Zhu v The Queen
[2013] VSCA 102
•3 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0292 | |
| JIE ZHU | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH and WHELAN JJA and KAYE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 12 March 2013 |
| DATE OF JUDGMENT | 3 May 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 102 |
| JUDGMENT APPEALED FROM | [2011] VSC 470 (King J) |
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CRIMINAL LAW – Murder – Appellant stabbed victim to death after fighting with victim’s friends – Defence that stabbing was unintentional – Self-defence not relied on – Whether obligation to put any alternate defence of self-defence – Whether trial judge erred in failing to leave self-defence, defensive homicide and manslaughter self-defence to the jury – No self-defence direction required – No evidence to found a claim of self-defence – Pemble v The Queen (1971) 124 CLR 107 discussed – Crimes Act 1958.
CRIMINAL LAW – Post offence conduct – Consciousness of guilt – Appellant fled the scene of the murder, lied to emergency services and planned to obtain a false passport – Whether evidence of post-offence conduct should have been left to the jury – Trial judge properly allowed the evidence to be led – All items of post-offence conduct demonstrated a consciousness of guilt – R v Ciantar (2006) 16 VR 26 discussed.
CRIMINAL LAW – Juries – Reasonable apprehension of bias – Trial judge notified by a juror that the juror knew a key witness – Application to discharge the juror refused – Whether trial judge erred in failing to discharge the jury or the single juror – R v Goodall [2007] VSCA 63; Chung v Rechichi (2005) 20 VR 221 considered – No error in exercise of discretion not to discharge the individual juror or the jury – No high degree of need for discharge – Section 43 of the Juries Act 2000.
CRIMINAL LAW – Appeal against sentence – Manifest excess – Pressing need for general deterrence in respect of violent knife attacks by youthful offenders – Sentence not manifestly excessive – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr L C Carter | Lethbridges |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
KAYE AJA:
After a trial in the Supreme Court of Victoria, the appellant was convicted of murder on 8 August 2011. He was sentenced to 19 years’ imprisonment with a non-parole period of 15 years. He has been granted leave to appeal against his conviction on the following grounds:
1) The trial judge erred and there was a substantial miscarriage of justice by reason of the failure to leave for consideration of the jury: (a) self-defence; (b) defensive homicide; and (c) manslaughter self-defence.
2) There was been a substantial miscarriage of justice by reason of many items of ‘post-offence conduct’ being left to the jury as capable of amounting to implied admissions of the offence of murder; in particular that the appellant had the requisite mens rea for murder.
3) The trial judge erred by failing to discharge the juror who had seen spoken with and congratulated the prosecution witness Andy Tsai at poker tournaments.
The appellant was also granted leave to appeal against sentence on the ground that the head sentence and the non-parole period were manifestly excessive.
Background
On 29 November 2007, the appellant drove to the carpark of a 7-Eleven store in Box Hill to meet a girl, Fan Fang. Fang arrived in a car driven by the appellant’s friend, Sam Toms, and another man known to the appellant, Travis Manvese. The appellant chatted to Fang, who sat in this passenger seat of his car, and to Toms and Manvese, who sat in their car parked alongside his.
A group of approximately eight friends, including the victim, Ricky Yu (‘Yu’) approached the carpark. They had consumed part of a slab of beer in a park nearby. The appellant heard one of the members of this group of friends say words to the effect of ‘I chop you’ or ‘I cut you’, a phrase that was used by the group and by Manvese as a friendly greeting, but was interpreted by the appellant as a threat. The appellant got out of his car and confronted the group on the footpath near the 7-Eleven. He yelled to the group, ‘Do you know who I am?’
The appellant became involved in an argument, and then a fight, with a member of the group, Jay Jiang (known as ‘David’). They exchanged punches and the appellant grabbed David in a headlock. According to the appellant, after he and David were separated, David made a call on his mobile phone. He told the appellant, ‘I’ve called my friends down, they’re going to be down here, I’m going to fix this.’The pair began fighting again and ended up wrestling on the ground, which resulted in the appellant’s shirt being ripped. David began to win the fight. According to the appellant, David sat on his chest and said, ‘You’re dead for sure’.
During the fight, Toms was seen to go back to his car and pull a knife out of the boot, which he held down by his leg. After the fight ended, the appellant returned to his car and at some stage obtained the knife from Toms. He gave evidence that he grabbed the knife because David ‘told me his boys were coming down and I wanted to leave’. He returned to the footpath with the knife and asked the group if they wanted to die, and then chased after David with the knife and stabbed him twice. David suffered superficial wounds, the first to his chest and the second to his arm, which had been raised in self-defence. David escaped into the 7-Eleven. The appellant then waved the knife at other members of the group and said ‘Do you want to die?’
