Wu v The Queen
[2014] VSCA 79
•24 April 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0148
| YENG JUN WU |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | WEINBERG, TATE and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 March 2014 |
| DATE OF JUDGMENT | 24 April 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 79 |
| JUDGMENT APPEALED FROM | R v Wu [2013] VSC 375 (T Forrest J) |
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CRIMINAL LAW — Application for leave to appeal against conviction — Applicant convicted after jury trial on one count of murder — Case against applicant circumstantial — Whether jury verdict unsafe and unsatisfactory having regard to the evidence — Applicant sought to disaggregate and explain away individual components of circumstantial case — When elements of circumstantial case taken together, Crown case very strong — Verdict reasonably open to jury — Verdict not unsafe and unsatisfactory — Application dismissed.
CRIMINAL LAW — Application for leave to appeal against conviction — Applicant convicted after jury trial on one count of murder — Zoneff direction made at trial regarding permissible use of lies told by applicant and his post-offence conduct — Giving of Zoneff direction agreed to by applicant’s trial counsel and no exception taken to charge to jury — Charge to jury fair and appropriate — Application dismissed.
CRIMINAL LAW — Application for leave to appeal against sentence — Applicant convicted of one count of murder — Offending involved brutal maiming and then killing with heavy edged weapon — Victim’s brain removed from cranial vault after killing — Applicant sentenced to 27 years’ imprisonment with a non-parole period of 21 years — Whether sentence manifestly excessive — Sentence not manifestly excessive — Application refused.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr C B Boyce | Grigor Lawyers |
| For the Crown | Mr B F Kissane with Ms K Argiropoulos | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I agree with Coghlan JA.
TATE JA:
I have had the benefit of reading, in draft form, the reasons of Coghlan JA. I agree, for the reasons his Honour gives, that the applications for leave to appeal against conviction and sentence should both be dismissed.
COGHLAN JA:
On 28 June 2013, the applicant was convicted by a jury, in the Supreme Court at Melbourne, on one count of murder. On 9 July 2013, he was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Murder [Common law] Life [Crimes Act 1958 (Vic) s 3] 27 years N/A Total Effective Sentence: 27 years’ imprisonment Non-Parole Period: 21 years Pre-sentence Detention Declared: 497 days Other orders: - forfeiture: Confiscation Act 1997 s 78(1)
- retention of forensic sample: Crimes Act 1958 s 464ZFB(1)
By notice dated 6 August 2013, the applicant seeks leave to appeal against conviction on the following grounds:
1.The verdict of guilty is unreasonable or cannot be supported having regard to the evidence.
2.The learned trial judge erred by directing the jury that they could reason that the following alleged lies told by the applicant could be used to help assess the applicant’s credibility when assessing the other statements that the applicant made in his police statement or in the telephone call that the applicant had from the prison with his daughter on 19 June 2012:
(a)The alleged lie that the applicant in his police statement maintained that his hand had been injured in an accident at
work on the Saturday morning and that staff members had seen this incident;
(b)The alleged lie that the applicant told his daughter in the June 2012 telephone call from prison that he suffered a blood nose when he went to the toilet area of the deceased’s house prior to the deceased’s murder; and,
(c)The alleged lie that the applicant told Cheng Cheng Cong when he said to her that he had injured his head and hands at work on the Saturday morning after the murder.
He also seeks leave to appeal against sentence on the following ground:
1. The sentence imposed is manifestly excessive.
The facts of the case have been set out carefully in detail in the Registrar’s Neutral Summary. For convenience, I adopt that summary.
Overview of facts and proceedings
The victim was brutally murdered in his home in the early hours of Saturday, 11 February 2012. The assailant entered the home through the unlocked front doors, entered the victim’s nearby bedroom whilst the victim was probably asleep, and attacked the victim with a sharp heavy weapon, perhaps a machete or an axe. Whilst still conscious, the victim was coerced from his bedroom down a short flight of stairs to the kitchen/lounge room area, where he ultimately died. Multiple blows caused sharp force injuries to his head, neck, left ear, cheek, jaw, temple and hairline. His chin, lips and nose were slashed with full thickness trauma. His right eye, eyebrow, mandible and cheekbone were exposed to the bone. Four parallel strikes exposed his skull beneath the forehead. His arms and hands were lacerated, mutilated and parts of them amputated as he tried to ward off the attack. The attack was so intense that a hole was created in the back of the victim’s head, his brain removed and deposited adjacent to his head.
Prosecution Case
The prosecution alleged that the applicant was the assailant, and presented a range of circumstantial evidence said to support that conclusion. In essence, the categories of evidence were as follows:
a)Opportunity and Motive – As to opportunity, the applicant and the victim were together on the night in question, the details of which are referred to below. As to motive, there was evidence of some tension between the applicant and victim over business dealings, compounded by the applicant’s failure to repay loans to the victim;
b)DNA and other forensic evidence, including blood spatter and droplets, at the crime scene;
c)Shoe prints at the crime scene;
d)The applicant’s injuries; and
e) Other relevant matters.
