R v Cai and Wang

[1995] QCA 47

IN THE COURT OF APPEAL [1995] QCA 047

SUPREME COURT OF QUEENSLAND	C.A. No. 444 of 1994 C.A. No. 457 of 1994
Brisbane
Before	Fitzgerald P. McPherson J.A. Thomas J.

[R. v. Cai and Wang]

T H E Q U E E N

v.

WEI CAI
and

CHUN BIAO WANG	(Appellants)
Fitzgerald P. McPherson J.A. Thomas J.

Judgment delivered 03/03/95

Separate concurring reasons for judgment by Fitzgerald P.,

McPherson J.A. and Thomas J.

APPEALS AGAINST CONVICTION DISMISSED.

CATCHWORDS	CRIMINAL LAW - MURDER - Whether open to jury to reach their conclusion beyond reasonable doubt on the evidence - Accessory after the fact to murder - Jefferies v. Sturcke [1992] 2 Qd.R. 392 - Common alibi as evidence of common purpose - Mawaz Khan v. The Queen [1967] 1 A.C. 454 - Effect of failure to call evidence.
Counsel:	A. Rafter for the appellant Wang D. Lynch for the appellant Cai M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellants Queensland Director of Public Prosecutions for the respondent

Hearing Date:2 February 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 03/03/1995

The circumstances giving rise to this appeal are set out in the

other judgments.

Plainly, the jury could have been satisfied beyond reasonable doubt that both appellants were at the murder scene when the

deceased was killed, and that both, or one of other of them,

killed him. However, without more, that might not support the

conviction of both or either: see the cases referred to in the judgment of Murphy J. in Boykovski v. Atanasovski (1991) 58

A.Crim.R. 436, at pp. 444-445.

As is discussed in the other judgments, there was a strong case implicating Chien Biao Wang (James Wang); I agree that it was

open to the jury, acting reasonably, to be satisfied beyond
reasonable doubt of his guilt.

The evidence against the other appellant, Wei Chan (Anthony Cai), apart from his presence at the murder scene was (i) his admission that he had been in James Wang's company throughout the material period, which meant, in the circumstances, that he

had gone to, remained at and departed from the murder scene with

James Wang; (ii) (assuming the prosecution evidence was accepted) his false account of their movements in that period, including the same false statements as James Wang as to their

whereabouts at the time of the murder; (iii) his explanation, which the jury might have disbelieved, for the cut to James Wang's hand, which was the same as that given by James Wang

except for a matter of detail; (iv) his telephone request that his girlfriend collect both appellants and take them to the unit

which she shared; (v) his clothing, including the absence of shorts or shoes; (vi) his behaviour at the unit; and (vii) his departure from the unit with James Wang to dispose of the bag or

bags which they had with them when they arrived at the unit.

Obviously, it was open to the jury to infer from these circumstances that the murder of the deceased was a joint enterprise. Insofar as other inferences, consistent with the innocence of the appellant Cai, were possible, the jury was entitled to reject them as not being rational or reasonable "in the absence of evidence to support them when that evidence, if

it exists at all, must be within the knowledge of the [appellant

Cai]": Weissensteiner v. R. (1993) 178 C.L.R. 217, 228.

I agree that both appeals should be dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 3rd day of March 1995

Yang Wang, also known as Peter Wang, was murdered on the night of 28 July 1993. His body was noticed at about 8 a.m. on the following day lying head down on a set of stairs inside

premises which he occupied at Unit 1, Sydney Street, New Farm.

Post mortem examination showed that he had received 22 major stab wounds to his head, neck, body and legs, as well as slash wounds, and "defence" wounds on his hands consistent with attempts to defend himself. Death was the result of multiple stab wounds and would have ensued within about 20 minutes thereafter. The condition of the body of the deceased suggested

that death had taken place some time between about 10.30 p.m.

and midnight on 28 July. A witness who lived in one of the other units at Sydney Street testified to having heard what she described as "short sort of bursts of screaming" coming from the

direction of unit 1 just after 10.30 p.m. on the night in question. On the evidence at the trial the deceased was last

seen alive at some time shortly after 10 p.m. He had made arrangements to meet someone to discuss a business proposition between 10 and 11 p.m. but he never arrived to keep the

appointment. Some $340 in cash was found in the pockets of the

clothing he was wearing at the time of his death.

At their joint trial in October 1994 the appellants Chun
Biao Wang (or James Wang) and Wei Chan (or Anthony Cai) were
found guilty of the murder of the deceased. The appellants, who

resided together in a flat at Darra, were acquainted with the deceased. A motive for the killing suggested in evidence was

that the deceased conducted a prostitution business at the

Sydney Street premises, which were sometimes visited by the appellants. Some months before the murder the appellants or one of them set up a similar business at a unit in Auchenflower. Hostility was engendered by the efforts of the appellant James

Wang to persuade some of the women at Sydney Street to come and

work for them at Auchenflower. One who transferred her services after working some time for the deceased was Sandra Ruetschi, who was described in evidence as the appellant Cai's girlfriend.

