The State of Western Australia v Li - [2024] WADC 16

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- LI [2024] WADC 16
CORAM:   TROY DCJ
HEARD:   1 MARCH 2024
DELIVERED          :   21 MARCH 2024
PUBLISHED           :   25 MARCH 2024
FILE NO/S:   IND 1523 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
ZHENBANG LI

Catchwords:

Onus of proof for prior uncharged conduct - Acceptance of expert psychological evidence concerning accused's mental state - Whether such evidence incompatible with findings of fact following jury verdict - DSM-V post‑traumatic stress disorder

Legislation:

Nil

Result:

Offender to be sentenced on the basis that:

He had been violent to the victim prior to the date of the offence
The offence was almost entirely unprovoked
The offender has not established that he is suffering from post-traumatic stress disorder

Representation:

Counsel:

Applicant	:	Ms K Robinson & Ms J J Stewart
Accused	:	Mr P D Yovich SC & Mr A W F Gordon

Solicitors:

Applicant	:	State Director of Public Prosecutions
Accused	:	Hotchkin Hanly Lawyers

Case(s) referred to in decision(s):

Clarke v The State of Western Australia [2018] WASCA 14
Cleary v The Congregation of the Sisters of the Holy Family of Nazareth [1996] QSC 259
Law v The State of Western Australia [2009] WASCA 193
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mason v Transport Accident Commission [2014] VSCA 267
R v Storey [1998] 1 VR 359
Skelly v The State of Western Australia [2020] WASCA 3
Van Der Velde v Halloran [2011] WASCA 252

TROY DCJ:

Background

Mr Li was charged on indictment 1523 of 2021 with the offence that on 3 July 2020 he unlawfully did grievous bodily harm to Ms Yu Xie when in a family relationship with her.
The single count on the indictment reflected an allegation that in the course of a heated argument, Mr Li punched Ms Xie to the face fracturing her eye socket. Although the State adduced evidence of other alleged conduct by Mr Li in the four or five months or so that preceded 3 July 2020, it is remarkable that the pre-recording of Ms Xie's evidence lasted for three full court days.[1] The sole reason for that was the extraordinarily protracted cross‑examination of Ms Xie by Mr Li's previous counsel.
[1] 26 - 28 April 2023.

The trial

The pre-recorded evidence, edited to some extent, was played during the course of Mr Li's trial which occurred before me on 11 ‑ 20 December 2023. Mr Li did not testify but he did call two witnesses.
It was accepted at trial that self-defence did not arise. In her closing speech, Ms Robinson for the State, in anticipating likely submissions to be made on behalf of Mr Li submitted:
Based on the questions that were put to the complainant in cross‑examination, defence might suggest to you that the (indistinct) injuries were a result of a fall, and that the fractured eye socket on 3 July 2020, was again the result of something like a fall, the complainant hitting her eye on something in the apartment.
The State says that you might find it's a very strange coincidence that during the relatively short period of the relationship between the accused and the complainant, she suffered not only one, but two falls which resulted in eye injuries.
Ms Robinson concluded as follows:
The State says that when you evaluate the complainant's evidence carefully, you will find that there can be no reasonable doubt that her fractured eye socket from 3 July 2020 was a result of the accused's punching her to the eye.
Counsel then appearing for Mr Li began his closing address as follows:
You will have surely understood that the defence case is that Mr Li did not strike Ms Xie, causing the injury that's complained of. That is, the injury around her left eye. The defence has also put to you that there are many possible reasons, in other words, a motive for Ms Xie to have presented the story that she did, the allegations, which we say are a fabrication and a mere story.
Defence counsel reminded the jury that the medical expert called by the State, Dr Thean, was cross-examined by co-counsel for Mr Li as follows:
Dr Thean, regarding the injury, could it have been sustained in a manner different to that that was alleged? Potentially.
So, could it have been sustained as a result of a fall or coming into contact with a hard object or surface? Potentially.
Defence counsel continued:
The courts have witnessed from time to time, witnesses who feign memory loss. These repeated claims of not remembering things, we say, is an attempt by Ms Xie to mislead and deceive the jury. As the primary witness for the prosecution, to substantiate her allegations of claims of assault against her, she is the witness that the prosecution must have to prove its case beyond reasonable doubt.
There must be a genuine doubt about Ms Xie's evidence. You'll have the transcript in front of you, you will see the circumstances and the number of occasions where she gave answers like, 'I do not remember'. The defence says, quite rightly, that she is not a reliable or credible witness, and that the jury was never given the true events from her.
…
We say that Mr Li did not strike Ms Xie. We say that Ms Xie was the aggressor. We say that on that night, she was armed with a knife. On that night, she not only cut herself, but she also caused injury to Mr Li.
…
The defence says there is reasonable doubt that Mr Li punched Ms Xie. In fact, we say that he did not. There's reasonable doubt that Mr Li ever hit Ms Xie at all. And we say that he did not. There is reasonable doubt that any of the events described by Ms Xie, happened the way happened the way she described them at all. It is quite possible that the injuries suffered by Ms Xie were self inflicted.
In directing the jury, I relevantly said as follows:[2]
[2] ts 656 - ts 681.
The third element, ladies and gentlemen, is that Mr Li did that grievous bodily harm. That is, he caused that grievous bodily harm. You will appreciate that that is the critical, fundamental issue in this trial.
There is no doubt that Ms Xie sustained an injury on 3 July 2020 that had not been there before, but you can only find this element proved if you are satisfied beyond reasonable doubt that she got that injury as a result of Mr Li punching her. If the State fail to exclude as a reasonable possibility that she got the injury in some other way, then you must find Mr Li not guilty.
Mr Li's guilt is dependant on a finding beyond reasonable doubt that he punched Ms Xie to the eye.
The fourth element, ladies and gentlemen, is that Mr Li did the grievous bodily harm unlawfully. You will appreciate from what I've just said that the position on behalf of Mr Li is that he didn't do the grievous bodily harm at all. He didn't punch Ms Xie. That's his case.
In the event that contrary to his case, you were satisfied beyond reasonable doubt that he did punch Ms Xie, it is not said on his behalf there is any basis upon which that punch could be said to be lawful. For example, in self-defence. So, it really comes back to whether on the evidence that you accept, the State have proved beyond reasonable doubt that Mr Li deliberately punched Ms Xie as alleged.
…
The ultimate question for you to decide is whether the State has proved beyond a reasonable doubt that Mr Li punched Ms Xie that morning and that in doing so he caused grievous bodily harm. To succeed in that regard, the State must persuade you that Ms Xie's evidence concerning 3 July 2020 was honest, accurate and reliable. There is no other way that the State can prove the charge or indeed the alternative charge[3] to you beyond a reasonable doubt.
…
The absence of a motive (to make a false complaint and to then give false evidence) cannot be taken as something that strengthens the prosecution's submission that her evidence was truthful. So even if you weren't persuaded by the submissions on behalf of Mr Li that Ms Xie may have been motivated to fabricate allegations for the reasons set out by defence counsel, that does not mean the State has proved its case.
It does not automatically establish that you should accept her evidence. It all comes back to your assessment of whether you consider Ms Xie to be an honest witness doing her best to tell you the truth and also a reliable witness who has given an account about 3 July 2020 that is accurate in its essential details.
[3] By agreement of each counsel at trial.
At 3.45 pm on 20 December 2023 the jury retired to consider its verdict.
At 5.49 pm the court reconvened to answer the single question that the jury asked, namely, 'does the definition of GBH include potential permanent injury?'.
At 5.55 pm the jury found Mr Li guilty as charged.

