R v Philip Wan Por LEUNG (No 3)

[2009] NSWSC 450

CITATION:	R v Philip Wan Por LEUNG (No 3) [2009] NSWSC 450
HEARING DATE(S):	20 April 2009-23 April 2009, 27 April 2009-1 May 2009, 4 May 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Rothman J
EX TEMPORE JUDGMENT DATE:	4 May 2009
CATCHWORDS:	CRIMINAL LAW – directed verdict – no evidence upon which a jury, directed in accordance with law, could properly convict – Crown case taken at highest – inference to be drawn if human experience would be contradicted otherwise – act causing death speculative – deliberate act is more speculative – intention necessary for murder mere conjecture – jury not entitled to conjecture – likewise, commission of unlawful and dangerous act to establish manslaughter would be conjecture – verdict directed on murder and manslaughter
CATEGORY:	Procedural and other rulings
CASES CITED:	Doney v R [1990] HCA 51; (1990) 171 CLR 207 Fabre v Arenales (1992) 27 NSWLR 437 JMR (1991) 57 A Crim R 39 Morgan v Babcock & Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163 R v R (1989) 18 NSWLR 74 Wilson v R [1992] HCA 31; (1992) 174 CLR 313
PARTIES:	Regina (Crown) Philip Wan Por Leung (Accused)
FILE NUMBER(S):	SC 2008/6766
COUNSEL:	N Williams (Crown) W Terracini SC / J Trevallion (Accused)
SOLICITORS:	Office of the Director of Public Prosecutions (Crown)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

4 MAY 2009

2008/6766 R v Philip Wan Por LEUNG (No 3)

JUDGMENT

1 HIS HONOUR: Philip Leung is charged with the murder of Mario Guzzetti on Easter Saturday, 7 April 2007. Mr Leung and the deceased were partners, who lived together in a terrace house in Alexandria.

2 Mr Terracini SC, who, with Mr Trevallion, appears for Mr Leung, applies to the Court for a directed verdict of acquittal on the basis that the Crown, having closed its case, has no basis in evidence for the charge, nor for the alternative of manslaughter. His submission is, as it must be to succeed, that there is no evidence upon which a jury, directed in accordance with law, could properly convict.

The Principles on Directed Verdict

3 The principles upon which such a direction may be given are strict and confined, but the test, once satisfied, is not discretionary. It is a trial judge’s duty to direct a verdict of acquittal, if the evidence could not sustain a guilty verdict, or, as more commonly expressed, if there be no evidence upon which a jury, properly directed, could convict: Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 212.6.

4 In determining whether there is no evidence that can sustain a guilty verdict, the court is required to ignore contradictory evidence unfavourable to the Crown case and to take the Crown case at its highest, including any inferences that may arise from the evidence adduced. It is for the jury, not the judge, to resolve conflicting evidence: R v R (1989) 18 NSWLR 74 per Gleeson CJ at 81.

5 While the test has been described as a question of law, it necessarily involves an assessment of the facts that are proved by the evidence adduced. Two issues are clear. First, it is not for the trial judge to determine the issue on the basis that a jury verdict would be unreasonable or, as it was once described, unsafe and unsound (Doney, supra). If there be evidence (even tenuous, inherently weak or vague evidence) which the jury is able to take into account and which, if accepted by the jury, would support a verdict of guilty, the matter must be left to the jury. It is not a matter for the trial judge to pre-empt a potentially unreasonable verdict by a jury, but a matter for the Court of Criminal Appeal, if the verdict ultimately reached be found to be unreasonable.

6 Second, it is insufficient, in determining whether to direct a verdict, for a trial judge to come to the conclusion that a reasonable hypothesis consistent with innocence can be formulated: JMR (1991) 57 A Crim R 39. If an inference is available from the evidence adduced that is consistent with guilt, it is a matter for the jury, properly instructed, not for the trial judge.

Evidence

7 The Crown case against Mr Leung is circumstantial. The primary facts, leaving aside for the time being cause of death, are, with one exception, uncontroversial and uncontroverted. The one exception relates to an express intention by the deceased to end his relationship with Mr Leung and that he, the deceased, was scared. I will assume, for the current exercise, that Mr Di Francesca’s evidence of Mr Guzzetti’s desire to end the relationship, the desire to sell the house and that the deceased was scared is proved and accepted, notwithstanding some issues as to its probability.