Defence Case
The defence did not take issue with the main planks of the prosecution’s circumstantial case. Rather, counsel submitted that there were reasonable alternative hypotheses consistent with innocence. Counsel positively submitted that the applicant was not the assailant. Rather, the most likely perpetrator was an unknown professional killer or, alternatively, Dong Wang (the brother of the victim’s wife), who (it was submitted) had a greater motive to kill the victim than did the applicant.
Evidence
a) Opportunity and Motive
The applicant is married to the victim’s sister (Shao Yan Wu). The victim worked for a Mr Alexandrei Trifonov at TAG Plasterboard for many years as a plastering sub-contractor. The applicant also worked as a sub-contractor to TAG. In 2001, Trifonov sold TAG to the applicant. The victim and his wife (Yan Yan Wang) started a new company called VW Plastering. The victim, through VW, continued to do subcontracting work for TAG. After the victim ceased subcontracting to TAG, some of TAG’s clients told Trifonov they were unhappy about the work being done by TAG. Trifonov told them to go directly to the victim’s company instead. Three builders did so. The victim’s wife said that this was in about 2006 and the applicant was not very happy about it. The applicant became bankrupt in about 2007. From 2007 onwards, the victim and his wife provided various loans to the applicant, namely $100,000 for the business in 2007 and $108,000 in relation to the purchase of a Mercedes-Benz car. The victim’s wife gave evidence that she discussed with the applicant the repayment of the moneys and that she had asked for monthly instalments. However, it was also conveyed to the applicant that if they could not repay, they would not chase them for the money. On a separate occasion, about two or three years before the trial, the victim and his wife also lent $50,000 to the applicant. It was not repaid and the victim’s wife spoke to the applicant and expressed annoyance as to how the $50,000 had been spent on travelling overseas. She told the applicant that they had used their mortgage to finance the $50,000 and the money needed to be repaid. She said in evidence that the victim was also not happy about this, but the applicant and his wife were family.
Fan Jack Zen, who had worked as an apprentice to the victim in the plastering business, gave evidence that three days before the victim was killed, he had a telephone conversation with the victim about some work for the following day, and the victim said ‘Whatever you do, don’t lend people money’. In cross-examination, Zen agreed that the victim was a generous person who was financially well off and often loaned people money.
The victim and his wife experienced troubles in their marriage, often caused by the victim’s excessive drinking and gambling, and he had been violent towards her. Accordingly, the victim sometimes stayed at their Endeavour Hills home, whilst his wife and their children lived in a house at Berwick. On Friday, 10 February 2012 (the day before the murder), the victim had been drinking. He argued with his wife, grabbed her phone and smashed it. The victim’s wife phoned the police, who came to the house, removed the victim and took him to Narre Warren police station where he was held until about 6pm and then issued with a safety notice preventing him from returning to the Berwick home. The victim telephoned the applicant to pick him up from the police station, and the applicant drove the victim back to the Endeavour Hills house.
Once there, the victim used the applicant’s mobile phone to call Dong and ask Dong to bring his (the victim’s) car and mobile phone to the house. Dong did so, and entered the house where he saw the applicant and the victim. Dong saw the victim pick up a piece of paper saying something angrily about a summons. They stayed at the house for about 20 minutes before going to a restaurant for dinner. The applicant’s brother (Wu Ying Kui) also joined them for dinner.
Dong said in evidence that during the dinner those present tried to persuade the victim not to find a lawyer for Monday. Dong told the victim that he would talk to his sister about this the following day and that the victim should also call her the following day. Dong wanted to be a mediator between them. There were no arguments during dinner. Dong left in a taxi and the others left by car.
The applicant’s brother said in evidence that Dong received a telephone call during dinner. Everyone was chatting at the table when that occurred. After that, Dong looked angry and said to the victim, ‘If you don’t listen to me I will do you’. The applicant’s brother understood this to be a threat of physical violence, and he had heard that a few times before. He had previously heard Dong say, ‘If you don’t treat my sister well I will kill you’. The only person that exhibited bad feelings towards the victim that night was Dong. Dong denied these matters in cross-examination.
The applicant, the applicant’s brother and the victim (but not Dong) returned to the victim’s house after dinner for a drink.
Dong had further telephone contact with the victim that night. He said that he phoned the victim to tell him, amongst other things, not to drink too much, as he knew that he was with the other two men, and was concerned that if he drank too much he would not be able to talk to his sister the next morning. Dong made one of the calls at 12.50 am. There was no answer, but two or three minutes later the victim called him back and said that he was not drinking and that the other two men had already left.
The applicant’s brother said in evidence that he and the applicant left the house at about 1 am. When the applicant’s brother left, the applicant was opening his car door. The applicant’s brother drove off, and did not notice the applicant’s car following him either in the driveway or on the road. The following morning, after learning of the murder, the applicant’s brother saw the applicant wearing the same clothes as he had been wearing at dinner the previous night.