Factual basis for sentence - general principles

The factual basis upon which I must sentence Mr Li, is well settled, see for example Skelly v The State of Western Australia.[4] In terms, the findings that I make must be consistent with the jury's verdict. However, that verdict only establishes the core facts. All other facts must be found by me and be based on the evidence at the trial. In making factual findings, I must bear in mind that the law provides that facts that are aggravating, that is facts that make the offending more serious, must be established to the criminal standard of beyond reasonable doubt. Any mitigating factors need only be established on the balance of probabilities.
[4] Skelly v The State of Western Australia [2020] WASCA 3 [67] - [70].
Whilst articulating those principles is relatively straightforward, determining where the onus lies for a particular assertion can be more problematic.
As Buss JA (as his Honour then was) noted in Law v The State of Western Australia,[5] the distinction between aggravating and mitigating circumstances, for sentencing purposes, may sometimes be unclear or even, on occasions, ambiguous.
[5] Law v The State of Western Australia [2009] WASCA 193 [28].
His Honour cited R v Storey,[6] where Winneke P, Brooking and Hayne JJA and Southwell AJA said:
It may very well be that the descriptions of aggravating and mitigating circumstances will be useful shorthand expressions to refer to the distinction we draw. They are, however, no more than shorthand expressions. It would not be right to argue from the tag that is applied to the category of circumstances to some conclusion about whether a particular circumstance is or is not in one group rather than the other. Factors cannot be characterised as always aggravating or always mitigating. For example, the taking of drugs or alcohol will sometimes be put forward as a mitigating factor but it may, in a given case, be held to aggravate the crime. Good standing in the community will usually tend to mitigate but may tend to aggravate if it has been misused. One must always ask what the tendency of the circumstance is in the particular case under consideration. No doubt there will be cases in which the same facts can be seized on by both the Crown and the accused and described by one as an aggravating circumstance and the other as a mitigating circumstance. 'Aggravating' and 'mitigating' must be understood in a wide sense, and without, for example, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (for example, the use of a weapon) and on the other hand of a prior or subsequent conviction.
The test is not what tag can or should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender.
[6] R v Storey [1998] 1 VR 359.
Buss JA respectfully agreed with those observations, as do I. The essential point of distinction is whether, in a particular case, a fact or circumstance is likely to result in a more severe or less severe sentence than would otherwise be the case.
It is clearly the case, as senior counsel for Mr Li sets out in written submissions, that the jury's verdict does not dictate that Ms Xie's version of the facts surrounding the punch, or of the relationship between her and Mr Li leading up to 3 July 2020, is to be accepted in its entirety.
However, in determining whether or not I accept other aspects of Ms Xie's evidence, it is relevant to remind myself that she was indisputably an honest and reliable witness when it came to describing the punch that Mr Li delivered to her face on the morning of 3 July 2020. Any other conclusion is incompatible with the jury's verdict.
The respective submissions that each side have made since Mr Li was found guilty on 20 December 2023 have resulted in five questions which I must resolve:
1.To what extent was Mr Li violent towards Ms Xie during their relationship before 3 July 2020?
2.To what extent was Ms Xie violent towards Mr Li during their relationship before 3 July 2020?
3.What occurred on the morning of 3 July 2020 prior to Mr Li unlawfully punching Ms Xie to the face with sufficient force to fracture her eye socket?
4.Is Mr Li, as of date of sentence but not as of 3 July 2020, suffering from post-traumatic stress disorder?
5.If Mr Lee is suffering from that disorder, is it attributable to Ms Xie's conduct towards him?
I conclude that in respect of questions 1 and 3, the State must prove its contentions beyond reasonable doubt before I can accept them.
In respect of questions 2, 4 and 5, the defence must prove its contentions on the balance of probability before I can accept them.
The defence rely upon a report from a psychologist, Dr Hoong dated 15 January 2024 in support of its contention that Mr Li is suffering from post-traumatic stress disorder (PTSD). Dr Hoong gave evidence at a hearing before me on 1 March 2024 and she was cross‑examined by the prosecution.
As I will explain, in my view, the answer to questions 4 and 5 are dictated by the resolution of questions 1 and 2 and so I turn to those first two questions.

To what extent was Mr Li violent towards Ms Xie during their relationship before 3 July 2020?