8 Otherwise the facts, taking the Crown case at its highest, are these (not in any order of priority, nor in chronological order):

(a) Mr Leung and the deceased were joint owners of their home worth about $600,000;

(b) They lived together since 2004, the property having been purchased from the assets of the deceased;

(c) Each of Mr Leung and the deceased had partners prior to each other;

(d) On Good Friday, 6 April 2007, Mr Leung and the deceased had an argument, the subject matter of which is, according to the Crown, irrelevant, but concerned “a guy doing tiles”, after which Mr Leung stormed off;

(e) At some time on Saturday morning, 7 April 2007, the couple engaged in consensual sexual intercourse;

(f) During the course of the morning, Mr Leung made carrot juice for the deceased and/or himself;

(g) While Mr Leung was making the carrot juice, the deceased “kept at him”, they had a fight;

(h) Between 8.15am and 8.30am on 7 April 2007, there was a sound from the house, heard by the neighbour, like a shelf falling, pots clanging and lids rolling around the floor;

(i) The neighbour then heard the deceased singing (but I will assume, notwithstanding the evidence, a scream), there was then silence (said to be for about 10 minutes) and then the sound of Mr Leung wailing;

(j) At 9.00am a witness rang the home and Mr Leung was hysterical;

(k) When the first persons arrived at the scene, at about 9.15am, Mr Leung was seen wailing or crying hysterically, cradling the deceased’s head, rocking back and forward, his arms extremely tightly bound around the deceased’s neck and head. Mr Leung was in a state of total distress and was, as stated, totally hysterical;

(l) The deceased’s heart had stopped by the time ambulance officers arrived. Resuscitation was unsuccessfully attempted.

9 I return to the timing on Saturday morning, the day Mr Guzzetti died. The neighbour estimates the time of the “shelf crashing” as 8.15am. The time is fixed by her husband’s driving lesson, which commenced at 7.45am and concluded at 8.45am. Her husband arrived home at or about the time that the wailing was first heard. There is an understandable inconsistency between the estimated time of 8.15am, on the one hand, and the estimated 10 minutes of silence and arrival of her husband, on the other. The foregoing is in no way a criticism of the witness, but has implications. Taking the evidence as it best fits the Crown case, there was a gap of 57 minutes (from 8.15am to 9.12am) between the crash and the call to emergency services.

10 There was a smudge of blood on the balustrade of the stairs, between the ground floor and the first landing, blood splatters on the architraves next to the stairs and on the wall adjacent to the stairs and next to the kitchen. There was also a part of the juice extractor on the floor next to the deceased, which juice extractor had DNA from the deceased on it and Mr Leung’s fingerprint from his index finger. The deceased was found at the foot of the stairs, as earlier stated, being cradled by the accused with a pillow under his head.

11 Thereafter, the accused continued to behave hysterically and, at one stage, was required to be restrained, for his own safety, and that of others, and not for reasons of misconduct.

12 The house was, with one exception, in no disarray. Upstairs the beds had not been made, but otherwise the house was clean and tidy. Upstairs was in a state inconsistent with the occurrence of a physical altercation. Downstairs was in a like state, with one exception: the juice extractor component was on the floor adjacent to the stairs and the deceased, and something, the Crown submits the juice extractor component, had hit the wall in the kitchen above the doorway (and below the clock about 2.5 metres high). There were plaster and brick chips on the floor as a consequence. The component, as already stated, had on it the DNA of the deceased, not Mr Leung. The DNA was found on the spout, which the Crown suggests, in the scenario that this was the murder weapon, could be used as a handle. The single fingerprint was not in a position that would allow an inference to be drawn that it was used by Mr Leung as a weapon. Nor was it, of itself, consistent with a component being held by Mr Leung, as distinct from having been pushed or touched.

13 There were relatively fragile pieces of furniture and sculptures in the house, some near the stairs, that were intact and undamaged. Whatever occurred, it occurred on or near the staircase and to some extent in the kitchen (the room next to the staircase toward the rear of the house).

14 Lastly (except for the medical evidence to which I will shortly turn), both Mr Leung and the deceased were dressed in pyjama pants and a top. The deceased had slippers on his feet, being Italian leather slip-on shoes with no back. There was another slipper (of similar kind) in the hall on the other side of the stairwell than where the kitchen was situated (i.e. toward the lounge and dining areas and the front of the house). Presumably this other slipper belonged to Mr Leung.