When interviewed by the police on 1 August, Cai said that on the night in question he and James Wang had caught a train from Darra and had gone to the unit at Auchenflower. At about

10 p.m. they had visited a unit or townhouse at Quinn Street,

Toowong, which Sandra shared with another woman named Michelle

Croston. He remained there with James Wang, Sandra, and

Michelle, until he and James Wang left at about 1.30 a.m. James

Wang, interviewed on the same day, agreed that they had caught a

train together from Darra at 5 or 6 p.m.; but said he had gone

straight to the townhouse at Quinn Street, and stayed there

until 2 or 3 a.m. before going home with Cai.

Neither of the appellants gave evidence at the trial.

Michelle Croston, who did, said she collected Sandra from

Auchenflower at about 10 p.m. and drove her back to Quinn

Street. Neither of the appellants was there at the time. At

11.06 p.m. she received a call from Cai asking Sandra to pick

him up from Lang Park. Sandra left, and returned shortly after

11.12 p.m. with both appellants. Although it was a cold night,

Cai had no shirt or shoes on and had dark stains on his

trousers. James Wang was also not wearing shoes. They were

carrying a sports bag or bags, which they put under the kitchen bench. They went upstairs and showered. They asked for some

disinfectant, which was provided, telling the women they "did

not need to know anything". After they came out of the bathroom, Cai wore a pair of jeans he had previously left in Sandra's bedroom. They both borrowed T-Shirts to wear from the

women. They left in Sandra's car, some time after she had
declined to drive them somewhere to dispose of the bag.

There was forensic evidence of the presence of both appellants at the deceased's Sydney Street unit. Cai's fingerprints were found on a glass on a table in the lounge

room. His right index fingerprint, "which appeared to be in blood", was found on a stair railing near the body of the

deceased. James Wang's fingerprints were identified on another

glass in the lounge. Two different sets of bloody shoeprints

were located in the foyer area at the bottom of the stairs and leading out toward the footpath. When the police later searched

the Darra residence they found shoes in some rubbish that were

admitted by the appellant James Wang to be his. Although the shoes were in fairly good condition, James Wang said he had thrown them out because they were too small. The brand was

unusual. A Mr Begley, with 18 years of experience in the footwear industry, had never encountered it before, and said the

shoes had a distinctive tread pattern. The pattern was consistent with the shoeprints found at the Sydney Street unit.

When tested, they proved strongly positive for blood.

In addition to these matters linking the appellants with

the scene, a large amount of blood was found there. Analysis

showed that some of it was a mixture of the blood types of the deceased and of James Wang. Some other blood traces were

consistent only with blood of the type of James Wang, which is present on average in one of 162 people in the community. Blood

of this type mixed or otherwise was found on places like the heel of one of the deceased's shoes; near the telephone; on the

lounge floor; on the stair rail; and on the wall at the side of

the stairs. James Wang had a deep cut over the middle of the

left index finger and bruises on both shins. When asked about

this cut, both appellants said he had sustained it accidentally

while preparing food. When interviewed on 1 August, 1993, James Wang said that the accident had happened "this last week"; Cai

said it was "approximately a couple of weeks ago". When James Wang was medically examined on 4 August, the conclusion reached

by the Government Medical Officer was that the cut was about

five to seven days old and the bruising about six days old.

The state of the evidence supports a finding that the fatal wounds were inflicted on the deceased at about 10.30 p.m. or shortly thereafter. Nothing was found at the scene to suggest that some person other than the two appellants might have been

involved. Although both of them said they had previously

visited the Sydney Street premises some months earlier, and their fingerprints found there could not be scientifically

dated, the jury would have been entitled on the evidence to conclude that both appellants were present when the deceased was being stabbed.

So much, indeed, was acknowledged by counsel for the appellant Cai. His primary submission was that, assuming that to be so, there was nevertheless no evidence to establish beyond reasonable doubt that both of the appellants had participated in the crime. In particular, his client might have done no more

than assist James Wang after he had stabbed the deceased. As

such, the appellant Cai would at most be guilty as an accessory
after the fact to murder.

Mere presence during the commission of a crime by another may not of itself be sufficient to involve criminal responsibility as an aider or assistant under s.7 of the Code; but it is nevertheless capable of affording some evidence to

that effect. See Jefferies v. Sturcke [1992] 2 Qd.R. 392, 395.

In any event, the circumstances disclosed in evidence in the

present case make it quite unrealistic to suppose that one of

the two appellants acted simply as a passive and neutral

observer of a murderous attack carried out by the other. Death did not result from a single, sudden, and therefore possibly

unexpected stabbing. More than 22 separate wounds were found on different and widely located parts of the person of the

deceased. It would not have been physically possible to inflict

them in quick succession if the deceased was offering any

resistance.