In my opinion, this must be answered solely by reference to Ms Xie's evidence on affirmation, which I saw played before the jury during Mr Li's trial and which was tested by nearly two and a half days of cross‑examination.
I will return to this aspect a little later in this judgment, but for the moment I note this passage of Dr Hoong's evidence before me on 1 March 2024:[7]
TROY DCJ: Dr Hoong, you will appreciate that when Mr Yovich was asking you questions, he was at pains to let me know that there were a number of alleged events that occurred in the relationship between Mr Li and Ms Xie, and that there were two different versions about those events. So, Ms Xie's version and Mr Li's version. You - you accept that obviously? (No audible answer).
Now, I understand from your report that you have met with Mr Li, certainly at the time of your report, six times? Yes.
But as of the time of your report, you had never met with Ms Xie? No.
Can I ask you what it was that caused you to accept Mr Li's version of events as to what had happened between him and Ms Xie, as opposed to Ms Xie's version of events?
It's - it's - again, it's in the session, the presentation of his behaviour in my presence and how he presented the information, the incident. Yeah. And the - the way he dissociated during - you know, when he reported about the incident and when I further asked questions. So it's - it's more, like, his presentation and looking at the score, that I have no doubt that he's telling me the truth, because of that triangulation that I have explained earlier, that it matched whatever … Yeah. The diagnosis.
[7] ts 726.
I had the advantage of sitting through the (edited) pre‑recording of Ms Xie's evidence. Dr Hoong did not see how it was that the complainant was tested, although she asserts that she studied the transcript.
Ms Xie's evidence-in-chief went for 1 hour and 10 minutes. Cross‑examination began at 1.45 pm on 26 April 2023. It continued all day on 27 April. It finally concluded on 28 April at 3.13 pm.
Ms Xie initially stated that she met Mr Li in person at the end of 2019.[8] She later seemed to agree that it was on 14 January 2020.[9]
[8] ts 196.
[9] ts 237.

First incident

Ms Xie stated that after one or two weeks (of the relationship) Mr Li was:[10]
starting to get intimate, and so because at the time, they're starting to quite a lot of - has a lot of pressure and he played video games. And because the screen had a quite bright light and the - because of that, we have - you know, argue about it. Also, because it's noisy.
[10] ts 197.
Ms Xie elaborated:[11]
We have argument before because he play the video games. And so I wanted to leave. And he held me by - held - with both arms on my both shoulders and threw me onto the bed.
[11] ts 198 - ts 199.
Ms Xie said that she had been in the relationship for about three weeks when they had that physical argument. They were arguing about Mr Li continuously playing video games. She testified:
So I wanted to leave. I left the room because I couldn't bear that he continued playing a game, video game. And he grabbed me with both hands, held my shoulder, held my both shoulders, and threw me onto the bed heavily.
Did you have any physical injuries from that? Not the first time.
In cross-examination Ms Xie was asked:[12]
[12] ts 337 - ts 338.
Is it fair to say that many of your arguments, if not most of your arguments, started because Mr Li was playing video games?
Most of the arguments was because Mr Li is video game playing, but the time that I was hurt the argument was not about the video games.
I'm not talking about the day that the police arrived, I'm talking about on the other occasions?
The arguments were for various kinds of reasons, but mostly was because he play computer games.
In relation to his playing of video games, was there not an occasion where during an argument you reached an agreement with Mr Li that he would only spend two hours a day playing video games?
That was at a later stage. The day of the agreement was close to the incident that I was being hit.
Yes. But there was an agreement that he would only spend two hours a day to play video games. Correct?
Yes.
And after he made that agreement with you, he did not play video games for any longer than two hours, did he?
I don't recall whether there were times when he played longer than two hours because the agreement was made towards the end of our relationship.
…
It was really hard for him to play only two hours video games every day.
A little later Ms Xie said:[13]
The main issue is that he spent most of his times on video games and playing with his friends who also played video games. He devoted very little time to his study, his life and his girlfriend.
[13] ts 340.
It is significant that a premise of the cross-examination of Ms Xie was that Mr Li's playing of video games, even so early into their relationship, was sufficiently significant to justify an agreement between the two of them that it would be limited to a set period each day. I find this to be consistent with Ms Xie's evidence that she was exasperated by this aspect of Mr Li's behaviour. It is in that context that she alleges that he was first physically violent to her.
Ms Xie was never directly challenged about this episode.
The defence position, as a whole, was finally summed up in the following manner on day 3 of cross-examination:[14]
I put it to you that, in fact, on no occasion did Mr Li ever punch you? Mr Li punched me many times with his fist.
I put it to you that he never ever kicked you? He did kick me, and the way he kicked me was like what I demonstrated on the first day.
I put it to you that he never pushed you to the floor? Disagree. He did push me to the floor.
I put it to you that at never - no time did he ever pull your hair? He did pull my hair. I used to wear long hair. You can see the photo to show the injury of my face. I was having short - my hair shortened, because he pulled my hair.
I put it to you that he never choked you? He choked me many, many times.
I put it to you, in fact, that you were the one that would assault Mr Li? All the incidents were where he started the assault at me first.
No, the incidents were started by you because you'd be upset? The incidents were started by him, because he couldn't control his temper. He had argument with - with - argument with me and also hurt me physically.
No. The person that couldn't control their temper was you. You were violent? It was him.
[14] ts 389.

There is nothing objectively implausible about Ms Xie's account. Mr Li exercised his right of silence and so, necessarily, the only evidence comes from Ms Xie. I accept her evidence. I am satisfied beyond reasonable doubt that during what would be one of many arguments about Mr Li's excessive gaming habit, Ms Xie attempted to storm out of the room. Mr Li lost his temper and threw her onto the bed. In doing so he did not cause any injury. The probability is that this episode occurred in February or in early March 2020.

Second incident

Ms Xie alleged that about one month later, Mr Li, 'punched me into my left eye'.[15]
[15] ts 199.
She described that the light was quite bright, and so, 'we broke into many arguments'.
Ms Xie then stated:[16]
I couldn't sleep, and so that I pick up a pillow and threw it into the light. And so he was angry and saying that we were separated. And I said, 'Yes.' And then he threw his left punch into my eyes.
STEWART, MS: when you say 'left punch', is that his left - - -? Left.
[16] ts 198.
A little later, however, there was this exchange:[17]
Which hand of Mr Li's are you talking about?
His right hand into my left eyes.
[17] ts 198.
Ms Xie was not cross-examined about this potential discrepancy. I consider it to be attributable to a miscommunication with the interpreter.
Ms Xie stated that Mr Li punched her into the top of her head and she cried aloud. She had a bruise in her left eye and also her head felt pain.[18]
[18] ts 199 - ts 200.
Ms Xie initially stated that, 'He did took me to see the doctor after he - first time he hit me'.[19] Ms Xie resiled from that position in cross‑examination.
[19] ts 245.
As I set out at [66] I am not satisfied beyond reasonable doubt that this incident occurred.

