R v Wong (Rulings 1 & 2)
[2023] VSC 153
•30 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0342
| Between: | |
| THE KING | |
| -and- | |
| ALEXANDER MIN VUI WONG | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 20 & 21 December 2021 |
DATE OF RULINGS: | 23 December 2021 |
DATE OF PUBLICATION OF REASONS: | 30 March 2023 |
CASE MAY BE CITED AS: | R v Wong (Rulings 1 & 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 153 |
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CRIMINAL LAW — EVIDENCE — Murder trial — Admissions by accused — Making of admissions neither taped nor confirmed on tape subsequently — Whether police suspected, or ought reasonably to have suspected, accused of murder — Evidence admissible — Crimes Act 1958 (Vic), ss 464H & 465.
CRIMINAL LAW — EVIDENCE — Murder trial — Shoeprint impressions in blood at locus in quo — Expert opines that shoes of same brand and size as owned by accused’s wife could have made impressions — Shoes not common — Evidence that accused’s wife left shoes at accused’s home two weeks before murder — Shoes not found after murder — Accused wears one size bigger shoe than wife’s shoes — Accused’s wife believes accused “could not fit into [the] shoes” — Whether probative value of shoeprint evidence outweighed by danger of unfair prejudice — Evidence provisionally admissible — Whether, before shoeprint evidence may be used against accused, jury must be satisfied that shoes left at his home at relevant time — Evidence Act 2008 (Vic), s 137; Jury Directions Act 2015 (Vic), ss 61-63.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Gibson QC with Ms B Goding | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Williams with Mr R De Vietri | Gallant Law |
HIS HONOUR:
Overview
At about 11:09 p.m. on 31 January 2020, Yoke Onn (“Vincent”) Chi’s bloodied and lifeless body was found, by one of his sons, in the entrance hall of his home in Templestowe Lower. Mr Chi had been battered to death with a blunt object, but no weapon was ever found. His wallet, mobile phone and the day’s takings from his business (which he carried in a satchel) were all missing. Thus, at first glance, it appeared that Mr Chi may have been the victim of a burglary or robbery gone wrong.
However, after police received, on that night, a hearsay account of a confrontation between Mr Chi and Alexander Min Vui Wong a couple of weeks earlier, they pursued that line of inquiry. And so it was that, early the next morning (i.e., 1 February 2020), Mr Wong was spoken to by police at the front door of his home in Heidelberg West. He was taken to a police station and formally interviewed. He denied any involvement in the killing of Mr Chi, and was released without charge.
After further investigation, on 9 June 2020, Mr Wong was arrested and formally interviewed again. He repeated his denial of killing Mr Chi. On this occasion, however, police charged him with Mr Chi’s murder, and he was remanded in custody.
Upon his arraignment in this Court on 31 January 2023, Mr Wong pleaded not guilty in the presence of a jury panel. A jury of 14 was then empanelled. On 10 March, following a trial occupying 29 days, including two days of deliberations, the jury (who, by this time, numbered 12) found Mr Wong not guilty of Mr Chi’s murder.
Back on 23 December 2021, following a voir dire, I made two pre-trial rulings of significance concerning the admissibility of evidence. The first ruling concerned admissions made by Mr Wong to police (but not electronically recorded) at the front door of his premises. The second concerned evidence of shoeprint impressions found in Mr Chi’s blood at his premises. I ruled that both pieces of evidence were admissible, albeit on a provisional basis in respect of the shoeprint evidence.
I gave detailed reasons for those rulings at the time. So as to avoid prejudicing any jury, however, I deferred publishing those reasons to the world at large until after the completion of the trial.
Those reasons follow now. They have been edited, though, and also supplemented to allow for subsequent events. Further, as will be noticed, I have left them in the present tense, looking ahead to the trial that was to be conducted.
Background
There are no eye-witnesses placing Mr Wong at the scene of the killing on 31 January 2020. Nor has Mr Wong made any admissions that he was there or that he killed Mr Chi. On the contrary, as we have seen, he denies killing him or being at his premises on that night. Thus, the prosecution case is circumstantial in nature. In short, the following will be alleged at trial.
