R v Zheng (Ruling No 5)
[2013] VSC 559
•17 October 2013
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0029
| THE QUEEN | |
| v | |
| DE JUN ZHENG | Accused |
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JUDGE: | CROUCHER J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 16 & 17 October 2013 | |
DATE OF RULING: | 17 October 2013 | |
CASE MAY BE CITED AS: | R v Zheng (Ruling No 5) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 559 | |
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CRIMINAL LAW – Ruling No 5: Application for certification for leave to commence an interlocutory appeal – Criminal Procedure Act 2009 (Vic), s 295 – Certification refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams SC | Office of Public Prosecutions |
| For the Accused | Mr G Georgiou SC | Turnbull Lawyers |
HIS HONOUR:
Introduction
On Monday 30 September 2013, I had a jury of twelve persons empanelled to hear the trial of De Jun Zheng on a charge of murder. It is alleged that, on 12 February 2009, Mr Zheng murdered Abraham Marco Papo in South Melbourne. Mr Zheng pleaded not guilty.
Towards the end of the court day on Tuesday 15 October 2013, Ms Williams SC, Senior Crown Prosecutor, announced that the Crown case was closed. Earlier, Mr Georgiou SC, counsel for the accused, had advised the Court in the absence of the jury that his client would not be going into evidence. Accordingly, I told the jury that that was the conclusion of evidence in this case and sent them away until 11:30am the next day – an hour after their usual commencement time – so that some legal matters could be dealt with in their absence, after which we would hear the final addresses of counsel and my charge. The legal matters to which I was referring were the issues that arise under ss 10-11 and 13-15 of the Jury Directions Act 2013 (Vic) (“the JD Act”).
The discussion of matters under the JD Act commenced that evening and continued the next day, Wednesday 16 October. During that discussion, I raised with counsel a series of questions relating to whether intention to kill or cause really serious injury (“murderous intent”) and the absence of lawful justification or excuse (in this case, the absence of self-defence) must be proved to be wholly contemporaneous with each of the conscious, voluntary and deliberate acts being relied on by the Crown as the acts, in combination, that caused death. Ultimately, I came to the view that the answer to that question must be yes, both as a matter of principle and in the particular circumstances of this case. (Below, I shall explain the particular circumstances in which this issue arises in the present case.) I also indicated, orally, the types of directions I was contemplating would be necessary to give the jury to deal with that point in the particular circumstances of this case.
Ms Williams disagreed with my view of the matter. Mr Georgiou agreed in the proposed directions. Ms Williams sought instructions on Wednesday and ultimately indicated that the Director of Public Prosecutions (“the Director”) wished to apply for certification for leave to commence an interlocutory appeal pursuant to s 296(3) of the Criminal Procedure Act 2009 (Vic) (“the CP Act”) against my proposed directions. At that time, I was also in the process of considering an application by Mr Georgiou to discharge the jury without verdict because of a query made by a juror to my tipstaff earlier that day. That application was opposed by Ms Williams. I indicated I would consider both applications overnight. The jury, who had been waiting since 11:30am., were sent home for the day and asked to return this morning at 10:30am.
I heard further argument on both applications this morning. Ms Williams indicated she now supported the accused’s application to discharge the jury. Over lunch today, at my suggestion, Ms Williams sought further instructions on whether, rather than persisting in the application for certification for an interlocutory appeal, the Director might choose an alternative course to pursue the point, if that became necessary – namely, a Director’s reference after trial under s 308 of the CP Act. Ms Williams advised after lunch that the Director persisted in the application for certification under s 296 and that he would not be pursuing the alternative course under s 308.
After being so advised, at about 2:45pm today, I refused the application by the Director for certification. What follows are some brief reasons for my decision to refuse to certify.
The reasons are necessarily brief because they are given in circumstances where Ms Williams had earlier advised that, if I refused certification, the Director would seek to review that decision in any event and that it was hoped that, whatever I decided, the matter would be heard by the Court of Appeal tomorrow, Friday 18 October, so that the trial could resume as soon as possible. I was of the view that the Court might be assisted by at least some brief reasons rather than being confined to divining my thinking from the transcript of the trial.
Cognisant of the Director’s decision to proceed with the proposed interlocutory appeal regardless, but in the hope that the matter could be dealt with expeditiously tomorrow, I brought the jury in, apologised for the delay (which I attributed to my own failings) and explained that they would be sent away until Monday 21 October.
