R v Li
[2022] SADC 159
•23 December 2022
District Court of South Australia
(Criminal)
R v LI
Criminal Trial by Judge Alone
[2022] SADC 159
Reasons for the Verdicts of her Honour Judge Fuller
23 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - CHOKING, SUFFOCATION AND STRANGULATION
Accused charged with 4 counts of unlawful choking (counts 1, 5, 6 and 7), one count of false imprisonment (count 3), one count of aggravated assault causing harm (count 2) and one count of aggravated causing harm with intent to cause harm (count 4). Offences alleged to have occurred between 30 April 2020 and 18 August 2020 in the course of a domestic relationship and also after the end of the relationship. Over objection, prosecution permitted to lead evidence of uncharged offending, including an act of unlawful choking.
The conduct the subject of counts 6 and 7 occurred on 18 August 2020 in the presence of a witness, a neighbour in the apartment block in which the accused and the complainant leased an apartment. That witness recorded the conversations between the accused, complainant and himself during and leading up to the alleged commission of count 6 - recording stopped before the alleged commission of count 7. Over objection the recording was admitted into evidence - translation of the conversation that took place in Chinese was tendered. Admission by accused in audio recording that he had previously hit the complainant.
Police attended the apartment leased by the accused on 1 June 2020 in relation to the allegations comprising counts 3, 4 and 5 - made observations of the complainant and spoke with her and the accused. Both gave consistent and independent accounts to police of what occurred - complainant's account inconsistent with her evidence.
The complainant attended a police station on 22 July 2020 to make a report which she subsequently withdrew. Police also attended the apartment on 18 August 2020 and arrested the accused. He was interviewed and denied choking the complainant but admitted he grabbed her collar.
The complainant took photographs of some of the injuries alleged to have been inflicted by the accused.
Proved prior inconsistent statements of complainant on material matters - complainant's evidence conflicted with evidence of other witnesses, including police officers and the audio recording relating to count 6. Complainant alleged that when police attended shortly after the events the subject of counts 3, 4 and 5 she had a bloody nose, swollen lips and her head had been submerged repeatedly in a bowl of water and that police observed these injuries. Evidence of attending police that no such injuries seen and complainant not observed to be wet.
Finding of no case to answer on count 1. Complainant gave evidence at odds with prosecution opening. Evidence incapable at law of proving the offence of unlawful choking.
Held: complainant's credibility and reliability seriously undermined by proved prior inconsistent statements and conflicted with other evidence found to be credible and reliable - photographs of injuries not corroborative of offending alleged - Expert evidence led regarding choking and strangulation of highly general nature and expert not asked to comment on allegations made by complainant and did not examine complainant - evidence of limited probative value. Admission by accused in audio recording that he had previously hit the complainant once not referable to charged or uncharged offending. Complainant's account rejected where it conflicted with that of other evidence found to be credible and reliable. Reasonable doubt regarding complainant's credibility on particular counts taken into account on others. Charges not proved beyond reasonable doubt.
Verdicts: Not guilty on all counts. Statutory alternative offence of assault not open on the evidence with respect to counts 1, 5, 6 or 7.
Criminal Law Consolidation Act 1935 (SA) ss 20A, 20(1), 20(4), 21, 24(1); Juries Act 1927 (SA) s 7; Surveillance Devices Act 2016 (SA) s 4; Evidence Act 1929 (SA) ss 13A, 34P(2)(a), referred to.
Coulter v The Queen (1988) 164 CLR 350; Bird v Jones (1945) 7 QB 742; R v Garrett (1988) 50 SASR 392; McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; Balmain New Ferry Co v Robertson (1906) 4 CLR 379; R v Macquarie (1875) 13 SCR (NSW) 264; R v Busuttil [2006] SASC 47; Pocock v Moore (1825) 171 E.R. 1035; (1825) Ry & Mood 231; Watson v Marshall (1971) 124 CLR 621; Macpherson v Brown (1975) 12 SASR 184, 196, 209; R v Vollmer [1996] 1 VR 95; R v HBZ (2020) 4 QR 171; GS v R (2022) 107 NSWLR 618; R v Fraser [2020] SADC 27; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; Davies v The Queen (2021) 289 A Crim R 156; Groom v Police (2015) 252 A Crim R 332; Thomas v Nash (2010) 107 SASR 309; Nanosecond Corporation Pty Ltd and Anor v Glen Carron Pty Ltd and Anor (2018) 132 SASR 63; Holmden v Bitar (1987) 47 SASR 509; Rukavinia v Police [2004] SASC 247; Whelan v Police [2005] SASC 205; R v Lobban (2000) 77 SASR 24; Police (SA) v Pakrou (2008) 103 SASR 124; R v Lucas (1973) VR 693; Question of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283; Ratten v The Queen [1972] AC 378; Papakosmas v The Queen (1999) 196 CLR 297; R v Markuleski (2001) 52 NSWLR 82; Walton v The Queen (1989) 166 CLR 283, considered.
R v LI
[2022] SADC 159The charges
The accused has been charged on an Information dated 2 July 2021 with the following offences:
First Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Kuan Li between the 30th day of April 2020 and 31st day of May 2020 at Adelaide, being or having been in a relationship with JL, unlawfully choked, suffocated or strangled JL, without her consent.
Second Count
Statement of Offence
Aggravated Assault Causing Harm. (Section 20 (4) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Kuan Li between the 30th day of April 2020 and 31st day of May 2020 at Adelaide, assaulted JL and thereby caused her harm.
It is further alleged that Kuan Li committed the offence knowing that JL was a person with whom he was, or was formerly, in a relationship[.]
Third Count
Statement of Offence
False Imprisonment. (Common Law).
Particulars of Offence
Kuan Li on the 1st day of June 2020 at Adelaide, unlawfully imprisoned JL, and detained her against her will.
Fourth Count
Statement of Offence
Aggravated Causing Harm with Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Kuan Li on the 1st day of June 2020 at Adelaide, caused harm to JL, intending to cause her harm.
It is further alleged that Kuan Li committed the offence knowing that JL was a person with whom he was, or was formerly, in a relationship.
Fifth Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Kuan Li on the 1st day of June 2020 at Adelaide, being or having been in a relationship with JL, unlawfully choked, suffocated or strangled JL, without her consent.
Sixth Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Ibid).
Particulars of Offence
Kuan Li on the 18th day of August 2020 at Adelaide, being or having been in a relationship with JL, unlawfully choked, suffocated or strangled JL, without her consent.
Seventh Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Ibid).
Particulars of Offence
Kuan Li on the 18th day of August 2020 at Adelaide, being or having been in a relationship with JL, unlawfully choked, suffocated or strangled JL, without her consent.
The plea
The accused pleaded not guilty and at his election I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver.
Elements of each offence
Aggravated causing harm with intent to cause harm.
The elements of the offence are:
1.The accused caused harm to another person;
2.The accused’s acts were voluntary;
3.The accused intended to cause harm;
4.The accused acted unlawfully.
5.The accused knew that the person was someone with whom he was or was formerly in a relationship.
Harm is defined as physical or mental harm (whether temporary or permanent).[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 21.
Mental harm means psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm.[2]
[2] Ibid.
Physical harm includes unconsciousness, pain, disfigurement or infection with disease.[3]
[3] Ibid.
Aggravated assault causing harm.
The elements of the offence are:
1.The accused assaulted another person;
2.The assault was voluntary;
3.The assault was unlawful;
4.The assault caused harm;
5.The accused knew that the person was someone with whom he was or was formerly in a relationship.
Section 20 (1) of the Criminal Law Consolidation Act 1935 provides that an assault occurs when the accused without the consent of another person (the victim) ‑
(a) intentionally applies force (directly or indirectly) to the victim; or
(b) intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c) threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i) the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii) there is a real possibility that the person will carry out the threat; or
(d) does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e) accosts or impedes another in a threatening manner.
The offence of assault causing harm does not require proof of an intention to cause harm.[4]
[4] Coulter v The Queen (1988) 164 CLR 350; see also Criminal Law Consolidation Act 1935 (SA) s 20(4).
The definition of harm in s 21 CLCA does not apply to an assault under s 20. Instead, the common law meaning of harm applies.
At common law, harm is an ordinary word and carries its ordinary meaning. Harm is a synonym for injury. An assault causing harm is one where the assault causes some injury to the victim.
False imprisonment
This is a common law offence. The elements of the offence are:
1.The accused deprived a person of his or her liberty, without the person’s consent and against the complainant’s will;
2.The accused deliberately and intentionally deprived the victim of his or her liberty;
3.The accused’s acts were unlawful.
A deprivation of liberty is different from preventing the complainant from travelling in a particular direction. There must be a total obstruction of the complainant’s liberty.[5] A person may be compelled to remain in a place by physical infrastructure (such as a locked door), use of physical violence or by threats to the victim or a third person, or property. The fact that the complainant submits to demands to stay in a particular place because of threats does not mean there has not been a deprivation of liberty.[6]
[5] Bird v Jones (1845) 7 QB 742.
[6] Macpherson v Brown (1975) 12 SASR 184, 196, 209; R v Garrett (1988) 50 SASR 392, 402, 405.
Whether there is a deprivation of liberty may depend on whether the complainant has a viable means of escape. Viability may depend on the characteristics of the alleged complainant, as well as how dangerous the suggested means of escape is, the distance and time involved and the legality of the suggested means of escape.[7]
[7] McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; Balmain New Ferry Co v Robertson (1906) 4 CLR 379; R v Macquarie (1875) 13 SCR (NSW) 264.
Deprivation of liberty requires proof that the complainant did not consent to the alleged deprivation.[8] Ostensible consent is not actual consent where it is given to avoid a justified belief that the accused would use force if the complainant did not submit.[9]
[8] R v Busuttil [2006] SASC 47, [37]; R v Vollmer [1996] 1 VR 95.
[9] Pocock v Moore (1825) 171 E.R. 1035; (1825) Ry & Mood 321; Watson v Marshall (1971) 124 CLR 621, 626.
The fault element of false imprisonment is an intention to deprive the victim of liberty. An intention to arouse fear of violence or foresight of fear of violence are not relevant.[10] This element cannot be proved if the accused held the belief that the complainant was consenting to the imprisonment.[11]
[10] Macpherson v Brown (1975) 12 SASR 184, 197.
[11] R v Vollmer [1996] 1 VR 95.
Unlawful choking, suffocating or strangling another.
In R v Fraser [2020] SADC 27 I held that the elements of this offence are:
1.At the time of the alleged offence the accused was or had been, in a relationship with the complainant.
2.The accused intentionally engaged in conduct which choked, suffocated or strangled the complainant; that is conduct that stopped or significantly hindered or restricted the complainant’s respiration. In the alternative, the accused engaged in the conduct which choked, suffocated or strangled the complainant foreseeing that it was probable that this conduct would stop or significantly hinder or restrict the complainant’s respiration.
3.The complainant did not consent to being choked, suffocated or strangled.
4.The act of choking, suffocating or strangling the complainant was done without lawful justification.
In written submissions filed by the prosecution in the matter of R v Fraser, it was submitted that it is necessary to prove that the accused did some act which choked, suffocated or strangled the victim and this included stopping or significantly hindering or restricting the victim’s breathing. However, in this trial, the prosecution argued that it was not necessary to prove significant hindrance or restriction of the victim’s breathing. No explanation was provided for the change in the prosecution position on this element.
In light of the change in position, I have revisited the decision of R v HBZ (2020) 4 QR 171 and considered the recent decision of the NSW Court of Criminal Appeal, GS v R (2022) 107 NSWLR 618.