Mr Chi operated the China Bar restaurant at Northland Shopping Centre. One of his employees was Penny Chung. Mr Wong, who worked as a plasterer, was married to Ms Chung. Mr Chi lived with Ms Chung and Mr Wong for a period at their home in Heidelberg West. Subsequently, Ms Chung left Mr Wong to live with Mr Chi at his home in Templestowe Lower.
Mr Wong believed that Ms Chung had been having an affair with Mr Chi. Two weeks before the killing, Ms Chung left for Malaysia, permanently. However, Mr Wong believed that his wife and Mr Chi were still in contact with each other in the following two weeks.
The prosecution case is that, soon after about 8:50 p.m. on 31 January 2020, Mr Wong left his home in Heidelberg West and travelled to Mr Chi’s home in Templestowe Lower. He then entered the house via the garage and back door, and waited for Mr Chi, who arrived home from work at about 9:30 p.m. It will be alleged that, immediately thereafter, Mr Wong fatally assaulted Mr Chi with a rubber mallet. He then returned to his home, at which time he sent a picture message via WhatsApp to others at 10:08 p.m.
The principal issue at trial will be the identity of the killer. Among other things, the prosecution case includes proposed evidence in the following categories that, it is said, in combination, will show that Mr Wong killed Mr Chi.
First, there is evidence of animus of Mr Wong towards Mr Chi. This is said to stem from Mr Wong’s belief that Ms Chung and Mr Chi had been having an affair.
Second, there will be evidence that Mr Wong knew of Mr Chi’s movements, including when he was likely to have gone home after work.
Third, in a similar category is evidence that Mr Wong had been inside Mr Chi’s home previously, and therefore would know how to gain entry to those premises.
Fourth, there will be evidence of DNA results said to reveal:
a) Mr Wong’s DNA inside a pocket of the pants Mr Chi was wearing at the time of his death;
b) Mr Chi’s DNA on a glove found out the front of Mr Wong’s premises the morning after the killing; and
c) Mr Chi’s DNA on a towel found at Mr Wong’s premises.
Fifth, there will be evidence of telephone analysis that suggests a gap in Mr Wong’s telephone use during the period on 31 January last year when Mr Chi must have been killed. Thus, it will be said that this shows there was opportunity for Mr Wong to commit the murder.
Sixth, there is evidence that Mr Wong, through his work, had access to rubber mallets of the type consistent with the injuries to Mr Chi. I should add that no such mallet was found at Mr Wong’s premises.
Seventh, there will be evidence of admissions made by Mr Wong. Some of those admissions were made to police in his digitally-recorded formal interviews; and some were made to civilians. A third category of admissions concerns things Mr Wong said to police at his front door early on the morning after Mr Chi was killed. It is the admissibility of those latter admissions which is the subject of one of the two rulings I am about to make.
Finally, the prosecution proposes to lead expert and other evidence concerning shoeprints found in blood near Mr Chi’s body. The admissibility of that evidence is the subject of the second ruling I am about to make.[1]
[1]At this point in the reasons delivered on 23 December 2021, I referred to evidence of Facebook posts that the prosecution proposed to lead at the trial. Since that evidence was not ultimately led at trial, I think it is neither necessary nor appropriate to refer to it in these reasons.
There is other proposed evidence, but the foregoing summary will suffice for present purposes.
Ruling 1: Pre-arrest admissions
The evidence of admissions in issue
I turn now to my ruling concerning the things said to police by Mr Wong at his front door early on 1 February 2020.
At 6:22 a.m. that morning — which was about seven hours after the discovery of Mr Chi’s body — three police officers went to Mr Wong’s house. Among other things, Mr Wong told police he had been home the previous evening. He said that Mr Chi, whom he knew as Vincent and as the boss at the China Bar, had stayed with him and Ms Chung previously. Mr Wong said words to this effect: “He fucked my wife in my own home. I very hate, but what can I do? Who do that?” Police then told Mr Wong that Mr Chi was dead. Mr Wong asked, “How?” They said that someone killed him. Mr Wong asked where this occurred and whether it was in Malaysia. The police told him that it occurred here.
As I understand it, the prosecution proposes to lead at least part of this evidence — in particular, the part where he said, “He fucked my wife in my own home. I very hate, but what can I do? Who do that?” — as admissions by Mr Wong showing his belief that Mr Chi and Ms Chung had an affair, and that he bore animus towards Mr Chi.
