct, s 20(1)(b) required the trial judge to determine whether, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct. The judge’s task was to determine whether the jury, acting rationally, could conclude that the only reasonable inference from the applicant’s post-offence conduct is that contended for by the prosecution; that is, the applicant’s deletion of the images was borne of his awareness of his sexual offending against YN and his concern to conceal it. It was not part of the judge’s task, however, to determine whether the jury should draw the inference contended for. Moreover, the judge was not required to determine whether the impugned evidence, standing alone, would establish his awareness that he had sexually offended against YN. Rather, the issue must be considered in the context of all the evidence in the case.[6]
[6]If evidence of incriminating conduct is admissible, s 21(1)(a)(ii) of the JDA requires the trial judge to direct the jury that the jury ‘may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged … only if it concludes that … the only reasonable explanation of the conduct is that the accused held that belief’.
In our view, it would be wrong to endeavour to assess the possible relevance of the video and photograph — and their subsequent deletion — divorced from their context and content, which is explicitly sexual. The photograph shows YN with her top pulled up, so that her breasts are exposed, and with her lower garments pulled down, so that her genitals are exposed. The video depicts much the same, save that YN’s genitals are obscured by her thigh. Given their plainly sexual content, we consider that it would be open to a jury to infer that they had been taken in the course of sexual offending. More importantly, we consider that it would reasonably be open to a jury to infer that the applicant’s deletion of the images demonstrated his consciousness of his involvement in sexual offending against YN and his concern to conceal his involvement in it.
Quite clearly, the admissibility of the evidence of incriminating conduct cannot be assessed in isolation. Significantly, the evidence revealed that semen had been deposited on YN’s bed covering. The spermatozoa fraction of a DNA sample taken from the semen deposited on the doona cover on YN’s bed revealed that it was 100 billion times more likely if the applicant was a contributor than another person selected at random.
Importantly, the evidence of the applicant’s deletion of the images needs to be viewed in the context of his explanation for his semen being found on YN’s bed. As to that, it is significant that, when police confronted the applicant in the course of the record of interview with the information that a semen sample had been obtained from YN’s bed, and asked him how the semen got there, the applicant offered the following explanation:
O.K., yeah. So I really worry that they’re gunna call the police so I took her clothes on [scil, off?], you know, thinking that I was going to take a photo, and then I feel the urge but … I couldn’t get it up. I – so before I even did anything I ejaculated and I definitely haven’t touched her. So if that’s what I have – all I have done does that mean that I raped her? … I did not touch her. O.K., yeah. So I – initially all I wanted to do is take her – was to take her clothe [sic] off and take photo, and use that as a threat – use that to threatened her [sic] not to tell her husband what actually happened and stop her husband from calling the police, and … all I wanted her is not to tell her husband. But I am not good in that department. I – I couldn’t get it up so by the time I realised it … my pants are already wet so I just basically wiped it on the bed.
Hence, the applicant’s explanation for the finding of his semen on the bed was that he had ‘felt the urge but he couldn’t get it up’ — that is, he could not get an erection — and before he ‘even did anything’ he ejaculated in his pants. He then wiped the ejaculate on the bed. The applicant said that he did not tell police these things earlier because he was embarrassed, and worried that he would be charged with rape. In our view, when considering the evidence of incriminating conduct in conjunction with this evidence, it would be open to the jury to conclude that the only reasonable explanation for the deletion of the images by the applicant was that he was conscious that he had sexually offended against YN, and was concerned to conceal that he had done so.

For these reasons, the impugned evidence is not intractably neutral. As we have said, we consider that the applicant’s deletion of the images might be used by the jury to found an inference that he was aware that their discovery would reveal his involvement in sexual offending against YN. In our view, it would be open to the jury to conclude that the applicant’s deletion of the images revealed more than an awareness of having falsely imprisoned YN. No bootstrap reasoning is involved.
We should add that there is nothing in the submission that the notice lacked specificity and was deficient. The applicant can have been under no misapprehension as to the proposed use of the evidence by the prosecution. Moreover, the applicant’s counsel abandoned any suggestion that the probative value of the evidence is outweighed by the danger of unfair prejudice.
By reason of s 295(2) of the CPA, a party to a trial on indictment may only appeal to this Court against an interlocutory decision by leave. Where the interlocutory decision concerns the admissibility of evidence, s 295(3)(a) provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies (among other things) ‘that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case’. If, as in this case, the judge refuses to certify under s 295(3), s 296 provides a pathway by which the party requesting certification may apply for review. Upon a review, the Court is required by s 296(4) to ‘consider the matters referred to in section 295(3)’; and ‘if satisfied as required by section 297, [the Court] may give the applicant leave to appeal against the interlocutory decision’.
In our view, s 295(3)(a) is not satisfied. We consider that, even if the evidence were to be ruled inadmissible, the prosecution case would not be eliminated or substantially weakened. The finding of the applicant’s semen on the bedclothes, coupled with his preposterous explanation for the mechanism of its deposit; the findings of the forensic physician who examined YN shortly after the alleged offending; and the images themselves, provide strong support for the charges of rape and sexual assault.
But even if the applicant could clear the hurdle presented by s 295(3)(a), we could not be satisfied as required by s 297(1) that it was ‘in the interests of justice’ to give leave to appeal against the interlocutory decision, since we do not consider that any of paragraphs (a) to (c) of s 297(1) have been engaged, and since we also consider the judge’s ruling plainly to be correct.
The application to review the trial judge’s refusal to certify must be refused.

---

[2023] VSCA 96

27 April 2023