Medical and Scientific Evidence

15 The medical evidence is at best ambivalent. The Crown called Dr Rodriguez, a neuropathologist, and Dr Botterill, a forensic pathologist, who, at the time, was a Senior Staff Specialist at the Department of Forensic Medicine and who performed the autopsy on the deceased. Further, the accused called Professor Hilton, forensic pathologist, interposed just prior to the close of the Crown case, because he was otherwise unavailable.

16 Dr Rodriguez testified to brain injuries suffered by the deceased, caused by blunt force injury, being a knock to the head either by the application of force to the head by a blunt object or the head hitting a hard object, e.g. a stair or a wall, etc.

17 Dr Rodriguez accepted that the brain injuries, of themselves, would not necessarily cause death and “there is some doubt as to exactly why this person died at the time he did”, but considers there is a direct link to the blunt force injuries [Transcript page 271, lines 10-13]. If, he says, the injuries were to have caused severe diffuse axonal injury (DAI), then the deceased could not have cried out or sung. Further, Dr Rodriguez agrees “that the exact cause and mechanism of Mr Guzzetti’s death cannot be stated beyond reasonable medical doubt”. Dr Rodriguez was unable to say whether the deceased died from brain injuries.

18 The blunt force injuries to the head could, Dr Rodriguez says, be caused by falling down some stairs. Dr Rodriguez deferred to Dr Botterill as to cause of death because he, Dr Rodriguez, was looking only at the brain and no other part of the body, and he may, in some cases, in determining cause of death, by a process of eliminating other causes, arrive at a conclusion that a seemingly minor, otherwise non-fatal injury, was the cause [Transcript page 217, line 15; and page 276, line 40].

19 I turn then to the evidence of Dr Botterill. He prepared a 13-page report which incorporated Dr Rodriguez’s findings. Dr Botterill concluded that the “direct cause of injury was blunt force head and neck injury”. He could not be certain whether it was a combination of the two or one or the other. “There was blunt force head injury and blunt force neck injury, both of which have the potential to result in death … [but he] … can’t say the relative contribution of both [sic: read each] but … [believed] … that it’s most likely that both together have resulted in the death” [Transcript page 334, lines 22-28]. According to Dr Botterill’s report, the deceased was 71 years of age with no past medical history.

20 Subsequently, Dr Botterill discovered (and the Court accepts) that the deceased had blood pressure problems for which he had been prescribed medication, traces of which were found on analysis. The deceased’s brother, Mr Enzo Guzzetti, who came from Italy to give evidence, also testified that the deceased had osteoporosis in the knees.

21 The injuries included: tears over the skin of the right side of the chin; brazes [sic] and bruises over the skin of the right side of the floor of the mouth; multiple skin tears and bruises over the front of the neck and the upper front of the chest; bruising beneath the skin at the back of both sides of the head; a tear in the lining of the inside of the mouth near the right lower lip; and other findings, including those of Dr Rodriguez, namely, blood over the surface of the brain, and also bruises under the skin of the right arm, left forearm, the right wrist and the knuckles of both hands. There were also bruises to the left back and hip region. The deceased also had excess fluid in the lungs, enlargement of the heart and scarring of the kidneys. He had a 50 percent occlusion of one branch of the coronary artery system.

22 Dr Botterill concluded:

“Although any one of the individual injuries might be associated with a simple fall, the extent of distribution of the injuries is more in keeping with multiple blunt force injuries. It is possible that the neck bruising and chest injuries are related to application of force to the neck but discrete ligature marks or eyeball haemorrhages were not identified.” [Transcript page 336, line 46.]

23 An explanation of the foregoing was given by Dr Botterill. A simple fall was explained as a fall in which the head was hit once. A complex fall (i.e. when the head was hit more than once) would include a fall down stairs. Strangulation usually causes burst blood vessels in the eyelids and eyeballs, which were not present. It is possible to have strangulation without them. Likewise, there was no fracture of the hyoid bone (which sits above the langio cartilages). Nor was there damage to the langio cartilages, to which damage occurs even more often in a strangulation.

24 The head injuries are not inconsistent with being hit over the head with a blunt instrument. They are also not inconsistent with being hit on the chin by the juicer component, falling back and hitting the head. The head injuries are also not inconsistent with falling down the stairs.