The Court in GS v R distinguished the decision in HBZ on the basis that the legislative context of the NSW offence was different. It was not a recommendation to create a new offence criminalising the specific act of non-fatal strangulation in a domestic setting but rather a recommendation to consider whether to expand the scope of an existing offence of ‘choking, suffocation or strangulation’ to remove the requirement that the conduct had certain consequences as an element of the offence. GS v R focussed on the meaning to be ascribed to ‘intentionally chokes’ and held that the conduct must be proved to be capable of affecting the breath or blood flow to or from the head while the choking is taking place.[12]
[12] GS v R (2022) 107 NSWLR 618, [54]-[63] (Payne JA with whom Rothman and Harrison JJ agreed).
I now consider that I was wrong to accept the submission of the prosecution in R v Fraser that it is necessary to prove a significant hindrance or restriction of the victim’s breath. Accordingly, I modify what I said in R v Fraser to the extent that the second element is as follows:
The accused intentionally engaged in conduct which choked, suffocated or strangled the complainant; that is conduct that stopped or hindered or restricted the complainant’s respiration. In the alternative, the accused engaged in the conduct which choked, suffocated or strangled the complainant foreseeing that it was probable that this conduct would stop or hinder or restrict the complainant’s respiration.
Issues in dispute
There was no dispute that the accused was or had been in a relationship with JL at the time of the alleged offences. The central issue in dispute with respect to each charge was whether the events as described by JL in fact happened.
Overview of the prosecution case
The complainant, JL, was in a relationship with the accused. They met in March 2020 when JL was living in a house at Devon Park. The accused moved in with the complainant and an intimate relationship developed. Whilst living in the Devon Park house, the accused was regularly physically and verbally abusive towards JL. This conduct constitutes uncharged offences which explain why the accused may have felt emboldened to continue to behave in this way towards JL and further explain why JL was too frightened of the accused to end the relationship.
In May 2020, JL and the accused moved into an apartment in Grote Street, Adelaide. They were both named on the lease. The verbal and physical abuse continued following the move to the Grote Street apartment. On an occasion in May 2020, JL and the accused were sitting on the couch in the living room arguing. During the course of the argument, the accused held down JL. JL struggled, and the accused grabbed out with one hand across her head and neck region causing her to have difficulty breathing. This conduct comprises count 1.
JL continued to struggle, and the accused removed his hand. He then bit JL on the leg causing pain and bruising. This conduct comprises count 2.
On or about 1 June 2020, JL and the accused had planned to go running in the morning. JL woke with a toothache and told the accused she did not want to go running. He became upset and they argued. At one point the accused forcibly removed some of her clothing. JL then went to the bathroom. JL became concerned for her safety and dressed herself so that she could leave the apartment. She tried to exit via the front door but was pulled back by the accused. He then grabbed stocking like clothing and tied her hands behind her back and bound her feet together. This conduct comprises count 3.
JL continued to struggle. The accused forcefully inserted his fingers up her nostrils causing pain and injury to her nose. This conduct comprises count 4.
Whilst JL was bound, the accused obtained a bowl and filled it with water. He put it near JL’s head and dunked her head in it several times; on each occasion her face was fully submerged, and she was unable to breathe. This conduct comprises count 5. Eventually the accused stopped and untied JL.
Police attended the same day and spoke with JL and the accused. The accused told police he had grabbed JL’s arm and police observed a bruise on her arm.
The relationship between JL and the accused ended at some point after this incident and he moved out of the apartment.
However, in July 2020 the accused and JL were together again in the Grote Street apartment. The accused became aggressive towards JL and put his hand around her throat. The real estate agent who managed the apartment was telephoned and attended the apartment. She saw injuries on both the accused and JL. JL then left the apartment and met Ruijie Zhang, also known as ‘Ricky’, downstairs. He saw she had injuries and took her to a police station where she made a report. JL subsequently told police she did not want to proceed with the complaint.
On 18 August 2020, JL returned to the Grote Street apartment. She was unable to open the front door with her key. She knocked on the door of the adjacent apartment and her neighbour, Junxing Ren, known as ‘Charles’, answered. Mr Ren saw JL and the accused in the hallway of the apartment building. He agreed to accompany JL into the apartment whilst she collected her belongings. Whilst she was doing so, and in the presence of Mr Ren, the accused spoke with JL and urged her to reconcile with him. At one point, the accused suddenly put his hands around her neck resulting in her having difficulty breathing. This conduct comprises count 6.
Mr Ren saw this occur and intervened. A second time the accused grabbed JL’s throat resulting in her having difficulty breathing. Mr Ren saw this occur and intervened. This conduct comprises count 7.
The accused was observed to be in possession of a knife and when questioned about that, retrieved two knives from his jacket and put them on the table. Police attended shortly thereafter and arrested the accused.
The accused was arrested and interviewed on 19 August 2020 whilst at the Adelaide City Watchhouse. He denied strangling JL but said he grabbed her collar.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[13] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438 (Heydon J).
[13] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[14]
[14] Azzopardi v R (2001) 205 CLR 50, 70 [51]; R v Weetra (2010) 108 SASR 232, 244 [67].
The accused’s record of interview, and any admissions I find contained therein, is evidence in the case that I can take into account in determining whether the charges have been proved beyond reasonable doubt
The accused is charged with 7 counts. I must consider each count separately on its merits, and only by reference to the evidence relating to that count.
If I am satisfied beyond reasonable doubt that the accused is guilty of one count, I must not reason that he is therefore the sort of person who would have committed or is likely to have committed any or all of the other offences alleged.
Pre-trial applications
Prior to the trial commencing, Mr Dawes, for the accused, filed an application seeking the following orders:
1. An order excluding evidence of uncharged acts of violence, aggression, threats or similar behaviour by the accused towards the complainant.
2. An order excluding the audio recording made by Junxing Ren on 18 August 2020.
3. An order excluding the evidence of Senior Constable Crichton that the complainant had swelling to her neck.
4. An order excluding the evidence of Dr Susan Pedler.
5. An order excluding evidence of the time/date stamp on images on her mobile telephone.
6. An order excluding the evidence of Constable Beasley that he observed a ‘light’ bruise on JL’s arm.
7. An order excluding the evidence of Brevet Sergeant Wood that she saw blood splatters on the bed sheets.
Rulings on pre-trial applications
I refused applications 1, 2 and 3 above. I delivered reasons at the time of the rulings which I now set out below.
Dr Pedler’s evidence
Defence counsel applied to exclude the evidence of Dr Susan Pedler as contained in her declaration dated 6 October 2022, on the basis of non-compliance with case flow management principles, namely the very late filing and service of her declaration and the consequential prejudice caused to the accused by reason of the late disclosure.
On the voir dire, defence counsel tendered an email chain between SA Police and Dr Pedler: Exhibit VDD1. The email chain reveals that the request from SAPOL for a statement from Dr Pedler was first made on 13 September 2021. This request was made by SAPOL as a result of a direction by the Director of Public Prosecutions to obtain a statement on ‘the general physical effects of choking/strangulation and in addition comment on those effects including vomiting as was described by the victim.'. Dr Pedler responded on the same day querying whether the request was for the effects of external neck pressure and not choking, which related to a foreign object blocking the airway. SAPOL responded as follows, 'Yeah if we can just focus purely on the external neck pressure and the effects it would have on the body that would be great!'.
Dr Pedler failed to respond to that request and the police did not follow it up until 18 August 2022. On 23 August 2022, Dr Pedler responded, advising that the statement was overlooked, and she was on leave and would work on the statement when she returned on 1 September 2022. The statement was prepared in September 2022 but not sworn until 6 October 2022.
At no time during any of the pre-trial hearings in this matter, did the Director of Public Prosecutions inform the Court or the defence that it had requested via SAPOL an affidavit from Dr Pedler. No explanation has been provided for this omission.
The declaration of Dr Pedler, dated 6 October 2022, was provided to Mr Li's former instructing solicitors on 11 October 2022 and filed with the court on 12 October 2022. For reasons that escape me, and which have not been explained, Dr Pedler was given no information regarding the allegations made by [JL] and was not given a copy of her statements or the relevant parts of those statements which refer to her being strangled or choked by the accused. Instead, Dr Pedler was simply asked to provide a statement regarding the effects of external neck pressure and to comment on one aspect of the JL's account, namely that she vomited.
Defence counsel did not ask for an adjournment to obtain an expert report. I accept that in the timeframe since he and his instructing solicitors assumed conduct of the trial, there was insufficient time to retain and brief an expert to provide an opinion regarding the matters set out in Dr Pedler's declaration. Whilst conceding that a remedy to cure the unfairness resulting from the late provision of the report was an adjournment, defence counsel did not apply for one on the basis that his client has been in custody for two years now and wanted his trial to proceed.
I held that the probative value of Dr Pedler's declaration was extremely limited, and the weight to be attached to it may ultimately be negligible, given she was not asked to provide an opinion based on the facts alleged by the prosecution to comprise counts 1, 5, 6 and 7. Further, I held that Dr Pedler would not be permitted to give the evidence set out in paragraph 4 of the statement. The opinion expressed in that paragraph was based upon a research paper. Although a paper was footnoted, there is no basis upon which I could conclude that the opinions expressed in that paper, as recounted by Dr Pedler, were admissible. The balance of Dr Pedler's declaration was plainly admissible as expert opinion evidence.
No application was made to adjourn the trial to obtain a report from another expert. In the circumstances and undertaking the balancing exercise, whilst I considered that case flow management principles had not been complied with and without a satisfactory explanation, I was persuaded that given the limited probative value of the evidence and the limited weight to be attached to it, it would not be unfair to allow the prosecution to lead this evidence. In so ruling, I made it clear that I would not permit the prosecution to lead any evidence over and above what was contained in Dr Pedler's statements.
Following the conclusion of JL’s evidence I was asked to revisit my ruling in light of the fact that JL did not give any evidence that any act of choking or strangling caused her to vomit. I noted that JL had not come up to proof on the allegation that she vomited, and Mr Piccolo agreed that he would not be leading evidence from Dr Pedler regarding that factual scenario. However, this fact did not cause me to alter my view that Dr Pedler’s evidence was relevant and admissible, albeit of limited probative value.
Admissibility of uncharged offending
Mr Piccolo for the prosecution outlined the uncharged acts proposed to be led through the evidence of JL. He said they were admissible under s 34P (2)(a) of the Evidence Act1929. Mr Piccolo argued that the nature of the relationship between JL and the accused was one that was characterised by domestic violence which first started when JL was living at Devon Park and continued during the period JL was living with the accused in the apartment on Grote Street. Mr Piccolo said the uncharged offending demonstrated that the charged acts were not isolated or out of the blue but came against a backdrop of a relationship with a significant power imbalance. The accused would abuse JL and then apologise, and she would then agree to stay with him. The uncharged acts explain why JL did not leave the accused and why, when she did make a report to police, she later withdrew it. It also explains why the accused felt emboldened to continue to abuse JL.
Defence counsel argued that JL’s statements did not support the foundation for the admissibility of this evidence under s 34P (2)(a) of the Evidence Act 1929 and that its probative value did not outweigh its prejudicial effect.
I ruled that the evidence was admissible pursuant to s 34P (2)(a). The evidence had probative value because the pattern of behaviour as described by the complainant served to explain on the prosecution case why JL did not end the relationship when the accused behaved violently or aggressively towards her.
In her declarations JL explained that she felt frightened of the accused and unable to leave him or end the relationship. By way of example in her declaration dated 19 August 2020 JL said:
I was scared that if I do not reply to him that he might come to apartment and hurt me.[15]
[15] Paragraph 14.
He is incredibly manipulative trying to make me do everything he wants.[16]
[16] Paragraph 24.
In JL’s declaration dated 16 October 2020 she said:
I asked him so many times to break up with him but he wouldn't let me.
…
I tried to get away from him, but I was scared of getting beaten up by him so we ended up going back to the apartment together.[17]
[17] Paragraphs 6-7.