Shortly before 2 am the applicant’s wife arrived home at the applicant’s house and saw the applicant in bed, apparently asleep. The applicant’s wife got into bed next to the applicant and went to sleep. She had an uninterrupted sleep. She awoke to find the applicant in the house.
Ms Cong, the young woman who was living with the applicant and his wife at the time of the murder and was managing the applicant’s restaurant in Chinatown, arrived home at about 2 am with the applicant’s wife. She saw the applicant’s Mercedes-Benz in the garage but did not see the applicant at home.
Lida Wu, the applicant’s daughter, was at home from 9.30pm on Saturday night. She went to sleep at about 1 or 1.30 am. She woke at 7 or 7.30 am Saturday morning and saw her father in the bedroom in bed with her mother. She said in cross-examination that she noticed the lights were off somewhere between 1am and 1.30 am. She was ‘not confident’ that it was no later than 1.30 am but was ‘pretty sure it was around that time’.
b) DNA and other forensic material
Crime scene examiners observed large amounts of blood in the bedroom area, down the stairs and in the lounge room where the deceased was found. Blood splatters, stains and smears were also observed. Transfer patterns consistent with a trail of footprints made by a person wearing Prada shoes were also located close to the smears. Put simply, the applicant’s DNA was found in four places, namely on the walkway above the stairs that led down to the lounge/kitchen area, just outside the bathroom door, on the soap recess of the bathroom basin and on the hot tap located near to that basin. The victim’s DNA was also found in those places, and in many other places in the house. The judge referred to the relevant evidence as follows:
[Fowler] offered a number of alternative explanations for these results. He said that while it was possible that DNA mixtures had been contemporaneously deposited, meaning deposited at the same time, DNA profiling did not allow samples to be dated. This meant that it was possible the DNA from the two individuals had been deposited during different events. In cross-examination by [defence counsel] he agreed that every human cell contains DNA. He agreed that the body sheds many of those cells in completing simple every day activities. Because the deceased man lived at the premises, the witness agreed that it was possible that he had deposited DNA found in one or all of the samples at some point in time prior to the murder. He agreed that if there was only one person present during the assault that person had to be the person who left the shoe impressions.
Scrapings taken from the left and right hand fingernails of the victim revealed a single source DNA profile which matched the victim but not the applicant.
The applicant’s mobile phone was also found to contain a small amount of blood. Analysis revealed that the DNA profile of a major contributor matched that of the victim whilst a partial DNA profile of a minor contributor matched that of the applicant. The victim had used the applicant’s mobile phone on the day prior to the murder, when he rang Dong from the applicant’s car, after being collected by the applicant from the police station. The relevant expert, Ms Kate Outteridge, agreed in cross-examination that the victim may have left biological material on the phone through handling it.
On 19 June 2012, while the applicant was on remand, he spoke by telephone with his daughter. They spoke about a DNA report that had been produced by an expert at the request of police. The report noted that the applicant’s DNA had been found at the crime scene in very close proximity to the victim’s DNA. The applicant told his daughter that he had had a blood nose while at the victim’s house, had blown his nose into the toilet, and that Dong would have seen him leaving the toilet area with a tissue. The applicant’s daughter gave evidence that she had been told about the applicant’s blood nose, and in turn had informed the applicant’s solicitors of the matter, prior to the release of the DNA report.
Dong’s evidence was that he was at the house for about 20 minutes before dinner. He and the applicant were sitting on chairs in the downstairs lounge room, having a conversation. He could not remember him or the applicant leaving the room. He (Dong) did not go to the bathroom to use the toilet, and he did not see the applicant have a blood nose or any blood on him.
c) Shoe prints
Mr Steven Fowler, who is a forensic scientist, and Sergeant Cox of the Major Crime Scene Unit examined the crime scene and gave evidence to the effect that there were shoe impressions left in the victim’s blood. Sergeant Cox gave evidence to the effect that the impressions were of a Prada shoe – perhaps a male slip-on dress shoe of size six. A search of the applicant’s house found an empty Prada shoe-box, of the same type of shoe that may have left the imprint, but size seven rather than size six. No shoes were located.
The applicant’s daughter gave evidence that the applicant owned a pair of Prada shoes. She was not sure if they were the only pair he had as ‘he’s got a lot of shoes’. She was asked in cross-examination about the size of her father’s shoes in the following terms:
You said in your statement you don’t really know what size your father is, possibly a 7 or an 8, you’re not certain?---No.
But you think he’s around that sort of sizing?---I thought, yeah, just common size, I think.