The Crown case
Before explaining the issue in more detail, I should set out the more important features of Crown case, very briefly. This summary is necessarily incomplete given the limited time I have had to compile these reasons.
The deceased believed that his girlfriend, who worked as a prostitute, was being held captive in Sydney and that the accused had something to do with this state of affairs. (The Crown accept that the deceased’s belief was simply wrong: his girlfriend was not being held hostage and the accused had nothing to do with any such thing.) In the early hours of 12 February 2009, fixed with this mistaken belief, the deceased drove to Madam Leona’s brothel at 59 York Street in South Melbourne. He parked his car across the road in Clarke Street. He left the car, probably with the engine running (this is likely because the car had a timing device that meant the engine continued to run for some minutes after the ignition was switched off and the key was removed, in order to cool down the turbo charger). He went into Madam Leona’s. The accused was seated at the counter. The deceased punched the accused to the face, stole about six mobile phones on the counter and left. The accused slumped forward onto the counter. The accused eventually gathered himself and followed the deceased outside soon afterwards.
The deceased went to his car. The accused may have said some things to the deceased from around the middle of York Street but there was no confrontation between them at that point. The accused went to the driver’s side door, yelled at the deceased (who was seated in the driver’s seat) and struck him several times to the head, face, neck and other regions of his body with a wheel brace. This, I understand, is to be inferred from the injuries sustained by the deceased and the observations of the witness, Mr Wang, who worked at the brothel and saw the accused striking at the driver’s side window area of the car. He did not actually see any blows struck to the deceased. The accused also struck the car with the wheel brace, damaging the windscreen, the driver’s side mirror and window and the driver’s side rear window. (The latter window, which was tinted, was found on the road near the car.) At some point, the car moved forward and came to rest in an angled position at the intersection of York and Clarke Streets. Ms Williams concedes that the Crown cannot say from where the wheel brace came.
Two onlookers called the police at various points during this episode. Mr Wang called them once. During his call, the sound of the deceased’s car revving at its limit could be heard. Ms Gao, who also worked at the brothel, called them twice. The accused asked Ms Gao to ring the police and the ambulance.
When the police arrived, the deceased was standing beside the car holding the wheel brace. He was told to drop it and to sit down, which he did.
Police seized an imitation firearm (which turned out to be a cigarette lighter in the shape of an old-fashioned pistol) from the driver’s side foot well of the deceased’s car. One police officer initially thought it may have been a knife. Another thought it was a gun. It was apparent watching them give evidence that they got a fright when they saw the item.
There was evidence that, when police and ambulance officers arrived at the scene, the accused expressed concern that the deceased should be attended to and not him, as he was not complaining of any pain or injury to himself. Those in attendance noted that the accused had a bloodied face, a cut on the back of his head and blood on his hands.
The deceased was found sitting in the driver’s seat. He may have been breathing – he may have expirated some blood initially – but, if he was still alive, he died at the scene shortly afterwards. He had sustained numerous injuries to his head, neck, face and body. There was a good deal of blood on his face and at various points inside the driver’s area of the car and on the outside of the car on the driver’s side.
The pathologist Dr Parsons gave evidence that the cause of death was blunt force trauma to the head, neck and chest. She identified the relevant injuries to the head (which included the face), neck and chest as being caused by at least seven possible blows – two across the top of the head; one across the nose; one on the eyebrow; one on the chin; one across the neck; and one running from the chest up to the neck. Dr Parsons did not isolate any one of those injuries as the cause of death. Rather, she put them all in combination as causing death. (See T 844 & 860-861.) She said that each of those areas of injury could have been caused by use of the wheel brace. Any of those blows could have been caused inside or outside the car. There was an broken tenth rib on the right flank towards the back, which was not associated with any injury to the skin. That injury could not be caused while seated in the car or if seated when turned to the right, because that area of the body would be protected by the back of the seat and the car door jamb. (T 852.) The jury asked a question whether the deceased would have been able to move (i.e. walk, stand from a seated position or sit from a standing position) given the extent of the injuries. The answer was yes. He could have remained conscious and alive for some minutes after receiving the last of the blows. Mr Georgiou asked whether, if after suffering the injury to the neck (causing a separation of the larynx and the trachea) some metres away from the car, he would have been capable walking back to the car, reaching for something in the car, flailing his right arm about, turning fully into the car, closing the door, putting the car into drive and putting his foot on the accelerator. The answer was yes to each of those actions. (T 852-855.)
