R v Le

[2019] NSWSC 483

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Le [2019] NSWSC 483
Hearing dates:	25 – 29 March 2019, 1 – 4 April 2019, and 8 – 9 April 2019
Date of orders:	30 April 2019
Decision date:	30 April 2019
Jurisdiction:	Common Law
Before:	Wright J
Decision:	Verdict: (1) in relation to count 1, the accused is not guilty of murder but, on the limited evidence available, the accused committed the offence of manslaughter, being an offence available as an alternative to the murder offence charged. (2) in respect of count 2, on the limited evidence available, the accused committed the offence of robbery armed with an offensive weapon charged.
Catchwords:	CRIME – special hearing conducted before judge alone – counts of murder and robbery armed with an offensive weapon – circumstantial case – verdicts available that, on the limited evidence, offences charged committed CRIME – murder – partial defence of substantial impairment under s 23A of the Crimes Act 1990 (NSW) – where accused suffered from schizoaffective disorder at the time of offending – whether accused suffering from abnormality of mind arising from an underlying condition – whether accused’s capacity to understand events, judge whether actions right or wrong or control self was impaired – whether impairment substantial – verdict available that, on the limited evidence, alternative offence of manslaughter committed
Legislation Cited:	Crimes Act 1990 (NSW) Evidence (Audio and Audio Visual Links) Act 1998 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Quinn v R [2018] NSWCCA 297 R v Hutchison & Wilkinson [2018] NSWSC 1759 R v Qaumi & Qaumi (No 12) [2017] NSWSC 134 R v Trotter (1993) 35 NSWLR 428 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Category:	Principal judgment
Parties:	Regina Mr Ze Ren Le
Representation:	Counsel: Mr G Tabuteau (Crown) Ms S Hall (Defence)   Solicitors: Solicitor for Public Prosecutions (Crown) Armstrong Felton (Defence)
File Number(s):	2016/00028690

reasons for verdict

Background to the Special Hearing

1. On 28 January 2016, the accused, Mr Ze Ren LE, was arrested and charged with the murder, on 28 March 2015, of Xun KE at Campsie in New South Wales, and with the robbery on the same day of Xun KE of certain property, whilst being armed with an offensive weapon.

2. On 30 April 2018, Fagan J found the accused unfit to be tried and he was referred to the Mental Health Review Tribunal (the MHRT) and remanded in custody. [1]

   1. Under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act).

3. On 28 June 2018, the MHRT determined that the accused would not become fit to be tried within 12 months of the Court’s finding of unfitness. The MHRT advised the Court and the Director of Public Prosecutions (the DPP) of its determination. [2]

   2. In accordance with s 16 of the MHFP Act.

4. The Court, having obtained the advice of the DPP as to whether further proceedings would be taken in respect of the offences, listed the matter for a special hearing. [3]

   3. In accordance with s 19(1) of the MHFP Act.

The Special Hearing

5. The special hearing took place over 11 days from 25 March 2019 to 9 April 2019.

6. The purpose of a special hearing is to ensure that, despite the unfitness of the person to be tried in accordance with the normal procedures, the person is acquitted, unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged. [4]

   4. Section 19(2) of the MHFP Act.

7. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings [5] and the accused person must generally be legally represented. [6] In this case, the accused was represented by Ms Hall, of counsel.

   5. Section 21(1) of the MHFP Act.

   6. Section 21(2) of the MHFP Act.

8. Although at a special hearing an accused person cannot, on his or her own account, enter a plea, an accused is taken to have pleaded not guilty in respect of the offence charged. [7] Consequently, a plea of not guilty was entered by the Court on the accused’s behalf when he was arraigned on 25 March 2019 on charges that he:

“1    on the 28th day of March 2015, at Campsie in the State of New South Wales, did murder Xun Ke

2   on the 28th day of March 2015, at Campsie in the State of New South Wales, did rob Xun Ke of certain property, namely, a Samsung Galaxy mobile phone, and a satchel bag containing personal items and an unknown quantity of Australian currency, the property of Xun Ke, whilst being armed with an offensive weapon, namely, a sharp bladed instrument”.

7. Section 21(3)(a) of the MHFP Act.

9. Following the accused’s arraignment, the matter proceeded to special hearing before me, as a judge sitting alone, as there was no election made by the accused, his representative, or the prosecutor to have the special hearing determined by a jury. [8]

   8. Section 21A(1) of the MHFP Act.

10. The verdicts available to a judge determining a special hearing without a jury are the verdicts which would be available to a jury under s 22 of the MHFP Act. [9] Those verdicts are set out in s 22(1) and they are:

“(a) not guilty of the offence charged,

(b) not guilty on the ground of mental illness,

(c) that on the limited evidence available, the accused person committed the offence charged,

(d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.”

9. Section 21B(1) of the MHFP Act.

11. The verdict entered by the judge sitting alone has, for all purposes, the same effect as a verdict of a jury. [10]

    10. Section 21B(1) of the MHFP Act.

12. My determination in this special hearing must include the principles of law I have applied and the findings of fact on which I have relied. [11]

    11. Section 21B(2) of the MHFP Act.

13. It was common ground that the verdicts relevant in the present matter were those under s 22(1)(a), (c) and (d), and not (b). In other words, the accused was not relying on the defence of mental illness. As to the verdict available under par (d), it was contended that, if on the limited evidence available I were otherwise satisfied that the accused committed the offence of murder as charged, he was so substantially impaired by abnormality of mind at the time of the offence that he should be found to have committed the alternative offence of manslaughter, in accordance with s 23A of the Crimes Act 1990 (NSW) (the Crimes Act).

Overview

14. The Crown case can be summarised as follows:

1. In early 2015, Mr Xun Ke, who had been born in Shanghai, China, lived in a unit in a three storey block of units in Clissold Parade, Campsie, with his former wife Ms Gao and his daughter, known as Anita. When he went out, Mr Ke invariably took with him a black Calvin Klein branded satchel bag which often contained his mobile telephone, personal items and cash.

2. Mr Ke knew and occasionally met Mr Shen, who was also originally from Shanghai. Mr Shen had visited Mr Ke’s unit from time to time and Mr Ke had lent Mr Shen his car and Anita’s car on a number of occasions in 2014 and early 2015. Mr Shen lived in Campsie at this time.

3. In the early hours of Saturday, 28 March 2015, the accused received a number of text messages from Mr Shen to the effect that somebody had won money and that the accused should come that night so that they could "take" the money. The accused responded to these messages in effect saying he would come.

4. Between 8:15pm and 9:35pm on 28 March 2015, the accused drove from the Cherrybrook area, where he lived, to the Campsie area. At around 11pm or shortly thereafter on 28 March, the accused went to the vicinity of Mr Ke’s unit block in Campsie and accessed the underground car park.

5. Some time later, Mr Ke returned in his Mercedes-Benz to the unit block and drove into the driveway leading to the underground car park area. He obtained access in the ordinary way through the use of the remote-controlled metal roller door.

6. The roller door closed behind Mr Ke after he had driven in and he reverse parked his car in the designated individual garage for his unit. He got out of the vehicle, taking with him his mobile phone and the Calvin Klein satchel bag which contained personal items and money, and he walked forward to the front of his vehicle.

7. At this time, the accused attacked Mr Ke with a knife or other sharp bladed instrument, causing Mr Ke rapidly to start bleeding. The accused continued to attack Mr Ke, stabbing and cutting him. A struggle ensued between the accused and Mr Ke, moving towards the now closed entry roller door. Mr Ke continued to bleed and collapsed some metres from the roller door where he was found some minutes later. The accused cut Mr Ke's throat leaving him fatally injured.

8. The accused then left the scene taking with him the knife or other sharp bladed instrument, along with the deceased's mobile phone and satchel bag containing other personal items. He walked up the open access stairs to Clissold Pde and walked away.

9. Between 11:31pm and approximately 12:19am the accused drove from the Campsie area back to the Cherrybrook area.

15. For the defence, Ms Hall submitted that the issues to be resolved in this matter were essentially twofold:

1. Has the Crown established beyond reasonable doubt that the accused murdered the deceased, as alleged in count 1, and that the accused robbed the deceased, as alleged in count 2; and

2. If so, in regard to the first count:

1. has the accused established, on the balance of probabilities, impairment by abnormality of the mind; and

2. if impairment is established, was this so substantial as to warrant murder being reduced to manslaughter?[12]

   12. Under s 23A of the Crimes Act

16. As to the first count of murder, Ms Hall submitted that the Crown case was circumstantial and did not exclude the possibility that there was in fact someone else, namely Mr Shen, who was present at the time the deceased was fatally injured, and who was, himself, responsible for inflicting the fatal injuries. Accordingly, the accused should be found not guilty of murder.

17. The particular matters relied upon in the defence case on the first count can be summarised as follows:

1. Mr Shen and the deceased were well known to one another and had a common bond arising out of the use or supply of the drug, ice. Mr Shen was aware of the deceased’s ready access to cash. After their relationship had broken down approximately two weeks before the deceased was killed, Mr Shen formed the intention of robbing the deceased and this was borne out by the text messages, sent in the early hours of 28 March 2015, in which he suggested to the accused that “somebody win money”.

2. The observation of a male standing outside the deceased’s unit block at about 11pm on 28 March 2015 was consistent with the male acting as a lookout for Mr Shen.

3. A cigarette butt with Mr Shen’s DNA on it was found in the car park in the lock-up garage in which the deceased’s Mercedes-Benz was parked, next to the passenger side front door. As the car park was regularly cleaned, the inference available was that the cigarette was left there by Mr Shen on the night the deceased was killed.

4. The presence of the accused’s DNA in a mixture on one of the shoes of the deceased was consistent with him having picked it up and carried it or otherwise touched it in an innocent manner.

5. The Adidas shoes later seized from the accused were identified as a “possible source” of the shoe prints left in the blood on the floor of the car park. It was possible that the shoes might have been removed by the assailant and provided to the accused at some point after the deceased was killed. The evidence of Ms Liu, the ex-wife of the accused, that he had been wearing the shoes for “a couple of months before he went into hospital”, that they were dirty and looked old, and that they were too big for the accused, who only had small feet, supported this hypothesis. The accused’s evidence in his two interviews with the police as to how he came by those shoes was equivocal.

6. The male observed near the bin area after the screaming ceased, who walked off calmly, was consistent with there being another person present at the scene, in addition to the assailant.

7. The evidence of the path travelled by the mobile phones belonging to the deceased and the accused, after the deceased had been killed, was significant in terms of the robbery, but only very tenuous evidence against the accused so far as murder was concerned. This was especially so, if there was more than one person who was involved in the altercation that resulted in the death of the deceased.

8. Simply because Mr Shen’s phone was in the area of Croydon Park on the night the deceased was killed did not establish that Mr Shen himself was in that area. There was some limited evidence of a person matching Mr Shen’s description being at the Oasis Hotel in Campsie sometime before 10pm on the night the deceased was killed.

9. The police interviews and the transcripts of the conversations recorded by the listening devices could not be taken to constitute an admission on behalf of the accused. The transcripts of the conversations could, at the highest, be said to confirm that the accused had some knowledge of the person known as “Shanghai Zai” (which could mean Shanghai boy) who may or may not be the person Ms Liu said she knew as “Chocolate”, which was one of Mr Shen’s nicknames.

10. The accused’s car and numerous items of clothing were examined for traces of blood, but no human blood was found. According to the forensic pathologist, the assailant responsible for inflicting the injuries on the deceased would themselves “show a significant amount of blood on the surface of their body”.

11. In the circumstances, the circumstantial case put by the Crown did not exclude the possibility that Mr Shen was there at the time the deceased was killed and that he inflicted the fatal injuries.

18. In the alternative, if the court were persuaded that the Crown had proved beyond reasonable doubt that, on the limited evidence available, the accused had murdered the deceased, the accused relied upon the partial defence of substantial impairment in s 23A of the Crimes Act.