Sergeant Cox received two pairs of men’s Prada shoes on 3 August 2012. One was a pair of lace-up leather shoes, and the other was a pair of slip-on leather shoes. He found various serial numbers inside the shoes, ending in six, which led him to conclude that both the pairs of shoes were size six. He created sole pattern impressions for both pairs of shoes, which he compared to the crime scene impressions. They were of similar length, but were ruled out as being the shoes worn at the crime scene due to differences in wear. On 4 September 2012, he was provided with a pair of Prada dress boots, which he concluded were a size seven. The same process of comparison was undertaken with these boots, which appeared to be of a larger size. He ruled out the boots as being the shoes worn at the crime scene due to differences in wear and their larger size. He said that he based his conclusion that the boots were larger than the crime scene impression on the size of the mid-step, the space between the heel and the toe of the boot. He said this apparent difference in size could be explained by the fact that the mid-step of the Prada dress shoes he examined had a logo, whereas photographs of the crime scene impression did not show a logo. The length of the test impression left by the dress boot and the crime scene impression were similar. He said the shoe at the crime scene may not have left a complete impression, which could explain the similar lengths.
In cross-examination, Sergeant Cox agreed that the size seven Prada boot he examined was too big to have caused the crime scene impression, and that his opinion was that the shoe that left the impression at the crime scene was a size six Prada shoe.
The judge made the following comment in his charge:
You might think that for a valid comparison to be made between a size 6 Prada shoe sole of a certain particular pattern and a size 7 Prada shoe sole of the same pattern, the only valid basis upon which such a comparison can be made is by having to hand examples of both the size 6 and size 7 Prada shoes said to have that precise sole pattern.
You might further think that a size 7 Prada boot with a different sole is of little assistance to the comparison that you are invited to undertake.
That is, as I say, a comment of mine. You may reject it, if you wish, and if it assists you, you may act upon it. It is a matter for you, you are the judges of the facts.
d) The applicant’s injuries
On 12 February 2012, the informant spoke to the applicant and noticed injuries to his right hand. On his right forefinger there was a flap of skin with fresh looking blood underneath it. She also observed a scratch in the area between the forefinger and the thumb. There was bruising around the last three knuckles of the middle, ring and little finger. The applicant told police that he had sustained those injuries at work on Saturday morning, when a massive kitchen bin fell on his hand. He said other employees saw this happen and had offered to go to the pharmacy and buy a bandage for him. The informant photographed the injuries.
Dr Senaratna examined the applicant’s injuries on 1 March 2012 and took photographs. He estimated the injuries were weeks to months in age. Dr Jo Ann Parkin viewed photographs of the applicant’s injuries to his hands taken on 12 February 2012 and 1 March 2012. She opined that the injuries may have been caused by a sharp edged object. She agreed that there was nothing to suggest that the injuries could not have been caused in the way described by the applicant.
Ms Cong, who was working at the applicant’s restaurant on 12 February 2012, gave evidence that at some stage between 10 and 11 am the applicant told her that he had hit his head and hand on the rubbish bin. She saw the applicant was bleeding from his head, and saw an injury to one of his hands. On 24 February, Ms Cong made a statement to police. On the way to the police station, she received a phone call from the applicant, who asked her to tell police that he had suffered the injuries at the rubbish bin and that she had seen how the injuries were inflicted.
Ms Cong also gave evidence that on the morning of the killing, the applicant had woken her up at about 7.30 am and driven her to his restaurant in the city, picking up another employee on the way. She was half asleep and half awake during the trip. She was initially in the passenger seat and then in the back seat after the other employee got in. During that trip, she did not notice that the applicant had any injuries.
e) Other relevant matters
There was evidence as to the absence of front floor mats in the applicant’s car, as well as the absence of Prada shoes in his possession. As to the floor mats, there was evidence that the purchase contract for the applicant’s car included front floor mats, however in February or March 2012 there were no front floor mats in the car. The judge told the jury that this evidence was part of the circumstantial case but that:
… what you cannot do though is reason that if you found that the accused removed the front mats from the car that is evidence of guilt. Firstly, there is no evidence that he was responsible for removing the front mats from the car. Secondly, you do not know when, by whom or why they were removed or in what circumstances, and, as I reminded you before, your job is to avoid speculation or guesswork.
Similarly, there has been evidence that no Prada shoes were found at the accused’s house when it was searched on 29 February 2013. This is a piece of evidence that has been led to explain why no shoes were taken as exhibits and it is a contextual piece of evidence in the Prada shoe aspect of the case. What you cannot do is reason that if you found the accused disposed of his Prada shoes that is evidence of guilt. You cannot do that. You do not know when the shoes were disposed of, you do not know for what reason, you do not know whether in fact they were disposed of at all. You do not whether they were at one of the accused’s two workplaces and you do know that the box for them was certainly not disposed of.
So, again, this is, if you like, a prudential direction. I repeat you must not [speculate]. These pieces of evidence have a place in the prosecution case but they are not capable of being used as evidence of guilt.
Ground 1 – Unsafe and unsatisfactory
There is no doubt that it was always the applicant’s contention that the evidence was not sufficient to lead to a conviction because no jury could conclude, to the relevant standard, that it was the applicant who inflicted the injuries on the deceased.
