R v Chang

[2003] VSC 500

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1452 of 2000

QUEEN

V

GABRIEL OMAR CHANG

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 - 9 December 2003
DATE OF RULING:	4 December 2003
DATE OF REASONS:	19 December 2003
CASE MAY BE CITED AS:	R v Gabriel Omar Chang
MEDIUM NEUTRAL CITATION:	[2003] VSC 500

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Criminal Law - Ruling - Case to answer - Sufficient evidence in addition to After Events Conduct evidence

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Horgan SC	Office of Public Prosecutions
For the Defendant	Mr G. Thomas SC with Ms G. Tsirmbas	Falcone & Adams

HIS HONOUR:

1. The accused is charged with the murder of Dianne Psaila on 8 November 1999.  At the conclusion of the prosecution case, Mr Thomas, who appeared with Ms Tsirmbas for the accused, submitted that there was no case to answer on the charge of murder.  I declined to accede to that application, and said that I would provide my reasons later.  These are the reasons.  The applicable principles are as set out in A-G’s Reference (No 1 of 1983) [1983] 2 VR 410, Doney v The Queen (1990) 171 CLR 207 and Case stated by DPP (No 2 of 1993) (1993) 70 A Crim R 325. In short, if the evidence is capable of supporting a verdict of guilty, the matter must be left to the jury. In assessing the evidence, I am bound to assume that the jury would draw inferences as to intermediate facts most favourable to the prosecution.

1. On 12 November 1999, the body of the deceased was found in the boot of her own car at a location off the Great Ocean Road near Lorne.  Shortly before the boot was opened, the accused had been surprised by a policeman.  The accused was then in the process of digging what bore all the signs of being a shallow grave.  The accused assaulted the policeman and took flight.  He was arrested the following day, a Saturday.  He then had a broken arm, so he was only briefly interviewed before being treated.  He gave some basic information.  He said that the deceased had been killed in the lounge room of his Melton home on the previous Monday. He said that the death had occurred accidentally in the course of  a verbal exchange in the course of which there had been some hitting by each of the other.

1. Between the initial brief interview and a longer interview on the following Tuesday, various steps were taken by the authorities.  An autopsy on the body of the deceased was carried out by Dr Matthew Lynch.  A crime scene search was made of the Melton home lounge.  Family and friends of the accused and the deceased were interviewed.  The autopsy findings included that the body of the deceased had decomposed to an extent that made precise findings more difficult.  Dr Lynch was not prepared to specify a precise cause of death. The deceased suffered a fractured skull, and in a place and to an extent that was indicative of the use of considerable force.  Overlying the fracture was a split in the skin.  There were other signs of violence. One was that the head of the deceased was wrapped in a long-sleeved black top designed to be worn on the upper body.  In that black top were two defects.  They were not noted before the black top was removed from the body.  Dr Lynch believed that, when on the body, they were together and adjacent to the split underlying the skull fracture.  Dr Lynch noted that either stuck to, or embedded in, the skull fracture were fibres from the black top.  Further, the black bra on the deceased was damaged in a way indicative of the use of some force.

1. When the accused was interviewed on the Tuesday, he gave an account that was more extensive.  It was in at least one respect different from the first account.  It was more suggestive of his having acted in self-defence.  He shifted ground at times when the police put to him matters gleaned from other sources.  On a number of occasions, he conceded that he had lied to the police.  He also conceded that he had done a number of things in the hours and days after the death that were difficult to reconcile with his account of the death being an accident or done in self-defence. I will refer to those things as after events conduct.

1. I summarise in this paragraph what Mr Thomas put to me.  The cause of death was unascertained.  No adverse inference could be drawn from the evidence as to the fibres from the black top being linked to the skull fracture given that Dr Lynch could not say that the fibres were embedded, as distinct from stuck.  No adverse inference could be drawn from the character of the split overlying the skull fracture and the character of the defects in the black top, as the expert opinions were that the former resulted from a blow with a blunt instrument and the later from a blow with a sharp instrument.  Even if the prosecution case was treated as enhanced on the basis that the account of the accused was rejected in full, an alternative scenario could not be constructed from nothing, that being the result of the rejection of the accused’s account.  The prosecution case as to murderous intent depended therefore on the drawing of an adverse inference from the evidence of after events conduct.  The evidence of after events conduct of the accused alone was not an appropriate base for the drawing of an adverse inference as to murderous intent.

1. I do not accept that the drawing of an inference as to murderous intent depended solely upon the evidence as to after events conduct. I do not accept that the particular aspects of the evidence focused on by Mr Thomas were as all-important as he submitted.  The evidence overall included many photos and several items of clothing and other objects.   Those exhibits, taken with oral evidence as to where they were found and otherwise of a contextual natue, provided several indications of violence.  In my assessment the jury had before it a solid basis of facts from which it was reasonable to infer that there had been a significant level of violence inflicted on the deceased.  It was not a case of there being just a blank page that preceded the evidence of what the accused said in the police interview.  Moreover, the jury was in a position to obtain much more from the video interview than just an opportunity to wholly reject or wholly accept what the accused has said.  The jury had the opportunity to better understand the evidence from other sources and to place aspects of that evidence in context.  The jury had the chance to assess what aspects of what the accused said were truthful or clearly lies or arguably lies.  There was plenty of scope for assessing that there was a substantial measure of both truth and lies.  There was also much to indicate how the accused related to the deceased.  That potentially was a matter relevant to finding facts which could be a basis for the drawing of an inference as to intention.  Even in small matters, such as how the accused sought to deal with the damage to the bra, there was potential for the making of findings as to facts going to intent.  There were small but potentially significant indications of the accused’s measure of his friendship in how that he said that he related to the deceased before her death, and how he chose to deal with her body afterwards.  There were indications of the level of violence he spoke of having resorted to in a crisis situation.

1. I would note, as to the evidence of after events conduct, that I cannot recall being involved in a case where there were so many items of conduct and so many lies that were capable of being characterised as evidencing consciousness of guilt.  I accept that that is not so say that the jury had to so treat them.  Nevertheless, this was patently a case where the extent of the after event conduct and lies was “out of all proportion to the level of culpability admitted”.  I have taken those words from R v White (1998) 125 CCC (3d) 385, that was cited approvingly in Nguyen (2001) 118 A Crim R 479 at [20]. I accept that, relative to most other trials, the evidence of after events conduct was significantly greater, and the other evidence potentially a basis for an inference of murderous intent was relatively not as great. I do not accept that the drawing of the inference depended completely or almost completely on the evidence of after events conduct. I do not accept that the jury would be speculating, rather than drawing a legitimate inference, as to the intention of the accused in finding that there was murderous intent. I was well satisfied that there was a case to answer.