Finally in her declaration dated 21 November 2022 JL said:
I was so scared that he would hurt me more so I didn't say anything to police.[18]
[18] Paragraph 40.
The evidence was also relevant to explain why on the prosecution case the accused may have felt emboldened to continue to treat the complainant in this manner, namely because she did not leave him when he behaved abusively towards her and when the allegations came to the attention of the police prior to 18 August 2020, she determined not to take any action or did not otherwise disclose the full details of the alleged offending.
I was satisfied that the probative value of this evidence outweighed its prejudicial effect. As the forum for the trial was by Judge alone, I was also satisfied that the permissible use could be kept sufficiently separate and distinct from the impermissible use, namely as evidence that the accused is more likely to have committed the charged offences.
Evidence of time/date stamp on photographs and text messages
Mr Dawes contended that the photographs of JL’s phone which depicted photographs of her body or face with a time/date stamp attributed to each photograph should be excluded from evidence. Mr Dawes argued that the time/date stamp is not admissible to prove the time of the taking of the photograph shown on the mobile telephone unless expert evidence is led to prove how this metadata is created and the accuracy of the time stamp attributed to each photograph.
Mr Dawes pointed out that two identical photographs (one of which had been cropped) had different time stamps attributable to each. Further, there was a conflict between the date of 1 June 2020 on certain photographs and the evidence of the complainant that they were taken on 2 June 2020. The provenance of the photographs had not been satisfactorily proved. As the argument was developed, the objection was not to the reception of the photographs themselves but to the evidence of time and date as appeared on each photograph.
The same argument was mounted in relation to the date and time appearing next to images of text messages said to have been exchanged between the accused and JL.
Mr Piccolo confirmed that he was proposing to put the photographs to JL and ask her when she took them and the occasion to which they related. He was not proposing to rely upon the date/time stamp to prove those matters. However, he was not prepared to excise the date/time stamp from the photographs before showing them to JL and asked me to rule on the matter.
I ruled that the time/date stamp on each photograph should be excluded from evidence. There was no admissible evidence from which I could infer that the date/time stamp was accurate and that it reflected the date and time that each photograph was taken. Accordingly, it was of no probative value. Further, should JL be shown the photographs with the date/time stamp on them, there would be a risk that her evidence of the date and time that the photographs were taken would be impermissibly influenced by the date/time stamp.
Admissibility of audio recording
Mr Dawes argued that the audio recording made by Junxing Ren of the conversation between the accused and JL (and himself) on 18 August 2020 was made unlawfully and I should exclude it in the exercise of the unfairness discretion.
Mr Ren did not advise the accused that he was recording the conversation. Mr Dawes said that none of the exceptions in section 4 of the Surveillance Devices Act 2016 applied. Mr Dawes acknowledged that Mr Ren asserted in his statement dated 20 November 2022 that he made the recording to ensure his safety. However, he said that this did not fall within the lawful interest exception.
Mr Piccolo referred me to the authorities of Davies v The Queen (2021) 289 A Crim R 156 and Groom v Police (2015) 252 A Crim R 332. Mr Piccolo said the authorities made it clear that where there is a threat to a person’s physical safety or there is a desire to uncover a crime, that will be a lawful interest for the purpose of the exception in s 4 of the Act. Mr Piccolo emphasised those parts of Mr Ren’s statement in which he said he was fearful of what might occur to him when he accompanied JL into the apartment, and he armed himself with a knife sharpener for that reason.
Section 4 of the Surveillance Devices Act 2016 provides:
4—Listening devices
(1)Subject to this section and section 6, a person must not knowingly install, use or cause to be used, or maintain, a listening device—
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party; or
(b) to record a private conversation to which the person is a party.
…
(2) Subsection (1) does not apply—
(a) to the use of a listening device by a party to a private conversation to record the conversation if—
(i)all principal parties to the conversation consent, expressly or impliedly, to the device being so used; or
(ii)the use of the device is reasonably necessary for the protection of the lawful interests of that person; or
…
The first question is whether the recording of the telephone call was necessary for the protection of the lawful interests of Mr Ren.
The meaning of ‘lawful interest’ in the context of the Surveillance Devices Act 2016 has been considered in a number of Supreme Court authorities. In Thomas v Nash,[19] Doyle CJ, in the context of civil proceedings, made the following observations:
[19] (2010) 107 SASR 309.
I have considered a number of decisions dealing with the relevant provisions of the Act, and with similar legislation elsewhere. The decisions are: T v Medical Board (SA) (1992) 58 SASR 382 at 399 (Matheson J), at 421 (Olsson J) and at 423 (Debelle J); Public Trustee v Alvaro (1995) 182 LSJS 383 at 405 (Legoe AJ); Violi v Berrivale Orchards Ltd (2000) 99 FCR 580; [2000] FCA 797 at [27]-[33] (Branson J); R v Le (2004) 60 NSWLR 108; [2004] NSWCCA 82 at [47] (Giles JA), at [79] (Hulme J) and at [83]-[84] (Adams J); Sepulveda v The Queen (2006) 167 A Crim R 108; [2006] NSWCCA 379 at [142]-[143] (Johnson J), with whom the other members of the court agreed.
In none of those decisions is there an attempt to identify comprehensively the scope of the expression “lawful interests”. That is not surprising. It is an expression which is best left to be applied case-by-case, subject to some general guidelines.
Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.[20]
[20] Ibid, 317 [46]-[48].
In Groom v Police, Nicholson J agreed with the observations of Doyle CJ as set out above and said:[21]
[21] (2015) 252 A Crim R 332, 342 [35].
I agree, with respect, with his Honour’s observation that, when considering whether or not a recording of a private conversation has been obtained in pursuit of a person’s lawful interests, each case will need to be considered on its facts. It also makes sense that, in circumstances where a recorded conversation relates to a serious crime, a court will more readily make a finding that the recording was made in the protection of a person’s lawful interests.
In Nanosecond Corporation Pty Ltd and Anor v Glen Carron Pty Ltd and Anor, [22] Doyle J surveyed the authorities and relevantly, for present purposes, observed:
[22] (2018) 132 SASR 63.
In summary, while a threat to a person’s physical safety, or the desire to uncover a crime or resist an allegation of crime, will often give rise to a lawful interest that would warrant protection through the use of a listening device, not every commercial or legal interest, or dispute in relation to such an interest, will suffice to establish a lawful interest for the purposes of the legislation.[23]
[23] Ibid, 95 [104].
The evidence clearly established that Mr Ren’s use of the listening device was reasonably necessary for the protection of his lawful interests, namely the protection of his own safety. Accordingly, I ruled that the audio-recording was not made in breach of the Act and the discretion to exclude did not arise.
Opinion evidence of bruising to JL’s arm
Mr Dawes argued that the evidence of Constable Beasley, that he observed a ‘light’ bruise on JL’s arm, was inadmissible opinion evidence. Mr Dawes argued that only a properly qualified expert could give such evidence. I ruled that the evidence was admissible. As a matter of common experience, a lay person can describe a bruise and attribute a colour to it.
Opinion evidence of swelling to JL’s neck
Mr Dawes objected to Senior Constable Crichton giving evidence that JL had swelling and inflammation to her neck. I ruled that Senior Constable Crichton, as a crime scene examiner, was not qualified to give evidence that he observed areas of ‘inflammation’ on JL. I deferred a ruling as to whether Senior Constable Crichton could give evidence that JL’s neck appeared swollen until after JL had given evidence. In the result, JL did not give any evidence that her neck was or felt swollen and I ruled that Senior Constable Crichton would not be permitted to give this evidence. As a crime scene examiner and someone who had not met JL previously, he did not have the requisite expertise or experience to give opinion evidence regarding the presence of swelling.
Blood splatter evidence
Finally, Mr Dawes argued that the evidence of Brevet Sergeant Wood, that there were blood splatters on the bed sheets in the apartment, was inadmissible opinion evidence. Mr Piccolo said that he was not proposing to lead evidence from Brevet Sergeant Wood that there were blood splatters on the bedsheets but that she saw what looked like blood splatters. Further, there were photographs taken by Brevet Sergeant Wood showing the marks on the bed sheets to which objection was not taken. Mr Piccolo confirmed that JL would not give evidence of any conduct by the accused that caused her to bleed onto the bed sheets.
I ruled that Brevet Sergeant Wood would not be permitted to give evidence that there appeared to be blood splatters or stains on the bed sheet. That was a matter about which I could draw my own conclusion from viewing the relevant photograph. Further, the evidence was of no probative value given there was no allegation of any conduct of the accused that resulted in JL bleeding on the bed.
The evidence
The prosecution called the following witnesses:
1. The complainant, JL. Almost all of her evidence was given through a Mandarin interpreter.
2. Junxing Ren (Charles): neighbour.
3. Wenwen Zhang (Vivian): real estate agent.
4. Ruijie Zhang (Ricky): JL’s husband.
5. Constable Tristan Trent Beasley.
6. Senior Constable Steven Nicholls.
7. Constable Anthony Feo.
8. Senior Constable Matthew Elton.
9. Brevet Sergeant Kirsty Jane Wood.
10. Dr Susan Evelyn Pedler.
The following exhibits were tendered during the trial:
P1 Booklet of two photographs of a waterfall.
P2 Photographs of Complainant taken in bathroom at Devon Park.
P3 Tenancy Agreement for 4/5/2020 for Grote Street premises.
P4 Plan of Grote Street Apartment.
P5 Bundle of photographs of injuries to complainant.
P6 Three-page booklet of photos of injuries to Complainant.
P7 Drawing of bedroom by complainant dated 21/11/2020.
P8 Six pages of text messages between the Complainant and the Accused.[24]
[24] I excluded Exhibit P8 following an application for a voir dire held during the evidence of JL.
P9 Bundle of photographs of Grote Street Apartment.
D10 Floorplan of Devon Park House.
D11 Two photographs of Devon Park House.
D13 Photograph of rope.
P14 Affidavit of Mengchang Shi dated 17/3/2021.
P14A Annexure to Exhibit P14.
P15 Diagram of apartment 1709 drawn 20/11/2022.
P16 Audio recording made by Junxing Ren.
P17 Disk of Record of Interview with Kuan Li dated 18/8/2020.
MFI P17A Transcript of Exhibit P17 marked for identification.
P18 Four-page booklet of photographs of complainant dated 19/8/2020.
P19 Statement of Agreed Facts.
In exhibit P19 the following facts were agreed:
1.[JL] has provided four affidavits (“the four affidavits”) to South Australia police regarding the within matter, as follows:
1.1Affidavit provided and signed 19 August 2020 with Mandarin translator Bailin Zhao (“19 August 2020 affidavit”);
1.2Affidavit provided and signed 16 October 2020 with Mandarin translator Yi Pan (“16 October 2020 affidavit”);
1.3Affidavit provided on 24 June 2021 and signed on 7 July 2021 with Mandarin translator Ruijie Zhang (“7 July 2021 affidavit”);
1.4Affidavit provided on 20 November 2022 and signed on 21 November 2022 with Mandarin translators Bailin Zhao and Huimin Yan (“21 November 2022 affidavit”).
2. With reference to the “waterfall” occasion:
2.1 [JL] did not state in any of the four affidavits that when the front door of the Devon Park house was locked from the inside Kuan Li was home with her (refer T224);
2.2 [JL] did not state in the 16 October 2020 affidavit that Kuan Li dragged her up the stairs (refer T233).
3. With reference to video games:
3.1 [JL] did not mention an argument or incident as having occurred after Kuan Li had played video games in the 19 August 2020 affidavit, the 16 October 2020 affidavit or the 7 July 2021 affidavit (refer T247).