Third incident

Ms Xie's evidence-in-chief was to the following effect.[20] During an argument over Ms Xie objecting to Mr Li wanting to get a cat she threw Mr Li's food in the sink.[21] Mr Li took the food and squashed it on top of her head. Ms Xie slapped him. Mr Li pushed her down, punched her in the face and hit her into her stomach.
[20] ts 203 - ts 204.
[21] Also at ts 390.
Mr Li kicked Ms Xie in the stomach causing bruising. He hit her in the face causing swelling. She also had bruises on her knees. This episode was very close to the last time that he hit her, which would be 3 July 2020.
The objective evidence is that whatever occurred in this episode was earlier, namely on or just before 30 March 2020.
Ms Xie accepted in cross-examination that when she met Mr Li, he had a broken toe.[22] He kicked her with both legs.
[22] ts 239.
Defence counsel put the following compound comment, 'with one of his feet which was injured and fractured and had caused him pain, he kicked you?'.
Ms Xie responded, 'I don't remember which leg - which feet that Mr Li he kicked me, but he used his - the heel to kick me, not his toes'.[23]
[23] ts 240.
Ms Xie stated that:
no one ever asked me whether he use his toe or heels or what, whatever - what not to kick me.
Ms Xie was taken to her witness statement of 7 September 2020 where she said at par 13:
Li kicked me to the side of my torso and I fell to the floor. Li continued to kick me several times to my torso while I was on the floor.
I consider this aspect of Ms Xie's evidence improbable. The clear implication from that description is that Mr Li kicked her with his toes.
Ms Xie was asked about a time when Mr Li took her to the Northbridge Medical Centre because her forearm, knee and face had been hurt. She had her knee dressed. She asked the doctor about her head injury. She told the doctor that she had a fall three days before because she wanted to 'save Mr Li's face'.[24]
[24] ts 342.
Ms Xie said she did not remember how exactly Mr Li pushed her.[25]
[25] ts 349.
Ms Xie did not remember whether her arm was hurt but she could remember definitely her knee got hurt and she felt pain in her head. When she landed, her left knee hit the ground first and then she used her left arm to support herself.[26] While she was lying on the floor Mr Li was hitting her from above with his fist.[27]
[26] ts 350.
[27] ts 351.
Ms Xie stated that this incident about going to the doctor was the second time that Mr Li hit her in the eye. The first time he hit her in the eye, she did not go to the doctors.[28]
[28] ts 352.
As noted at [45] that differs from Ms Xie's earlier evidence.
Ms Xie explained the apparent inconsistency as follows:[29]
The fact is he hit me many times. The first time he hit me I didn't ask him to see the doctor and after he hit me in the eye, the incident we're talking about, because I had hurt my knee and my head so we went to see the doctor.
[29] ts 353.
Ms Xie was taken to that part of her statement to the police where she described the incident as having occurred in February 2020.[30]
[30] ts 355 - ts 356.
Ms Xie did not remember if she had been punched in the face by Mr Li before she went to Northbridge Medical Centre. She did not remember any injury to her eye. She just remembered that Mr Li hit her in her head, arm and knee.[31]
[31] ts 364.
Evidence was adduced at trial from the treating doctor, Dr Koh at the Northbridge Medical Centre, that Ms Xie attended there on 30 March 2020 with a right knee, forearm and right-sided facial injuries. Again, the discrepancy between left and right‑sided injuries was not explored in cross-examination.
Notwithstanding that discrepancy, I am satisfied beyond reasonable doubt, on the basis of Ms Xie's evidence coupled with the objective evidence of her attendance with multiple injuries on 30 March 2020, that on or about that date there was a heated argument between Mr Li and Ms Xie over the seemingly innocuous issue of whether they should acquire a cat. Each party responded badly. Ms Xie threw Mr Li's food into the sink. He responded by squashing food onto her head. In this regard I note the evidence of Ms Ang[32] and Ms Soonthornrungsi[33] that on the date of the offence itself Ms Xie was observed to have food in her hair. Ms Xie responded to that by slapping him. I am satisfied beyond reasonable doubt that Mr Li punched her and that he pushed her to the ground where she sustained injuries to her right knee and forearm.
[32] ts 499.
[33] ts 544.
I am not satisfied that he continued to punch her when she was on the ground. I am not satisfied that he kicked her. I am not satisfied that there was another occasion either before or after 30 March 2020 (other than of course 3 July 2020) where Mr Li punched her to the face.
In the absence of sufficiently detailed evidence, I am not satisfied beyond reasonable doubt that during other arguments Mr Li hit Ms Xie in the face, grabbed her by the hair and kicked her in the head.

Violence by Ms Xie to Mr Li

Ms Xie accepted that she smashed Mr Li's computer equipment because, 'his steady routine was so irregular for a long time, I was under extreme emotional stress'.[34] She accepted doing so once. There is no evidence that she did so more than once.
[34] ts 283.
Ms Xie testified that after she damaged Mr Li's computer equipment, Mr Li wanted to break up with her, but he also conveyed that if she could buy him a new one, then they could stay together. And so, they went to the shopping mall to buy a new computer for him.
Ms Xie was shown a photograph of Mr Li's chest dated 21 June 2020.[35] She accepted that if one was to look at it closely, there are some scratches. She did not recall if this was an occasion where she scratched Mr Li.[36]
[35] MFI H - never tendered at trial.
[36] ts 384.
I am satisfied on the balance of probabilities that, as Ms Xie accepted, there was an occasion when in exasperation she smashed his computer. Further, that during the 30 March 2020 incident she behaved as I have set out at [65].
This was, on any view, a tempestuous relationship of two persons in their 20s. Despite not knowing each other terribly well they were cohabiting in a very small space. The overwhelming probability is that there were other occasions, distinct from those that I have particularised, where they had heated arguments.
The evidence does not, however, permit me to conclude who did what in those other arguments that I inferentially conclude must have, on some occasions at least, occurred. I accept that Ms Xie did lose her temper on occasions during cross-examination. The all-pervasive belligerent nature of the questioning, essentially from start to finish, largely explains that. Ms Xie's demeanour during the pre-recording does not markedly assist me as to how she might have behaved in an argument with her boyfriend, behind closed doors, in 2020.