19. In this regard, it was expressly accepted as common ground at the hearing that the accused suffered from schizoaffective disorder at the time of the offences and that, as a consequence, he was suffering from an abnormality of mind arising from an underlying condition, for the purposes of s 23A(1)(a) of the Crimes Act.

20. The defence case was that the accused’s abnormality of mind impaired his capacity to understand events, to judge whether his actions were right or wrong, and to control himself. In this regard, the accused relied upon the reports of Dr Stephen Allnutt, a forensic psychiatrist. The infliction of 20 sharp force injuries, including the large “slashing” injury to the throat of the deceased and five stab wounds to the head, in the context of what started as a robbery, was said to indicate that the impairment was so substantial that the accused’s liability for the murder of the deceased, if that were found to have been established on the evidence, should be reduced to manslaughter.

21. As to the second count of armed robbery, the defence case was that Mr Shen was responsible for what happened in the underground car park on 28 March 2015, or, if the Court entertained a doubt about the guilt of the accused, the appropriate verdict would be not guilty.

22. Alternatively, if the court was not satisfied that it was the accused who was armed with an offensive implement, but rather carried out the theft of the deceased’s property only after another person had fatally injured the deceased with a sharp bladed instrument, it was submitted that the accused could not be held liable for the actions of another person who was himself armed, even if the accused carried out the theft of the items from the deceased.

Legal principles

23. In reaching my verdicts in these proceedings, I have applied the following legal principles.

Presumption of Innocence

24. The accused is not required to prove his innocence. He is presumed to be innocent unless the prosecution proves, on the limited evidence available, that the offences charged were committed.

Onus and Standard of Proof

25. The legal consequence of the presumption of innocence is that the prosecution bears the onus of proof. In relation to the offences charged, that onus never shifts. It remains on the Crown from beginning to end.

26. The standard of proof is beyond reasonable doubt. Those words and that phrase have their ordinary English meaning. Suspicion, no matter how grave, is insufficient to justify a conviction.

27. The Crown is not required to prove the truth and reliability of every disputed fact, or to establish everything that its important witnesses said in evidence. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of each of the offences charged.

28. When, as in this case, an accused relies on s 23A of the Crimes Act, there is an onus on the accused to prove that that section applies. [13] To this extent, there is an onus on the accused in this hearing, but the standard of proof is the lesser civil standard, on the balance of probabilities. [14]

    13. Section 23A(4) of the Crimes Act.

    14. R v Hutchison & Wilkinson [2018] NSWSC 1759 at [25].

29. That the accused did not give evidence before this Court is a matter of no significance. He was not obliged to do so. No conclusion adverse to him can be drawn from this feature of the matter.

Drawing Inferences from Direct Evidence: Circumstantial Reasoning[15]

15. Shepherd v The Queen (1990) 170 CLR 573 at 578-580 (Dawson J, Mason CJ, Toohey and Gaudron JJ agreeing); [1990] HCA 56.

30. The Crown’s case was essentially circumstantial. In this situation, I may draw inferences from the facts established on the evidence. However in doing so, I must first be satisfied of those primary facts. I need not be satisfied of the primary facts beyond reasonable doubt. There is no particular standard of proof to be applied to the individual items of evidence. Rather, it is the combination of facts or evidence that may lead me to infer the existence of facts that are not, or cannot, be proved by direct evidence.

31. Some intermediate facts may be so crucial to the process of reasoning that they are indispensable to the chain of reasoning leading to the inference of guilt. Where there are such intermediate facts, they must be established beyond reasonable doubt.

32. When it comes to drawing the ultimate inference of guilt, I must not draw such an inference unless it is the only reasonable inference that could be drawn in the circumstances.

Witnesses and Fact Finding

33. I am entitled to accept part of a witness’ evidence and reject other parts. I have listened to the witnesses’ evidence closely and watched them give their evidence. I am conscious of the “scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances”. [16] Rather than relying principally on demeanour, I have placed more reliance on contemporaneous materials, objectively established facts, and the apparent logic of events. [17]

    16. Fox v Percy (2003) 214 CLR 118 (Fox v Percy) at [31]; [2003] HCA 22.

    17. Fox v Percy at [31].

Evidence from a witness whose evidence may be unreliable

34. The Crown relied upon the evidence of Mr Shen, and the Crown’s case involved the assertion that he was a person who was, or might have been, involved in the alleged robbery offence. I must take into account that the evidence of such a witness may be unreliable and, for that reason, I must approach that evidence with considerable caution. There are many reasons why the evidence of such a person may be unreliable. In Mr Shen’s case, he:

1. may have wanted to shift the blame from himself onto another, and to justify his own conduct. In the process, he may have constructed untruthful stories, which tended to play down his own part in the crime and play up the part of another in the crime, even going so far as to blame a quite innocent person; or

2. may have made false claims as to the involvement of another out of motives of revenge or a feeling of dislike or hostility.

35. There may be other reasons or motives why false evidence would be given by such a witness. It is not for the accused to establish what they might be. I bear in mind that the Crown has to prove the essential aspects of its case and the accused does not have to prove anything.

Expert Evidence

36. In the present case, a number of expert witnesses gave evidence. These included:

1. Ms Konza, concerning various matters including the analysis of blood stain patterns;

2. Dr Irvine, who performed the autopsy;

3. Mr Austin, concerning the shoe marks at the scene;

4. Ms Rose, concerning Mr Kerr’s DNA testing and results in his reports; and

5. Dr Allnutt, a forensic psychiatrist who examined the accused on various occasions and provided a number of reports, and Dr Adams, a forensic psychiatrist who also examined the accused and provided a report.

37. In this hearing, the expert evidence has not been challenged in any significant respect. Accordingly, if it is not inherently unbelievable, I would need to have a good reason to reject it. I would do so, for example, if it were based on facts that do not accord with what I have found to have been proved on the evidence. In the present case, the experts’ opinions were supported by the evidence, which I accept, and, accordingly, I also accept their opinions.

Consciousness of Guilt[18]

18. Edwards v The Queen (1993) 178 CLR 193 at 208-211; [1993] HCA 63; R v Qaumi & Qaumi (No 12) [2017] NSWSC 134 at [26]-[30].

38. The prosecution relied on the accused’s denial, when he was interviewed by the police, that he knew Mr Shen as evidence of consciousness of guilt. This is a particular species of circumstantial evidence. It does not establish a direct admission but is relied on as an implied admission because the conduct can only be explained by the fact that the accused knows that he is guilty. By itself, evidence of a consciousness of guilt is not capable of establishing guilt. It is tendered as part of the circumstantial case.

39. Juries are often warned to be cautious when using evidence of consciousness of guilt because it is difficult to know how or why an innocent person may act in particular circumstances. Juries are urged to consider any other possible explanation for the statement or actions of the accused that are said to demonstrate a consciousness of guilt. In the present case, before using this evidence as consciousness of guilt, a jury would be directed to consider the possibility that the accused’s denial may have related to his poor memory as a result of his psychiatric condition, any medication he was taking at the time, or some other related factor. I take those warnings and directions into account in assessing this part of the evidence.

What the Crown has to Prove: Essential Elements

40. The essential elements of the murder charge, which the Crown must prove beyond reasonable doubt, are:

1. The accused caused the death of Xun Ke;

2. This was by means of a voluntary act; and

3. The act was done with an intention to kill or to inflict grievous bodily harm.

41. The essential elements of the robbery charge, which the Crown must prove beyond reasonable doubt in the present case, are:

1. The accused took from Xun Ke a Samsung Galaxy mobile phone, a satchel bag containing personal items, and an unknown quantity of Australian currency;

2. The act was done with intent to steal, that is, to permanently deprive Xun Ke of that property;

3. The act was done with threat or force putting Xun Ke in fear;

4. The accused was armed with an offensive weapon, being a sharp bladed instrument.

What the defence has to prove in this case when relying on s 23A of the Crimes Act

42. Where the Crown has proved beyond reasonable doubt, on the limited evidence available, that the accused murdered the deceased, then, if s 23A of the Crimes Act applies, the accused is not to be found to have committed the offence of murder as charged, but rather will be found to have committed the offence of manslaughter. Section 23A will apply if:[19]

    19. Quinn v R [2018] NSWCCA 297 at [47]-[50] (Hoeben CJ at CL, White JA and Fagan J agreeing) and see also R v Trotter (1993) 35 NSWLR 428 at 430 (Hunt CJ at CL).

1. the accused demonstrates on the balance of probabilities that, at the time he committed the act causing death:[20]

   20. Section 23A(4) of the Crimes Act.

1. he was subject to an “abnormality of mind arising from an underlying condition”; [21]

2. by reason of that abnormality, he was substantially impaired in his capacity to: understand events, or to judge whether his actions were right or wrong, or to control himself; [22] and

2. the Court is persuaded that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. [23]

   21. Within the meaning of s 23A(8) of the Crimes Act.

   22. Section 23A(1)(a) of the Crimes Act.

   23. Section 23A(1)(b) of the Crimes Act.

The Evidence

43. During the course of the special hearing, the prosecution called 23 witnesses and tendered 45 exhibits.

44. The defence called one witness, a forensic psychiatrist, Dr Stephen Allnutt, and tendered four exhibits, all being reports of Dr Allnutt. This evidence concerned principally, if not entirely, the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act.

45. I have taken into account all of the evidence in reaching my verdicts. It is unnecessary to recount the whole of the evidence in these reasons, especially as a deal of the evidence is not in dispute. The areas of controversy in this matter related more to the inferences that should be drawn from the evidence as to the involvement of the accused.

46. I have set out an overview of the evidence, generally in the order in which it was called at the hearing. This overview does not purport to deal with or summarise all of the evidence, even though the conclusions that I have reached are based on the whole of the evidence. The witnesses and evidence can be usefully grouped under the following headings:

1. The crime scene.

2. The neighbours.

3. The deceased’s associates and family.

4. The autopsy findings.

5. A bag located near Fred Caterson Reserve at Castle Hill Cemetery.

6. Shoe mark, DNA and blood stain investigations.

7. The deceased’s whereabouts on the evening of 28 March 2015.

8. The accused’s ex-wife and Mr Shen.

9. The officers in charge of the investigation, telephone records, records of interview and surveillance.

10. The psychiatrists.

The crime scene

47. Ms Ellen Konza, [24] a civilian crime scene officer with the Police whose qualifications included bloodstain pattern analysis and forensic crime scene analysis, gave evidence that she attended the address where the deceased lived in Clissold Pde, Campsie at around 2:30am on 29 March 2015. She received a briefing from a number of police investigators who were already at the scene. Ms Konza was assisted by other personnel from the Forensic Imaging Section. Photographs of the deceased’s unit block and surrounding locations, as well as detailed photographs of the block’s underground car park, were taken and were in evidence. In addition, a computer aided design (CAD) plan of the underground car park area was prepared and was in evidence.

    24. T24-93, T355-391 and T412-425.

48. Facing the unit block, at the left-hand end, was a vehicle ramp which led down to a perforated metal panel roller door at the entry to the underground car park area. The roller door was operated by a remote control. After a vehicle had entered the car park, the roller door shut behind the vehicle. Beyond the roller door, vehicles crossed a diagonal drainage grate and turned right into the main vehicle access way which ran the length of the block. In the main vehicle access way there were three other square drainage grates. Driving in, on the right-hand side of the main access way, there was a wall then three car parking spaces, which were occupied. The remainder of that side was another wall. In each wall, two doors, one on either side of the car parking spaces, led to stairs up to one of the two entrance areas to the units on the ground floor. Those doors were accessible using a key.

49. At the far end of the main vehicle access way was a set of stairs, without a door at the bottom or top, which led up to the area where the bins for the block were stored, at the right-hand end of the unit block (when facing the block) on street level. Although vehicles could access the underground car park only through the remote-controlled roller door, pedestrian access to and from the car park via the stairs at the right-hand end of the block was unrestricted.

50. Driving in, on the left-hand side of the main access way, was a wall then a further vehicle access way and parking which ran perpendicular to the main vehicle access way. Next, there were three garages with tilting garage doors. The deceased’s Mercedes-Benz had been reversed into and parked in the middle of those three garages. Further down the main vehicle way, after the garages on the left, were four car parking spaces, two of which were occupied. The last car parking space was opposite the stairs leading up to the bin area.