A no case submission was made during the trial and rejected. Of course, the principles that govern the resolution of a no case submission are different to those to be applied when considering unsafe and unsatisfactory as a ground of appeal.
This Court is obliged to ask itself:
whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[1]
Alternatively, put another way, the Court asks:
whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[2]
[1]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (footnotes omitted).
[2]Libke v The Queen (2007) 230 CLR 559, 596 (Hayne J) (footnotes omitted; emphasis original).
The necessity for an appellate court to consider the evidence for itself in the way set out in M v The Queen[3] was reinforced by the High Court in MFA v The Queen,[4] SKA v The Queen,[5] and BCM v The Queen.[6] It is sufficient to note that in the latter two cases, two intermediate courts of appeal were found not to have carried out the required assessment of the whole of the evidence.
[3]Supra.
[4](2002) 213 CLR 606, 623-4.
[5](2011) 243 CLR 400.
[6](2013) 303 ALR 387.
The ruling on the no case submission is of assistance because it summarises how the case was put at trial. His Honour summarised the case as follows.
I consider that it would be open to the jury to make the following findings of fact:
1. That approximately a decade ago the accused, who was the deceased’s brother‑in‑law, had a business disagreement with the deceased;
2. That over the last few years the accused had borrowed $150,000 from the deceased and had used the deceased’s resources to purchase a Mercedes‑Benz vehicle valued at over $100,000. None of these moneys have been repaid;
3. That a few days before his death the deceased advised a young man not to lend money;
4. That on the night of his death the accused was at the deceased’s house before dinner, he dined with the deceased and others at a restaurant and he returned with his brother and the deceased to the deceased’s house. The accused and his brother left together at some time shortly before 12.50 a.m. The doors were left unlocked;
5. That the deceased was in or on his bed when the two men left;
6. That the deceased was beaten with a sharp heavy object in his bedroom on multiple occasions. The deceased and his killer then moved to the lounge room area. The deceased was there beaten to death and his brain was removed from the cranial vault;
7. The murderer was wearing a pair of Prada fashion shoes;
8. Bloody shoe impressions from these shoes were found in the deceased’s bedroom and they tracked a path downstairs to the lounge room to the vicinity in which the deceased was killed;
9. The bloody shoe impressions then led up the stairway, along a hallway to the bathroom and into the bathroom. The wearer of the shoes then stopped at the bathroom sink;
10. The wearer of the shoes struck the deceased initially in the bedroom, then moved with him to the lounge room where he killed him, and then that wearer walked upstairs to the bathroom area where he used the bathroom sink;
11. On the bloody shoe print path to the bathroom a passive blood droplet contained the DNA of the deceased and the accused man;
12. 16 centimetres from the bathroom door a further passive droplet was found. This also contained the DNA of both the accused man and the deceased man;
13. In the soap recess of the basin and on the hot tap at that basin in diluted blood the DNA of both the accused and the deceased man was found;
14. That minor injuries were observed on the accused’s hand and head not earlier than 10 a.m. on 11 February 2012.
Mr Sheales has argued forcefully (inter alia):
(a) That on the evidence his client wore a different size of Prada shoe to that detected in the bloody shoe impressions (size 7 or 8 as opposed to size 6);
(b) That his client gave an account of suffering a nose bleed earlier in the day at the deceased’s house which he treated in the toilet. The toilet is adjacent to the bathroom;
(c) That others had a much stronger motive than the decade‑old motive attributed to his client to wish the deceased dead;
(d) That given his client had been innocently present at the deceased’s house on two separate occasions during the evening and night before the murder, it was inherently likely that his DNA would be in various locations;
(e) That the injuries sustained by his client and observed on the Saturday morning were innocently occasioned and not observed by the witness before 10 a.m. despite the fact that she had been intermittently in his presence for hours. Her observation of them immediately followed a complaint by the deceased of a workplace accident said to have caused them. Further, Mr Sheales submitted the prosecution had not proved that the injuries of the nature and extent observed could have been sustained in the murderous attack;
(f) If the evidence of witnesses who were resident in Mr Wu’s house is accepted there was very little time, if any, for Mr Wu to have done what is alleged of him.
In both the written submissions, and in oral argument before the Court, it was submitted that there was little substance in each feature of the prosecution case viewed in isolation. Accordingly, it could only be through the collective strength of those features that the Crown could mount any sort of argument.
According to the applicant, there were only two features of the prosecution case that had any real cogency. These were the DNA evidence, and the shoe impressions. It was submitted that the evidence concerning the Prada shoes was tenuous at best. It was further submitted that the DNA evidence was capable of innocent explanation, in particular because the applicant had been at the premises twice on the day of the murder, and because of his account of having sustained a blood nose.
The submission about the shoes centred on the fact that the applicant’s shoe size was either seven or eight, a conclusion supported by the fact that the size on the empty Prada shoe-box was size seven. Yet the expert evidence made it clear that the shoe imprints found in the victim’s blood were size six.