The immediate background to the Mr Li's unlawful punch

In her evidence, Ms Xie testified that during an argument Mr Li said that she had become fatter. His friends also laughed about her. Mr Li said he felt very embarrassed about that. Ms Xie was angry. Mr Li then punched her to her left eye with his right hand. He also choked her at some point.[37]
[37] ts 205.
In cross-examination Ms Xie stated that while Mr Li was shouting at her, he was also leaning forward towards her as if he was going to assault her. Ms Xie blocked him with her upper arms crossed in front of her chest. She wanted to push him away from her. He started assaulting her first and she had nowhere to hide.[38] By assault, she meant he started shouting at her and he behaved as if he was going to attack her.[39]
[38] ts 281.
[39] ts 282.
The jury necessarily found Ms Xie to be an honest and reliable witness when she testified that Mr Li deliberately punched her. Ms Xie was repeatedly challenged about that over three days, but in the minds of the jury her testimony withstood that challenge. The jury were clearly satisfied beyond reasonable doubt that the injury resulted from a punch as opposed to the defence submission that she somehow got her injuries by colliding with some furniture.[40]
[40] ts 394.
In my view it also follows that the jury rejected the propositions put by counsel on behalf of Mr Li. Those included that:
•she was armed with a knife before the punch;
•that she attacked Mr Li with the knife;[41]
•that she scratched his neck; and
•that all he did was push her away.[42]
[41] ts 372, ts 377.
[42] ts 373.
Previous defence counsel often shouted at Ms Xie. He repeatedly called her a liar. The cross-examination was suffused with comments such as the following:[43]
No, the reason you made this story about the fingerprints is because I put it to you, because you were the attacker. You had the knife. That is the only reason you make up this ludicrous story for arming yourself with the knife.
[43] ts 394.
As I have noted, Mr Li did not give evidence nor did he participate in a record of interview. In light of the jury's unambiguous verdict, there is very little, if any, scope for Mr Li to now argue that the events that immediately preceded his proven punch were, as he, through his senior counsel contends, as opposed to Ms Xie's testimony over three days of evidence.
I am satisfied beyond reasonable doubt that, save for the fact that I have no doubt that in the argument Ms Xie raised her voice, there was no provocation before Mr Li punched her. I am entirely satisfied that Ms Xie did not attack Mr Li with the knife. I am satisfied that in the argument that culminated with the punch, Mr Li was the aggressor.
In light of those findings, I then turn to the extent to which, if at all, Dr Hoong's report, supported by her evidence, gives rise to any mitigating factors so far as Mr Li is concerned.

The requirements for expert evidence

I apply the seminal statement of Heydon JA in Makita (Aust) Pty Ltd v Sprowles.[44] If evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'.
[44] Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [85] (Makita).
There must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert.
The opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'.
In evaluating Dr Hoong's evidence, all of these aspects can be accepted. Dr Hoong testified that she sees patients with PTSD on a daily basis. Her specialty is complex trauma. Dr Hoong also sees patients who report that they are victims of domestic violence on a daily basis.[45]
[45] ts 720.
So far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert. So far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way. It must be established that the facts on which the opinion is based form a proper foundation for it.
This aspect is important in the present case.
The opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded.
If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.
The State did not object to my receiving Dr Hoong's report but, in so far as it goes beyond a record of the psychotherapy for Mr Li, submitted that it should be accorded no weight. That submission was based upon a challenge in cross-examination that complied with the requirements discussed in Van Der Velde v Halloran.[46]
[46] Van Der Velde v Halloran [2011] WASCA 252 [114].
Further, as stated in Van Der Velde at [116], a court is not obliged to accept evidence (even if it is) not the subject of cross‑examination if it is contradicted by a credible body of substantial evidence. Here the potential credible body of substantial evidence is the evidence of Ms Xie, under affirmation.
Heydon J concluded in Makita that
an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, on 'a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise' (at [41]).
In addition, the following observations of the Court of Appeal in Clarke v The State of Western Australia[47] are particularly apt:
[47] Clarke v The State of Western Australia [2018] WASCA 14 [255] ‑ [257].
255The paramount duty of an expert witness is to the court and not to any party to the proceedings. An expert is not an advocate for the party by whom he or she is called. In criminal proceedings before a judge and jury the role of the expert is to inform and educate the jury about relevant matters within his or her expertise which are beyond the jury's knowledge and experience and are in issue between the State and the accused.
256In National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68, Cresswell J said that the duties and responsibilities of an expert witness in a civil case [relevantly] include the following:
1.Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
2.An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his [or her] expertise. An expert witness in the High Court should never assume the role of an advocate.
3.An expert witness should state the facts or assumption upon which his/her opinion is based. He[/she] should not omit to consider material facts which could detract from his[/her] concluded opinion.
4.An expert witness should make it clear when a particular question or issue falls outside his[/her] expertise.
5.If an expert's opinion is not properly researched because he[/she] considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
…
257The duties and responsibilities of an expert witness enunciated by Cresswell J in The Ikarian Reefer have been accepted and applied in Australia and the United Kingdom in criminal cases.
(citations generally omitted)
More specifically, in Cleary v The Congregation of the Sisters of the Holy Family of Nazareth,[48] the trial judge, Lee J noted that a Dr Graham Rice gave evidence for the defendants. Dr Rice stated that a patient's perception of a traumatic event was a necessary second limb to establish PTSD, but contended that the first limb required a real, objective traumatic event, such as experienced by victims of warfare or serious crime. He gave evidence of the diagnostic method, called Criteria A of DSM IV,[49] which is used to diagnose PTSD.
[48] Cleary v The Congregation of the Sisters of the Holy Family of Nazareth [1996] QSC 259.
[49] As it then applied.
Dr Rice stated that he did not believe the plaintiff was suffering from PTSD because she had not encountered any real trauma.
Lee J held that:
It seems to me indisputable that some sort of objective trauma is required in order for a diagnosis of PTSD to be made, i.e. actual trauma or an actual threat of trauma even if the person the subject of the threat reasonably mistakes its nature, e.g. if someone, such as a bank teller, is threatened with a replica pistol which looked real. …
His Honour was unable to accept the contention that what happened to the plaintiff was in any way objectively traumatic.
Lee J continued:
To conclude, as Dr Dodds and Dr Spelman seem to have done, that the plaintiff must have suffered an objectively traumatic experience because in their opinions she subsequently displayed psychiatric symptoms consistent with PTSD is to put the cart before the horse. Dr Dodds and Dr Spelman both admitted that proper treating procedure requires them to accept uncritically that which a patient tells them, and that the plaintiff knows and has confidence in the fact that they accept what she says. For this reason each was effectively constrained by what the plaintiff had told him.
Lee J held that such an approach is not open to the court. Indeed, there seem to be any number of other hypotheses open, such as fantasy or fabrication, which more readily conform to the evidence.
As the Victorian Court of Appeal noted in Mason v Transport Accident Commission:[50]
… as is often the case when personal injuries are in question, the opinions of medical experts are to a considerable extent dependent upon the accuracy of the claimant [here Mr Li] as [a] historian …
[50] Mason v Transport Accident Commission [2014] VSCA 267 [100] (Mason).
The court stated:[51]
The reliability of the claimant's history is likely to be especially important when what is in issue is psychiatric opinion on a condition where the diagnostic criteria depend upon the claimant's report of subjective feelings.
[51] Mason [101].
As their Honours observed, 'generally, the task of assessing a claimant's credibility and reliability is that of the court'.[52] Here it fell to the jury, who were unable to accept as a reasonable possibility that events in the early hours of 3 July 2020 unfolded as counsel for Mr Li suggested.
[52] Mason [102].