The "defence" wounds found on the hands strongly suggest

that he was not a merely passive recipient of the blows, but

that, as one would expect, he did his best to prevent himself

from being stabbed. It would be astonishing if he had done

nothing to try to protect himself. Judging by photographs and descriptions of the deceased, the jury may have thought that physically he might have been a match for one of the appellants

(whom the jury had the advantage of seeing in the dock) alone, but not both of them; or at least that he was sufficiently

able-bodied to prevent a steady succession of wounds being inflicted by one of them over a period of what must have been

some little time. In the circumstances as revealed by the evidence the jury would have been justified in concluding beyond reasonable doubt that joint action by the appellants must have been needed or threatened in order to subdue resistance by the

deceased. As it was, the appellants had on their own admissions

travelled into town together from Darra, and their conduct

afterwards shows they were acting in concert after the killing.
Their attempt to set up a common alibi was capable of being
considered by the jury as some evidence of a pre-existing joint
enterprise : cf. Mawaz Khan v. The Queen [1967] 1 A.C. 454, 462.
The suggestion that one of them might have done nothing more
than help the other to clean up the mess after arriving at the

scene after the murder had been committed finds no support in the evidence. There was no evidence to suggest that any real

attempt to clean up had been made.

On the evidence it was open to the jury to find beyond reasonable doubt that both appellants had participated in the commission of the murder.

The appeals against conviction should be dismissed.

REASONS FOR JUDGMENT - THOMAS J

Judgment delivered 3 March 1995.

The relevant facts are contained in McPherson J.A.'s

reasons for judgment which I have had the advantage of reading.
I generally agree with those reasons but will state my own

approach to these two cases.

In Wang's case there is ample evidence to permit the

inference that he was a physical protagonist in the stabbing.

The evidence includes a slicing wound over the middle of his

left index finger and bruising to his shins. These injuries were consistent with having been caused at the time of the murder. Moreover, the evidence of the blood on the heel area of one of the shoes of the deceased shows a mixture of the blood of two individuals consistent with that of the deceased and that of

Wang. Wang's blood was of a kind present in one in 162 people

of the community. There were further findings of blood consistent with being that of Wang on the other surface of a stair handrail, at the base of the stairs and at a gyprock interface near the stair rail in the area where the body was

found.

The evidence includes apparently untrue explanations to

police in relation to his disposal of the blood-stained shoes,

suspicious movements in the company of Cai soon after the probably time of death, and their conduct and statements in the

presence of two women when they apparently tried to remove

incriminating evidence. The evidence as a whole justifies the
inference that he was an active participant in the killing.

The case against Cai contained fewer direct connections with involvement in the struggle. There is for example no evidence that Cai received any injuries. There was, however, adequate evidence from which it could be inferred that Cai and Wang were present at the scene together. Cai's right index fingerprint was found in what appeared to be blood on the

railing of the stair wall near the deceased's body. His fingerprints were also present on a glass in the lounge room of

the deceased's unit.

Prior to the killing both men could be regarded as having

the same motive, or as being in the same potentially

confrontational situation in relation to the deceased. Cai made the telephone call to arrange for their pickup at a time

consistent with being soon after the killing. When picked up (in company with Wang) Cai had no shirt or shoes, and there were

dark stains on his trousers. Their conduct and their statements

to the girls reveal co-operation between the two of them and

suggest that they were in the last stage of a joint exercise. Nothing suggests fear or duress in relation to Cai's actions.

In due course each man gave a false alibi which was roughly

similar. Cai also told what the jury could have regarded as a further lie intended to give a false explanation for Wang's cut

finger.

In the absence of any answer to these circumstances the

jury was entitled to conclude that both men were engaged upon a

joint enterprise in relation to their dealings with the

deceased. The hypothesis that he may have been an innocent

bystander who happened to be present at the murder scene and who

decided to become an accessory after the fact of murder is not

reasonable in those circumstances.

In reviewing whether a jury's verdict is safe and satisfactory and in particular in considering whether a properly instructed jury could reasonably have arrived at that verdict, an appeal court may bear in mind:-

"No person is to be required to explain or contradict, until enough has been proved to warrant a reasonably and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the prima facie case tends be untrue, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends?"

(Per Abbott C.J. in R. v. Burdett (1820) 4 B. & Ald.95,161-2;

106 E.R. 873, 898, cited in Weissensteiner v. The Queen (1993)

178 C.L.R. 217, 225.)

There was nothing surprising or unreasonable in this

particular verdict. The accused has offered no explanation or

contradiction the above circumstances which are in my view sufficient to justify the conclusion that he either aided or acted in concert with Wang in the commission of this crime.

Both appeals should be dismissed.