It was submitted that the DNA evidence had to be assessed having regard to the applicant’s assertion that he had suffered a blood nose, and had gone to the victim’s bathroom to attend to it.
It was submitted that since these were the two major planks of the prosecution case, there was sufficient doubt about them to make the conviction unsafe and unsatisfactory.
I observed in argument, and repeat here, that the submission put forward failed to recognise the combined strength of a number of matters in the prosecution case.[7]
[7]See generally R v Hillier (2007) 228 CLR 618.
The various items of evidence to which his Honour referred in his ruling on the no case submission were all perfectly properly addressed. I am satisfied that, in combination, the prosecution case could confidently be made out.
The Crown case proceeded on the basis that the two significant blood droplets located in the victim’s house had been left by the murderer, as he proceeded to the bathroom, after he had killed the deceased.
As previously indicated, the applicant’s defence was that he was not the perpetrator. He told Lida Wu, his daughter, that he had suffered a blood nose when at the deceased’s house. It was said, on his behalf, that his DNA along the trail to the bathroom could thus be explained. The applicant also had an injured hand, which he claimed to have hurt on a rubbish bin at work on the Saturday morning, after the murder had been committed. He asked his employee, Ms Cong, to tell the police that she had been present when he injured himself, knowing that that was not true.
The applicant also put to the witness Dong Wang (at one stage, the ‘alternative murderer’) that he had seen the applicant with a tissue which he was using to stem the flow of blood from his nose. The witness denied having seen a tissue, or any other evidence of a blood nose.
It followed from the applicant’s account that his nose bleed must have occurred at the time the men first went to the house. That was because Dong Wang did not return to the house after the meal at the restaurant. When cross-examined, the applicant’s brother said he did not know whether or not the applicant had suffered a nose bleed before he arrived at the house.
If the applicant was not the actual perpetrator of this crime, he was singularly unfortunate in having to confront so many individual strands of evidence, all of which pointed directly towards him.
First, he just happened to have had a blood nose on the evening in question, leaving a path of material containing DNA precisely along the path that the killer (presumably carrying the murder weapon, with the deceased’s blood on it) would have taken to the bathroom.
Secondly, there were at least two places where the victim’s blood was located at, or very close to, the exact spot where the applicant’s DNA had previously been deposited. Although not every place on the trail, or in the bathroom, was tested, no DNA of the ‘alternative murderer’ was ever located.
Thirdly, the applicant claimed to have injured his hand at his place of work some hours after the murder. Otherwise, that injury, which resulted in bleeding, was the possible source of the applicant’s DNA which had been deposited, together with that of the deceased, outside the deceased’s bathroom.
Fourthly, no one else present at the victim’s house before they all went out to dinner saw the applicant with a blood nose.
Fifthly, the applicant happened to be a person who owned or had access to Prada shoes, the very type of shoe worn by the killer. It goes without saying that this make of men’s shoes are not all that commonly worn.
Sixthly, he was with the deceased until shortly before his death.
Seventhly, the applicant had the opportunity to kill the deceased, and no alibi for the time of the murder.
Eighthly, the applicant had a motive to kill the deceased.
Having combined all of these factors, as the High Court in R v Hillier[8] has stipulated must be done, I am satisfied that not only was it reasonably open to the jury to have found the applicant guilty, but that the Crown presented a very powerful circumstantial case. I reject the proposition that the jury must have entertained a reasonable doubt. I would therefore reject ground 1.
[8](2007) 228 CLR 618.
Ground 2 – Lies
In the trial, the prosecutor argued that the jury could make use of lies told by the applicant, as well as other post-offence conduct, as implied admissions of guilt. His Honour ruled, somewhat benevolently I think, that it was not open to the jury to use the ‘lies’ in that way.
The prosecutor submitted that the applicant had lied to his daughter, when he spoke to her by telephone while in custody on 19 June 2012, about having had a blood nose at the deceased’s house. It was submitted that the applicant had also lied when he said that Dong Wang had been present, and seen him use a tissue to stem the flow of blood.
In his detailed ruling about the matter, the trial judge found that there was insufficient evidence to enable the jury to conclude that the applicant had lied about having a blood nose, or indeed that he had lied about Dong Wang having seen him in that condition.
His Honour said ‘it was not open for the prosecution to contend that the nose bleed account is false’. He went on to say:
The prosecutor is entitled to argue that the account of passing Dong Wang while exiting the toilet is false, should he wish, and that that lie impacts upon the credit of the accused. I think it would be prudent to give a Zoneff direction in relation to this evidence, but I will hear further submissions on this.
For the avoidance of doubt, in the event that the jury need to consider this evidence (there is a no‑case submission in the wings) I consider it would be open for the prosecutor to invite the jury to reject the blood nose explanation should they choose. That would be on the basis of the other independent evidence that proves guilt. What he must not do is invite the jury to act upon that rejection to infer guilt. To do so would be contrary to this ruling and obviously enough involve circular reasoning.
