R v So (No 4) - [2023] NSWSC 1292

Supreme Court

New South Wales

Medium Neutral Citation: R v So (No 4) [2023] NSWSC 1292
Hearing dates: 14 August – 6 October 2023
Decision date: 10 November 2023
Jurisdiction: Common Law
Before: Ierace J
Decision:
The accused is found not guilty.

Catchwords:
CRIME – Murder – Trial by judge alone – Verdict – Where circumstantial Crown case – Accused invited to property of alleged deceased in 2016 – Alleged deceased disappeared four days later – Whether evidence establishes elements of murder beyond reasonable doubt – Whether reasonable possibility accused’s exculpatory account true – Whether reasonable possibility other persons involved in disappearance of alleged deceased

Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8
Criminal Procedure Act 1986 (NSW), ss 133, 161A
Evidence Act 1995 (NSW), ss 53, 65, 165B

Cases Cited:
R v So (No 2) [2023] NSWSC 1052
R v So (No 3) [2023] NSWSC 1113

Texts Cited:
T W Adair and A C Gallardo, “Considering the Target Surface in Bloodstain Pattern Analysis: An Unusual Case of Blood Pooling” (1999) 49(5) Journal of Forensic Identification 485
Chengcheng C. Feng, “Impact of Carpet Construction on Fluid Penetration: The Case of Blood” (2016) Master of Science (Textile Manufacturing) Degree, North Carolina State University, Raleigh, North Carolina

Category: Principal judgment
Parties: Rex
Kylie So (Accused)
Representation:
Counsel:
L Shaw (Crown)
I Nash (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s): 2017/279513
Publication restriction: Some witnesses have been assigned pseudonyms in this judgment and an order has been made pursuant to ss 7 and 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting the disclosure of information that tends to reveal their identity.

JUDGMENT

HIS HONOUR: The accused, Kylie So, was arraigned in the Supreme Court on 2 September 2022 on a charge that she murdered Robert Dickie at Elong Elong between 14 and 15 June 2016, to which she entered a plea of not guilty. The trial commenced at Dubbo on Monday 14 August 2023, to be determined by Judge alone. Closing addresses concluded on Friday 6 October 2023.
The accused was born in Cambodia and initially raised in Vietnam. Her family migrated to New Zealand while she was a child. Her first language is Vietnamese. Her grasp of English is imperfect, warranting the translation of the trial proceedings to her by two interpreters who took turns in that task. The Court is indebted to them for their diligence over such an extended period.
At the commencement of the trial, the parties sought rulings as to the admissibility of certain evidence proposed to be led by the Crown that is the subject of interlocutory judgments, as to hearsay statements and tendency evidence (R v So (No 2) [2023] NSWSC 1052) and expert opinion evidence (R v So (No 3) [2023] NSWSC 1113).
Some witnesses, and persons whose statements or police interviews were tendered or who were otherwise referred to during…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v So (No 4)

Details

AGLC: R v So (No 4) [2023] NSWSC 1292
Case: [2023] NSWSC 1292
Decision Date: 10 November 2023

CaseChat Overview and Summary

The matter of R v So (No 4) was heard in the Supreme Court of Victoria. The defendant was charged with murder, and the case was tried before a judge alone. The circumstances of the case involved the disappearance of an individual in 2016, following an invitation to a property by the defendant. The deceased was not seen again after the visit, leading to the defendant's arrest and subsequent charge of murder. The central issue for the court was to determine whether the evidence presented by the Crown established the elements of murder beyond reasonable doubt and whether there was a reasonable possibility that the defendant's account of events was true or that other individuals were involved in the disappearance.

The court examined the circumstantial nature of the Crown's case, considering the timeline of events, the defendant's actions, and the lack of a body or direct evidence linking the defendant to the crime. The court assessed whether the evidence sufficiently excluded all other reasonable possibilities, including the defendant's exculpatory account and the potential involvement of others. The defendant argued that their account of events was plausible and that there were reasonable grounds to doubt their guilt. The court needed to determine if the evidence was strong enough to satisfy the high standard of proof required in criminal cases, which is beyond reasonable doubt.

After a thorough analysis of the evidence, the court found that the Crown had not established the elements of murder beyond reasonable doubt. The circumstantial nature of the evidence left significant room for doubt regarding the defendant's involvement and the exclusion of other possibilities. The court held that there was a reasonable possibility that the defendant's exculpatory account was true or that other individuals were involved in the disappearance. Consequently, the court acquitted the defendant of the charge of murder. The court ordered the defendant be discharged from the charge, reflecting its finding that the evidence did not meet the required standard of proof.

Orders