This, it would be submitted to a jury, makes it more likely that he was the killer. This evidence is also said to be consistent with the fact that Mr Chi appears to have been bashed ferociously, suggesting a crime of passion, and making it less likely that Mr Chi’s killing resulted from a burglary or robbery by a stranger.
Section 464H of the Crimes Act
Mr Wong’s challenge to admissibility relies upon s 464H of the Crimes Act 1958 (Vic). Relevantly, s 464H(1) provides that, subject to an exception in subsection (2), evidence of an admission made to an investigating official by a person who was suspected, or ought reasonably to have been suspected, of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless at least one of the four things specified in paragraphs (c) to (f) (concerning recording) have been met.
In this case, whichever paragraph is relied on, the point is that, if either or both of the preconditions (about suspicion) just mentioned are engaged, s 464H(1) requires that the substance of the admission was confirmed by the person who made it and the confirmation was recorded by audio recording or audio-visual recording.
The admissions in question were not recorded by audio or audio-visual recording. Nor was that admission put to Mr Wong subsequently and confirmed by him on an audio recording or audio-visual recording.
Relevantly, s 464H(2) provides that a court may admit evidence of an admission otherwise inadmissible by reason of subsection (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances are exceptional and justify the reception of the evidence. In this case, the prosecution did not seek to rely on that exception in the alternative.
Nor, for that matter, was any other exclusionary provision agitated by Mr Wong.
Instead, the only point at issue was whether, within the meaning of s 464H(1), when police received the admission, they (or any one of the three police concerned) suspected, or ought reasonably to have suspected, Mr Wong of having committed an offence. That question, which is largely one of fact, is therefore determinative of the admissibility of the evidence.
Submissions
Mr Williams, who appeared with Mr De Vietri for Mr Wong, submitted that, on the evidence before the Court on the voir dire, I should be satisfied that either or both of those preconditions concerning suspicion were met, and that s 464H(1) was therefore engaged.
Ms Goding, who was led by Mr Gibson QC for the Director of Public Prosecutions, submitted that neither test was met on the evidence, and that the admissions made by Mr Wong were therefore admissible in the trial.
Discussion
In order to determine the matter, in addition to considering the depositions generally, I have had regard to the viva voce evidence I have heard from four police officers — namely, Detective Senior Sergeant Sol Solomon, Detective Leading Senior Constable Sophie Leete, Detective Acting Sergeant Scott Riley and Detective Senior Constable Rebecca Norris. Each officer also provided his or her notes. Additionally, Detective Solomon produced a briefing note written on 1 February 2020. Detective Norris also produced an email that she sent to other police on the same morning regarding a PACE alert concerning Mr Wong, as well as an incomplete PACE alert request, a copy of a search warrant issued in respect of Mr Wong’s premises, and a copy of an affidavit she drafted (and which was sworn by another officer) in aid of the application to a magistrate for that search warrant.
I also received detailed written and oral submissions from counsel on this issue.
I shall give a very brief, and incomplete, outline of some of the evidence relevant to this ruling. I shall do the same in respect of the second ruling.[2]
[2]In the reasons I gave on 23 December 2021, I indicated that, in the settled reasons to be given at a later time, I would go into more detail about the evidence, the submissions of the parties, and the applicable law. On reflection, apart from some editing and the provision of information about subsequent events, I considered it unnecessary to provide that level of detail the purposes of publishing these reasons now.
Turning to the evidence on the voir dire, Detective Solomon headed the investigation. In the early hours of the morning following the discovery of Mr Chi’s body, Detective Solomon, along with Detectives Leete, Riley and Norris, attended a briefing conducted by a Detective Senior Constable Damien Coutts. At that briefing, all four officers were told, among several other things, the following:
a) Ms Chung used to live at Mr Chi’s home.
b) She was employed by Mr Chi at the China Bar (in Northland Shopping Centre), and that Mr Chi managed that business.
c) Ms Chung returned to Malaysia about two weeks earlier.
d) She was divorced from her husband.
e) Ms Chung’s husband, who remained in Australia, had verbally threatened Mr Chi about two weeks earlier, before she left.
f) Police did not have the details of the husband (who, of course, was Mr Wong, which police discovered a little later).