The second implied admission arose out of the circumstances surrounding how the applicant came to injure his hand. It was submitted that the applicant lied when he said to the police that he had injured his hand at work on the morning of the murder.
The medical evidence was neutral as to when the injury may have been inflicted, and was said to be consistent with the possibility that it may have occurred as described by the applicant.
His Honour ruled that there was insufficient evidence to prove the lie so as to enable it to be treated as an implied admission. He so ruled even accepting that the accused had tried to get the witness Cheng Cheng Cong to tell the police that she had been present, and had seen him being injured. He further ruled that this conduct on the part of the applicant, even assuming that it was established, was intractably neutral, and that Ms Cong’s evidence could not therefore be used as an implied admission of guilt of murder. His Honour concluded:
Again, for the avoidance of doubt, should the prosecutor address the jury, he will be entitled to submit that the jury ought reject the rubbish bin account on the basis that the prosecution have proved their case through other evidence. What is he not permitted to do is contend that an implied admission of guilt flows from either of alleged lie or the post‑offence conduct.
After his ruling, his Honour said:
Mr Sheales, I took the view that assuming I have to charge the jury it was probably appropriate to give Zoneff directions in relation to all three pieces of conduct.
In his charge to the jury, his Honour gave the following direction:
There are a couple of other warnings I wanted to give you. In this trial the prosecution allege that Mr Wu has told some lies. In his police statement Mr Wu maintained that his hand and head had been injured in an accident at work on the Saturday morning and that staff members had seen this incident. Mr Bourke submitted that this statement was deliberately untrue. Additionally, the prosecution submit that when the accused man told his daughter in the June 2012 telephone call from prison that he suffered a blood nose when he went to the toilet area, that was also untrue and a lie. I need to give you some directions about the way you can use the evidence about these suggested lies.
Firstly, it is up to you to decide whether Mr Wu deliberately lied. That is, you must decide whether either of these statement were untrue and whether he knew they were untrue at the time that they were made. There is a difference between rejecting a person’s statements and finding that they deliberately lied. Sometimes people make mistakes or get confused or genuinely cannot remember a fact. While what they say may be wrong, it is not a lie. If you are satisfied that Mr Wu deliberately told one of the suggested lies that I have just mentioned that evidence can only be used, if at all, to help to assess his credibility when assessing the other statements that he has made in his police statement or in that telephone call. If you find that the accused deliberately lied about something you can use that fact in deciding whether or not you believe the other things that the accused has said. That is not to say that just because you find that an accused lied about one matter that you must also find they have been lying about everything else, but you can use the fact they lied to help you determine the truthfulness of the other things they have said. It is one factor to take into account. The weight you give to that factor will depend how significant you find the lie to be. What you must not do is to reason that because Mr Wu told these lies, if you find them to be so, he is guilty. Evidence that he has told these lies is not evidence of guilt. These alleged lies are relevant only, if at all, in assessing his credibility.
Similarly you will recall the evidence of Cheng Cheng Cong. She did not see any incident at the very large bin at the back of Mr Wu’s work, but did see what Mr Wu maintained were injuries sustained in an incident around the bin. If you thought that Mr Wu lied when he gave her this account, or behaved dishonestly when, if you accept her evidence, he subsequently telephoned Ms Cong and asked her to say she saw this incident, then you may use what you find as matters that may impact upon Mr Wu’s credibility, and again the weight that you give it will depend on how significant you determine it is.
Again, what you may not do is reason that because Mr Wu told this lie or behaved in this way he is guilty. That would be impermissible reasoning and I direct you of that.
In addition to these pieces of evidence, there are two other pieces of evidence that I want to give you similar directions about. Firstly, you will recall that Nu Chen agreed that he purchased the Mercedes coupé on behalf of Mr Wu. Floor mats were specified in the contract. Jason Xie from Mercedes sold the car to Nu Chen and Mr Xie says that AMG velour floor mats were specified. Four or five mats would have been supplied with the car on or about 28 October 2010. The police evidence was that in February or March 2012 there were no front floor mats in the car.
Those pieces of evidence are part of the circumstantial case that the prosecution put against the accused, but what you cannot do though is reason that if you found that the accused removed the front mats from the car that is evidence of guilt. Firstly, there is no evidence that he was responsible for removing the front mats from the car. Secondly, you do not know when, by whom or why they were removed or in what circumstances, and, as I reminded you before, your job is to avoid speculation or guesswork.
Similarly, there has been evidence that no Prada shoes were found at the accused’s house when it was searched on 29 February 2013. This is a piece of evidence that has been led to explain why no shoes were taken as exhibits and it is a contextual piece of evidence in the Prada shoe aspect of the case. What you cannot do is reason that if you found the accused disposed of his Prada shoes that is evidence of guilt. You cannot do that. You do not know when the shoes were disposed of, you do not know for what reason, you do not know whether in fact they were disposed of at all. You do not whether they were at one of the accused’s two workplaces and you do know that the box for them was certainly not disposed of.