3.2 The first time [JL] mentioned an argument or incident as having occurred after Kuan Li had played video games was when she provided the 21 November 2022 affidavit (refer T247).
4. With reference to the “Rundle Mall” occasion:
4.1 In the 16 October 2020 affidavit [JL] stated “I asked him if I could get Sushi, however he wouldn’t let me” and “I tried to walk away from him but he continued to grab my arm and pull me backwards” (refer T248-250);
4.2 [JL] did not state in any of the four affidavits that Kuan Li threw her liquid makeup in the bin nor that she told Kuan Li “stop pulling me, stop touching me” (T264).
5. With reference to the occasion identified by [JL] as relating to the photographs in Exhibit P5:
5.1 In the 19 August 2020 affidavit [JL] stated “he held my neck for about 30 seconds to a minute” (T269).
6. With reference to [JL]’s evidence that “he would either text message me or send me a voice message or record himself apologising, from text message to We Chat to Weibo, he did them” (T271).
6.1 [JL] did not state in any of the four affidavits that this had occurred (T272).
7. With reference to Exhibit P6 and the incident alleged to have occurred on 1 June 2020 (Counts 3-5):
7.1 [JL] did not state in any of the four affidavits that she “went to the – see medical place for the injury. The doctor treated my wounds and gave me some meds” nor that she “went to the hospital for these injuries, it was also accompanied by Kuan” (T278);
7.2 [JL] did not state in any of the four affidavits that Kuan Li “tried to put his socks in my mouth” (T358);
7.3 [JL] did not state in any of the four affidavits that “my brace broke into pieces” (T133 ; T359);
7.4 [JL] did not state in any of the four affidavits that her “top was torn apart” (T360-361);
7.5 On 15 June 2020 a victim contact officer from Eastern District Child and Family Violence Investigation Section contacted [JL]. [JL] told the victim contact officer everything was okay between her and her partner.
8. With reference to the alleged incident on 22 July 2020 after which Viviane Zhang attended the Grote Street apartment:
8.1 [JL] did not state in any of the four affidavits that “my necklace was forced to fall off” (T393).
9. With reference to the alleged incident on 18 August 2020 (Counts 6 and 7)
9.1 [JL] did not state in any of the four affidavits that Kuan Li “wanted to drag me in” or “he tried to pull me in and I tried to resist” (T189;T417);
9.2 [JL] did not state in any of the four affidavits that she said to Kuan Li “if he keep doing this I will call the police” (T189;T417);
9.3 [JL] did not state in any of the four affidavits that she knew the neighbour (Mr Ren) could speak Chinese prior to the alleged incident (T190;T417);
9.4 Regarding the second alleged incident on this occasion (Count 7), [JL] did not make any mention of this incident beyond the words “Kuan then tried to grab me again” in the 19 August 2020 affidavit (T432).
The evidence
I turn to examine the evidence in more detail.
The complainant, JL
Pursuant to s 13A Evidence Act 1929, I made orders that JL be permitted to give her evidence via closed circuit television, that the court be closed during her evidence and that she be accompanied by a court companion. Defence counsel objected to the application, but only with respect to JL giving her evidence remotely. I made the orders because I was of the opinion that, because of JL’s circumstances and the circumstances of the case (serious allegations of domestic violence over a five-month period) she would be specially disadvantaged if she was not treated as a vulnerable witness.
JL gave her evidence through an interpreter. There were only a handful of occasions when she answered a question in English and when she did so, it was often a one-word answer. There were several different interpreters during the course of JL’s evidence, spanning as it did 5 days. On occasions during her evidence JL became visibly distressed, started to shake and vomited. Breaks were taken when this occurred to enable her to recover.
JL was born in China and came to Australia on 7 January 2020 to study an English course. She met the accused at her classmate’s house. At that time, she was living in a house in Devon Park which she shared with other classmates. The accused came with some of her classmates to her house. He stayed the night and slept in a separate room.[25]
[25] T 43-44.
When the accused visited again, he suggested they start a relationship and she agreed. After that, the accused moved in with her. For the first few days he slept in a separate room but after that he slept in her room. By this time all of her flatmates had returned to China. [26]
[26] T 44-46.
First uncharged act – the ‘waterfall’ incident
JL was then shown some photographs of a waterfall. She said the photographs were taken by her when she and the accused visited a park that had a waterfall. The photographs were tendered: Exhibit P1. The accused had told her not to take the photographs and they argued about this. He then said they were going home. When they arrived home, she told him she did not think they suited each other, and she wanted to end the relationship.[27] The accused said no and told her he wanted to telephone her mother and she would decide who was right or wrong. The accused had not met her mother at this time and did not know her number. The accused tried to grab her mobile phone and they started to fight inside the front yard.[28]
[27] T 48.
[28] T 49-50.
The accused then dragged her by the arms into the house. She then went upstairs because she did not want to argue. She could not remember the details of the argument. She could not remember when it was that the accused let her go. She then went to her bedroom and stayed there for a while. When she came out of the bedroom, she went downstairs to find that her house was locked. When asked what she did then, she said she was nervous and as a result there were details, she could not remember.[29] She did not have the keys to unlock the door. She was asked what she did next and said she needed time to think about the question and was nervous and needed a break. After a ten-minute break, JL’s evidence resumed.[30]
[29] T 50-51.
[30] T 52-54.
When JL’s evidence resumed she said she could not recall what she did after discovering the door was locked. She said she was too nervous and could not remember.[31] She was then asked if she had any other interaction with the accused on that day and she said she could not answer the question at that time because her mind was not quite clear.[32]
[31] T 54.
[32] T 54.
Second uncharged act – Devon Park
JL was then shown a series of photographs which JL identified as pictures she took of herself when she hid in the bathroom in the Devon Park house: Exhibit P2.[33] She took the photographs because she was scared, and she planned to send them to her friend. She was scared because of the bruise, hurt and fear caused by the accused. The marks in the photographs were caused by the accused using violence against her.[34]
[33] T 56.
[34] T 57.
JL explained that it all started when she and the accused were having some kind of argument, but she could not recall what it was about. She was on the bed in her bedroom. She then gave this evidence:
And then something happen and he started to lose his temper, so he put his body right above me and he pressured me, he pressured me and then restrained two of my hands, my both hands.[35]
[35] T 58 [8]-[11].
JL could not recall for how long this went on. JL said the first photograph in P2 was a photograph of her left arm where the accused bit her.[36] The second photograph was a photograph of her right arm just inside the elbow.[37] The third and fourth photographs were of the upper and lower side of the wrist of her left hand.[38] These photographs were taken when she was in the bathroom.[39] The last photograph was taken in the bedroom and depicts underside of her left wrist near the base of her thumb.[40]
[36] T 58.
[37] T 59.
[38] T 60.
[39] T 61.
[40] T 61.
All of the photographs in P2 were taken on the same day and show the ‘hurt’ the accused caused her.[41] She was going to send them to a friend because she thought the accused was outside trying to open the bathroom door, which was locked at the time. The accused managed to open the bathroom door and asked her what she was doing. She told him she was going to the toilet.[42] She said they then went out and she could not remember ‘what we communicated next’.[43]
[41] T 62.
[42] T 62-64.
[43] T 64.
The ’video game’ incident
JL was asked if this was the first time an incident of this type had occurred. She said she could not clearly remember but the accused had slapped her face in the bedroom on another occasion. She was not sure if it happened before or after the ‘waterfall’ incident. She was slapped on the face one morning after the accused had played a video game for a whole night. She said they argued but she could not recall what it was about.[44]
[44] T 65.
JL was lying on the bed and the accused was sitting on the edge of the bed and they were arguing. He slapped her on the face with an open hand and said she was worse than an animal and ‘this slapping should teach’ her a lesson. She remembered this incident clearly because no one had slapped her before. They kept arguing about whose fault it was and she felt exhausted, nervous and scared so she stopped talking.[45]
[45] T 66.
JL then explained that the reason she stopped arguing was because they both had a ticket back to China. She did not want to escalate the incident because once they got back to China they would live in different cities and would not see each other again.[46]
[46] T 67.
JL identified the tenancy agreement for the apartment that she and the accused rented jointly and the floor plan: Exhibits P3 and P4. It was unit 1709, 160 Grote Street and the lease was dated 4 May 2020. The apartment had one bedroom which she and the accused shared.[47]
[47] T 70 -71, 89.
The accused paid the rent to the landlord and when her parents transferred money to her, she would pay the accused her half.[48]
[48] T 70.
Fourth uncharged act – the ‘Rundle Mall’ incident
JL then gave evidence of an incident that occurred when she and the accused went to Rundle Mall to buy cosmetics.[49] After doing that, they went to buy some food and had an argument while doing so. She explained:
[49] T 89.
Because he wanted to have this Chinese style pancake and one. I wanted a sushi. That’s how we started because I wanted sushi and he only allowed me to have one but I wanted more and we started arguing
…
I wanted to buy more than one roll but he said, ‘You can only have one.’ Because of that we started to argue. We walked out of the sushi shop and he said to me ‘You argued over this with me in front of other people. You just wanted more and you make me losing face’.[50]
[50] T 90.
After JL and the accused left the sushi shop, they were on the street, and she kept walking. The accused was trying to talk to her but was behaving like he had lost his mind.[51] They walked towards the tram station. All of a sudden, the accused became so mad that he threw some liquid make up she had bought into the rubbish bin. A lady who was walking by said that what the accused did was inappropriate. The accused then asked JL if she wanted to go with him or the lady. She thought it would be better to go with the accused because she was so afraid that he might do something bad to her.[52] JL was asked whether the argument with the accused as they were walking to the tram station was ‘only verbal’ and she said:
[51] T 91.
[52] T 92.
I do not understand what exactly do you mean by verbally. But now I remember while we were walking to the tram station he was pulling my clothing next to my arm, he was trying to talk to me. He did things like that and I kept on walking.
…
He went on for a while, while I was walking towards the tram station and I also remember I also said, ‘Stop pulling me. Stop touching me’.[53]
[53] T 94, [28]-[32], [35]-[38].
JL said when they returned home to the Grote Street apartment, they stopped arguing.[54]
[54] T 95.
Counts 1 and 2
JL was then shown a series of photographs which she said were photographs of her injuries that she took on her mobile telephone in the Grote Street Apartment: Exhibit P5.[55] She could not recall when she took them. The photographs on the first and second pages were taken in the living room and the photographs on the third page were taken in the bathroom.[56]
[55] T 97.
[56] T 98.
JL took the photographs because she wanted to discuss the situation with her friends about what she should do. The accused had injured her. She said that she and the accused had been arguing but she could not recall what the argument was about.[57] They were on the couch and the accused pushed her down and got on top of her and grabbed both wrists. She struggled but could not break free. The accused held her wrists apart behind her head. She was moving her legs. This went on for about five minutes.[58]
[57] T 99.
[58] T 100-101.
The accused put his hand on her mouth to cover it.[59] His other hand was holding her wrist. She felt nauseous and wanted to vomit.[60] She was shaking her head from side to side, and she tried to bite him. She could not breathe through her nose and was short of breath.[61] She thought she bit his hand but did not know which hand it was. He was so mad that he stood up and tried to bite her leg.[62]
[59] T 102.
[60] T 103.
[61] T 109.
[62] T 111.
JL gave this evidence about her inability to breathe:
HER HONOUR
Q[JL], you said that Mr Li covered your mouth with his hand and you said you could not breathe through your nose. Why couldn’t you breathe through your nose.
ABecause I was crying. I have this runny stuff in my nostrils. It was kind of blocked that’s why.[63]
[63] T 111, [12]-[16].
JL said that the bite mark on her leg was visible on the third page of P5.[64]
[64] T 111.