The officers believed that this information had come from Mr Chi’s son.
Detective Solomon said that, after the briefing, he tasked Detectives Leete, Riley and Norris to identify and locate Ms Chung’s husband to see what he had to say. He said that he also tasked them to apply for a search warrant of the husband’s premises. However, despite the legal basis for an application for a search warrant, which is set out in s 465 of the Crimes Act, the detective believed that the husband was only a person of interest at that stage; he did not consider him to be a suspect.
In support of that account, Detective Solomon produced a briefing note that he drafted at 4:15 a.m. that morning for distribution to police further up the chain of command. In that note, he had said, “Investigation ongoing. Nil suspects at this stage.” This, he said, reflected his state of mind that there were no “actual suspects”.
By about 5:00 a.m., police had learned of Mr Wong’s name, address and date of birth.
At about 5:57 a.m., Detective Norris emailed other police requesting the passport details of Mr Wong. She said that police had started a PACE alert and saved it in a folder. The detective added that “[t]here is no arrest power at this stage, just notify us”. As I said, the incomplete PACE alert was also produced. In it, it was said that Mr Wong “may be violent”, that he was a “person of interest in a homicide in Victoria on 1 February 2020”, and that it was a “Commonwealth offence” of “murder”.
At about 6:22 a.m., Detectives Leete, Riley and Norris attended Mr Wong’s premises. As I mentioned earlier, it was then that Mr Wong made the admission in question, and said some other things. He also handed police Ms Chung’s phone, which, he said, evidenced the affair between Mr Chi and Ms Chung. In addition, he told police that he had no involvement in the death of Mr Chi and that he was willing to accompany the officers to Preston Police Station to make a statement.
Like Detective Solomon, all three officers rejected the suggestion that they suspected Mr Wong of any offence following the briefing or at any point before they heard the admission by Mr Wong. Instead, in their minds, at least prior to the admission, he was merely a person of interest.
The three police and Mr Wong arrived at Preston Police Station at about 7:00 a.m. While the precise circumstances are not entirely clear, it seems that Detectives Riley, Norris and Solomon discussed the case further. It was at that point that their states of mind changed about the status of Mr Wong. He was now regarded as a suspect and, in consequence, a decision was made to arrest and interview him.
It was also at that time that Detective Norris began drafting the affidavit for the purposes of an application for a search warrant.
At 7:15 a.m., Detective Norris sent another email to the officers handling the potential PACE alert. In this second email, she said, “Stand down for the moment. We have him at Preston Police Station. I’ll let you know if anything changes.”
At 7:54 a.m., Detective Norris spoke to Detective Acting Senor Sergeant Stephen Love about approval for the affidavit. Later, at 9:11 a.m., she emailed the draft affidavit to Detective Love, who later swore the affidavit.
At this point, I should note that Detective Norris had a different recollection from Detective Solomon as to when the application for a search warrant was first mentioned. She believed that the search warrant was not mentioned until after their attendance at Mr Wong’s premises. Her notes are consistent with that belief, as there is no mention of a search warrant in them until 7:00 a.m., where she noted words to this effect: “Attend to search warrant for Mr Wong’s address as discussed with Detective Solomon” and “Mr Wong arrested by Detective Riley”. This view is supported somewhat by the evidence of Detective Leete to the effect that, if a search warrant had been in contemplation when they attended Mr Wong’s premises, they would have ensured that other police guarded the premises when she and the other detectives left for Preston Police Station.
Another complicating factor in the evidence, however, was that, in the affidavit drafted by Detective Norris for the search warrant, she said this:[3]
When spoken to by police, Mr Chi’s son stated that a woman by the name of Penny Chung used to reside with his father and they had a close friendship. Ms Chung went back to Malaysia two weeks ago, after leaving her marriage to her husband Alex Wong. Prior to her departure, Mr Wong had allegedly made threats to kill Mr Chi as he believed that Mr Chi and Ms Chung were having an affair.
[3]My emphasis.
As can be seen, the affidavit spoke of an alleged threat to kill, as opposed to some undefined threat. Detective Norris said that she did not believe that she received any further information about the alleged threat between the briefing by Detective Coutts and the drafting of the affidavit. On the other hand, she said that her mention of a threat to kill may have been an error. As she pointed out, there was nothing about a threat to kill in her notes. She also accepted the importance of the getting an affidavit right, and that she would not guess at or make up such a thing.