The deceased was found to have 0.4 mg/L of methamphetamine in his blood. There was evidence from the toxicologist Dr Gerostamoulas that the level found suggested repeated use of the drug. He also gave evidence about the effects of methamphetamine on users, including delusional, aggressive and violent behaviour. There was other evidence, from those that knew him, that the deceased had been behaving in an unusually stressed and erratic fashion in the period leading up to this incident. As indicated above, the Crown conceded that the deceased’s beliefs about his girlfriend being held against her will, and the accused’s involvement in the same, were simply wrong.
The accused was arrested and interviewed three times over the next several hours – first by local police, then by Homicide Squad police and then in a re-enactment with the Homicide Squad. He answered all questions, some though a Mandarin interpreter, and some in English, and in the re-enactment pointed out where the various events occurred. He was released without charge.
In short, the accused’s version was essentially this. He said that the deceased, whom he had seen before at the brothel, came into the brothel, swore, punched him in the face, stole the telephones and left. The accused, who was bleeding from the nose and dizzy, went outside to recover the telephones. The deceased was nearing his car, which still may have been running. The accused yelled out to him to return the telephones. The deceased bent down and retrieved something from the door of his car which turned out to be the wheel brace. Near the corner of Clarke and York Streets, the deceased came at the accused and struck at him with the wheel brace a few times, which he tried to fend off. It happened quickly. They struggled over the wheel brace, which the accused wrested from the deceased, and then the accused struck the deceased at least once (perhaps twice) to the head/chest/face region. The deceased then went back to his car. The accused followed him and yelled out again to return the phones. As the deceased was getting into the car, he went to take something from the driver’s side foot well. The accused then struck the deceased several times with the wheel brace. The car moved off. The accused hit the car several times and yelled at the deceased to stop. The car stopped. The deceased was “shaking”. The accused said he asked Mr Wang to call the police before he ran out of the brothel and that he asked Ms Gao to call the police when he saw her outside. (See, e.g., Exhibit 17, ROI # 1, Q 31-110; see also Exhibit 18, ROI # 2; and Exhibit 19, Re-enactment.)
At the instance of police, the accused was examined by Dr So. He found the accused to have a laceration to the back of his head, a collection of fluid below the skin above his right ear, a bruise on the right eye and eyelid, tenderness on the bony region around the eye socket (photographs showed the accused had a blackened and swollen eye), a tender right index finger, a small open wound on that finger, a small wound on the left index finger and a bruise on the left forearm. The doctor agreed that the bruising to the left forearm resulted from blunt force trauma from an object and may be caused when the arm was raised to protect the face or body from an assault, i.e. a defensive injury. The doctor said that the laceration to the back of the head resulted from blunt force trauma inflicted by a blow to the head or forceful contact with an object such as the wheel brace.
Maxwell Jones gave evidence concerning DNA. Testing of the wheel brace could not exclude the accused’s and the deceased’s DNA on both ends of the wheel brace. The accused could not be excluded as contributing to DNA found on the driver’s side door handle.
There is evidence from Mr Poon that, the day after the incident, the accused paid him $20,000 to pass on to the deceased’s family. The Crown case is that this is effectively “hush money”. I have ruled that this evidence may be relied on as evidence of incriminating conduct. The circumstances in which the money was paid to Mr Poon are disputed by the accused. In essence, it is suggested that the money was extorted from the accused by persons who knew the deceased. In cross-examination, Mr Poon conceded he told police that he told the deceased’s father that friends of the deceased “made [the accused] pay money”. In re-examination, he said that no one demanded money from the accused. (T 765-785.)
The Crown’s principal case
In short, the Crown’s principal case is that the accused struck the deceased several times at the car door, including the seven times associated with the seven separate areas of blunt trauma identified by the pathologist; that those seven blows are in combination the acts causing death; that they were performed consciously, voluntarily and deliberately, and accompanied by an intention to kill or cause really serious injury; and that they were committed without any belief in the need for self-defence. The Crown say that the accused’s version of events in his records of interview should be rejected, including his account of the deceased coming at him with the wheel brace away from the car (near the corner), hitting him, the accused disarming the deceased and then the accused hitting the deceased with the wheel brace.