Before the accused bit her he stood up and hit her and looked angry. He used his open right hand to slap her. He then bit her on the leg and took her fingers and bit her fingernails.[65] When he did this, he bit each fingernail individually, touching her fingers.[66]
[65] T 112-113.
[66] T 114.
JL could not recall what happened next but said she ‘compromised’ and said it was her fault. She said, ‘that’s what we do after each argument’. She said she compromised after most arguments but on some occasions, he would apologise to her and say it was his fault.[67]
[67] T 114.
JL said the injury to the inside and outside of her left forearm could be seen in the photographs on the first two pages of P5. The photographs were taken on the same day. She could not recall how she sustained those injuries.[68] The photographs on the third page show a bite mark inflicted by the accused on her left leg and another injury to her left leg that occurred on a different day. She could not recall how the other injury to her left leg occurred but ‘it should have happened before this incident when we had another argument’.[69] JL marked P5 to indicate with the number one the bite mark and with the number two the other mark.[70]
[68] T 116.
[69] T 119, [14]-[15].
[70] T 119.
JL said the other mark became quite swollen, purple and colourful. She did not know if it was inflicted before or after the argument in Rundle Mall, but it was when she was living in Grote Street.[71] Later she said she was not sure when it was inflicted and could not recall how it was inflicted but said that it was caused by the accused.[72]
[71] T 120-121.
[72] T 121.
Counts 3, 4 and 5
JL was then shown a three-page bundle of photographs: Exhibit P6.
She said she took those in the Grote Street apartment because she had injuries on her body and wanted to discuss them with the friend with whom she had discussed the other injuries.[73] The injuries to her mouth shown in the two photographs on the first page and on the second page were all sustained in the same incident. The injury to her leg shown on the second page of P6 was the injury she referred to earlier in her evidence and which is depicted in P5.[74]
[73] T 127.
[74] T 127.
The final photograph in P6 depicted a bowl of water into which the accused put her head.[75]
[75] T 128.
JL then explained that there was an occasion one morning when she and the accused were in the apartment, and she had a toothache. She told the accused that she did not want to go for a run because she had a toothache. She then argued with the accused who told her that she had promised to go for a run. She went to the bathroom, and he followed her in there. She then walked towards the bedroom, but the accused would not let her in. they continued to argue. She was wearing a ‘female style singlet and a undie’.[76]
[76] T 129, [24]-[25].
The accused tore her singlet ‘into broken pieces’ and she was then only wearing her ‘undie’. She sat down. He then said it was her fault and that it was wrong, and she was not doing what she promised. He used Google to search and told her that people could run with a headache. The accused then grabbed a bottle of water and poured it on her head. He then filled the bottle from the tap and poured it on her head and said, ‘you should have wake up’.[77]
[77] T 129-130.
JL decided to compromise again. She started to get dressed and said it was her fault and she should do what she promised. She then tried to run away through the door to the apartment. JL marked P4 with a number one to indicate the door to the bedroom and a number two to indicate the door to the apartment.[78]
[78] T 130-132.
When she was near the door to the apartment, she opened it a bit, but the accused grabbed her by her other arm and pulled her inside. She was yelling out in Chinese. She used both her hands to hold onto the door and she was yelling for help. The accused was saying things like, ‘are you still running away? Are you still doing that?’ and he tried to cover her mouth to stop her from making any sound. She had braces on, and her mouth was bleeding. When he covered her mouth, he also stuck two fingers into her nostrils.[79]
[79] T 132.
JL explained what happened when the accused put his hand over her mouth:
Yes, he use a lot of force and he grabbed my face like that (INDICATES), and he was pulling them down, downwards, with a lot of force, and my brace broke into pieces. Those steel wiring got stuck into my tissue, it got bleeding, a lot of blood. He also stuck his fingers into my nostrils, caused bleeding from the nostrils. I lost a lot of blood on that day. I thought I was dying on the day.[80]
[80] T 133, [20]-[27].
After this the accused pulled JL back into the bedroom and tied her up with stockings. She was lying on her stomach on the floor, and he tied her hands together and her legs together. JL marked her position on P4 and used a number four to indicate where the bedroom cabinet was. She marked the bed with a number five.
The stockings the accused used to tie her up were her stockings and he used two sets. She had three sets of stockings all of the same type but in black, grey and white. She did not remember which he used.[81] After the accused had tied her up, he said, ‘are you still running’ and he tried to put his socks in her mouth. She shook her head to ‘run away’ from the socks. The accused then left the room and returned with a bowl which had water in it. He then grabbed her by the hair and put her head in it. The bowl was on the floor in front of her. When the level of the water in the bowl receded, he put more in it and dipped her head in many times, saying ‘fresh up, wake up’.[82]
[81] T 135.
[82] T 136-138.
The accused used mineral water to fill up the bowl. The bowl was about one foot in diameter, and it was made of glass.[83] It was big enough to put her head in it. She did not know for how long her head was in the water, but she could not breathe, she was struggling and choking. She could not recall how the incident ended but she did apologise and compromise and said, ‘it’s my fault, I will never do this again’.[84]
[83] T 138-139.
[84] T 139.
The accused used bottles of mineral water to fill up the bowl. A drawing of the bedroom created by JL on 21 November 2022 was tendered: Exhibit P7. It depicts where JL was lying on the floor, together with the bowl of water and the location of the bed, the cabinets from which the stockings were obtained and the doors to the bedroom and apartment.[85]
[85] T 159.
JL said the accused eventually untied her and she then undertook an online English class in the living room. Before taking the class, the accused sat next to her and smiled and asked her, ‘why your lips are so swollen?’. She took a photograph of her mouth with the accused behind her.[86] The police arrived ten minutes after she started her online class.[87]
[86] T 162-163, P6.
[87] T 163.
She spoke with two police officers outside the apartment but could not communicate well because of the language barrier. She was nervous because she did not know Australian law and did not know what to say to the police. She used Google Translate to answer the police’s questions. She then went to the neighbour’s apartment but did not know if he spoke with the police. After the police left, she went back to the apartment. JL was asked if she had any injuries, and she gave this evidence:
AThat day, the police saw where my injury – where my injury was.
QAnd what injuries are you referring to.
AThe police saw at the time I have a bloody nose and swollen lips and arms with some injuries. … [indicated left arm from elbow downwards].[88]
[88] T 163-165; 164, [33]-[38]; 165, [1]-[2].
JL explained that when the accused pressed on her mouth the braces broke and the wire went into the inside of her cheek. She also had an injury to her nose which caused it to bleed. JL said those injuries could be seen in P6. When she took the photographs of her mouth with the accused in the background he smiled and said, ‘why your lips swollen like this, like sausages?’.[89]
[89] T 166-168.
That evening JL was at a friend’s place, and she communicated with the accused via text message saying they should separate. He wanted the relationship to continue. The screenshots of those text messages were tendered: Exhibit P8. The messages were in Chinese. Following a voir dire held during the trial, I excluded exhibit P8. [90] My reasons for so ruling are set out later in this judgment.
[90] T 169-172.
Fifth uncharged act – strangulation – the phone call to ‘Vivian’
After the incident involving the bowl of water, there was another occasion when JL and the accused had an argument. She ran out of the apartment and asked for help from two female students waiting for a lift, but they refused. The accused came out of the apartment and told the students, ‘We had an argument. We will sort it out back in the apartment’. She did not want to go back into the apartment and continued to ask for help from the students. They told her she should go back home and sort it out. The accused then dragged her back into the apartment.[91] He had both hands on her arm and she started to squat so he pulled her leg as well. She started to scream in the corridor and the accused then suggested calling the real estate agent, Vivian, to mediate.[92]
[91] T 173.
[92] T 174.
JL could not recall who telephoned Vivian, but she arrived a few minutes later. She worked just across the road.[93] She told Vivian that the accused had bullied her and been violent to her. Vivian said, ‘you should have a good discussion’. Vivian was there for a while, and they all spoke Chinese. JL left before Vivian. Her friend, Ruijie ‘Ricky’ Zhang picked her up. She said she had already arranged for him to come over ‘to give his cat for keep’ but she called him that afternoon as well. He picked her up in his car and took her back to his place. He lived with two housemates. She talked to all three of them and showed them her injuries and they told her to report the matter to the police. All of them went with her to the police station.[94]
[93] T 174.
[94] T 176-178.
She stayed the night at Ricky’s place and slept in one of the housemate’s rooms which had been made up for her. At that time Ricky was a friend of hers.[95]
[95] T 182.
JL described her injuries as red marks on the top of her hand, underneath her wrist and on the top of her wrist. She was not sure if it was one hand or both. JL then said:
… But I just remembered something now. The argument on that day in our apartment we were on the sofa arguing and he came to me, hands on my neck. It happened on the sofa. I struggled to push him away then rushed out of the apartment and saw the two female students in the corridor and … was what I described earlier on and the reason I remembered was that your question triggered me to remember that I had red marks on my neck, so I remember what happened earlier on that day.[96]
[96] T 183, [23]-[32].
The next day, or the day after she went back to the apartment and told the accused she wanted him to end the relationship and asked him to move out. He moved out and she stayed in the apartment. He came back sometimes to pick up his things and they communicated through messages on WeChat.[97]
[97] T 183-184.
Counts 6 and 7
JL described an occasion when she was at a friend’s house, but she sent messages to the accused and called him. She said she wanted him to go home, and they agreed to separate on good terms. He said he was in the university library and wanted to go back to the apartment, so she agreed to go back there too. When she arrived, she discovered she could not open the door. She knocked on the next-door neighbour’s door and when he opened it the accused tried to drag her into the apartment by her arm. She told him she was scared, and he had to leave, or she would call the police. She had her mobile telephone in her hand.[98]
[98] T 189.
Her neighbour then started speaking to the accused in English. The neighbour then told her to go in and pack up her belongings. She was not sure if the accused was still holding her arm when the neighbour was speaking to him in English. She did not understand why her neighbour was speaking in English to the accused because she knew he could speak Chinese.[99]
[99] T 190.
All three of them went into the apartment and the accused said they needed to talk, and she agreed. She told him that after they talked, she needed to pack her things and move out. At this point they were all in the bedroom.[100]
[100] T 190.
JL said that when she went into the bedroom, she saw the ropes on the bed and said to the accused, ‘you have these ropes here. Are you trying to tie me up again’.[101] She wanted to run away and as she tried to escape through the door into the bathroom, but the accused noticed her. JL gave this evidence:
[101] T 190, [34]-[35].
AWell, I just started to have this escaping action. He punched, then he put his hands on my throat.
…
QWhat happened after Mr Li put his hands on your throat.
AAt the time it was very discomfortable and not comfortable, and it was – went on for a little while and I struggled. And the neighbour was trying to pull him off me.
HER HONOUR
Q[JL], when Mr Li put his hands on your throat, how close were you to him.
AHe was on top of me and strangled my throat. The action was … I was under him and he put his hands on my throat.
QAnd when you were under him how were you positioned, and were you on the floor or on something else.
AOn the bed.[102]
[102] T 193, [22]-[27].
She then explained further:
While they were talking to each other I stand up trying to go to that door, running to the door then he pushed me to the back, then mount himself on me and put his hands on my throat.[103]
[103] T 194, [23]-[26].
…
On my throat it was not 10 seconds, not 20 seconds but less than a minute. I felt that I nearly die. If it was I felt the time was shorter I want to feel that much but I felt it was too long I may die. Then my neighbour came up trying to get him off but couldn’t do that. I clearly remember that the one – my neighbour tried to pull him off me and [his] hands were still on my throat.[104]
[104] T 195, [8]-[15].
I felt it was very uncomfortable and I felt that I died from this and I felt breathing start to have difficulty.[105]
[105] T 195, [18]-[20].
JL marked on P7 a circle and the number one to indicate her position, number two for the accused’s position.