51. A number of significant items and areas of interest were located in the underground car park area. These locations were marked with identifying markers and they were photographed.

52. The deceased’s body was found about half way across the diagonal grate in a generally foetal position with his head towards the roller door and about 2.66m from it. In addition, there were bloodstain patterns and marks located at 11 areas in the car park. Blood swabs were taken from each of those areas, which were also photographed. The DNA profile of each swab matched that of the deceased. In the blood stain areas were two types of footwear transfer patterns, identified as “pattern 1” and “pattern 2”. Pattern 1 matched the soles of the deceased’s shoes.

53. The items identified included:

1. At marker G, cigarette butt next to the front passenger side door of the deceased’s Mercedes-Benz in its garage. A sample for DNA testing was taken from this butt.

2. At marker K, a right red shoe, matching the left shoe on the body of the deceased, near the door next to the car spaces on the right-hand side of the main access way and nearest to the entry to the car park. A trace DNA tape-lift was taken from the exterior heel of the shoe upper.

3. At marker L, a set of keys for the deceased’s vehicle on the left-hand side of the main access way where the perpendicular access way goes off to the left. A DNA swab was taken from the keys.

54. Ms Konza also examined the clothing of the deceased after collecting it at the post-mortem. In addition to damage consistent with paramedic intervention, the deceased’s blue T-shirt, red jacket and pants all had multiple linear cuts, some of which were 30 or 40mm in length. There was also substantial blood staining.

55. Later, Ms Konza examined a white Toyota HiAce van seized from the accused. It was “well used”. Between the driver's and passenger's seats of this white van, there was a blue milk crate containing various items, including a white plastic knife sheath, which contained a black-handled filleting knife, a blue-handled filleting knife, a black-handled sharpening tool and a blue-handled sharpening tool. The vehicle and some of its contents, including the knives, were tested for human blood but the results were negative.

56. Ms Konza also examined a pair of black Adidas shoes taken from the accused, which were US size 9. The DNA analysis indicated that there was a mixture from more than one contributor and a profile consistent with that of the accused was present but, as to the rest, the levels were too low or too complex for any result to be determined.

57. Ms Konza was cross-examined by Ms Hall. The area where the deceased’s Mercedes-Benz was parked was generally clean and the property behind the vehicle was stacked up and did not appear dishevelled. It did not appear that the property had been ransacked.

58. Ms Konza was subsequently recalled to give further evidence in relation to her analysis of the bloodstain patterns observed in the underground car park of the deceased’s unit block. [25] Her conclusions included the following: [26]

"a. The bloodstain evidence indicates that the deceased has been within the vicinity of the open garage containing [the deceased’s] vehicle … at the time he received initial bleeding injuries. From the garage the deceased had moved in a generally easterly direction [towards the car park entrance] through the car park until finally coming to his located position [over the diagonal grate] at the eastern end of the basement. This movement through the basement car park has included stages of the deceased being upright and on his feet, and other stages where he has been on or close to the ground including on his hands and knees.

This is supported by the following:

i. A drip trail beginning at area 1 adjacent to the open garage containing [the deceased’s] vehicle … continuing in a generally eastern direction [towards the car park entrance] through areas 2, 3, 4, 6, 7, 8, 9, 10 and 11 and ending at the eastern end of the basement car park where the deceased was located.

ii. The presence of bloodstained transfer shoe marks indicated by the deceased's shoes throughout the basement car park including within area 6 and 8.

iii. The presence of bloodstained transfer hand marks on the ground throughout the basement car park including within areas 4, 6, 8 and 10.

iv. The observation of the deceased's hands as bloodstained and bruised along with bruises and abrasions to the deceased's elbows and right knee and bloodstained and dirty knees of the deceased's pants.”

25. T355-391 and T412-425.

26. Exhibit W par 95

59. In addition, Ms Konza concluded: [27]

“a. In my opinion at least one other person has moved through the basement garage after the deceased has begun to bleed. This individual has left bloodstained shoe marks in various areas of the garage including areas where the deceased has been moving and bleeding and adjacent to where the deceased was located.

i. This is supported by the following: The presence of transfer shoe marks in areas 4, 5, 6, 8, 9 and 10 that have an outsole pattern different to that of the deceased's shoes.

b. I cannot make further comment on the exact number of other persons who may or may not have been present. It is possible for a further person or persons to have been within the basement car park after the deceased was bleeding and not have left any bloodstained shoe marks.”

27. Exhibit W par 96

60. Once again, Ms Hall cross-examined the witness, who gave evidence that it was possible to pick a path through the car park area without treading on the blood trail. It was not possible to determine whether the pattern 2 prints were made at the same time as the pattern 1 prints or at different times.

61. Mr Charles Bemrose [28] was an ambulance paramedic who received a radio broadcast to his ambulance at 11:52pm on 28 March 2015 to attend an incident described as “Person has a laceration, not alert” at Clissold Pde, Campsie. The paramedic and his colleague arrived at the scene at 11:59pm. An ambulance inspector, who was also an intensive care paramedic, arrived at about the same time. The paramedics gained access to the car park area using the stairs on the right-hand side of the unit block and saw a male lying at the opposite end from where they had entered. One of the paramedics cut back his shirt and applied monitoring leads to check for any cardiac activity. There was none. When the deceased’s shirt was cut all the way from top to bottom, multiple lacerations on the posterior torso and the rear and left side of the head were visible. The paramedics determined at that stage that the person was deceased because of injuries incompatible with life.

    28. T94-99.

62. Senior Constable Dirani [29] was on duty on 28 March 2015 with Constable Whitten. At about 11 o’clock a job was broadcast concerning a man lying in a driveway at the deceased’s unit block. They arrived at the scene at 11:48pm. They were the first police to arrive on the scene. Snr Cst Dirani ran down to the roller door which was closed. He could see the deceased through the roller door, as well as what appeared to be fresh blood underneath and around him and more blood splattered across the floor. They entered the underground car park using the stairs on the right-hand side of the unit block. Before the ambulance paramedics arrived, Snr Cst Dirani and Cst Whitten examined the body and concluded that he was dead. Snr Cst Dirani began examining the scene. The metal door in which the deceased’s car was parked was open but the senior constable could not remember how far open it was. Constable Tran also arrived at the scene at about this time and noticed that the bonnet of the deceased’s vehicle was warm.

    29. T100-105.

Neighbours

63. Ms Xiu Di Zhang [30] lived, in 2015, in the same unit block as the deceased. On 28 March 2015, she returned home and, at about 10:50pm, was parking her car in the street in front of the unit block. She saw a man standing on the footpath in front of her access to the block and he looked Asian and about 170 to 175cm tall. Initially she thought that he was Chinese but he might have been Chinese, Korean or mixed. It was dark at the time. He had short hair and the colour of his skin was definitely not dark, rather it looked Chinese. He looked like he was around 50 or over. He was not slim but average build and his face was not skinny but a bit round. His head was not covered. He was just standing there near the entrance to the units on the right-hand side of the block, moving around or pacing. He was not carrying anything. By the time Ms Zhang got out of her car, the man was no longer there.

    30. T106-125

64. While Ms Zhang was talking to her niece on the telephone at about 11:19pm she heard a high-pitched screaming, a sound she had never heard before which was very scary. The sound did not last over one minute and involved several screams. She thought that there might be fighting “down there”. Someone subsequently knocked on her door and told her that the police and ambulance had arrived.

65. Ms Zhang’s telephone indicated that at 11:19pm she spoke to her niece and the conversation lasted 6 minutes and 50 seconds. She thought the telephone indicated that the conversation ended at 11:19pm but did not know what the subsequent entry also relating to 28 March 2015 indicated. It can be noted that if that entry showed that the conversation started, rather than finished, at 11:19pm, the screaming would have occurred at some time between about 11:20pm and 11:37pm.

66. Ms Zhang was cross-examined by Ms Hall. She said that the basement car park was kept reasonably tidy as they had a very good cleaner. The cleaner came twice a week, on Wednesday and Friday, but on Friday he came mainly for the bin area.

67. In March 2015, Mr Neerson Chitrakar [31] lived in the unit block opposite the deceased’s block, with his wife Ms Budhathoki. Mr Chitrakar said that he and his family arrived home at about 10:50pm on 28 March 2015. After parking their car, the family went up to their unit. His daughter had been put to bed and his wife and mother-in-law were chatting in the lounge. Mr Chitrakar was lying on his bed. About 10 or 15 minutes later, he heard loud yelling and thought someone must be having a party. The loud yelling was like “ah” yelled, repeated, going on and on, in one full motion. It was definitely a male voice but he could not make out any words. It went for less than a minute. His wife called him out onto the balcony. The noise that he had heard was from across the street.

    31. T126-139.

63. After being on the balcony for about two or three minutes he saw a man from the unit block opposite just walking across to his side of the street and then up Clissold Pde towards Beamish Street. He had seen the man walk up the staircase on the right-hand side of the unit block. He was walking and crossed the street very casually. Mr Chitrakar thought he had a hoodie with the hood over his head. He was carrying or holding something in his arm, trying to wrap something around his forearm, which was at 90 degrees to his upper arm. He was definitely a male, about 174cm or even smaller, medium build. He did not stand still at any point but walked at normal walking pace.

64. After seeing the man, Mr Chitrakar went downstairs and across the street to where his wife said the noise had come from. She directed him to the left side of the deceased’s unit block. From the top of the driveway entrance to the underground car park, he could see all the way through to the bottom where he saw a body lying close to the roller door, which he described as “a mesh kind of a gate of the security door”. He called 000, which recorded the call as being made at 11:43pm. He was told that police and ambulance would be sent. He waited and made a second 000 call at 11:51pm. At about this time the police arrived.

65. Ms Susan Budhathoki, [32] Mr Chitrakar’s wife, gave evidence that she heard a man screaming loudly but was not able to make out any of the words. There was an initial scream followed by just short ones that were over within a couple of minutes. At this time, Ms Budhathoki was in the kitchen, which has a window that looks out onto the deceased’s unit block. At first it sounded like the man was running, or that he was moving somewhere. After the screaming she heard a banging noise two or three times, which seemed like someone was bashed onto something. While she was still in the kitchen, Ms Budhathoki saw some shadows moving in the garage area of the deceased’s unit block. There were two shadows. One of the shadows was just pulling down the other shadow. It definitely looked like two males. They were “just, after the entrance of the garage door”. What she could see was like there was struggling. They were moving, one guy was trying to pull the other guy and then something was struggling. When she saw the shadows, Ms Budhathoki thought she heard a mild scream and then the banging.

    32. T140-156

66. She called her husband and they went out onto the balcony. After about two or three minutes, Ms Budhathoki saw a man standing next to the garbage bins in the area where they put the garbage bins from the deceased’s unit block. She could see him standing there and then slowly walking across the road and towards Beamish St. He had baggy clothes and was carrying something in his right hand. It was wrapped in black fabric so she couldn’t see what it actually was. He was carrying it under his right arm. The object he was carrying was about 30 to 40cm long. He was about 5’4” or 5’5” tall but, in terms of build, he didn’t seem very big at all. She didn’t think he had a hoodie or other headgear. When Ms Budhathoki saw him walking across the street and out of sight, he was walking really slowly.

67. Ms Hall cross-examined Ms Budhathoki, who said that the man walked across the street and then down Clissold Pde towards Beamish St. Initially, she thought that the two men struggling might have been drunk. It was only when she saw the man walk away that she thought “something is wrong”. She noticed that his hair was a bit longer, down the back of the neck but shorter everywhere else.