The court held:[53]
If the history is found to be unreliable a court may properly reject medical opinions founded upon it.
Of course, a court is not bound to simply reject psychiatric opinions founded upon an unreliable history. The court may be able to reach a conclusion as to the existence or non‑existence of a particular condition, such as PTSD, notwithstanding the fact that the psychiatric opinions were based upon facts in conflict with the facts found by the court.
[53] Mason [103] - [104].
Importantly, their Honours then said this:[54]
In the particular context of PTSD and the application of DSM-IV,[55] many of these considerations were brought together by Hayne J in Tame v New South Wales (2002) 211 CLR 317. …:
[In] considering post-traumatic stress disorder. The revised fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (commonly referred to as 'DSM-IV-TR') gives six diagnostic criteria for identifying post-traumatic stress disorder. … The diagnostic criteria also include criteria whose application depends upon the patient's report of subjective feelings of helplessness, fear, horror and the like. It is at these points, of … reports of subjective feelings, that the intersection between law and medicine may be thought to present difficulties. No doubt it is the difficulty of identifying that intersection which explains why the introduction to DSM‑IV-TR says that: '[W]hen the DSM‑IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis.' (Emphasis added)
… Once it is recognised that … the psychiatrist, … not surprisingly, is concerned to deal with the patient according to that patient's history and presentation rather than by reference to some objective inquiry into the truth of that history and presentation, it is clear that there truly is an 'imperfect fit' between the questions of ultimate concern to the law and those of concern to the clinician.
[54] Mason [105].
[55] Which applied at that time.
The trial judge was not precluded from, and was indeed bound to, form her own conclusions as to the factual basis for the psychiatric opinions expressed, and to then determine the weight, if any, to be accorded to those psychiatric opinions.[56]
[56] Mason [106].
The trial judge was in no position to make an alternative medical assessment. If the expert opinions were deficient, the judge was not bound to attempt to reconstruct a diagnosis according to her own lay assessment of what the opinion would have been if all the relevant facts had been known and taken into account.[57]
[57] Mason [111].

Dr Hoong's report and evidence

Dr Hoong is a fully registered clinical psychologist. Her report is dated 15 January 2024, but seemingly was signed at some later stage.
On 22 December 2023 Mr Li's general practitioner referred him to Dr Hoong. This was, of course, two days after his conviction when I had directly spoken to Mr Li in the following terms:
You must understand that the granting of bail and the ordering of a pre‑sentence report is no indication of the likely sentence on 16 February. I will listen to everything that is said on your behalf, but you have been convicted of a very serious offence, and the overwhelming likelihood is that I will impose a term of immediate imprisonment.
Dr Hoong first met Mr Li on 27 December 2023 and formed the conclusion that he exhibited symptoms consistent with a major depressive disorder.
Dr Hoong conducted a further five sessions of individual psychotherapy on 3, 5, 10, 12 and 15 January 2024. She also saw Mr Li's father on 10 and 13 January 2024.
At some point in time, Dr Hoong's treatment of Mr Li caused her to reach the conclusion that in addition to the major depressive disorder, Mr Li appeared to be a 'genuine victim of family and domestic violence'. It became clear, during the hearing, that the source of that violence is said to be Ms Xie. Further, Dr Hoong concluded that he presented with symptoms consistent with PTSD.
I do not accept Dr Hoong's finding that he presented with symptoms consistent with PTSD for three reasons:
•Her conclusions are based on facts that have not been established.
•Dr Hoong is not impartial.
•Dr Hoong applied incorrect and significantly outdated criteria in arriving at her conclusion.