After the neighbour pulled the accused from her, she was still on the bed. She tried to calm the accused down and they started talking again. By this time, she was in the position she marked with a number four on P7, and the accused was in position marked with a number five and the neighbour in a position marked with a number six. The accused was sitting on a chair at the computer desk.[106]
[106] T 196.
While JL was talking with the accused, the neighbour sent her a text message saying, ‘don’t be scared, I will help you leave this room’. She then became calm and was talking to the accused. JL then described what happened next:
… Then he became like punching me and elbow was on my neck somewhere … [indicated outside of right elbow].[107]
[107] T 198, [11]-[13].
… Then he came up to me, put me on the bed again and elbow on my throat again.[108]
[108] T 198, [21]-[22].
… At the time what we were talking how long, I don’t remember, talking about what, I don’t remember now, but he just stood up and came to me to my body and on top of me again and using elbow pressed on my neck.[109]
[109] T 198, [35]-[38].
JL described the accused as having pounced on her and pushing her onto the bed. She could not recall for how long his elbow was on her neck, but it affected her breathing. She saw the accused’s other hand searching for something on his body.[110] She yelled out, ‘he has a knife’ and the neighbour pulled or pushed the accused back to his computer chair. The neighbour and the accused then started speaking in English. The accused then pulled out a knife from the inside of his clothing where there was a pocket. He put the knife on the desk and after continuing to talk to the neighbour then pulled out a second knife.[111]
[110] T 199.
[111] T 200-201.
JL was then shown a series of photographs which she said depicted the apartment on the night in question: Exhibit P9. JL identified the ropes and circled them in the photograph and pointed out the knives the accused removed from his clothing. The computer desk and chair were depicted although JL said the accused had already taken his computer with him.[112]
[112] T 202-204.
After the accused had removed the knives, the police came a few minutes later. The three of them were still in the bedroom. She heard the police shouting ‘raise your hands’ and asking them to come out. They arrested the accused, and she went to the police station to make a report. When asked if she had any injuries she said, she had red marks on her neck.[113] She said they were marks of the type where you ‘press and it turns red’.[114] She said she did not have any physical injuries. Her neck had ‘a little bit deep aching’.[115]
[113] T 204.
[114] T 205.
[115] T 206.
Cross-examination
JL agreed that when she was living in Adelaide, she had no income other than the money her parents transferred to her. She agreed that the accused paid the rent each week and she transferred her half when she could afford it. The rent was around $400 a week.[116]
[116] T 210.
The accused paid the bond for the apartment, but JL said she paid him back later. When it was put to her that at the time the accused was arrested, she owed him about $10,000 she said:
I don’t know I owe how much money I owe him, but I said to him ‘Whatever I owe you tell me, I’ll get my family transfer the money and I transfer it to you’.[117]
[117] T 211, [21]-[23].
…
He said I wasted his time, he should be compensated, and I said ‘I am the victim of this, why should I pay you for your losses?’.[118]
[118] T 211, [34]-[36].
On the night the accused was arrested, JL agreed that she had a conversation with the accused about how much money she owed him.[119] JL agreed that she lied to him when she told him she was going back to China. She said she did that because it was only way she could separate from him. She denied that it was because she was in a relationship with Ricky Zhang. She agreed that Ricky Zhang is now her husband but said at the time they were friends.[120]
[119] T 212.
[120] T 213.
JL agreed that Ricky Zhang was present when she gave her statement dated 24 June 2021 and she did not tell the police he was her boyfriend. He translated what she said to the police.[121]
[121] T 217.
JL was asked about the occasion when she said she was locked in the house at Devon Park. She agreed that she was trapped in the house because the front door was locked. She said the front door had been locked from the inside with a key. She did not have the one key the landlord had given her.[122]
[122] T 222.
JL then said that the accused was in the house with her. It was put to her that she had never told the police or anyone else that when she was locked in the house, the accused was inside with her. She said she was not sure. She said she could not leave through the garage roller door because she did not know how to use it. She said she could not leave through the glass sliding door at the front of the house because it was on the other side of the front door.[123]
[123] T 224.
JL was then shown a floor plan of the house at Devon Park: Exhibit D10, and two photographs of the house: Exhibit D11. She was asked to circle the door that was locked from the inside.[124] It was put to JL that there was nothing stopping her going out of the glass sliding door at the front of the property. She said she did not know how to use that door and it had a lot of belongings from her housemates in that area. She agreed she had never told police this in any of the four statements she had given.[125] She had seen the accused lift up the roller door many times, but she had no idea how to do that. She then said that they did not have a key to the sliding door and the accused spent some time trying to figure out how to open it.[126]
[124] T 225-226.
[125] T 227.
[126] T 228.
The photographs in exhibit P5 do not corroborate JL’s account of the offending alleged in counts 1 and 2. JL said the injury to her right forearm in the first three photographs was sustained on the same day, but she could not recall how. The photographs show red marks and what looks like raised and patchy skin with some sort of blistering. JL’s account of the accused’s conduct did not include any allegation of an application of force to this area of her body. I have looked carefully at the photograph said to depict the bite mark to JL’s left leg. I am unable to see any mark at all in that photograph.
Proved prior inconsistent statements
A number of prior inconsistent statements by omission and commission were proved. Some inconsistencies were more significant than others. I have set out below the inconsistencies which I consider to be significant, and which undermine the credibility and reliability of JL’s account on material matters.
The waterfall incident.
JL asserted in evidence that the accused was in the house when he locked her in it. She said he locked the front door as circled in exhibit D11. She had never told the police this. In her affidavit dated 16 October 2020, she told police that the accused had locked her in the bedroom until the next day.
JL said the accused had dragged her by the arms into the house and she had then walked upstairs. On 16 November 2022 she said in a proofing that the accused had grabbed her arms and dragged her up the stairs. She had not said this in her affidavit dated 16 October 2020.
The video game incident
JL said the accused slapped her on the face after he had been playing video games all night. She did not tell police in her affidavits dated 19 August 2020, 16 October 2020 or 7 July 2021 that this had occurred after the accused had been playing a video game all night. The first time this was mentioned to police was in the affidavit dated 21 November 2022.
The Rundle Mall incident
JL gave a detailed account of the accused throwing the liquid make-up she had bought into the bin in the presence of a bystander who then criticised the accused for his behaviour. JL also said that she had told the accused to stop pulling and touching her. JL omitted to tell police this when she gave each of her four affidavits.
Counts 1 and 2[336]
[336] After finding no case to answer on count 1, I found the accused not guilty. However, it remains necessary for me to consider JL’s evidence to determine whether the prosecution has proved that the accused is guilty of the statutory alternative of assault.
JL gave evidence that the accused had covered her mouth with his hand, and she had bitten him. She also said he had slapped her to the face. In her affidavit dated 19 August 2020 she told police that he grabbed her with one hand to the throat and one hand on her wrist. She told police she was able to scratch the accused with one hand and he held her neck for thirty seconds to a minute. She did not tell police that she bit the accused or that he slapped her face.
Messages of apology
JL gave evidence that she had text messages and voice messages on WeChat and Weibo in which the accused recorded apologies for being violent towards her. JL omitted to tell police this in each of her four affidavits.
Counts 3, 4 and 5
JL said she went to a medical place for treatment of the injuries said to have been sustained on 1 June 2020. She said that a doctor treated her wounds and gave her some medication. She said that she went to the hospital for her injuries and the accused went with her.
She omitted to tell police this in each of her four affidavits.
JL said that after the accused tied her up with stockings, he tried to put socks in her mouth. She said her braces broke into pieces and the accused tore her singlet into pieces and that it was torn apart. JL omitted to tell police this in each of her four affidavits.
JL said the accused tied her up with stockings. She told police in her affidavit of 16 October 2020 that he tied her feet with socks and other items of lingerie.
JL said she did not tell the police on 1 June 2020 that she and the accused had been arguing and she had a very sore tooth. She denied telling police that she had been yelling at him to help her with her sore tooth. She was not sure if she told police that the accused had grabbed her by the arm at the door and put his hand over her mouth to stop her from yelling. Senior Constable Nicholls said that JL told him and Constable Beasley on 1 June 2020 that there had been an argument regarding a sore tooth, that JL had wanted to seek help and the accused had put his hand over her mouth to stop her shouting. He said the version of events JL gave was the same as the version given by the accused.
JL said that her neighbour did not interpret for her when she was with the police on 1 June 2020. She was not sure if she told police that she was okay to go back to the unit with the accused and did not need any further police action. Constable Beasley and Senior Constable Nicholls both said that they spoke with JL using the neighbour to interpret and she said she felt okay to go back to the unit without any further police action.
The phone call to Vivian – uncharged act of strangulation.
JL said the accused and her argued while she was on the sofa, and he had his hands on her neck. She said her necklace was forced to fall off. She did not tell police in any of her four affidavits that her necklace was forced to fall off.
JL denied telling the police that her ex-boyfriend tried to restrain her by grabbing her wrists hard and by grabbing the neck of her skivvy jumper, twisting it, causing it to become tight around her throat and forcing his body up against hers. Ricky Zhang (who interpreted for her) said JL told the police that her ex-boyfriend tried to restrain her by grabbing her wrists hard and grabbing the neck of her skivvy jumper.
Counts 6 and 7.
In evidence in chief, JL said that she had spoken to the accused who was in the library and that he had told her he wanted to go back to the apartment, and she agreed to go back there too. In cross-examination she said that she was surprised when the accused opened the door of the apartment.
JL said that the accused wanted to drag her into the apartment, and he tried to pull her in, and she tried to resist. She did not say this in any of her four affidavits to police.
JL said that she told the accused if he kept doing that, she would call the police. This was omitted from each of her four affidavits.
In relation to the conduct said to comprise count 6, JL said that the accused had put both hands on her throat. In her statement to police, she said the accused had used one hand to press down on her throat. She also told police that when the neighbour pulled the accused from her, he still had a grip of the scruff of her clothing which pulled her off the bed as well.
In relation to the conduct said to comprise count 7, JL said that the accused came up to her and pressed his elbow against her throat and neck. In her affidavit dated 19 August 2020 JL said that the accused had tried to grab her again.
I consider that the proved prior inconsistent statements with respect to the uncharged offending undermine the credibility of JL’s account of that offending.
Conclusion and findings – count 2
I found the accused not guilty of count 1 after his counsel made a no case to answer submission. I have nevertheless considered the evidence led on count 1 and 2 to determine whether it is open on the evidence to find the accused guilty of the statutory alternative offence of assault and to determine whether the prosecution has proved the accused is guilty of count 2.
I consider the proved prior inconsistent statements of JL have significantly undermined the credibility of her account of the alleged offending. The inconsistency between what she told police shortly after the alleged offending (that the accused grabbed her with one hand to the throat and one hand on her wrist and held her neck for thirty seconds to a minute) and her evidence (that he covered her mouth) is significant and for which no satisfactory explanation was provided. I reject JL’s evidence that the accused covered her mouth in the way she described. It follows that it is not open on the evidence to convict the accused of the statutory alternative of assault.
JL said the accused was so mad with her after this that he hit her and bit her leg and then bit each of her fingernails individually. The photographs do not support JL’s account that she was bitten on the leg. She did not tell police in her statement of 19 August 2020 that the accused slapped her. She was unable to recall how the alleged assaults came to an end or what happened after that. These matters, combined with my rejection of JL’s evidence that the accused covered her mouth in the way she described, leaves me with a reasonable doubt regarding her evidence that he bit her, slapped her face or bit her fingernails.
The fact that I have rejected JL’s evidence regarding what occurred on the occasion of count 2 is a matter I will take into account in my assessment of JL’s credibility generally.[337]
[337] R v Markuleski [2001] NSWCCA 290 [pls check for reported version]
Conflicting testimony
In addition to the proved prior inconsistent statements identified above, JL’s evidence on material topics conflicted with that of other witnesses called by the prosecution.