The Crown also disputes the accused’s account that the deceased reached for a weapon when he was at the car door the second time, but there is no evidence to contradict this and, as indicated above, the police found an imitation pistol in the foot well. Nor is there any evidence to contradict the accused’s version that the wheel brace was produced by the deceased.
Alternative Crown cases
As I understand it, despite arguing that the accused’s version of events in the interview should be rejected, the Crown wish to argue that, if the jury accepts (or cannot reject) that version of events, the accused would still be guilty of murder (or, for that matter, an alternative offence of defensive homicide or manslaughter). That, of course, will be a matter for the jury, and the Crown will be able to argue that case.
However, another alternative case the Crown wishes to run is that, contrary to the prosecution thesis and instead reliant on the accused’s version, a conviction for murder (or an alternative offence) is open even if the jury cannot exclude self-defence or lack of murderous intention at the point the accused struck the deceased after he has come at him with the wheel brace and disarmed him (i.e. away from the car, near the corner), because the Crown would then rely on what occurs at the car door subsequently, even though acceptance of the accused’s version means that at least one (and perhaps two) of the seven blows that in combination caused death occurred, on this hypothesis, in self-defence and/or without murderous intent.
The issue
In my view, to leave the latter alternative to the jury would be contrary to the basic principle that the actus reus and the mens rea of an offence (and the absence of any defence, such as self-defence) must coincide (see, for example, Meyers v The Queen (1997) 147 ALR 440 at 442 and the cases there cited). Given that, on this hypothesis, at least one (and perhaps two) of the seven blows that in combination caused death was (or were) committed without murderous intent and/or in self-defence, the accused must be acquitted, because it cannot be said that the acts which, in combination, caused death were all committed with the necessary mens rea and without lawful justification or excuse. Thus, on this case, there would be only partial – rather than complete – contemporaneity between murderous intent and absence of self-defence and the acts which in combination caused death.
The proposition may be tested in this way. If the accused had struck five or six blows immediately after being struck by the deceased with a wheel brace away from the car and then he struck one or two more back at the car door, but the pathologist’s evidence as to the seven blows in combination being the cause of death were the same, it could not sensibly be said that, if self-defence applied to the first set of five or six blows but not to the second set of one or two, the accused must still be convicted. The reason for that conclusion is that the required intention and absence of self-defence have not coincided with all of the acts relied upon as the acts causing death.
When the evidence isolates one act (or a number of acts occurring relatively closely in time and in effectively the same circumstances) as the act (or the acts in combination) causing death, the issue does not arise. In many murder trials, there is no such issue. But when, as here, the evidence is such that two or more acts are relied on as the acts which in combination caused death but at least one (and perhaps two) of those acts may have occurred in circumstances that differ from the circumstances of the other acts with respect to the applicability of a defence or defences, the issue arises.
In this regard, I referred the parties to the decision of the Court of Criminal Appeal in R v Hughes (unreported, Court of Criminal Appeal, Crockett, McGarvie and Beach JJ, 20 March 1990). The case highlights the importance of identifying the act or acts causing death and the need to ensure that defences are left even if those defences apply only to one of the acts that in combination caused death. In Hughes, the deceased sustained two gunshot wounds from a gun fired by Mr Hughes. On the evidence, the defences of accident, self-defence and provocation applied to the first gunshot. The defences of accident and provocation applied to the second shot, but self-defence could not apply (because the deceased could be no threat to the accused at that particular time, as he lay there prostrate and injured). The defence case was that the first gunshot killed the deceased. The Crown case was that the second shot killed the deceased. Each party called an expert on the issue. A third possibility was that the jury could not say which of the two gunshots caused death. Towards the end of their judgment, after pointing out that three defences (including self-defence) applied if the first shot killed the deceased and only two (and not self-defence) applied if the second shot killed him, Crockett, McGarvie and Beach JJ said this (at pp 13-14):
Finally, the jury should have been directed that if it could not be satisfied which shot caused the death of the deceased but was satisfied that one or other or both the shots did, it could convict of murder only if in respect of each of the shots, it found for the prosecution on each of the issues raised in respect of that shot. In that situation, it could return a verdict of guilty of murder only if it was satisfied that both shots were deliberately fired with the intent necessary for murder and neither was fired accidentally; and that neither shot was fired in self-defence nor at a time when the applicant was acting under provocation. (My emphasis.)