68. Ms Menny Silalahi [33] gave evidence that, in March 2015, she lived in the unit block across the street from the deceased’s unit block. In the evening of 28 March 2015, she was at home in her unit and heard screaming. She was unsure whether it was before or after 11 o’clock. It was high screaming and very loud. There were more than three screams and altogether the screaming lasted about five minutes. When the screaming finished she was standing in front of the window in the kitchen. Around 10 minutes after the screaming finished, Ms Silalahi saw a man come out from the side of the building. She saw him walk past the bins and move to the street. He was looking around and then he walked off. The man was not very tall, of medium build, with short black hair. He crossed the street but the witness did not know which direction he went after that. Ms Silalahi’s evidence was that the man was holding something in his hand but she could not tell what it was for, or the size or shape of the object.

    33. T278-290.

69. Ms Denise Marques was a resident of the deceased’s unit block in March 2015. [34] She gave evidence about the unit block and access to the underground car parking area. Although she could not remember exactly, she said that between 11:20pm and 11:30pm she first heard screaming. It was a loud scream and definitely a male voice and it was very high pitched. The screams were on and off and within a few seconds of each other but definitely the same voice, a male voice. The screams went on for about a minute or so. Ms Marques then heard “scattering of bushes but it only happened for a few seconds and then it stopped and then the screaming, everything had stopped.” Ms Marques indicated that the bush noise had come from the area of the bushes between the deceased’s unit block and the next unit block on the left-hand side of the deceased’s unit block. At that point, Ms Marques looked at the alarm clock in her bedroom and it said 11:35pm. About two minutes later, roughly, she heard a police siren and there was a police car there.

    34. T322-332.

70. In cross-examination by Ms Hall, Ms Marques said that it would have been several minutes between the screaming stopping and her hearing the scattering of the bushes.

71. Ms Haixiang Wang [35] lived in the unit block next on the left-hand side to the deceased’s unit block, in Clissold Pde, in March 2015. A sound caught Ms Wang’s attention at around 11:35pm. She worked out the time because she was watching television and her husband came back at 11:30pm. When he walked in the door she looked at the time on the clock and it was 11:30pm exactly. To the best of Ms Wang’s memory the clock was accurate. About five minutes after her husband walked in, they both heard the scream. The scream was really loud and meant to her that someone was in extreme pain. The scream was saying something but Ms Wang couldn’t understand it. It wasn’t clear. The scream stopped for one or two seconds and then started again and lasted about half a minute, roughly, and then stopped completely. There were probably less than 10 screams. It was one male voice. Ms Wang felt it was coming from the garage next to them. She asked her husband to go out and have a look and went to the entry to the unit waiting for him to come back. After about 10 minutes she heard police sirens.

    35. T495-500.

The deceased’s family and other persons from Campsie

77. Mr Guang Shou Wu, [36] who came originally from Shanghai in China, had lived in Campsie for approximately 10 years in March 2015. He had known both the deceased and his wife or ex-wife, Ms Gao, for about 14 or 15 years and had rented a room from them. In 2015, he was living in Ninth Avenue, Campsie and conducted mahjong games there. In the early months of 2015, the deceased came to Mr Wu’s place to fix lighting or equipment, once or twice. Ms Gao played mahjong there almost every week. The deceased did not play mahjong. He was a quiet person. However, when he was excited or angry he would speak “overwhelmingly”.

    36. T162-176.

78. Mr Wu knew Mr Shen and was aware that he had the nickname, Chocolate, and was also called George. Mr Wu said that “a lot of people do not welcome him”.

79. On 28 March 2015, Mr Wu was serving tea or drinks for the people playing mahjong. He went out around 9 or 10 o’clock to buy some cigarettes and stopped to play a gaming machine at the Oasis Hotel and then returned. He did not see Ms Gao at mahjong that evening. He first saw her at about 2:40am to 3 o’clock on the Sunday morning following. She was crying in front of the Oasis Hotel.

80. In cross examination, Mr Wu said that the deceased was normally stingy with money but he had lent Mr Wu $300, which was due to be repaid on 28 March 2015. He also said that it was very possible that Chocolate was a person who used the drug ice because a lot of mahjong players said that “he [was] a bastard”, but he was not sure if Chocolate sold ice.

81. Ms Wen Bin Gao [37] was born in Shanghai and came to Australia in 2007 with the deceased and their daughter, Anita. Ms Gao had been married to the deceased but they separated and then divorced. About four or five months before March 2015, the deceased, Ms Gao, and Anita moved into the unit at Clissold Pde. The deceased had a Mercedes-Benz which he kept in the garage in the underground car park of the unit block. His daughter Anita had a Mini Cooper. In the early part of 2015, the deceased did not have a job or occupation and for income depended on Centrelink benefits, as did Ms Gao. Anita was a student.

    37. T177-211.

82. Ms Gao gave evidence that the deceased normally carried a bag around with him, which was rectangular in shape, and about the size of an A4 piece of paper. The bag was about 10cm thick, black with a shoulder strap not a handle. She thought the brand was probably “CK”. In the bag, he carried his mobile phone, wallet, reading glasses, and some cash.

83. Ms Gao knew a person whose nickname was Chocolate. He was Shanghainese, bald, about 170cm tall. She had seen him near her place, running to her home, but she didn’t see him in the home. She had also seen him on two to three occasions inside the mahjong house.

84. Some time before the death of the deceased, about four days to a week before 28 March 2015, Ms Gao saw her husband and another person arguing on the entry path into the deceased’s unit block. Ms Gao was on the balcony and from upstairs she saw that the person arguing with her husband was bald and he looked really like Chocolate. She could hear the people talking a bit louder but could not understand the words that were said. It was 4 to 5 o’clock or 5 to 6 o’clock, nearly night time. They were speaking Shanghainese and were slightly under a metre apart. The discussion lasted about five or six minutes. When Ms Gao went down there was nobody there anymore.

85. Ms Gao gave evidence that, before he died, the deceased had booked overseas travel to visit his older brother in Shanghai.

86. On the morning of 28 March 2015, Ms Gao had breakfast with the deceased and his mood appeared normal. At around midday, the deceased went to vote and took Ms Gao in the car. He dropped her off at the corner and she had her nails done and came home at around 4 or 5 o’clock. The deceased was there. Ms Gao prepared dinner. After dinner with the deceased and their daughter, Ms Gao went to play mahjong. She stayed there until her daughter called her saying something had happened at home. Ms Gao thought the call was before midnight.

87. Ms Gao did not know anyone by the name of the accused but thought that the name Vincent sounded familiar, though she couldn’t now recall.

88. Ms Gao gave evidence that in about March 2015 she used her Apple mobile telephone which had replaced a white Samsung mobile phone. She did not know what happened to the white Samsung phone only saying that her husband got it. In March 2015, Ms Gao said the deceased used a Samsung phone as well but she did not remember the colour.

89. In cross-examination by Ms Hall, Ms Gao said that after the deceased’s death she had been told that some of her daughter’s property was missing. This included $600 or $700 in her wallet. The cross examination also included the following: [38]

    38. T207.47-48, T208.10-24.

“Q. Was Xun [the deceased] a person who used the drug ice so far as you knew?

A. INTERPRETER: I did suspect. I asked him before but he didn't admit.

…

Q. So far as you were aware was your husband selling the drug ice?

A. INTERPRETER: I asked him. I have asked him but he doesn't make sound. He's a very introvert sort of person therefore I didn't ask anymore.”

Q. You told us before that you knew a man who went by the name of Chocolate?

A. INTERPRETER: Yes.

Q. Was he someone that you understood was involved in the drug ice?

A. INTERPRETER: I heard from other people talking about him. I told my husband better not to have any relationship with him but he doesn't listen to me.

Q. So after you told your husband not to have a relationship with Chocolate he continued to have a relationship with him, is that right?

A. INTERPRETER: It seems right. I cannot control him. I can't not manage him. I don't have any contact with people that he knows.”

90. Ms Gao said that the money for the cars had come from the sale of property in Shanghai.

91. Ms An An Ke, [39] also known as Anita, is the daughter of the deceased and Ms Gao. She gave evidence by audiovisual link from another location as a result of a direction given under s 5A of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Separate reasons for the making of the direction were given at that time.

    39. T220-252.

92. Ms Ke was born in Shanghai and came to Australia with her parents in 2007. She thought it was at around Christmas or before Christmas, in about November 2014, that they moved into the unit on Clissold Pde. At this time her father had no job and he just stayed home and watched TV and played on his phone.

93. She said that he usually carried a black leather Calvin Klein cross body bag about A4 size. She saw that usually he put his glasses, wallet and cigarettes in the bag. If he opened the wallet, she sometimes could see $500-$800 on one or two occasions. Her father had a black Samsung phone with a touchscreen. Her mother had a Samsung phone but she got a new iPhone in about February 2015. Ms Ke did not know what her mother did with the Samsung phone after she got her iPhone.

94. Ms Ke did not know anyone with the surname Shen or with the nickname Chocolate. She did not know anyone by the name of the accused or anyone known as Vincent.

95. The deceased had told his daughter that he had booked flights to China to see her grandfather because he was not well. This was about three weeks, nearly one month, before 28 March 2015.

96. About one to two weeks before 28 March 2015, Ms Ke saw her father talking to a man downstairs from their unit. It was in the afternoon. From the balcony, she could see her father’s face but the other man had his back to her so she didn’t see his face. The other man was a bit taller than her father, who was about 168cm tall, and had no hair. The other man appeared to be about 50 or so and not very fat although he was fatter than her father, who was very thin. The two men were on the walkway from the footpath to the front door of the unit. It was not just a casual chat because he didn’t smile and he looked serious. She was not sure but thought they were speaking in Shanghainese.

97. On 28 March 2015, Ms Ke was home for the whole day having woken up late. She remembered having dinner with her mother and father and after dinner she just went to her room and kept watching her things. After dinner, her father was sitting in the living room and didn’t talk to her and then went out. She thought this was at about 10pm but agreed it was possible that he went out earlier. When he left he had his bag with him.

98. The next thing that Ms Ke remembered happening was that somebody knocked at the front door of the unit saying it was the police. This was at about 12:30am.

99. A few days after 28 March 2015, when she was packing up, Ms Ke saw that her wallet and a gold and silver coloured Omega watch were missing from her jewellery box. She had paid around $6000 for the watch. The wallet was a long black Bottega Veneta wallet, worth about $800, which contained about $3000 in Australian currency, some Chinese currency equivalent to about $1000 Australian, and an overseas bank card. She had last seen the watch about two weeks prior and had not used the wallet for about a month. About two weeks before 28 March 2015, the deceased had said to his daughter that he had come back home and seen that the laundry door was open and he said someone had come into their unit.

100. One or two months before 28 March 2015, Ms Ke had smelled that someone had been smoking in her car. She spoke to her father about it and asked him not to smoke in her car if he drove. He said it was maybe his friend smoking, not him.

101. Ms Hall cross-examined Ms Ke. When asked about the time when the laundry door was left open, she remembered that her father had told her that a bottle of spirits was missing and that her father talked about whether the unit might have been broken into. She also agreed that it was possible that the deceased had left the unit on 23 March 2015 at about 8:30pm.

102. Ms Ke agreed that her father was a bit stingy with his money. She left the keys for her car at home and agreed that her father took the keys and used her car whenever he needed to.

103. When Ms Ke saw her father and the man outside the unit she only saw them talking for a few minutes but she thought they might be arguing or debating something. She agreed that, earlier, she had said that they were kind of cutting each other off when they were talking and it looked to her like they were having a disagreement of some sort.

Autopsy findings

104. Dr Rebecca Irvine, [40] a forensic pathologist, conducted an autopsy on the deceased on 30 and 31 March 2015. Her autopsy report and the annexures became an exhibit in the proceedings. The report stated that: [41]

     40. T253-277.

     41. Ex L p 3.

“Plain x-rays of the head, neck, chest, abdomen and pelvis showed no retained radio opaque foreign bodies (possible fragments of blade).

…

There were multiple (at least eight) incised wounds of the top and back of the scalp, one of which appear to complex (“x”-shaped) and which was associated with an incision into the subjacent bone. There were superficial stab wounds on both sides of the forehead and on the left cheek region.

On the neck was a gaping transverse incised wound that exposed the laryngeal prominence (“Adam’s apple”), as well as to nearby stab or incised wounds on the left side of the neck. This complex of wounds was associated with perforation of the left internal jugular vein. There was no radiographic evidence of cardiac air embolism.