25 The bruising to the neck is not inconsistent with strangulation. Although, given the absence of petechial haemorrhages (the eyelids and eyeballs) and the absence of damage or fracture to the langio cartilages or the hyoid bone, it is an unusual strangulation, if it be one. It may be consistent with pressure on the carotid artery, at the battery point, causing the heart to slow and/or stop. The bruising to the neck is also not inconsistent with falling down stairs if there were protruding items into or onto which the deceased fell. However, as to the last-mentioned possibility, the injuries are remarkably widespread. Innocent possibilities would also include contact with the metal juice extractor, either at the bottom of the stairs or because the deceased was holding it and came in contact with it on the way down the stairs or at the bottom of the stairs.

26 There are two extracts of Dr Botterill’s examination-in-chief that bear repeating. At Transcript page 351, line 29, speaking of the neck injury, Dr Botterill says:

“These are in keeping with multiple blunt force contacts but I can’t say with certainty what the exact nature of those contacts were. There are a number of possibilities. It is possible that something such as the application of force from fingertips may result in that bruising.

…

It is also possible that other types of blunt force contacts, bumping into various structures, might result in this distribution, although it is remarkably widespread. Blows to that area with some other object may result in these changes. It is also conceivable that some of these changes may be related to attempts at resuscitation … in a very inexpert way … although again that is completely the wrong place to be doing resuscitation. I think they are the range of explanations but the truth is I can’t say which of those particular possibilities is the explanation for those bruises and surface marks ”. (Emphasis added.)

27 Further, at Transcript page 353, line 17, the following extract occurs, also in examination-in-chief:

“Q: And the area of bruising around the neck that you can see in photograph 3, is a possible cause of that an attempted strangulation?
A: Yes, that is a possible explanation. It would be unusual with manual strangulation to have a broad area of bruising such as that just from application of fingers but again it is still conceivable.”

There is no evidence, nor is there a suggestion, of strangulation by other than fingers, or, possibly, accidental strangulation by the arms when Mr Leung was cradling the deceased.

28 Cross-examination of Dr Botterill emphasised the uncertainty in the means by which the injury occurred and offered some other innocent possibilities with which the injuries were not inconsistent.

29 Somewhat unusually, Professor Hilton, called by the accused, has already testified. I do not suggest any inappropriateness. Only that the Crown case has concluded (and this application has been advanced) at a time when expert evidence adduced by the accused is before the Court. It seems axiomatic that if, at the time the application for a directed verdict is made, there be evidence from which the jury could infer relevant elements, that evidence must be taken into account on the application. On the other hand, to the extent that Professor Hilton’s evidence is inconsistent with evidence of that kind, it cannot be utilised. In other words, Professor Hilton’s evidence is able to be utilised only to assist the Crown and not to detract from that which otherwise would be its case. I will treat Professor Hilton’s evidence in that way.

30 Professor Hilton reviewed the autopsy report of Dr Botterill (and also Dr Rodriguez). Professor Hilton had a different opinion on the cause of death and on the mechanism for death, or, more accurately, questioned the capacity to come to any conclusion beyond reasonable medical doubt. This material I do not consider in this application.

31 However, other material was adduced, in a most effective cross-examination of Professor Hilton, as to the cause of the injuries to the neck, in particular. Indeed, the evidence of Professor Hilton on the cause of the injury is the best evidence the Crown has in the case. At page 522, the following exchange between the Crown and Professor Hilton occurs. The Crown [referring to nine curvilinear abraded bruises to the chest and/or neck] asks Professor Hilton:

“Q: You agree that’s possibly signs of a struggle?
A: I think they’re highly suggestive of there being a struggle. [Is it] … exclusive to that, no, but the distribution and number of them, yes, there could.

Q: Before we were talking about manual strangulation and manual strangulation still plays a significant role in this matter; would you agree with that?
A: Yes.

Q: … manual strangulation requires the hands to go up around the neck area, would you agree with that?
A: Manual strangulation implies the application of force to the neck by one or two hands, or, perhaps, in fact, … more….

Q: So those marks on Mr Guzzetti’s chest are consistent, would you agree, with signs of a struggle coincidental with manual strangulation?

A: Coincidental or associated with, yes.”

32 While this evidence seems, at first glance, sufficient of itself to allow the matter to go to the jury, it must be understood in the context of the whole of the evidence. First, “consistent with” is used to mean “not inconsistent with”. Second, Professor Hilton comes to the conclusion, also in cross-examination [Transcript page 528, line 18]:

“I would think the upper trunk, the chest type injuries and the neck type injuries, would be unusual in a fall down the stairs unless that part of the body hits something that was protruding in the course of the said fall.”