So, again, this is, if you like, a prudential direction. I repeat you must not speculation. These pieces of evidence have a place in the prosecution case but they are not capable of being used as evidence of guilt. Is that clear? Yes.
It was submitted on behalf of the applicant that this direction was somehow inconsistent with his Honour’s earlier ruling.
Counsel for the respondent concentrated on what his Honour had said:
For the reasons I have already expressed, at its highest I regard this evidence as intractably neutral. Either the accused asked her to lie to support his truthful account or he asked her to lie to support his untruthful account. The evidence does not allow me to say one way or the other, and more significantly, in my view, it does not allow a jury to determine this issue either.
It was submitted that when the prosecutor referred in his closing address to the applicant’s injured hand and what Ms Cong had been asked to say to the police, he somehow traversed the judge’s earlier ruling. The prosecutor said:
What the accused told the police about his sustaining those injuries to his hands, he told the police that it happened at the restaurant and he told the police other people saw it happen. He then asked the witness Cheng Cheng Cong to lie to the police on his behalf that she saw those injuries happen when clearly she didn’t.
You can use that evidence to assess the credibility of the accused when he offers the explanation that he does for the injuries. You don’t have to accept that explanation that he gives, you can reject it.
There is nothing in that passage that was in any way inconsistent with the limited use to which this evidence could be put, in accordance with his Honour’s ruling.
The judge’s charge was itself consistent with both his ruling and his decision to give a Zoneff,[9] rather than an Edwards,[10] direction. Counsel for the applicant at trial agreed that a Zoneff direction should be given. Importantly, no exception was taken to the charge on this point.
[9]Zoneff v The Queen (2000) 200 CLR 234.
[10]Edwards v The Queen (1993) 178 CLR 193.
It was critical, from the applicant’s point of view, that the jury not reason that any lie or other post-offence conduct be treated as an implied admission. That is what his Honour was at pains to emphasise.
It is clear from his Honour’s ruling that he accepted that the jury might conclude that the applicant had indeed told lies about his blood nose and how and when he had sustained the injuries to his hand. Whether any individual juror did reason in that way, whether before or after concluding that guilt had been established, cannot of course now be determined.
If any juror did conclude that the applicant had indeed lied, the judge’s direction prohibited reasoning directly from that fact to guilt. Self-evidently, the question whether the applicant lied in these two respects had to be dealt with. His Honour’s charge on this point did so appropriately, and fairly to the applicant.
Accordingly, I would dismiss the application for leave to appeal against conviction.
Sentence
Manifest excess
The sentence imposed on the applicant was a significant one. The argument in support of the ground is that a sentence of 27 years with a non-parole period of 21 years is wholly outside the allowable range.
In his succinct sentencing remarks the judge said:
He was struck on scores of occasions with this weapon. At a time when he was still conscious he was coerced from his bedroom down a short flight of stairs to the kitchen/lounge room area. This is where his life ended. Sharp force injuries were observed to the back of his head, the base of his neck, to his left ear, cheek, jaw, temple and hairline. His chin, his lips and his nose were slashed with full thickness trauma. His right eye, eyebrow, mandible and cheekbone were exposed to the bone. Four parallel strikes exposed his skull beneath the forehead. His arms and hands were lacerated, mutilated and parts of them amputated as he tried to ward off the murderous attack.
Such was the force of this attack that a large defect or hole was created in the back of Mr Chen’s head. The assailant then physically removed Mr Chen’s brain from the cranial vault, depositing it adjacent to the deceased man’s head.[11]
and added:
In my thirty five years involvement in criminal law I have not encountered a crime as appallingly and gratuitously violent.[12]
[11]R v Wu [2013] VSC 375, [3]-[4].
[12]Ibid [5].
It has long been established that the treatment meted out to the deceased after his death by whoever it was that killed him is capable of being viewed as a significant factor of aggravation. In DPP v England,[13] Brooking JA (with whom Batt and Chernov JJA agreed) provided a detailed analysis of the decided cases and why such conduct may be viewed as an aggravating circumstance.
[13][1999] 2 VR 258; see also R v Stone [1988] VR 141, R v Beckett [1998] VSCA 148 and R v Whyte (2004) 7 VR 397.
I have no doubt that this case falls at the upper end of seriousness of the crime of murder. It may also have done so even without this particular aggravating feature. For this application to appeal to succeed it would have to be shown that the sentence imposed was not merely arguably excessive, but clearly outside the range of sentences that were reasonably open.[14] When proper regard is had to where the offending sits in the hierarchy of the crime of murder, I am entirely satisfied that the sentence imposed was within range. Accordingly, I would dismiss the application for leave to appeal against sentence.
[14]R v Abbott (2007) 170 A Crim R 306, [13] (Maxwell P, Eames JA and Habersberger AJA agreeing).
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