Quite properly, I think, Detective Norris conceded that, had she believed the alleged threat was to kill, that “may have changed our view” because “it escalates it; it makes it more serious”.
Indeed, in my view, given the other information that police were given at the briefing, if those police that attended at Mr Wong’s premises had understood that the allegation was that he had threatened to kill Mr Chi only two weeks earlier, then it would be open to conclude that they ought reasonably to have suspected Mr Wong of an offence before he made the admission.
In the end, however, I am not satisfied that those officers believed that there had been an earlier threat to kill Mr Chi at the time they attended at Mr Wong’s premises. In none of the notes is it recorded that Mr Wong is alleged to have threatened to kill Mr Chi. Nor, on the evidence, did Mr Chi’s son allege that that is what he was told.
Instead, I accept that Detective Norris simply made a mistake in drafting the affidavit. While I am unable to say why she made that mistake, it seems reasonable to me to think that, by the time she came to draft the affidavit, having heard Mr Wong’s admission when at his premises, Detective Norris put two and two together and subconsciously and mistakenly came up with five, as it were. Or perhaps she just made a simple drafting error. I note that, in the draft affidavit, after mentioning the threat to kill and then setting out the substance of the admission in issue, Detective Norris said this:
Investigators believe that there was animosity between Mr Chi and Mr Wong and threats had recently been made by Mr Wong against Mr Chi. On that basis, investigators believe that Mr Wong has attended the address and killed Mr Chi.
Thus, while she mentioned “threats”, she did not mention a threat to kill at that point.
Whatever the true explanation, I am satisfied that it was a mistake and that none of the three officers at Mr Wong’s premises thought any such thing at that time.
On the question of when the search warrant was first mentioned, I prefer Detective Norris’s account to that of Detective Solomon. Detective Norris was firm about that. Moreover, her notes supported her account. Detective Solomon, on the other hand, while seemingly firm in his belief that that is what he asked the other three officers to do just after the briefing, does not have a note that supports this memory. Both officers suffered from the difficulty in recalling the finer details of a night’s work that occurred nearly two years ago. Indeed, this difficulty was even more evident, I thought, in the evidence of Detectives Riley and Leete. All of these officers were working in the middle of the night, presumably under great time pressure. I think it is easy to see how, in those circumstances, nearly two years later, the precise order of events and the intricate detail might be harder to recall accurately. That, I should say, is when notes can become even more important than usual in assisting the Court to resolve matters of fact. And, as I have said, Detective Norris’s notes are at least consistent with her memory of things, whereas Detective Solomon’s are silent on the matter.
In those circumstances, the potential inconsistency between, on the one hand, a belief sufficient for an application for a search warrant and, on the other, an expressed belief that Mr Wong was only a person of interest, and not a suspect or one who ought reasonably to have been suspected at that time, rather falls away.
Further, it is not Detective Solomon’s belief that ultimately matters anyway. Rather, it is the belief of those to whom the alleged admission was made that is material for the purposes of considering whether or not the tests in s 464H(1) might be engaged.
Conclusions
Thus, for these reasons, I am not satisfied that the three officers to whom Mr Wong uttered the alleged admissions at his premises suspected, or ought reasonably to have suspected, him of an offence.
There was some discussion about where the onus of proof lies on an issue of this nature. If it be that the prosecution bears the onus of proving that police did not suspect, or ought not reasonably have suspected, that Mr Wong had committed an offence, then I am prepared to say that, for the same reasons, I am satisfied that that burden has been met.
Accordingly, s 464H(1) is not engaged, and the challenge to the admissibility of the evidence on that basis must fail.
Ruling 2: Shoeprint evidence
The shoeprint evidence in issue
I turn now to my ruling on the shoeprint evidence.
On this issue, I had the benefit of hearing viva voce evidence from Leading Senior Constable Christine Huf, who is the expert who would give the opinion evidence at the heart of the evidence that is challenged. I also had regard to her statement, various photographs, the statement and previous evidence of Ms Chung, and some other materials and statements.