There was a stab wound on the top of the right shoulder which travelled downwards to penetrate the apex of the right pleural cavity and the apex of the right lung; the lung was slightly atelectatic (collapsed) and the right pleural cavity contained 300 mL of blood.

Stab wounds of the upper back, the right axilla (armpit), the anterior right shoulder and the lateral left shoulder all coursed through soft tissue and did not penetrate the chest cavity is or result in defects of the major vessels.

There were scattered superficial blunt force injuries, including a possible “tram track” contusion on the upper central anterior chest. Injuries of the hands included two small incised wounds on the left wrist, some scratches and contusions; these may represent so-called defence injuries.

Toxicological examination revealed the presence of the stimulant drug methylamphetamine [ice], and its active metabolite (breakdown product) amphetamine. While the [leg] blood concentration of methyl amphetamine is, strictly speaking, within toxic to lethal range concentration, the significance is extremely difficult to interpret because of large overlap in the categories of toxicity and an unknown degree of tolerance in the deceased.

A modest concentration of sildenafil (for erectile dysfunction) was also present. Alcohol, other common drugs of potential abuse and other common therapeutic drugs were not detected.

…”

105. The report also noted that: [42]

“[t]he primary mechanism of death appeared to be loss of blood, as evidenced by the amount of blood observed in pictures of the deceased at the scene, expected a significant blood loss from the left internal jugular vein, expected significant blood loss from the incised wounds of the scalp, and the accumulation of 300 mL of blood within the right chest cavity.”

42. Ex L p 4.

106. The most serious wound was to the neck, which caused the injury to the jugular vein. That was an injury that was going to result in massive blood loss, and was going to be inevitably fatal in almost all individuals.

107. The stab wound to the top of the right shoulder, which penetrated the right pleural cavity and right lung, was approximately 11.5cm in depth.

108. There were seven incised wounds of the scalp measuring approximately 5.5cm, 6.7cm, 5.6cm, 1.2cm, 7.1cm, 5.2cm and 9.8cm, and one X shaped wound being intersecting wounds of 9.0 and 5.0cm. The X shaped wound included an incised wound of the bone of the skull.

109. In addition, there was a stab wound to the left temporal region, the right temporal region, the left cheek, the right upper back, the right armpit, the left upper outer arm and the right anterior upper arm. The depths of those wounds ranged between 3cm and 11cm.

110. It was noted that the distribution of the wounds was all above the level of the upper chest.

111. In this particular case, Dr Irvine said that the injuries were such that they would have caused the death of an individual even in the absence of the drugs reported in the toxicological report and the death would have ensued within minutes.

112. In cross-examination, Dr Irvine stated that she would expect that the person who was inflicting the injuries to show a significant amount of blood on the surface of their body.

Bag located at Fred Caterson Reserve and Castle Hill Cemetery

113. Ms Louise Gray [43] was a parks maintenance worker employed by the Hills Shire Council during 2015. She was responsible, among other things, for the maintenance of the Council’s cemetery, which backs onto the Fred Caterson Reserve. The gate of the cemetery providing vehicular access was usually unlocked at just before 6:45am and was locked in the afternoon. The fencing of the cemetery was about 120cm high and Ms Gray could jump over it. There were also areas where pedestrians could walk through because there were parts of the fence that had fallen down. There was also another gate, which was generally open to pedestrians, in the fence around the cemetery.

     43. T295-306

114. About a week or two after 22 April 2015 and after a period of torrential rain, which had involved water rushing down the footpath that divided the gravesites, Ms Gray was about 100m into the cemetery from the entrance gate and about 50m from the bushland around the cemetery. She was using rubbish tongs, or a litter picker, to collect rubbish when she came across a black bag which had wrapped itself around the bottom of a plant. The strap of the bag was wrapped around the bottom part of the plant on the ground and a bit of the bag had also wrapped around the other end of the plant.

115. The bag was wet and it was black or a “blackie greyie colour”. It had a zipper on the top that was open and a second one lower down that Ms Gray was pretty sure wasn’t open. The bag was about 30cm x 40cm. Ms Gray said it looked like a backpack with two straps but she was not too sure. There was a strap up the top. She remembered that there was the name Calvin Klein on the strap. Ms Gray also confirmed that she could not remember exactly whether there was one strap or two. At another point in her evidence she said that the bag “was like a backpack. Like you’ve got the, from what I can, I think I can remember cause it’s been such a long time it had two straps like a, that you put over your shoulder.” She thought the straps were about 2 to 3cm wide.

116. Ms Gray looked inside the bag, through the top zipper which was open, but did not put her hand in. She then put it in a green SULO bin, which was emptied by the Council. By November 2015, Ms Gray did not think she would have any means of recovering the bag that had been put in the bin.

117. In cross-examination by Ms Hall, Ms Gray agreed that her memory of it was that it was a backpack with two straps on the back of it. She wasn’t in a position to say what the original colour was because it was so wet.

Shoe mark, DNA and blood stain investigations

118. Philip Austin [44] was a civilian crime scene officer with the police whose qualifications included impression evidence, chemical targeting of trace evidence and physical evidence induction. Mr Austin examined the black Adidas shoes taken from the accused by police when he was at Hornsby Hospital in July 2015. He compared the shoe marks that were recovered from the surfaces at the crime scene in Clissold Pde with the soles of accused’s Adidas shoes.

     44. T307-321.

119. In addition to marks corresponding to the deceased’s shoes, Mr Austin compared six shoe marks found at the scene, identified as Marks B, C, E, F, G and I, with impressions taken from the accused’s Adidas shoes. The comparison was presented in the form of a number of charts consisting of four photographs. The first was a photograph of the sole of the accused’s shoe. The next was a photograph of an impression taken from the sole of the accused’s shoe. The next was a photograph of the relevant shoe mark photographed at the scene, and the last was an overlay of the impression taken from the accused’s shoe on the shoe mark at the scene.

120. In summary, Mr Austin’s evidence was that:

1. Scene Marks B and C displayed the same pattern and dimensions in the heel, instep and lateral edge as the accused’s left Adidas shoe, which was a “possible source” of the impression in Scene Marks B and C, but other footwear with the same class characteristics were also included as possible sources.

2. Scene Mark E displayed the same pattern and wear as in the toe and ball regions of the accused’s right Adidas shoe, but factors such as distortion in the scale limited his conclusion to a “general association” of some class characteristics to the right Adidas shoe. Other footwear with the same class characteristics were included as possible sources.

3. Scene Mark F displayed the same pattern and dimensions in the toe, ball and heel regions as the right Adidas shoe, which was a “possible source” of the impression in Scene Mark F, but other footwear with the same class characteristics were also included as possible sources.

4. Scene Mark G displayed the same pattern, wear and dimensions in the ball, instep and heel regions as the right Adidas shoe, which was a “possible source” of the impression in Scene Mark G, but other footwear with the same class characteristics were included as possible sources.

5. Scene Mark I displayed the same pattern and wear of the ball, instep and heel regions as the right Adidas shoe, but factors such as distortion in the scale limited his conclusion to a “general association” of some class characteristics of the right Adidas shoe. Other footwear with the same class characteristics were included as possible sources.

121. Mr Austin accepted that, in a practical sense, in relation to Scene Marks B, C, F and G there was a match in pattern, shoe size and/or wear characteristics between the marks and the shoes of the accused. Because of distortions resulting from the scale or camera angle, the conclusions in relation to Marks E and I were more general but the sort of discrepancy produced by these factors didn’t necessarily mean that the pattern was not a matching pattern.

122. Mr Austin was cross-examined by Ms Hall. He said that it was not generally possible to ascertain from the prints obtained whether the same person was wearing the shoes or perhaps two different people.

123. Ms Fiona Rose [45] is a senior forensic biologist with the New South Wales Forensic and Analytical Science Service at Lidcombe, which includes a forensic biology and DNA laboratory. She was a colleague, and peer reviewer of the work, of Mr Zane Kerr who was also a forensic biologist who has since moved overseas. Mr Kerr prepared two reports in this matter. Those reports indicated that:

     45. T333-347, T349-354.

1. the DNA recovered from the cigarette butt at marker G had the same profile as Mr Shen and it was greater than 100 billion times more likely to obtain this profile if it originated from Mr Shen rather than from an unknown, unrelated individual in the Australian population;

2. the DNA recovered from the tape lift taken from the heel of the left shoe of the deceased at marker K originated from at least four individuals and that:

1. it was greater than 100 billion times more likely to obtain this mixed profile if it originated from the accused and three unknown unrelated individuals, rather than from four unknown unrelated individuals in the Australian population;

2. it was greater than 100 billion times more likely to obtain this mixed profile if it originated from the deceased and three unknown unrelated individuals, rather than from four unknown unrelated individuals in the Australian population;

3. it was greater than 100 billion times more likely to obtain this mixed profile if it originated from the accused, the deceased and two unknown unrelated individuals, rather than from four unknown unrelated individuals in the Australian population.

124. Ms Rose gave evidence that there were reference samples not only from the accused but also from Mr Shen, Ms Gao and other persons. Ms Rose was cross-examined by Ms Hall.

The officers in charge of the investigation, telephone records, records of interview and surveillance

125. Detective Senior Constable Adrian Citraro [46] was one of the officers in charge of this investigation, a role he shared with Detective Sergeant Anthony Johnston. Much of the evidence of this witness was not in dispute and it is unnecessary to set it out here, although I have taken it into account. Det Snr Cst Citraro was involved in the investigation at the crime scene on 29 March 2015 and attended the post-mortem examination of the deceased. He established that the remote control found in the deceased’s vehicle operated the remote-controlled roller door at the entry to the car parking area under the deceased’s unit block. He was present at a voluntary interview given by Mr Shen on 23 October 2015 at Campsie police station.

     46. T454-494, T501-507, T511-545, T572-578.

126. Det Snr Cst Citraro attended Hornsby Hospital mental health unit on 14 July 2015 with a warrant and had conversations there with the accused and seized items from the accused including the black Adidas shoes that he was wearing and his Samsung mobile telephone. Later, he attended the accused’s residence in Cherrybrook where a white Toyota HiAce van was parked nearby. Two knives and two sharpening implements were located in the van. The van was left there at that stage.

127. Det Snr Cst Citraro undertook the tasks of downloading the contents of the white Samsung mobile phone, taken from the accused, and of obtaining relevant telephone records and analysing that material. The principal mobile services of interest were:

1. the mobile service used by the accused with a number ending in 577;

2. the mobile service used by the deceased with a number ending in 118; and

3. the mobile service used by Mr Shen with a number ending in 566.

128. The information obtained from telecommunications companies such as Optus and Vodafone included subscriber details, call charge records, and what is known as visitor location record, or VLR, data.

129. The call charge records, or CCR, provided information for a particular mobile service including the following:

1. in relation to voice calls made: the service called, the duration of the call and the cell tower through which the call was made;

2. in relation to text messages: the service messaged and the cell tower through which the message was sent;

3. in relation to mobile data used: for example while connected to the internet, the cell tower through which the majority of the data was transmitted and the duration of the transmission of data.

130. In relation to VLR data, if a mobile phone is switched on and the mobile data is switched on, a signal is sent from that phone and it will be picked up by a cell tower in the vicinity. This occurs periodically and automatically so that should a phone call need to be connected, the handset and the network are ready to have a transmission from an identified cell tower. These contacts were referred to in evidence, on some occasions, as “pings” or “handshakes”.

131. The information downloaded from the accused’s mobile telephone included text messages between Mr Shen’s phone and the accused’s phone, sent in the early hours of 28 March 2015. In addition, Det Snr Cst Citraro obtained information concerning the identification of relevant mobile cell towers and their precise locations.