Thus, on the hypothesis that both shots or acts (in combination) caused death, self-defence had to be excluded even though it could not have applied to the second shot. Put another way, on the hypothesis that both shots caused death, Mr Hughes had to be acquitted if self-defence could not be excluded at the time of the first shot, even though self-defence could not apply to the second shot.
The present case is no different. If the jury accepts (or cannot reject) the accused’s account, at least one (or perhaps two) of the seven acts or blows relied on as causing death was (or were) committed in circumstances different from – and might be considered to be materially different from – the other five or six. Since, together, those seven acts make up the acts causing death, there is no basis for failing to apply the reasoning in Hughes to the present case. Thus, if the jury accepts (or cannot reject) the accused’s account and they accept that that account amounts to self-defence (or a lack of murderous intent) at the point immediately after the deceased attacked him with the wheel brace (away from the car, near the corner), then the accused must be acquitted even if they reject self-defence (or lack of murderous intent) for the acts occurring at the car door.
The refusal to certify
In refusing to certify, I had regard to the terms of s 295(3)(b) and (c) of the CP Act. Ms Williams conceded that those two paragraphs operate conjunctively. Section 295(3)(a) was irrelevant as this was not a question of admissibility of evidence.
As to s 295(3)(b), the judge must certify that “the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal”. I accept that the issue is of importance in the sense that, if I am wrong in my reasoning, I would in effect be leaving the accused a possible basis for acquittal that is not open and, on that limited basis, the Crown may be deprived of a conviction.
However, even if I am wrong, and therefore a possible basis for acquittal was to be wrongly left to the jury, I do not think, in the particular circumstances of this case, that the matter is of sufficient importance to justify the matter being determined on an interlocutory appeal. There are several reasons.
First, the principal Crown case is that the accused’s version in his records of interview should be rejected. Contrary the accused’s version, the Crown say that all blows were struck at the door of the car. My proposed directions do not in any way undermine that case.
Secondly, the only way in which the impugned proposed direction potentially could have any beneficial effect for the accused – and therefore potentially any detrimental effect on the Crown case – is if the jury accepts (or cannot reject) the accused’s version. However, if the jury do accept (or fail to reject) the accused’s version, it is likely to destroy the Crown case anyway. Whilst it is possible that a jury that accepted (or failed to reject) the accused’s version could conclude that self-defence applied when the blow (or blows) was (or were) delivered immediately after being attacked by the deceased with a wheel brace but reject self-defence when the several blows were delivered when the deceased was in the car and the accused thought he was reaching for something else in the foot well (where the imitation pistol turned out to be) with which to assault him, as a trial judge who has seen and heard all of the evidence in this trial, I regard that as rather unlikely. Put another way, if the jury believes (or does not reject) the accused’s version, it would be surprising to me that the same jury would convict him of murder even without the impugned direction.
Thus, when regard is had to the disruption that would be caused to this trial (a loss of at least three days in a case that has already lost three days because of a sick juror), which is now at the point where all the evidence is in and the jury are waiting patiently to hear final addresses and a charge, and balancing that against the rather high likelihood that my direction, even if wrong, would not necessarily disadvantage the Crown, I did not consider that the matter was of sufficient importance to justify its being determined on an interlocutory appeal.
As to s 295(3)(c)(i), it seemed to me initially that, given the pathologist’s evidence was spelt out in her report and that the Crown were always on notice that the accused’s account was as it is in the records of interview – this, of course, is all material that is in the depositions and was led in the Crown case – and given that counsel are assumed to know the law, the issue was reasonably able to be identified before trial. Ms Williams’ response to that was that the issue could not be identified if my view of the law is wrong. That is probably right, although the basic principle surely must be well known. In any event, I did not rely on that limb.
As to s 295(3)(c)(ii), the same argument and counter argument apply. I do not believe that I can say that the Crown was not at fault in failing to identify the issue, but that is because I think I am right about the relevant law. Ms Williams says I am wrong. If she is right, then she could not have been at fault. Thus, again, I did not rely on this limb.
However, as I indicated above, Ms Williams conceded that s 295(3)(b) and (c) of the CP Act operate conjunctively. Thus, my conclusion on s 295(3)(b) means that I was bound to refuse the application to certify.
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