In short, LSC Huf’s evidence was that the shoeprints found in Mr Chi’s blood around his body in the hallways of his home could have been made by non-slip shoes of the same brand and size (i.e., size 7) said to have been owned and previously worn by Ms Chung. There was no dispute that, much earlier, Mr Wong had bought Ms Chung a pair of shoes of the same brand and size for work purposes, and that she had worn them when working at the China Bar.
There was also evidence of the number of shoes of that brand and size sold during the relevant period. Put shortly, it might be argued that the shoes were not very common.
While parts of her evidence were unclear, there was evidence from Ms Chung that she had left her particular shoes at the Heidelberg West premises when she departed (permanently) for Malaysia about two weeks before Mr Chi was killed. Further, police did not find those shoes when they searched the Heidelberg West premises after the killing.
Thus, it was the prosecution case that it could be inferred that Mr Wong had access to Ms Chung’s shoes at the relevant time. It was said that this fact, when combined with LSC Huf’s opinion and the other evidence about the shoes, tended to point to Mr Wong as the killer.
Submissions
Mr Williams indicated at the outset that he no longer disputed the relevance of the proposed evidence. Nor did he make any challenge to the expertise of LSC Huf.
Instead, his argument was confined to a submission that the probative value of the proposed shoeprint evidence is outweighed by the danger of unfair prejudice to Mr Wong. In other words, he relied on s 137 of the Evidence Act 2008 (Vic). He submitted that the evidence was of only slight or very low probative value and that the danger of misuse of the evidence by a jury was high. Further, he submitted that directions would not sufficiently alleviate any or all of the risks of unfair prejudice.
Mr Gibson conceded that the probative value of the evidence was modest or moderate, but disputed that it was slight. In his submission, directions could be given in such a way as to ensure that the evidence was not elevated beyond its true value and was not misused by a jury.
Discussion
I confess that I have found this issue rather difficult. Some might say that that is reason enough to exclude the evidence, particularly in circumstances where the prosecution case appears to be rather strong, even without the evidence. The aphorism “If in doubt, leave it out” is often a safe way to think when teetering on admissibility questions like this one.
In the end, however, after initial doubts, I have been turned around on the matter. In particular, subject to an important qualification to which I shall come later, I am persuaded, presently, that the probative value of the proposed shoeprint evidence is not outweighed by the danger of unfair prejudice to Mr Wong. While I accept that the evidence, at its highest, is properly described as being of only modest or moderate probative value, and while I also accept that there are inherent risks in the evidence of unfair prejudice to Mr Wong, I am also satisfied that, carefully handled and with the appropriate directions, the evidence does not fall foul of s 137.
I turn first to probative value. I do not accept Mr Williams’s submission that this proposed evidence has less probative value than, or is of similar probative value to, the shoeprint evidence impugned in Volpe v The Queen.[4] Instead, I think it is of greater probative value. In this respect, in the main, I accept the submissions of Mr Gibson. In particular, I think it is significant that, here, it is plain that the shoeprints were made at a time immediately proximate to the killing, whereas in Volpe that was not so. Indeed, in that case, the shoe impression could have been made at a time unconnected with the disposal of the body. As I apprehend the Court of Appeal’s reasoning in Volpe, that was a key consideration informing the view that the evidence was of only slight probative value. Here, by way of contrast, there is a powerful inference that the shoeprints were made at the time of the killing of Mr Chi or in the immediate aftermath.
[4]Volpe v The Queen [2020] VSCA 268 (Priest, T Forrest and Weinberg JJA).
Further, while it is true that it is significant there were no shoes seized from Mr Wong’s possession to be compared with the shoeprints in the blood, it must be remembered that the shoeprint in Volpe was of a lesser quality (for comparative purposes) than the shoeprints in the present case. This, I think, meant that there was a greater risk that a jury would give an impermissible cloak of authenticity to the expert’s evidence in Volpe than there would be in the present case. Here, I think, because the shoeprints are comparatively full and clear, the proposed expert evidence of LSC Huf is much more straightforward and appears less reliant on expertise for its understanding, and therefore less likely to be subject to any “CSI effect” or similar notion.
Thus, I think there is some moderate probative value in the evidence, if accepted, that, at the relevant time, Mr Wong potentially had access to a pair of shoes that, it seems, are not common and that could have made the impressions found in Mr Chi’s blood.