132. Information derived from these sources in relation to the mobile telephone services of the deceased, the accused and Mr Shen on 28 and 29 March 2015 was collated by Det Snr Cst Citraro into a table. After various revisions, this became the table dated 4 April 2019 in exhibit Z. In general terms, that table listed, where relevant, in chronological order for each call, text, data transmission or VLR pings, the time, the “from” mobile number, the cell site, the “to” mobile number, the content of the text (if the contact was a text message), the duration in seconds of calls and data transmissions and finally, the source of the information. Certain parts of the information in exhibit Z were plotted on two maps, exhibits AB and AC, which depicted the locations of the deceased’s and the accused’s mobile phones immediately before and after the deceased was killed, respectively.

133. Det Snr Cst Citraro also gave evidence concerning the searches carried out at Fred Caterson Reserve on 10 November 2015, and the police media release appealing to the public for information about any person that may have been within the reserve on the night of 29 March 2015 or in relation to any thing, including a knife, that may have been found. It was as a result of this that Ms Gray had come forward.

134. Det Snr Cst Citraro’s evidence also included the search of the premises of the accused at Cherrybrook on 28 January 2016, when the accused was placed under arrest.

135. The senior constable obtained CCTV footage from the I-Mart at the corner of Beamish St and Clissold Pde, Campsie. This showed what the senior constable believed to be the deceased’s car travelling down Clissold Pde at 11:28:10pm on 28 March 2015. The timing was checked and found to be accurate.

136. Det Snr Cst Citraro also gave evidence that he was present at the electronically recorded interview, which the accused voluntarily gave on 4 November 2015, and the taking of a buccal swab from the accused on that date.

137. The senior constable was cross-examined by Ms Hall concerning, among other things, whether the accused was medicated when he was spoken to at the mental health unit of Hornsby Hospital. He also explained that for the entries in exhibit Z relating to “live.vodafone.com” the cell tower identified is where the majority of the data was downloaded. The time given did not indicate when the download to or from that tower started. Ms Hall put to the witness that CCTV footage from the Oasis Hotel in Campsie, for the evening of 28 March 2015, reviewed by him, showed a man that appeared to match the description of Mr Shen, but Det Snr Cst Citraro said he thought it was Jack, that is, Mr Wu.

138. Det Snr Cst Nathan Rose [47] was also involved in the investigation of this matter. He gave evidence of attending with Det Snr Cst Citraro at Hornsby Hospital on 14 July 2015 and speaking to the accused and thereafter attending at the accused’s residence in Cherrybrook on that day and the following day. Det Snr Cst Rose conducted the electronically recorded interview with the accused on 4 November 2015 and a second interview on 28 January 2016. The two discs, being the electronic audiovisual recording of the interview on 4 November 2015, and the further two discs, being the electronic audiovisual recording of the interview with the accused on 28 January 2016, became exhibits AH and AK, respectively. There were also transcripts of those interviews. I have watched the audiovisual recordings in full. The photographs shown to the accused during those interviews were also in evidence before me.

     47. T570-599, T639-641.

139. Det Snr Cst Rose was cross-examined by Ms Hall. He agreed that he observed the accused at the hospital on 14 July 2015 to be about 50 years of age, short in height, approximately 160 to 165cm with a small to medium build being approximately 55 to 70kg in weight, having short shaved black hair with some grey strands, and a round shaped face. The accused was wearing the black Adidas shoes which the police later seized.

140. He agreed that, at the accused’s Cherrybrook residence, there was an area underneath the stairs which contained a large number of shoes but none of them was seized as they were of no interest.

141. Det Sgt Johnston [48] was the officer in charge of the investigation. He gave evidence regarding the warrant obtained for the installation and use of a surveillance device in the Toyota Kluger belonging to the accused’s ex-wife, Ms Liu. The device was installed on 4 November 2015 and removed 20 days later.

     48. T644-687.

142. Det Sgt Johnston established that the first 000 call by Mr Chitrakar was made at 11:42pm. He also obtained a still image from CCTV footage at the Canterbury Leagues club showing the deceased on Thursday, 26 March 2015. That image became an exhibit and showed the deceased wearing a black bag across his shoulder.

143. Det Sgt Johnston gave evidence of four conversations recorded using the surveillance device in the Kluger, and the translation and transcription of those conversations. The disc containing the four recordings and the transcripts became exhibits AP, AQ, AR, AS and AT.

144. He also gave evidence concerning a number of statements relating to:

1. the locking and unlocking of gates at Fred Caterson reserve;

2. the finding in November 2015 of a black A4 sized bag with a strap that would go across the chest and back and hold the bag at the hip. It was said to be damaged and dirty and looked like it had been there for a while and had green and white fungus growing on it. It was left in situ and has never been found;

3. confirmation that on 27 March 2015 the deceased booked return flights to Shanghai;

4. the real estate agent’s records indicating that on 24 January 2015 the deceased moved into his unit in Clissold Pde, that the weekly rent was $460, and that he was given a small key for the garage door as well as other keys;

5. Mr Shen renting from Ms Luo a room in a house on Second Avenue, Campsie and his moving out shortly after Chinese New Year in 2015, which was on 19 February;

6. Mr Shen renting a room from a Mr Zhang in Croydon Park, indicating that Mr Shen applied to live in one of the rooms in about January or February 2015 but Mr Zhang could not remember the exact date;

7. the time taken to travel from Campsie to Cherrybrook, leaving at 11:35pm, which was 34 minutes and 41 seconds on Wednesday, 8 April 2015;

8. the deceased’s fingerprints being found on a door handle in the underground car park area at his block of units; and

9. identification of the voices in the conversations recorded using the surveillance device. It was common ground that Ms Liu was described as female one or F1, and the accused was described as male one or M1, in the transcripts of those conversations.

145. Det Sgt Johnston was cross-examined by Ms Hall. He confirmed that Ms Luo’s statement indicated that, while Mr Shen was a good tenant who kept tidy, he often did not pay rent on time and that the bond of $300, paid on moving in, was not returned because, when he moved out, he had not paid two weeks’ rent. The mother of Ms Luo also said that a van had come to help Mr Shen move out.

146. The cross examination also touched upon a number of other statements obtained as part of the investigation. Based on that material, Det Sgt Johnston gave evidence concerning:

1. CCTV footage of the Oasis Hotel on the corner of Beamish St and Clissold Pde during the evening of 28 March 2015, before 10pm, which included footage of a person who matched the appearance of Mr Shen, and a number of other men in the community, because there was a general likeness in that he had a shaved head;

1. The accused drove from the Campsie area in a northerly direction between about 11:40pm and about 12:19am. At 12:19am the accused, with the deceased’s mobile, was in Cherrybrook. Over the ensuing few hours, the accused went to the area of the cemetery which backs onto Fred Caterson Reserve at Castle Hill and likely disposed of various items that he had with him including the black Calvin Klein bag.

Consciousness of guilt

264. The Crown also relied upon what it contended were the accused’s lies in denying that he knew or recognised Mr Shen. These were said to be matters indicating a consciousness of guilt which supported the conclusion that the accused killed the deceased. The Crown drew attention to what the accused had said in the electronically recorded interviews, which I have called ERISP 1 and ERISP 2, concerning Mr Shen.

265. In ERISP 1, the accused wrote on the photograph of Mr Shen “Don’t know him” and signed it. [54] He also denied knowing a man who went by the nickname of George or with the name Qiao Shi Shen. [55] He denied knowing the man in the photograph of Mr Shen. [56] In ERISP 2, the accused also denied knowing a person by the name of Qiao Shi Shen [57] or Chocolate. [58]

     54. Exhibit AJ - ERISP 1 transcript Q258-Q260 and the seventh photograph in exhibit AM, which was a photograph of Mr Shen.

     55. Exhibit AJ Q263-Q265.

     56. Exhibit AJ Q355.

     57. Exhibit AL – ERISP 2 transcript Q138-139.

     58. Exhibit AL Q142.

266. I accept that Mr Shen was also known by the nickname, Chocolate, and by the English name, George. His evidence of working with the accused and then keeping in contact with him, I also accept. They were in contact by phone and text message on 28 March 2015 as disclosed in their mobile phone records. I also accept what Dr Jonathon Adams recorded in his report of 24 April 2018 concerning his interview with the accused on 19 April 2018: [59]

“I asked him about the person by the name of Shen, and he said he was a ‘friend’.”

59. Exhibit V p 4.

267. I am satisfied that the accused did know Mr Shen, knew him by that name and his nicknames, and recognised his photograph, in 2015 and early 2016.

268. I have considered whether the accused’s mental health or medication might have affected his ability to recall and identify persons whom he knew, at the time of the ERISPs. In both, he was asked whether his medication affected his ability to understand and answer the questions. [60] On both occasions, he said “no”. The interviews were conducted with the assistance of an interpreter. To my observation, the accused looked more alert and engaged in ERISP 1 compared to ERISP 2. He appeared to be capable of answering questions if he wanted to, although he was sometimes confused, even with simple matters, such as whether he owned a motor vehicle at the time of the interview.

     60. Exhibit AL Q21-Q24 and exhibit AJ Q26-Q28.

269. Having regard to all the circumstances and the evidence, I am satisfied that the accused did know Mr Shen and did recognise his photograph during ERISP 1. I am also satisfied that his answers on that occasion were false and he knew them to be false. I reach this conclusion in all the circumstances but especially having regard to his answer to Dr Adams’s question in 2018 concerning Mr Shen.

270. The accused’s knowledge of, and involvement with Mr Shen, was an issue that is relevant to the offences that the Crown alleges the accused committed. On the Crown case, it was Mr Shen who arranged for the accused to be in the underground car park in order to rob the deceased.

271. Having considered whether there are other reasons why the accused might have denied knowing Mr Shen, in all the circumstances, I conclude that the accused knowingly gave these false answers, or lied, because he feared that telling the truth would implicate him in the commission of the offences the subject of this special hearing.

272. Having regard to all these matters, the accused’s denial of knowing or recognising Mr Shen indicates a consciousness of guilt and provides support for the conclusion that it was the accused who attacked the deceased and killed him.

The Crown case is circumstantial

273. The Crown’s case is, however, circumstantial and I cannot draw the ultimate inference beyond reasonable doubt that, on the limited evidence available, the accused committed the murder as charged unless it is the only reasonable inference that could be drawn in the circumstances.

Has the Crown excluded beyond reasonable doubt the hypothesis that Mr Shen was present and killed the deceased?

274. Ms Hall, for the defence, submitted that the guilt of the accused was not the only reasonable inference or hypothesis available in all the circumstances. In particular, her submission was that there was a reasonable hypothesis available that it was Mr Shen who had attacked and killed the deceased, and not the accused, and accordingly the Crown had not proved, beyond reasonable doubt, that the accused murdered the deceased. Her written submissions as to the alternative hypothesis were made under a number of headings, which I shall also use.

Text Messages: Shen and the Accused

275. It was submitted that the text messages sent in the early hours of 28 March 2015 between Mr Shen and the accused were about committing a robbery on someone Mr Shen knew had money. Shen and the deceased were both involved in the use of the drug ice. There was a disparity in the financial position of the deceased, who had ready access to reasonable amounts of cash, and Mr Shen, who did not have ready access to cash in the usual course of events. It contended that the positive picture that Mr Shen painted of his relationship with the deceased should not be accepted, especially in the light of the lack of contact in the month before the killing and the argument observed by Ms Gao and her daughter between the deceased and Mr Shen. The inference was available that, approximately two weeks before he was killed, there was a break down in the relationship between the deceased and Mr Shen over money, or possibly drugs.

276. In this context, it was submitted that the text messages were explicable as Mr Shen telling the accused, who had no history of any dealings with the deceased, about somebody with access to cash.

277. This explanation of the text messages can be accepted, so far as it goes. It amounts to saying that Mr Shen had a motive for robbing the deceased.

278. The difficulty with this submission is that, if, as I accept, Mr Shen was considering robbing the deceased, the messages also clearly indicate that Mr Shen was trying to involve the accused in such a robbery. This was rational. If Mr Shen himself robbed the deceased, he would be immediately recognised. In those circumstances, it would be natural for Mr Shen to organise for the deceased to be robbed by someone unknown to the deceased. I am satisfied that this is what Mr Shen was trying to do in the text messages.