Report based on facts that have not been established

In her report, Dr Hoong stated that she had regard to a statement of material facts dated 25 September 2020. That is not the relevant statement of material facts. The statement of material facts was amended with a further version dated 5 November 2021, amended again on 22 December 2022 and then amended for the final time on 21 April 2023 which is just before the pre-recording that I have referred to. It would, of course, have been significantly more useful if Dr Hoong had paid regard to the relevant statement of material facts. In particular, that document sets out the previous physical incidents leading up to 3 July 2020 whereas the statement of material facts that Dr Hoong referred to did not.
More fundamentally, the statement of material facts for 25 September 2020 relates, not to the offence for which Mr Li was convicted following trial, but the earlier alleged offence of 30 March 2020 which was charged as aggravated assault occasioning bodily harm.
Dr Hoong stated that, 'I have also considered the one in July, so I look at both'.[58]
[58] ts 703.
It is correct that her report informs the reader that she had studied the indictment dated 8 November 2021 which is the indictment relied upon at trial. But it remains the case that she did not have regard to the relevant amended statement of material facts. I accept that the amended statement of material facts would then be overtaken by prosecuting counsel's opening address to the jury. But it does not appear that Dr Hoong had regard to that either. Indeed, Dr Hoong did not consider any of the transcript of the trial proceedings in December 2023. She confined herself to the pre-recording in April 2023.
Dr Hoong stated that she wrote her report, because from Mr Li's presentation, 'it's possible but probability is so low that he is the perpetrator'. She explained that when she applied 'eye movement desensitisation reprocessing of the brain', then Mr Li 'started to recall that he actually have this movement and that might be this movement that have broken whatever bone in Ms Xie's face'.[59]
[59] ts 708.
Dr Hoong elaborated that Mr Li 'pushed' against her eye socket while the knife was 'charging towards him', so that he acted in self‑defence. That was not the scenario that was put to Ms Xie when she was cross‑examined over three days.
Dr Hoong said that when she diagnosed Mr Li with PTSD, there were specific types of symptoms observed. She stated:[60]
Where one goes into the actual traumatic event and sudden dissociation happens that symptom for trauma is very different from the fear of going to prison.
[60] ts 710.
Dr Hoong thought that the knife (the alleged attack by Ms Xie on 3 July 2020) 'was the last bit that caused that severe PTSD in Mr Li'. Dr Hoong considered that Ms Xie 'throwing all this computer stuff', the 'bashing of the property or whatever', 'the emotion charge, we have to - and the eyes - her eyes' together with her facial expression and her 'emotion energy' all contributed.[61]
[61] ts 710 - ts 711.
Dr Hoong reported that Mr Li informed her that Ms Xie was trying to attack him with a knife and, 'he was defending her'.[62]
[62] ts 708.
Dr Hoong stated that even if she were to remove the knife (from) the picture, there is, 'still this traumatic score. He will still meet the criteria'.[63] This seems to be on the basis that he was a victim of domestic violence.
[63] ts 711.
For the reasons given, the jury's verdict, coupled with my findings, dictate that one has to remove the knife from the picture.
During re-examination, Dr Hoong explained that she did not read all the three days of transcript of Ms Xie's evidence, but (did read) 'the important part of Ms Xie's background'.[64] Whilst it was somewhat unclear during parts of her evidence, ultimately I accept that Dr Hoong meant that she read through every page but only focused on certain parts.[65]
[64] ts 712.
[65] ts 713.
Dr Hoong stated that she understood, when she was preparing her report, that there were two very different versions of the 3 July 2020 incident, one of which was Ms Xie's version, given in her evidence.
Dr Hoong considered that Mr Li would need to be an extremely, highly, sophisticated actor, 'in order to convince me that he's telling lies'. Dr Hoong testified:[66]
And he's not. He has to act the sudden shake or sudden loss of that dissociation, the sudden loss of eye contact. He has to be highly sophisticated. The score itself convinced me that the probability for him to be fake and faking his score is - is very slim.
[66] ts 719.
Dr Hoong considered the observations of the physical symptoms and her consideration of the test results together, and they matched.
Dr Hoong considered that for a person to fake symptoms consistent with PTSD they would need to know what those symptoms are.[67]
[67] ts 721.
Dr Hoong stated that her diagnosis of PTSD would be unchanged even if Ms Xie's version was true and Mr Li's was false, essentially because the physical symptoms and the test results matched. Dr Hoong declared, 'no doubt that regardless of what happened, he suffer from PTSD'.[68]
[68] ts 721.
I then asked Dr Hoong these questions:
For someone to be diagnosed with post traumatic stress disorder, there has to be a cause or causes of that. Would that be correct? Yes.
Something has to cause it? Yes.
And you have told us that it is your opinion that Mr Li's post traumatic stress disorder was caused, as I understand it, by a cumulative effect of Ms Xie's behaviour to him in the course of their relationship. If it was the case that Ms Xie did not behave violently to Mr Li, apart from perhaps one or two very minor occasions, what could have caused the post traumatic stress disorder that discerned, if you take Ms Xie out of the equation?
Your Honour, I don't think I can take Ms Xie out of the equation.
So is it the position that your conclusion that Mr Li is suffering from post-traumatic stress disorder is based upon a conclusion that he was the victim of domestic violence at the hands of Ms Xie? Yes.
There was then this question from senior counsel and Dr Hoong's answer:[69]
In the history you had from Mr Li, were there any other traumatic events that may explain the symptoms of PTSD that you observed?
No.
[69] ts 722 - ts 723.
I consider Dr Hoong's evidence as set out at [130] and [131] to be inconsistent with her evidence at [129].

Dr Hoong is not impartial

Dr Hoong confirmed that psychotherapy involves the health professional obtaining their patient's perspective of what is troubling him or her. It is a clinical intervention to assess the symptoms and then construct a treatment plan to assist the client to manage their symptoms.
Dr Hoong testified that research shows that most of the individuals who suffer from PTSD are usually the victims and it is, 'very, very rarely that it happens on the perpetrator'.
Dr Hoong then said this:
I did not say that he's a perpetrator, of course.
You do not see that he is a perpetrator of domestic violence? Of course, he's a - I see him as a victim.
You see him as a victim? Of course.
Dr Hoong referred to some of the evidence that Mr Li had shown her, including photos and some of the WeChat conversation with him and Ms Xie's mother, 'which then allowed me to believe that whatever he say, I have no doubt of the truth'. In this regard, I accept the State's submission that Dr Hoong failed to disclose and clarify the entirety of the sources she relied on.
In addition to the part of Dr Hoong's evidence that I have set out at [26] there were other instances where her assertions lacked the neutrality one might hope for. Mr Li was, and I presume remains, her patient.
Dr Hoong testified:[70]
In addition to I observe his behaviour with his father in two sessions and he then - is the - is the timid - the - the going into that little boy that really scared, that got into trouble, that make me - give me another - sort of like supported my - my diagnosis for him that can he, with this - this - this was the point, boy so timid in the presence of the father - to be such a violent or controlling person in the domestic violence? It's very difficult to convince me that he is the perpetrator in this domestic violence case.
[70] ts 723.
Dr Hoong was asked, what it was that caused her to accept Mr Li's version of events as to what had happened between him and Ms Xie, as opposed to Ms Xie's version of events. She replied:[71]
It's - it's - again, it's in the session, the presentation of his behaviour in my presence and how he presented the information, the incident. Yeah. And the - the way he dissociated during - you know, when he reported about the incident and when I further asked questions. So it's - it's more, like, his presentation and looking at the score, that I have no doubt that he's telling me the truth, because of that triangulation that I have explained earlier, that it matched whatever … Yeah … The diagnosis.
[71] ts 726.
In her report, Dr Hoong suggests that from a psychological perspective, Mr Li's offending was more due to his naïveté and sense of woeful inadequacy. Consistent with the jury's verdict the explanation, in my view, is far simpler. In the course of an argument, he lost his temper and punched his then girlfriend.
I accept the State's submission that Dr Hoong presented as uncompromisingly biased in favour of Mr Li.