As for directions to guard against potential misuse of the evidence, I think that directions of the kind given by T Forrest J in the trial that led to the decision in Wu v The Queen,[5] adapted to the circumstances of this case, would go some way to alleviating the concern that the jury might misuse the fact that Ms Chung’s shoes have not been found.
[5]Wu v The Queen [2014] VSCA 79 (Weinberg, Tate and Coghlan JJA). See also R v Wu [2013] VSC 375 (T Forrest J).
Subject to hearing from counsel, another direction might be fashioned to deal with the concern that jurors might be tempted to try their own “Cinderella experiments”. This will be particularly important given that I understand the prosecution will seek to counter the argument that, since there is evidence that Mr Wong was a size 8, not a size 7, and since Ms Chung believes that he could not fit into the (missing) shoes in question, it is unlikely that Mr Wong would be getting about in those shoes.
Further, I should say that I am not much attracted to the argument that the evidence might be used to support a prosecution submission that the jury should conclude that Mr Wong deliberately used smaller shoes as a way of deflecting blame from himself. Apart from its being not much of an argument, I fear that it is the type of submission that would court an even greater risk of a jury reasoning in a flawed manner. If anything — again, subject to hearing from counsel — I would consider warning a jury expressly that they must not reason in that fashion.
Perhaps just as important as these directions about misuse will be a direction, or a series of directions, explaining the limited use to which the evidence might be put. I do not stay to set out those possible directions in these reasons.
Further, a direction may be required to explain that the evidence is of no worth unless the jury are satisfied of certain preconditions to its use. This is the qualification which I foreshadowed earlier. Let me explain.
Thus far, I have assumed that the evidence will be capable of proving that Ms Chung did in fact leave her shoes at the Heidelberg West address. If, however, the evidence did not fall that way, and was not capable of proving that fact, it seems to me that the probative value of the evidence would be very much reduced, and perhaps even eliminated entirely. Indeed, even if the evidence could not be said to be worthless, it may be that, in those circumstances, the probative value of the evidence would be outweighed by the danger of unfair prejudice, such that the evidence would have to be excluded pursuant to s 137 in any event. Alternatively, it may be that there is enough left in the evidence to warrant its admission, but with even stronger directions about its limitations and the preconditions to its use adversely to Mr Wong.
In considering this issue, I have paid close regard to Ms Chung’s statement and her evidence on the s 198B hearing. I must say that her evidence did not strike me as very clear at all. Indeed, I am troubled about the worth of some of her answers, given what appears to have been a difficulty she had in understanding the questions through an interpreter. It strikes me that there is a substantial risk that, whatever her evidence may be thought to have meant thus far, it may be different on another occasion.
I think that the parties should give serious thought as to how to manage the possibility that the evidence ultimately could fall one way or the other on this issue. One way of doing so would be to hear further evidence from Ms Chung on a voir dire before jury empanelment. If that were done, the question of admissibility then might need to be revisited.
Of course, if the evidence fell short during a trial before a jury, the question would arise as to whether to press on, with directions addressing that turn of events, or to discharge the jury and start again.
Conclusions
Thus, with those caveats in mind, at the moment, I am prepared to rule, but only provisionally, that the evidence is admissible and is not rendered inadmissible pursuant to the test in s 137.
But, for the reasons I have given, further thought needs to be given to this issue. I am happy to discuss my thoughts about the matter with counsel now, if that would assist.
Subsequent events
Provisional ruling made absolute after further evidence from Ms Chung
I return now to the present day.
After I delivered the foregoing ruling, the parties agreed that further evidence should be heard from Ms Chung on a voir dire concerning her work shoes. At the voir dire (and in her later pre-recorded evidence for the trial proper), it became clear that Ms Chung’s account was that, before leaving for Malaysia, she left those shoes at Mr Wong’s premises in Heidelberg West. She maintained this position notwithstanding a prior written statement to police to the effect that, while she did not take the shoes back to Malaysia, she was not sure where she left them.
In those circumstances, I considered that where the shoes might have ended up was a jury question, and I made absolute my provisional ruling as to the admissibility of the shoeprint evidence.