279. Consequently, while Mr Shen can be accepted as having a motive to rob the deceased, it would not be rational for Mr Shen to do it himself. Nor would it be rational, if he did intend to carry out the robbery himself, to tell another person that he was planning such a robbery.

280. For these reasons, I do not accept that the text messages support, to any significant extent, the hypothesis that Mr Shen intended to, and did, carry out the robbery himself. Rather, the text messages indicate that Mr Shen did not intend to carry out the robbery himself but wanted to have the accused do it and the accused indicated his willingness to do so.

Description of person outside the deceased’s unit block

281. Ms Hall next turned to Ms Zhang’s observation of the Asian man outside the deceased’s unit block at about 10:50pm on the night of the killing. It was submitted that, if this was accepted as being the accused, it was consistent with the accused acting as a lookout for Mr Shen, who was in the underground car park waiting for the deceased. In this way, it was said that Mr Shen could avoid arousing suspicion by being visible himself, and, without prior knowledge of the deceased, it would make little sense for the accused to be at that address without Mr Shen.

282. Once again, it made little or no sense for Mr Shen to carry out the robbery himself if he would be recognised as soon as he approached the intended victim. Contrary to what Ms Hall submitted, Mr Shen would not avoid suspicion or detection by having the accused as a lookout. Indeed, Mr Shen had no need for a lookout. He knew exactly where the deceased parked his car. If he was going to rob the deceased himself, he only had to wait near the garage.

283. It can also be observed that the conduct of the man seen by Ms Zhang was not consistent with that of a lookout. A lookout, waiting for the deceased to drive along Clissold Pde and into the car park, would be expected to stay there until the deceased appeared. That is not what Ms Zhang observed. The man had disappeared from view while she was parking at about 10:50pm, well before the deceased arrived.

284. While it would make little sense for the accused to be at that location without prior knowledge, he was given some prior knowledge in the text messages and there was ample opportunity for Mr Shen to give the accused all the information required while they were moving Mr Shen to Croydon Park that day or in the various telephone conversations that took place between Mr Shen and the accused on that day, some as late as 9:12pm and 9:35pm.

285. The hypothesis that Mr Shen, or any other person, was in the underground car park of the deceased’s unit block in Campsie, between 11:30pm and 11:42pm on 28 March 2015, does not rise higher than a theoretical or logical possibility. There was nothing in the evidence that Ms Hall referred to under this heading that provided any positive support for the hypothesis.

Cigarette butt with Shen DNA (Marker G)

286. Ms Hall did, however, place reliance on the fact that a cigarette butt with Mr Shen’s DNA on it was found in the lockable garage area where the deceased parked his car. It was submitted that the fact that this butt was found in the garage area allocated to the deceased made it more likely that Mr Shen was present on the night. It was said that Ms Zhang’s evidence as to the regular and effective cleaning of the car park and the fact that Mr Shen had not been to the deceased’s premises for two weeks supported the conclusion that the cigarette butt was left on the night the deceased was killed. This was said to be consistent with Mr Shen being involved in the physical altercation with the deceased.

287. Once again, it can be observed that if Mr Shen wanted to have the deceased robbed, but not be immediately recognised, his presence at the robbery would not be rational.

288. In addition, the cigarette butt was found well inside the garage area next to the passenger side door of the deceased’s car. The garage was lockable and, given that it contained equipment consistent with the use and manufacture of ice, it is most likely that it was kept locked by the deceased. Thus, it was very unlikely to have been cleaned by the cleaners each week. I accept Mr Shen’s evidence, which was supported by Ms Anita Ke’s evidence, that Mr Shen had driven the deceased’s car and his daughter’s car and he had also been in the deceased’s garage area previously in 2014 and early 2015.

289. The presence of the cigarette butt with Mr Shen’s DNA on it is readily explainable without his being in the garage on the night the deceased died. I accept the cigarette butt was left there by Mr Shen. However, given its location, Mr Shen’s prior involvement with the deceased and his having driven the deceased’s car and been in the deceased’s lockable garage in 2014 and earlier in 2015, I find that the butt was left in the lockable garage when Mr Shen was in the garage with the deceased or when he drove the deceased’s car, prior to their ceasing to have contact some days or weeks before the deceased was killed. Its presence in the deceased’s lockable garage does not provide any substantial support for Ms Hall’s hypothesis, in all the circumstances.

The DNA of the accused being on the shoe belonging to the deceased (Marker K)

290. It was submitted that the presence of the accused’s DNA in a mixture on one of the shoes of the deceased was also consistent with the accused having touched the shoe in an otherwise innocent manner. It was said that he might have picked up the shoe and carried it, especially as the tape lift was taken from the heel.

291. It is difficult to perceive how the accused could have touched the shoe “in an otherwise innocent manner”. The submission assumes, as it must, that the accused was present at about the time when the deceased was attacked. There is, however, no credible or reasonable explanation why the accused would touch the deceased’s shoe during or immediately after an attack by someone else on the deceased. Furthermore, there is no substantial evidence to support a conclusion that there were more than two persons present in the underground car park that night.

292. The presence of the accused’s DNA on the deceased’s shoe cannot be reasonably explained in a manner consistent with Ms Hall’s hypothesis, having regard to all the circumstances.

Shoe prints in blood consistent with the shoes seized from the accused

293. Ms Hall put forward at least two hypotheses that might account for the presence of the shoe prints in blood that matched those of the accused’s black Adidas shoes. One was that the shoe prints might have been made when the bag was stolen from the deceased after he died. Such an hypothesis is, however, more consistent with the accused being the attacker as well as the person who took the bag. In addition, the relevant shoe prints were not located solely at the location where the deceased’s body was found. The accused’s shoe prints were at various locations where the deceased had been after he was first attacked and began bleeding. They were not indicative of a person merely walking away from where the deceased’s body was found. Consequently, I do not accept that this hypothesis is one that is reasonably available in the light of the shoe print evidence and in all the other circumstances.

294. The other hypothesis was that the shoes were worn by the attacker, who was not the accused, but were removed and given to the accused at some point after the deceased was killed. It was said that Ms Liu’s evidence that the accused had been wearing the shoes for “a couple of months before he went into hospital” in June 2015, that they were dirty, looked old and were too big for him and that she had never seen him wash the shoes supported this hypothesis. The accused’s evidence concerning the shoes given in his first interview was said to be equivocal.

295. I do not accept Ms Liu’s evidence given at the hearing in this regard. In the conversations recorded by the surveillance device, she was obviously concerned to have answers to the matters that the police had raised in ERISP 1. The fact that the accused’s shoes matched the shoe marks in the blood was one of those matters of which she was aware. If the shoes were significantly too big for the accused, as Ms Liu contended, it is unbelievable that he would have worn them for months. There was evidence that there were many pairs of shoes under the stairs at the Cherrybrook house and, even if none of those shoes belonged to the accused, it was not suggested anywhere in the evidence, nor would it be credible to suggest, that he did not have other shoes he could have worn, if he chose to.

296. In addition, Ms Liu’s evidence is inconsistent with some of the accused’s answers in ERISP 1. The deceased said and confirmed that his shoe size was 9. [61] The black Adidas shoes seized from the accused were found by Mr Austin to be US size 9. [62] The accused also said that he found the shoes on the street in Strathfield and they were “quite new so [he] just picked them up”. [63] The accused could not say when he had acquired the shoes. It is true, however, that the accused also answered “Before that shoe, not my shoe, before you took my shoe, not my shoe” and the interpreter translated his non-English words as “The pair of shoes you took away, they were not actually mine.” He also said: “Very big, not my size”.

     61. ERISP 1 Q89 and Q90.

     62. Exhibit Q par17.1(b) and (c).

     63. ERISP 1 Q97.

297. The accused and Ms Liu had an obvious incentive not to tell the truth concerning the shoes.

298. Even if it is wrong to reject Ms Liu’s evidence, and I should accept that she had noticed that the accused “had been wearing those shoes for a couple of months before he went into hospital” and “when [she] first saw them, were dirty” and “looked old”, it would not establish that the accused did not have those shoes on 28 March 2015. The accused was relevantly admitted to hospital on 7 June 2015. [64] A couple of months before would be about the beginning of April 2015. The accused said that they were “quite new” when he picked them up. Accordingly, there must have been some considerable time between when he picked them up and when Ms Liu noticed them for the first time because by that time they had ceased to look quite new and were dirty and looked old. As a result, it would appear that, if the accused found the shoes as he said, he picked them up well before 28 March 2015.

     64. Exhibit V p 7.

299. In all the circumstances and having regard to the evidence as a whole, I do not consider that there is a reasonable hypothesis available that the black Adidas shoes seized from the accused in July 2015 were not acquired by him until after the deceased was killed on 28 March 2015.

Description of the person at the bin area after the screams were heard

300. Ms Hall submitted that the presence of the person near the bin area after the screams were heard, who was carrying something and who walked calmly from the scene, is consistent with there being another person, other than the accused, present at the scene around the time of the screaming. This is said to be because the person was “never seen on the driveway side of the building” and “it is possible there [was] another person there, most likely Mr Shen”, because attention was focused on the man who walked away from the bin area.

301. The specific hypothesis raised under this heading amounts in substance to the contention that if the witnesses were distracted by observing the man walking past the bin area, across Clissold Pde and away, they might possibly not have noticed another man who was near the other end of the building, where the vehicular entry to car park was. The only evidence which might support such an hypothesis was from Ms Marques who heard “scattering of bushes but it only happened for a few seconds” which occurred about a few minutes after the screaming stopped.

302. Such a noise in the bushes is consistent with many possibilities which do not involve the deceased’s attacker. The screams could have disturbed animals in the bushes. It could have been items thrown into the bushes. It could have been a person other than the attacker in the bushes. In addition, it could have been the attacker looking for a way out, who then re-entered the car park and exited via the stairs at the other end of the building. There is nothing whatsoever to link Mr Shen with the noise in the bushes.

303. In my view, this single piece of evidence of the noise of “scattering of bushes”, taken together with my findings and the evidence as a whole, does not provide any support for the conclusion that there is a reasonable inference that Mr Shen was present and was the deceased’s attacker.

Phone records of the deceased’s and accused’s phones having a similar path

304. Ms Hall noted that the significance of the evidence of the mobile phone data was that it established that the accused was “in the vicinity at the relevant time” but submitted “it went more to the opportunity to commit the offence”. She submitted that although Mr Shen’s phone was in the Croydon Park area on the night in question, this did not necessarily mean that Mr Shen himself was in Croydon Park. This is logically correct. It was not, however, put to Mr Shen that he travelled without his mobile phone on the night when the deceased was killed.

304. Ms Hall then relied upon a further item of evidence, namely that Det Sgt Johnston gave evidence of “Mr Shen - or a man matching his description” being seen on the CCTV footage obtained from the Oasis Hotel some time before 10pm on the night in question.

305. Det Sgt Johnston’s evidence during cross examination was as follows: [65]

“Q. During the course of the footage, was it apparent that there was a person at the Oasis Hotel during the evening of 28 March 2015 who matched the appearance of Mr Shen?

A. He also matched the appearance of a number of other men, individuals, in the community as well.

Q. But didn't match the appearance of Mr Shen?

A. Well, had a general likeness in that he had a shaved head.

Q. And at what time was that?

A. I can't say specifically off the top of my head. I would have to refer to some notes, but I believe that was before 10pm.”

65. T685.12-24.

307. A fair reading of this evidence is that nothing more was being said than that there was a man with a shaved head in the CCTV footage from the Oasis Hotel from before 10pm on 28 March 2015 and that man could be said to have a general likeness to Mr Shen because he had a shaved head. Det Snr Cst Citraro’s evidence was that it looked like Mr Wu.

308. I accept that it is possible that Mr Shen was not at Croydon Park at some time before 10pm on the night in question. The evidence does not, however, justify any more specific finding. While the evidence does not exclude a finding that Mr Shen was at the Oasis Hotel at some time before 10pm on the night in question, the hypothesis that Mr Shen and not the accused was the deceased’s attacker is not, without the support of additional evidence, reasonably available on this material in all the circumstances.