I formed a favourable view of the evidence of each police witness. Their evidence was not challenged.
JL’s evidence also conflicted with what could be heard on exhibit P16.
I summarise the conflicting testimony below.
The phone call to Vivian – uncharged act of strangulation
JL said the accused had his hands on her neck on the sofa leaving red marks. She said she had red marks on the top of her hand, underneath her wrist and on the top of her wrist. She said she showed Ricky Zhang and the police all of her injuries. JL’s evidence was not supported by Vivian Zhang. She was at the apartment for half an hour. Ms Zhang said that she saw a ‘little bit bruise’ on JL’s wrist. She did not see any bruise or marks on JL’s neck. I found Ms Zhang to be a thoughtful and careful witness. I prefer her evidence over that of JL.
I have reservations about the reliability of the evidence of Ricky Zhang regarding his observations of red marks on JL’s wrists. He was used by the police as an interpreter when JL gave her account. There is a real possibility of an unwitting contamination of his account that JL showed him her wrists and there were red marks. He knew that JL had told police that the accused had tried to restrain her by grabbing her wrists. The police officers who took JL’s statement were not called to give evidence. In those circumstances, I am not prepared to act upon Mr Zhang’s evidence as corroborative of JL’s evidence of her injuries.
Counts 3, 4 and 5
JL said that the photographs of her face in P6 depicted the injuries to her mouth as a result of the accused grabbing her face, covering her mouth with sufficient force to result in the steel wiring in her braces becoming stuck into her tissue. She said there was a lot of blood. She also said that the accused stuck his fingers in her nostrils causing them to bleed. She said she lost a lot of blood that day. JL said that the accused then repeatedly submerged her face in the bowl of water that can be seen in exhibit P6. When the accused untied her, she started an online class. JL said the police arrived ten minutes after she started her online class. JL said the police saw her bloody nose, swollen lips and injuries to her arms.
I have examined carefully the photographs in P6 of JL’s face. Her lips appear very swollen in those photographs when compared with the photographs of her face taken on 19 August 2020. There is no evidence that either Constable Beasley or Senior Constable Nicholls had met JL before. Accordingly, neither of them would have been in a position to notice any difference in the appearance of her lips (if they were as depicted in exhibit P6) on 1 June 2020. However, if JL’s lips looked the way they did in exhibit P6, I would have expected the police to have observed this.
Senior Constable Nicholls positively confirmed that JL did not have swollen lips. Constable Beasley said he could not recall if she had swollen lips. I prefer the evidence of the police officers to that of JL on this topic. Both officers spent some time talking to JL and were in a position to make observations of her face at close range. I reject JL’s evidence that the photographs in P6 were taken shortly before police attended on 1 June 2020.
Senior Constable Nicholls and Constable Beasley did not see any blood on JL or in the apartment. She did not have a bloody nose. She was not soaking wet. Constable Beasley saw an old bruise on JL’s arm, at least one day old. I accept their evidence regarding their observations of JL on 1 June 2020.
The combined observations of Senior Constable Nicholls and Constable Beasley lead me to entertain significant reservations regarding JL’s account of what occurred on 1 June 2020. Had events occurred in the way JL described, with police attending within a short space of time after a brutal assault during which JL lost a lot of blood from her mouth and nose and had swollen lips from the damage to her mouth and braces, the police would have seen evidence of that.
I accept that on JL’s account her head was submerged in water following the assault upon her mouth and nose, and that this may have washed some of the blood away. However, she said that her nose was still bloody when police attended. Given the amount of blood JL said she lost, it is realistic to expect that there would have been bloodstains on her clothing and in areas of the apartment.
Conclusion and findings – counts 3, 4 and 5
JL gave an account of the incident to Constable Beasley and Senior Constable Nicholls that was consistent with the accused’s account and inconsistent with her evidence. I infer and find that neither JL nor the accused would have known that the police were about to attend, the report having been made by the neighbour. They were immediately separated when police attended, and their respective versions obtained independently. In those circumstances (and noting JL did not allege this) there was no opportunity for the accused to ensure that JL gave a consistent account.
I do not consider that what the accused said in exhibit P16 is an admission of the conduct alleged by JL in counts 4 and 5. The relevant passages are:
Accused: What did I do to hurt you you tell me come on show me what did I do to hurt you name it.
JL: How come police came if no hurt? How come the neighbors heard and called the police for me?
Accused: Other than that time? You never let go of that time don’t you?
JL: Do you know how much harm that time caused to me?
Accused: I made it up to you didn’t I? explained to you already.
…
Accused: that was last time didn’t the police come last time? Just last time I know I was wrong and I made it up to you I bought a bag for you right?
JL: Yes.
Accused: So I admitted it was my fault, but after that, I hit you no more, and I admitted I will try my best to change I think you can see the change can’t you see? I know I rarely yelled at you since then I just want to solve the problem with you right. Why talk to me ok?
JL: Whatever.
I accept that it is open to infer that the accused was admitting to hitting JL on the occasion police attended, which must have been 1 June 2020. However, JL did not allege that the accused hit her during the course of the alleged offending comprising counts 3, 4 and 5. The admission does not corroborate JL’s account of the offending charged. Further, the accused repeatedly referred to that as having been the only occasion that he had hit JL. JL did not explicitly or implicitly dispute this or refer to the accused having strangled her, put his fingers forcibly up her nose, forced his hand over her mouth or any of the other uncharged acts.
JL gave evidence of two occasions upon which the accused slapped her, the first was during the ‘video game incident’ and the second during the course of the offending alleged in counts 1 and 2. Prior inconsistent statements regarding the slap and/or the context in which it occurred were proved. The accused’s admission that he hit JL relates to an occasion of police attendance. The only time police attended was 1 June 2020. The admission does not support JL’s evidence that the accused slapped her on the occasions she described. Whilst I am satisfied, based on the accused’s admission, that he ‘hit’ JL, I am not able to make any finding regarding the precise circumstances in which this occurred. However, I am not satisfied that this admission related to the occasions of slapping alleged by JL.
I am not satisfied beyond reasonable doubt that the accused forcefully put his fingers up JL’s nose causing it to bleed. I am not satisfied that he submerged her head in a bowl of water thereby stopping, or significantly restricting or hindering her breathing. Given my findings, it is not open on the evidence to convict the accused of the statutory alternative offence of assault.
Absent any credible or reliable evidence supporting JL’s account of being tied up against her will, the findings on count 4 and 5 and my reservations regarding her reliability and credibility generally would be sufficient to leave me with a reasonable doubt regarding the accused’s guilt on this count.
In considering whether the prosecution has proved the accused is guilty of count 3, I have also considered what the accused said in exhibit P16 to determine whether there is any admission by the accused with respect to count 3 that might overcome the reservations I entertain regarding JL’s credibility generally.
The relevant passage in the translated transcript is[338]:
[338] I have removed the commas that appear in the transcript in exhibit P14A. I consider that commas are not strictly a function of the translation of one language into another although a full stop is where there is a discernible end to a sentence or a break between speech. I have done so because it is impossible given the inaccuracies in the time stamps in exhibit P14A to identify with precision when the words in exhibit P14A are in fact being spoken on exhibit P16. Had this been possible, then the use of the commas could have been checked for accuracy of placement.
8:10
Accused: You tell me I’m asking you what do you think?
JL: You’ve prepared these ropes.
Accused: What have I prepared? What have I prepared? That thing is always there all right?
JL: Bullshit.
Accused: What is bullshit? You tell me.
43:59
Accused: Just because that one thing? What I did that time? Just one thing?
JL: Have a look, the scars, all because of that.
Accused: Yes, I admit, I told you, I was wrong.
JL: [inaudible].
Accused: I admit I definitely did not.
JL: [inaudible].
Accused: I was over there as I thought you’ve finished packing then I saw you didn’t pack, then trust me I’m telling you honestly if I was going to why not have it prepared? You tell me that stuff how to tie you up over there? I should put it on the bed because you saw it before I bought it on ebay I have to put it under the bed to tie.
JL: You tried to do exactly as what was played tie me up with tights.
Accused: No, I didn’t, for sure.
JL: Then why you tied me up with my tights last time?
Accused: That was last time, didn’t the police come last time? Just last time, I know I was wrong, and I made it up to you, I bought a bag for you, right?
JL: Yes
Accused: So I admitted it was my fault, but after that I hit you no more and I admitted I will try my best to change, I think you can see my change can’t you see? I know I rarely yelled at you since them I just want to solve the problem with you right. Why talk to me ok.
JL: Whatever.
JL was not asked what she meant in these passages in exhibit P16. She was not asked to listen to exhibit P16 during her evidence. As this is a narrative of past events, I cannot use the assertions of JL for testimonial purposes. The accused denied JL’s allegation, ‘you tried to do exactly as what was played, tie me up with tights’.
I consider that one interpretation of what the accused said that is open is that it was JL who told him how to use the ropes to tie her up and that she told him to put it on the bed, and put it under the bed to tie, because she had seen it before he bought it on eBay. The meaning of what JL said in response is difficult to interpret accurately. It is possible that JL was suggesting that the accused followed the instructions for the use of the ropes but used tights instead. When he denied this, JL asked him why he tied her up with tights last time. The accused responded by saying he was wrong and linking it to the time the police came.
I accept that this is an admission by the accused to having tied JL up with tights. However, it is not an admission to having tied JL up in the manner she alleged in evidence, forcibly, around her hands and feet and face down on the floor.
In evidence JL agreed that the accused had bought rope to use to tie her up when they had sex, but she said they never used it. She agreed that the rope shown in exhibit D13 was the rope he bought. I infer and find that this was the rope being referred to in exhibit P16. I infer and find that JL did not object to the purchase of the rope and knew its intended purpose. I am not prepared to accept JL’s evidence that they had never used the rope, given the conversation on this topic in exhibit P16.
I do not consider that the accused’s admission that he knew he was wrong was referable to the implied admission that he tied JL up with tights ‘last time’. In context, the accused is referring to hitting JL. This is evident from what he says immediately after this, ‘so I admitted it was my fault, but after that I hit you no more’. The earlier conversations in which the accused admits he hit JL on one occasion support this interpretation.
I do not regard this conversation as an admission that the accused tied JL with tights without her consent. I am not satisfied beyond reasonable doubt that the accused deprived JL of her liberty without her consent and against her will by tying her up with tights.
The fact that I have a reasonable doubt with respect to JL’s evidence on counts 3, 4 and 5 is a matter I will take into account in my assessment of JL’s credibility generally.[339]
[339] R v Markuleski (2001) 52 NSWLR 82.
Conflicting testimony- Counts 6 and 7
In evaluating the evidence of JL on these counts, I have had regard to the evidence of Junxing Ren, exhibit P16, exhibit P14A and the photographs taken of JL on 19 August 2020. I have also had regard to the accused’s record of interview. I am of the view that Dr Pedler’s evidence is of limited probative value, given its general nature. I have however had regard to her evidence the absence of signs or symptoms neither confirms not refutes an allegation of strangulation. I have also had regard to her evidence that some of the visible changes include swelling or discolouration of the neck or face. In my view, Dr Pedler’s evidence does not advance the prosecution case or support JL’s evidence in any material way.
Junxing Ren was an eyewitness to the offences alleged in count 6 and 7. In addition, exhibit P16 is a real time recording of the conversations between the accused and JL leading up to and including the event during which the act the subject of count 6 was alleged to have occurred.
Mr Ren gave his evidence in a considered, methodical and thoughtful manner. His measured manner in court was consistent with his manner as can be discerned from his conversation in exhibit P16.
However, in assessing his evidence as to the events that occurred in the apartment on 18 August 2020, I have taken into account the possibility of an unwitting contamination of his memory of those events.