The staircase in question had a balustrade (itself described by Professor Hilton as a complex surface) with protruding bollards.

The Drawing of an Inference

33 As already explained, at [6] above, in order to direct an acquittal, it is insufficient to be able merely to formulate a reasonable hypothesis consistent with innocence. There must be no evidence that could sustain a guilty verdict.

34 The Crown relies on what it describes as inferences available from the medical and scientific evidence (already discussed) (namely, the injuries, DNA and blood splattering), the timeline (in particular the alleged 57 minute gap), the tension in the relationship, the lack of any other person with opportunity, the noises heard by the neighbour (and the silence thereafter), together with the financial gain that, it is said, may be motive for the crime. Essentially, the Crown relies upon the facts, set out at [7] and following above, to allow the drawing of an inference that, from all the possibilities for the means by which these injuries have been caused, the jury should (or may) draw the inference that the deceased was strangled and/or hit over the head (either with the juice extractor component or otherwise) by Mr Leung. It is unclear in which order this is said to have occurred.

35 The drawing of an inference is a matter of commonsense. The High Court discussed this issue in Morgan v Babcock & Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163. Morgan was a criminal prosecution for receipt of secret commissions/bribery. The Court said:

“The question involved largely depends upon the degree to which coincidence of events and circumstances warrants a belief in their causal connection. An examination of hypotheses logically consistent with proved facts is the received method of testing their sufficiency to establish the conclusion. In the end, however, the reasonableness or the probability of the occurrence of such hypotheses determines their admissibility, and when coincidence of fact and concurrence of time are relied upon, the sufficiency of the circumstances must inevitably be judged by considering whether general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved.” (Per Knox CJ and Dixon J at 173.4.)

This passage was cited with approval by the New South Wales Court of Appeal in Fabre v Arenales (1992) 27 NSWLR 437 at 445.

Conclusion

36 I take account of all of the facts and circumstances suggested by the Crown. I also take account of the fact that the deceased had been moved or attended to by the accused at a very early stage. The pillow under the deceased’s head, I assume, came from an upstairs bedroom, which may account for the smudge of blood on the balustrade. The accused may also have put the deceased’s slippers on the deceased’s feet. It would be unusual, if the deceased fell down the stairs, for his slippers to have remained on his feet. But that is also true if he had been knocked out or over, or strangled.

37 I am not entitled to consider, in terms of the relationship between the two, that they were sleeping in different bedrooms. There is no evidence to suggest this to be unusual. Nor does it seem that the fact that the front door was open and (contrary, on one view, to their practice) the security door unlocked, facts that would otherwise suggest someone had gone outside, are relied upon by anyone. Nor is the DNA of an unidentified male under the fingernails of the deceased seemingly relevant.

38 Ultimately, the Crown case on cause of death and the means by which it was achieved relies upon the proposition that, “general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved”, namely, the deceased being hit with the juice extractor, falling back and hitting his head causing the head injuries and some attempt at strangulation, before or after this occurrence, causing the neck injuries.

39 In the context of a murder trial, the Crown must prove beyond reasonable doubt: that an act of the accused caused death; that the act was deliberate; and that the accused had an intention to kill, an intention to cause grievous bodily harm or a reckless indifference to human life.

40 In this case, the mechanism, being, in this context, the act that caused the injuries causing death, has to be speculative and, as a consequence, renders a finding of a deliberate act by the accused more speculative. A fortiori, it renders the necessary state of mind for murder, most speculative, and not a matter on which the jury is entitled to draw an inference. The jury is not entitled to conjecture or fill the gaps that, without any criticism of the Crown or the police, necessarily arise in this matter.

41 Further, given the availability on a charge of murder to the alternative of manslaughter, it is necessary to deal with that aspect. Much of the previous analysis, and all of the facts, are relevant in this regard.

42 The relevant difference between murder and manslaughter is, in this case, the state of mind of the perpetrator. In manslaughter it is unnecessary to show an intention to kill or inflict grievous bodily harm. However, it is necessary, relevantly, for the Crown to show an unlawful and dangerous act. Since the act causing death is not proved beyond a reasonable doubt, it is mere conjecture to suggest that the accused committed an unlawful and dangerous act, i.e. an act that a reasonable person would understand had an appreciable risk of serious injury: Wilson v R [1992] HCA 31; (1992) 174 CLR 313 at 333.

43 In the circumstances, I propose to direct the jury to return a verdict of not guilty to murder and, also, not guilty to manslaughter.

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