Police interviews and listening devices

309. Ms Hall submitted that neither the ERISPs nor the conversations recorded on the listening devices could be taken to constitute admissions on behalf of the accused. The transcripts of the conversations could, at the highest, be said to confirm that the accused had some knowledge of the person “Shanghai Zai” (which could mean Shanghai boy), who may or may not be the person Ms Liu said she knew as “Chocolate”, which was one of Mr Shen’s nicknames.

310. I accept that there are no express admissions of guilt by the accused in either of the ERISPs or in the conversations recorded using the surveillance device. I also accept that the transcripts of the conversations provide some evidence to support the conclusion that the accused knew Mr Shen, contrary to his denial in the ERISPs. I do not accept, however, that this supports the hypothesis that it was Mr Shen rather than the accused who killed the deceased. If it was Mr Shen who killed the deceased, the accused would have no reason to deny all knowledge of Mr Shen to the police. I have already explained why I accept that the accused’s denial of knowing Mr Shen provides support for the conclusion that it was the accused who killed the deceased.

The considerations taken together

311. Ms Hall in her submissions then relied on all of these circumstances together with the absence of human blood on the accused’s van, the knives in the van or his clothing, which was significant because Dr Irvine had opined that the attacker would “show a significant amount of blood on the surface of their body”, to contend that the Crown had not excluded the possibility that Mr Shen was present in the underground car park area at the relevant time and inflicted the fatal injuries.

312. It was also noted that the Crown case had not been conducted on the basis of joint criminal enterprise.

The Crown has excluded the hypothesis that Mr Shen was present and killed the deceased

313. In my view, the hypothesis that Mr Shen was present in the underground car park at the relevant time and inflicted the fatal wounds is not a reasonable hypothesis available in all the circumstances. I have set out some of the reasons already in considering individually the issues under the headings in Ms Hall’s submission. In summary and at the risk of some repetition, my reasons for finding that Ms Hall’s hypothesis has been excluded as a reasonable hypothesis include the following:

1. If Mr Shen decided to rob the deceased because of his falling out with him and his knowledge of the deceased’s car, unit, garage and access to cash, the fact that Mr Shen was well known to the deceased made it essential, if he was acting rationally, for him to arrange for another person to do the robbery and not do it himself because he would be recognised. The text messages between Mr Shen and the accused showed him doing this. The accused and the deceased did not know one another. Mr Shen had lengthy contact with the accused on the day the deceased was killed. The objective evidence of the text messages and telephone calls as well as the logic of events indicate that what occurred was that Mr Shen arranged for the accused to carry out the robbery, rather than do it himself, and gave the accused the necessary information. Ms Hall’s hypothesis would involve Mr Shen acting somewhat irrationally by carrying out the robbery himself and unnecessarily involving another person who could implicate him in the robbery.

2. The person seen outside the deceased unit block matched the accused’s description but he was not acting in the way that a lookout would, namely waiting until the deceased appeared. This factor did not support in any way a hypothesis that Mr Shen was in the car park area and the accused was only a lookout.

3. The cigarette butt with Mr Shen’s DNA on it was not found in the area where the attack took place but inside the lockable garage. On the evidence, the appropriate inference was that it was left there when Mr Shen was in the garage on a previous occasion with the deceased or borrowing his car and, thus, the cigarette butt had no connection with the night of 28 March 2015.

4. The DNA of the accused being on the heel of the deceased’s shoe, left at marker K, could not be explained on a reasonable basis consistent with the hypothesis put by Ms Hall.

5. The shoe prints from the accused’s shoes being at the locations where the deceased was bleeding during the attack, together with the absence of credible evidence to support the conclusion that the accused had acquired the shoes after the deceased died, meant that the shoe prints could not be explained on a reasonable basis consistent with Ms Hall’s hypothesis.

6. The scattering noises in the bushes was so equivocal that it did not provide any significant support for an hypothesis that Mr Shen was present and made those noises.

7. The mobile telephone data did not provide any independent support for Mr Shen being present in the underground car park on the night in question. If anything, the data indicated that he was not there.

8. The fact that a man with a shaved head was seen in CCTV footage at the Oasis Hotel before 10pm on the night in question did not provide any independent support for Mr Shen being present in the underground car park and attacking the accused.

9. The absence of blood from the accused’s car, knives or clothing when they were inspected months after the deceased died provided no support for the hypothesis that Mr Shen was present and carried out the attack.

314. In the light of all the evidence as a whole, the findings and the circumstances I have referred to and, in particular, the absence of an evidentiary basis positively supporting the hypothesis and the evidence and findings inconsistent with the hypothesis, I am satisfied that the Crown has excluded, beyond reasonable doubt, the hypothesis that Mr Shen was present in the underground car park on 28 March 2015 and that Mr Shen inflicted the fatal wounds on the deceased.

Preliminary conclusion on Count 1

315. Having regard to all the evidence, the nature and extent of the deceased’s wounds, especially the gaping wound to the throat and the stab wounds to the neck which severed his interior jugular vein, and the finding that the Crown has excluded the alternative hypothesis relied upon by the accused, I am satisfied beyond reasonable doubt that the accused did a voluntary act, with intention to kill or inflict grievous bodily harm, that caused the death of Mr Ke. Accordingly, the verdict that, on the limited evidence available, the accused committed the murder offence charged is available to me.

316. However, at a special hearing the available verdicts also include that, on the limited evidence available, the accused committed an offence available as an alternative to the offence charged. [66] As I have already noted, the accused relies upon s 23A of the Crimes Act which provides that manslaughter is an offence available as an alternative to murder, where the requirements of that section are fulfilled.

     66. Sections 21B(1) and 22(1)(d) of the MHFP Act.

317. It is, therefore, necessary to turn now to the evidence that goes to the accused’s state of mind, and whether he has available to him the partial defence of substantial impairment under s 23A of the Crimes Act.

Partial defence of substantial impairment

318. When the partial defence of substantial impairment is relied upon, the onus is on the accused to establish on the balance of probabilities that he is not liable to be convicted of murder by virtue of s 23A. There are three elements that must be established:

1. that the accused suffered from an “abnormality of mind arising from an underlying condition” at the time he committed the act causing death; [67] and

2. that, by reason of that abnormality, he was substantially impaired in his capacity to: understand events; or to judge whether his actions were right or wrong; or to control himself; [68] and

3. that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. [69]

   67. Section 23A

   68. Section 23A(1)(a) of the Crimes Act.

   69. Section 23A(1)(b) of the Crimes Act.

319. As to the first element, it was common ground at the hearing that the accused did suffer from schizoaffective disorder at the time he committed the act causing death and had an abnormality of mind arising from that underlying condition. [70] I accept Dr Allnutt’s evidence that, in the accused’s case, the “abnormality of mind” from which he suffered at the relevant time was hypomania and psychosis characterised by delusions of grandeur and persecution and auditory hallucinations.

     70. This was more than adequately supported by the opinions of the psychiatrists in their reports, for example in exhibit 1 at p 9 and exhibit V at p 8.

320. On the evidence viewed as a whole and especially that of the psychiatrists and the ex-wife of the accused, I accept, that:

1. The accused was admitted to the Mental Health Unit of Hornsby Hospital between 6 and 12 July 2010, 21 March and 2 April 2013 and 7 June and 23 July 2015. On each occasion he presented with very similar symptoms, namely disturbed behaviour, delusional beliefs, and impaired judgement. His presentation and conduct included grandiose beliefs about being a police officer or becoming Prime Minister at the same time as being paranoid about being followed by bikies, the police and the Council. He placed signs in the windows of his van to alert people to the fact that he knew he was being followed and to seek that they desist from doing so.

2. After about mid-2010, the accused often became very impatient, he could become angry very quickly for no reason, he misunderstood things that were said to him, and he could be physically violent.

3. When the accused became psychotic he became significantly irrational in his behaviour and mental state. Nonetheless, persons who are psychotic can undertake and perform routine or everyday tasks, provided that the psychosis or delusional belief does not affect the task in question.

4. The presence of schizoaffective disorder impacts on a person’s capacity or vulnerability to move from the rational to the irrational. Persons suffering from this disorder are more prone to misperceive and misinterpret and infer malevolence, which then influences their decision making and how they might react to that situation.

5. When the deceased was attacked and killed by the accused, his capacity to understand events was impaired, as a consequence of delusional beliefs and misinterpretation of the reality of his environment, and he was vulnerable to loss of control, because of disinhibition due to hypomania and psychosis.

6. The attack on the deceased involved 20 significant sharp object injuries to the deceased’s head, neck, throat and torso. In my view, it was a substantially more violent attack than might have been required for the accused, even though he was intending to rob the deceased, to extract himself from the situation of being caught or meeting with resistance. Dr Allnutt was of the opinion that this increased the likelihood that there was a psychotic motive for the injuries. What actually occurred should not be characterised, as the Crown contended, as:

“a simple straight forward robbery. …The robbery was actually successfully carried out. The victim was immobilised. The satchel was taken and it was carried off by the attacker.”

7. I accept, on the balance of probabilities, that the nature and extent of the injuries in all the circumstances indicate that:

1. because of his psychotic state at the time, the accused misinterpreted the reactions of the deceased and misunderstood the events that unfolded in the car park and lost control; and

2. there was a psychotic motive for what occurred.

321. In all the circumstances, I am satisfied to the requisite standard that the accused’s capacity to understand events and his capacity to control himself were impaired by an abnormality of mind arising from his schizoaffective disorder, at the time of the attack on the deceased.

322. There was little, if any, evidence concerning whether the accused was intoxicated in the sense of being under the influence of methamphetamine at the time of the attack on the deceased. In the circumstances, I am not satisfied that he was intoxicated for the purposes of s 23A(3) of the Crimes Act. Even if he were, I accept Dr Allnutt’s evidence that it is likely that this would have aggravated his psychosis, but that his psychosis was pre-existing and underlying. If the effects of any potential intoxication are disregarded, in accordance with s 23A(3), I remain of the view already stated.

323. Adopting the ordinary meaning of “substantial”, that is, being of substance and not slight or insignificant, I am of the view that the degree of the accused’s impairment was substantial, having regard to all the circumstances. Thus, the second element has been established.

324. As to the third element, I have applied prevailing community standards and borne in mind that manslaughter is regarded as a less serious crime than murder and that the community places less blame and condemnation upon a person guilty of manslaughter rather than of murder. In my assessment, the impairment of the accused’s capacity to understand events and his capacity to control himself at the time of the attack on the deceased, was so substantial in the circumstances, that his liability for murder should be reduced to manslaughter.

Determination – Count 2

325. I have set out above a summary of the evidence and my findings based on the whole of the evidence. It is unnecessary to repeat that material here. In addition to the evidence and my findings, I have also taken into account, when considering count 2, my reasoning and conclusions for the purposes of count 1, which it is also unnecessary to repeat. Having regard to the whole of the evidence and, in particular, the material I have just referred to, I am satisfied that the Crown has proved, beyond reasonable doubt, that:

1. The accused took from Xun Ke the Samsung Galaxy mobile phone as well as his satchel bag containing personal items and an unknown quantity of Australian currency, all of which he had with him on the night of 28 March 2015.

2. The accused did so:

1. with threat or force putting the deceased in fear; and

2. with intent to permanently deprive the deceased of that property; and

3. armed with an offensive weapon, being the sharp bladed instrument with which he inflicted the wounds on the deceased.

Verdicts

For these reasons:

1. The verdict of the Court in relation to count 1 is that the accused is not guilty of murder but, on the limited evidence available, the accused committed the offence of manslaughter, being an offence available as an alternative to the murder offence charged.

2. The verdict of the Court in relation to count 2 is that, on the limited evidence available, the accused committed the offence of robbery armed with an offensive weapon charged.

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Endnotes

Amendments

02 May 2019 - Verdict in relation to count 1 amended to make explicit that the accused was not guilty of murder.

Decision last updated: 02 May 2019