It is unfortunate that police utilised Mr Ren to interpret for JL when she made her first statement to police on 19 August 2020. I accept the evidence of Brevet Sergeant Wood that priority was given to obtaining JL’s version of events over the best police practice of ensuring that a witness is not told the account of another witness before a statement was taken from that witness.
I have also taken into account the fallibility of his memory, given he was giving evidence of events that occurred over two years ago and he readily admitted that there were aspects of what occurred that he had remembered incorrectly or out of sequence. For example, in examination in chief he said that during the first conflict (the conduct the subject of count 6) he said the accused tried to grab JL, but his hand mainly touched JL’s clothing, and he separated them immediately. When describing the second conflict (the conduct the subject of count 7) Mr Ren said that the accused used his hand to try to choke JL and described the position of the accused’s fingers and thumb as his hand touched JL’s neck. In cross-examination, Mr Ren agreed that his memory was such that he could only recall the sequence of what he described to be major events.
When Mr Ren was taken to the statement, he made to police on 20 November 2022 in which he said that in the second conflict the accused had an outstretched hand, grabbing at JL’s neck or upper body, he corrected his evidence and said that his description of the second conflict was in fact what occurred in the first conflict.
Importantly, Mr Ren ultimately accepted as reasonable the proposition that what occurred during the first conflict was that the accused tried to grab JL’s phone, she fell backwards onto the bed, and he pulled the accused from JL.
Mr Ren’s evidence did not support JL’s account that she was pulled into the apartment by the accused.
When evaluating the evidence of JL and Mr Ren regarding what occurred on 18 August 2020, I have carefully considered the contents of exhibit P16, including the conversations that took place in English between Mr Ren and the accused.
It was entirely unhelpful to be provided with a transcript of exhibit P16[340] which did not include within it the conversations in English which occurred throughout the duration of the recording. I have had to listen to exhibit P16 countless times in order to determine what was said by the accused and Mr Ren when they spoke in English and then determine where, in the sequence of the translated conversation these conversations took place.
[340] Exhibit P14A.
It is obvious from listening to exhibit P16 that Mr Ren was also using an application on his telephone to ask JL questions and her answers were then read out. Much of what the accused said in English is important for context and also to understand what was happening in the lead up to the offences alleged in counts 6 and 7. I have done my best to ascertain what the accused said to Mr Ren and JL when he was speaking in English and when it was that those conversations took place. Given the length of the conversations, I do not propose to set out in these reasons all of what can be heard in English on exhibit P16.
The evidentiary status and use to which exhibit P16 may be put must be articulated. In my view, this evidence is admissible and may be used on the following bases:
·Under the doctrine of res gestae, using the words spoken by the accused, Mr Ren and JL as evidence of what occurred in the apartment on 18 August 2020;
·As admissions against interest if the accused has made an admission in relation to any allegation levelled at him by JL regarding conduct the subject of the charges or uncharged acts;
·As evidence of JL’s distress, in order to assess her credit.
The doctrine that statements which form part of the res gestae are admissible as evidence of the truth of their contents is regarded as an exception to the rule against hearsay.[341]
[341] Walton v The Queen (1989) 166 CLR 283, 304 (Wilson, Dawson and Toohey JJ).
Evidence of a statement is admissible under the res gestae doctrine if:
the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening…
it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.[342]
[342] Ratten v The Queen [1972] AC 378 [389], [391] (Lord Wilberforce); approved by the High Court in Papakosmas v The Queen (1999) 196 CLR 297 [22] (Gleeson CJ and Hayne J); [53]-[54] (Gaudron and Kirby JJ).
In Walton v The Queen, Wilson, Dawson and Toohey JJ said:[9]
Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable. On the other hand, if a statement by a person about … is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay.
In Papakosmas v The Queen,[343] Gaudron and Kirby JJ, after citing the passages from Ratten quoted above, said:
[343] Papakosmas v The Queen (1999) 196 CLR 297 [55].
The principle expressed in Ratten is crucially dependent on the virtual certainty of the statement in question being true and, to that extent, it reflects the common law’s bias against the reception of hearsay evidence.
I am satisfied that exhibit P16 forms part of the res gestae of the conduct alleged to comprise counts 6 and 7. I am satisfied that neither JL nor the accused knew that their conversations were being recorded. Having listened to exhibit P16 carefully, it meets the criteria for admission under the res gestae doctrine.
I have been careful to use for testimonial purposes only those statements referable to conduct from which a relevant inference can be drawn. For example, when Mr Ren tells the accused to stop touching JL or to sit down.
However, where the conversation between JL and the accused relates to past events, I have not used JL’s statements for testimonial purposes. Where JL makes an allegation or assertion and the accused adopts it or admits it to be true, I will act upon that evidence as an admission against interest. Where JL can be heard to exhibit distress (crying, yelling or screaming) I will use that evidence for the limited purpose of evaluating JL’s credit but will not otherwise use the accompanying words for testimonial purposes unless they fall within the res gestae exception.
Conclusion and findings – counts 6 and 7
The conversation in exhibit P16 lasts for just over one hour. At times, the accused’s voice is high-pitched and shrill. Having watched the record of interview, it is apparent that this is how the accused sounds at times when he speaks.
The recording commences outside of apartment 1709 and after about 8 minutes, the accused, Mr Ren and JL move into the apartment and into the bedroom. Between 8:30 and 10.00 I find that the accused attempts to touch or touches JL. Mr Ren can clearly be heard telling the accused not to touch her. JL is audibly distressed.
Between 35.00 and 37.00, JL can be heard to scream, and Mr Ren says to the accused ‘don’t touch her’ ‘don’t physically touch her’, ‘stop touching her’ ‘you can show her, just don’t touch’. I infer and find that the accused was touching JL in some way while trying to show her something.
At 37:07, Mr Ren says to the accused, ‘don’t touch me as well’. I infer and find that the accused came close enough to Mr Ren to be touching him.
Mr Ren’s command of the English language was good. When he used the word ‘touch’ I infer and find that this was an accurate descriptor of what was occurring. I am not satisfied that what the accused was doing in touching JL amounted to an assault.
At 1:01:36 JL starts yelling and screaming. Mr Ren says, ‘hey hey hey’. Three seconds later at 1:01:39 Mr Ren says:
I will call the police if you do this, I just call the police now, hey bro don’t touch me, stop grabbing my phone.
Exhibit P16 was played to Mr Ren when he gave evidence. He identified this part of exhibit P16 as recording the first conflict (count 6).
I infer and find that the accused was having some form of interaction with JL that was upsetting to her and which Mr Ren thought was wrong and needed to stop. It is clear from listening to exhibit P16 that what the accused was doing to JL that caused her to yell and scream and resulted in Mr Ren telling him to stop lasted about 3 seconds. By the time 3 seconds had elapsed, Mr Ren was remonstrating with the accused about grabbing his mobile telephone.
I infer and find that within 3 seconds the accused was trying to grab Mr Ren’s mobile telephone.
I have considered carefully the conversation leading up to this moment. Within about 19 minutes into the recording, JL told the accused that she was leaving the next day and that she had a ticket to Sydney.[344] Around 49:00 the accused asked JL if she could show him the airline ticket receipt. He told JL he did not believe that she booked it one month ago. He told her that if she showed him that he would let her go. The accused then told Mr Ren that JL told her that she had a flight ticket and he wanted to see it. He asked Mr Ren to help him. He said:
[344] Exhibit P14, page 6: ‘you can have a look what time is the ticket to Sydney tomorrow’.
She lie to me she tell me she booking ticket one month ago. I just want her to show me that, she always lie to me – this communication is always lie this is why I think 15 minutes is not enough – she don’t tell me…so help me bro’, tell her to tell me something true.
The accused continued imploring Mr Ren to have JL tell him the truth. He wanted to know the booking time. Mr Ren had previously told the accused that he would give them 20 minutes to communicate and talk and he was counting down the time as the conversation continued. It is evident from the recording that the most important thing to the accused at this time was to see the ticket. He said, ‘this one thing is really easy just show me that and let me out’. A minute before JL can be heard screaming and yelling, Mr Ren said to the accused:
People have the right to lie and she also has the right not to show the plane ticket I give you 5 minutes say whatever you want to say I will tell you after this 5 minutes I will call police if she doesn’t show you. You still let her go. After 5 minutes I call police if you don’t let her go.
In drawing inferences from exhibit P16 regarding what was occurring at the time that the offence in count 6 is alleged to have been committed, I have also had regard to the evidence of Mr Ren. I consider that his initial description of this incident was the most accurate and accorded with what can be heard on exhibit P16. He said that the accused’s hand touched JL, mainly her clothes, and he separated them immediately. He initially said that this could be heard towards the very end of the recording. Mr Ren said that when the discussion regarding the airline ticket took place JL and the accused were in the ‘first conflict’ location as noted on exhibit P15. I am not prepared to place any weight on Mr Ren’s evidence in cross-examination that what he described as the second conflict was in fact the first. In any event, Mr Ren conceded in cross-examination (by saying that it sounded reasonable to him) that the accused tried to grab the phone, JL fell backwards on the bed and Mr Ren pulled the accused off her.
The accused told police that JL had bought an airline ticket a month before without telling him and was deceiving him. The accused’s admission that he pulled JL’s collar to pull her backwards because she wanted to leave is not, on its face unequivocally a reference to the conduct alleged in count 6. It was put to him that he had his hands around JL’s throat and strangled her for a minute. He was then asked for his version of events and what happened that night. It was then that he said she wanted to leave, and he pulled or grabbed her collar to pull her back. It was not put to him that there were two occasions upon which he strangled or choked JL.
I consider the accused’s answers to be a denial of having strangled JL at all and an explanation that the only thing he had done was to grab her by the collar because he thought she was going to leave.
I reject JL’s evidence that she tried to run away through the door into the bathroom and that the accused pounced on her and put his hands on her throat and strangled her for between 20 seconds and a minute until Mr Ren pulled him away. Her evidence is not supported by exhibit P16 or the evidence of Mr Ren. The photographs of JL in exhibit P18 do not reveal any discernible injury or mark to JL’s neck. Absent an examination by a qualified medical expert, they are an insufficient evidentiary basis for me to conclude that any injury is present.
I find that the accused was so intent upon seeing the airline ticket receipt in order to prove that JL was lying to him that he grabbed her mobile telephone in the course of which he also grabbed her clothing and JL lost balance and they fell onto the bed.
I am not satisfied beyond reasonable doubt that the accused performed any act that stopped, hindered or restricted JL’s breathing. I am not satisfied that the accused put his hands on JL’s throat. Count 6 has not been proved beyond reasonable doubt. Based on my findings, I do not consider it open on the evidence to convict the accused of the alternative charge of assault.
The audio recording ends before the time at which JL alleges the accused committed the offence alleged in count 7. The proved prior inconsistent statements of JL regarding the actions of the accused undermine the credibility of her account. I also take into account the adverse credibility findings I have made with respect to her evidence on counts 1, 2, 3, 4 and 5.
Mr Ren’s evidence regarding the ‘second conflict’ did not support JL’s account. All he saw was the accused’s hand near or on JL’s upper body. The accused admitted that he grabbed JL’s collar. This admission is consistent with what was observed by Mr Ren.
Given the reservations I entertain about JL’s credibility, I am not satisfied beyond reasonable doubt that the accused performed any act that stopped, hindered or restricted JL’s breathing. I am not satisfied beyond reasonable doubt that he put his elbow against her throat. Based on my findings, I do not consider it open on the evidence to convict the accused of the alternative charge of assault.
Verdicts
I find the accused not guilty of all charges. It is not open on the evidence to convict the accused of the statutory alternative offence of assault in respect of counts 1, 6 and 7.
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