Dr Hoong applied the incorrect criteria

At page 9 of her report Dr Hoong relevantly stated as follows:
DSM – V POST-TRAUMATIC STRESS DISORDER SYMPTOM CHECKLIST
A event involving actual/threatened death, serious injury or threat to physical integrity YES
Experience of intense fear, helplessness or horror YES
In her evidence, Dr Hoong stated that DSM-V is not a test. Rather, it is a diagnostic criteria by the American Psychiatric Association. It does not actually provide criteria to assess a person such as Mr Li as a victim of domestic violence. It provides the criteria for assessing whether or not somebody has PTSD or some other mental illness.
As noted, Dr Hoong has considerable expertise in this particular field. At the hearing of 1 March 2024 all counsel and myself proceeded on the basis that Dr Hoong was informing us that under DSM-V the first criteria that must be met is as I have just set out. Dr Hoong said nothing to the contrary.
In the course of finalising my ruling on these contentious issues, on 12 March 2024 I sent, through my associate, an email to counsel which relevantly stated:
at this stage his Honour's research suggests that although Dr Hoong has set out at page 9 of her report that she has applied the DSM - V checklist, in respect of Criteria A at least, it would appear that she has had regard to the DSM - IV checklist.
Criteria A changed in 2013 and is now quite different.
His Honour would be grateful if counsel for the offender could indicate in writing by 4 PM on Friday 15 March whether this is or is not accepted.
In response, senior counsel for Mr Li accepted, and the State concurred, that subject to clarification from Dr Hoong, her report at pages 9 and 10 should be understood as referring to the criteria in DSM-IV. And that at page 10 of the report there is reference to a 'DSM-IV diagnosis of PTSD'.
The State subsequently provided the DSM-V (text revision) criteria for PTSD which reads (original text) as follows:
Posttraumatic stress disorder
Diagnostic criteria F43.10
Posttraumatic Stress Disorder In Individuals Older Than Six Years
Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways.
(Four ways are then specified beginning with directly experiencing the traumatic events.)
The first, obvious, point is that on the established facts, Mr Li has not been exposed to death, serious injury or sexual violence.
The second point is that Criteria A changed in 2013 and is now quite different. The previous reference to 'threat to physical integrity' has been removed and sexual assault is now specifically included. Moreover, language stipulating an individual's (subjective) response to the event - experience of intense fear, helplessness or horror - and which Dr Hoong referred to has also been removed. As I understand it from the academic literature, the publication of DSM-V in 2013 was the culmination of a 14-year revision process. The revision of Criterion A1 in DSM-V has narrowed qualifying traumatic events.
Senior counsel then advised in an email dated 18 March 2024 (having obtained instructions after Dr Hoong returned from overseas) that Dr Hoong:
… advises that she usually compares the classifications in both editions of the manual. In this case, she considers that there is no difference between them for the purposes of her diagnosis of Mr Li, and that Mr Li meets the criteria set out in each edition.
Senior counsel then attached a document from Dr Hoong:
tabulating the criteria in each manual, and identifying in red the criteria she considers the offender met. In her report she did not set out the criteria verbatim, but rather paraphrases them.
With respect, I find this approach to be profoundly unsatisfactory. Firstly, no-one would have known from the report or from Dr Hoong's evidence that this methodology was employed. Secondly, it has not been tested. On the face of it, it seems perplexing that Dr Hoong would still continue to have regard to criteria which are quite different and which were superseded 11 years ago.
I infer that Dr Hoong concluded that Mr Li directly experienced exposure to the threat of serious injury. Such a conclusion is unsustainable for the reasons given.

Conclusions

Accordingly, I am not satisfied on the balance of probabilities that Mr Li is suffering from PTSD. The question of whether it is attributable to Ms Xie's conduct towards him does not arise. Indeed, the absence of proven conduct by Ms Xie that could possibly warrant such a conclusion is an influential factor in my determination that it has not been shown that Mr Li is suffering from PTSD.
Mr Li will be sentenced on the basis that his punch of 3 July 2020 was not an isolated aberration.
In the first few weeks of their relationship, Ms Xie and Mr Li argued about his playing of video games. Mr Li held Ms Xie with both his arms on her shoulders and threw her onto the bed.
On or about 30 March 2020 there was a heated argument between Mr Li and Ms Xie over the issue of whether they should acquire a cat. Each party responded badly. Ms Xie threw Mr Li's food into the sink. He responded by squashing food onto her head. Ms Xie responded to that by slapping him. Mr Li then punched her and pushed her to the ground where she sustained injuries to her right knee and forearm.
I am not satisfied that Mr Li continued to punch her when she was on the ground. I am not satisfied that he kicked her. I am not satisfied that there was another occasion either before or after 30 March 2020 (other than 3 July 2020) where Mr Li punched her to the face.
I am not satisfied beyond reasonable doubt that during other arguments Mr Li hit Ms Xie in the face, grabbed her by the hair and kicked her in the head.
I am satisfied on the balance of probabilities that, as Ms Xie accepted, there was an occasion when in exasperation she smashed his computer. Further, that during another heated argument, Ms Xie threw Mr Li's food into the sink and when he took the food and pressed it into her hair, she retaliated by slapping him.

I am satisfied that there were other occasions, distinct from those that I have particularised, where Mr Li and Ms Xie had heated arguments.
There is no evidential basis to conclude that there were any events in this relationship, even when assessed cumulatively, that could account for any PTSD in Mr Li in January 2024.
I accept that in the argument of 3 July 2020 that preceded the punch, Ms Xie raised her voice. Aside from that, there was no provocation before Mr Li punched her. Ms Xie did not attack Mr Li with the knife. In the argument that culminated with the punch, Mr Li was the aggressor.
There is no evidential basis to conclude that there were any events in this relationship, even when assessed cumulatively, that could account for any PTSD in Mr Li in January 2024.
I am not satisfied that Mr Li is suffering from PTSD.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ES
Associate to His Honour Judge Troy
25 MARCH 2024