Directions on proof that shoes left at accused’s premises
Later still, at trial, it was accepted by counsel that the jury would have to be satisfied that Ms Chung did in fact leave the shoes at the Heidelberg West premises before the shoeprint evidence could be used adversely to Mr Wong. I gave the jury directions to that effect, including an explanation as to why that was a necessary step in their process of reasoning.[6]
[6]In short, the point was that, if the shoes might not have been left at that address, they might have been left somewhere else — for example, at the China Bar or at Mr Chi’s house — or thrown out. In any one of those situations, there could be no connection between the shoes , the imprints left at the scene, and Mr Wong. This is because, in any of those circumstances, almost anyone, including any random burglar, could have left the shoe impressions in question.
As to the level of satisfaction required, my initial view was that, in the circumstances of this particular case, this was one of those facts that the prosecution should be required to prove beyond reasonable doubt. However, then there were ss 61 and 62 of the Jury Directions Act 2015 (Vic) to consider, including the abolition of the rule attributed to the High Court’s decision in Shepherd v The Queen[7] — namely, that in appropriate cases a jury must be directed that they must be satisfied beyond reasonable doubt of an indispensable intermediate fact.
[7]Shepherd v The Queen (1990) 170 CLR 573.
In pre-trial argument, Mr Gibson initially agreed that, notwithstanding the terms of ss 61 and 62, it would be appropriate to direct the jury that they must be satisfied, on the criminal standard of proof, that Ms Chung left the shoes at Heidelberg West premises before they could use the shoeprint evidence adversely to Mr Wong. On reflection, however, he later withdrew that submission. Mr McQuillan, who (after Mr Williams’s move to the magistracy) came in to lead Mr de Vietri at the trial proper, agreed with Mr Gibson that merely to say that the jury must be “satisfied” of that fact would be sufficient, but suggested that the word “sure” might be used instead.
In the end, I stuck with the term “satisfied”. Apart from the strictures of ss 61 and 62 — which, in my opinion, are misguided provisions — I was concerned that to identify and isolate a particular fact as requiring proof beyond reasonable doubt might suggest to the jury that some lesser standard of proof might be applied to other facts, when those other facts may well be essential to the jury’s satisfaction beyond reasonable doubt of an element of murder — and, in particular, whether Mr Wong was the killer, which became the sole element in issue in this case. There was a real risk that this might occur in the present case given that, depending upon how they assessed the evidence and reasoned, any one or more of a number of features of the prosecution case might have been regarded by the jury as essential to satisfaction beyond reasonable doubt that Mr Wong killed Mr Chi. Those factors included whether Mr Wong truly had the opportunity to commit the murder; whether, and in what circumstances, Mr Wong’s DNA ended up in Mr Chi’s back pocket; and whether, and in what circumstances, a glove with Mr Chi’s blood/DNA on it came to be on the front lawn/parking area of Mr Wong’s home on the morning after the killing.
I should add, though, that the term “satisfied”, unqualified by any standard of proof, when employed in the course of the direction in issue, was set against the other directions I gave, elsewhere in the charge, concerning the onus and standard of proof required in respect of the elements of murder. In particular, after giving directions on the meaning of “proof beyond reasonable doubt”,[8] I said the following:
[8]In conformity with s 63 of the Jury Directions Act 2015 (Vic).
Unless I tell you otherwise, whenever I say the prosecution must prove or establish a matter, or that you must be satisfied about a matter the prosecution must prove, I mean that it must be proved beyond reasonable doubt.
Remember, there is no onus on Mr Wong to prove or establish anything or to satisfy you of anything. Never.
Now, the prosecution does not have to prove every fact it alleges in a case beyond reasonable doubt. There might be some things alleged by the prosecution that you are not satisfied about to that standard or at all. But, depending on the nature and importance of the fact, that might not matter, because those things might not be an essential step in your reasoning towards proof of one of the elements of murder. However, in order to prove that Mr Wong is guilty of murder, the prosecution must prove beyond reasonable doubt each and every one of the four elements of murder.
The jury were also given standard directions on inferences and circumstantial evidence.
It was in those circumstances that counsel were content with my use of the term “satisfied” vis-à-vis proof that the shoes were left at Mr Wong’s address as a precondition to the potential use of the shoeprint evidence adversely to him.
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