The victim, Yu, was standing near the appellant. He did not say anything to the appellant or make any movements towards him, but the appellant approached Yu and stabbed him to the left side of the neck. The stab wound tracked 15 centimetres into Yu’s body, damaging the collar bone, severing the right carotid artery and causing substantial internal bleeding. The appellant attempted to stab Yu a second time, but Yu raised his left arm to defend himself and the knife struck him in that arm. Yu ran away in the direction of the 7-Eleven, but collapsed after a short distance. He was pronounced dead at Box Hill Hospital shortly after.
After the attack, the appellant got back into his car and drove away quickly. While driving back to his home, the appellant called 000 on his mobile phone, ostensibly to report the incident. He told the emergency services operator that a group of Asian males had come past and yelled at his friends. The appellant said that he had gone up to intervene and they had attacked him. One of the males had produced a knife and tried to stab him, but the appellant grabbed the knife and had been cut on the hand in the process. He told the operator that one of the group of males had fallen, but he did not know what had happened and he had not stabbed him. The appellant later conceded that all of these statements were lies.
After the incident, Fang and Toms joined the appellant at his home. The appellant initially intended to go the police, but decided against it. Instead he went to the city to meet a person named Wu Lu, who was the housemate of a friend of his, and arranged to stay at Wu Lu’s house in Reservoir. He remained at Wu Lu’s house until 4 December, when he attended a police station. The appellant was subsequently charged with the murder of Ricky Yu.
Ground 1
Under Ground 1, the appellant alleges that the trial judge’s failure to leave for consideration of the jury the defences of self-defence, defensive homicide and manslaughter self-defence resulted in a substantial miscarriage of justice. These defences are set out in the Crimes Act 1958:
9AC – Murder – ‘self-defence’
A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.
9AD – Defensive homicide
A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section.
9AE – Manslaughter ‘self-defence’
A person is not guilty of manslaughter if he or she carries out the conduct that would otherwise constitute manslaughter while believing the conduct to be necessary—
(a) to defend himself or herself or another person; or
(b)to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person—
and he or she had reasonable grounds for that belief.
It was said by counsel for the appellant in his written case and oral submissions that the defences were reasonably open, having regard to the following evidence given by the appellant in either evidence-in-chief or cross-examination:
(i)When he heard someone in the victim’s group say ‘I chop you’, he thought his friends were being threatened.
(ii)While he and David fought, someone else from the group punched him and kicked him in the head.
(iii)When David was on top of him, David said ‘You’re dead for sure’.
(iv)David made a phone call and told the appellant that his friends were coming down and he was ‘going to fix this’. He later told the appellant he ‘was fucked’.
(v)David asked him ‘Do you want to play this the Vietnamese way or the Fujianese way?’ – a reference to styles of fighting – and they began fighting again. David slammed the appellant’s head into the ground, his shirt was pulled off and he became dazed after receiving multiple punches to the head.
(vi)The appellant took the knife from Toms after David had told him, ‘You’re fucked’, and swung it with the intention of scaring the people in the group away, because David’s friends were coming and because he wanted to leave. He thought the whole group was a threat to him.
(vii)He could not remember how he inflicted injuries on David, but he never meant to stab him and did so by accident.
(viii)He did not realise he had connected with the victim at the time, but he knew now that he had struck him in the neck.
The prospect of self-defence becoming an issue was first raised in the proceeding during the cross-examination of Mr Yao and prior to the appellant’s evidence. The appellant argued that Mr Yao had sustained bruises to his hand as a result of attacking the appellant, which it was said bore upon the appellant’s state of fear at the time of the murder. The trial judge observed that counsel was ‘awfully close’ to raising ‘self-defence or defensive homicide’ as an issue. In response, the appellant’s counsel submitted that there was insufficient evidence for him ‘to argue’ self-defence or defensive homicide. However, he submitted that having regard to the circumstances of the offence her Honour was under a duty to direct the jury as to those defences. The prosecutor submitted that the evidence would ultimately dictate whether those defences ought to be left to the jury.
Later, towards the end of cross-examination of the appellant, the prosecutor put it to the appellant that he had no lawful justification for stabbing the victim. The appellant gave the following evidence:
APPELLANT: …I wanted them to leave, to run away, to scare them away. As soon as David told me that his boys were coming down I just grabbed that knife.
PROSECUTOR: I think you agree though, don't you, that in stabbing him that you certainly were not acting in self-defence as a result of some attack from him or anyone else upon you?
APPELLANT: No.
PROSECUTOR: Or fearing such an attack, do you agree?
APPELLANT: I feared, I feared that something was going to happen, I didn't know what was going to happen next.
Soon after this evidence was given, the prosecutor finished his cross-examination and the jury was excused. The trial judge then asked defence counsel if he intended to raise the issue of self-defence with the jury. Counsel responded that he intended to submit to the jury that the appellant was frightened. When pressed further, defence counsel accepted that on the evidence led thus far, the defences of self-defence, defensive homicide or manslaughter self-defence could not be made out. He stated that for clarification, during re-examination he would ask the appellant what it was specifically that he feared.
During re-examination, the appellant was then asked:
DEFENCE COUNSEL: …When you were in front of Ricky and you were waving the knife, in answer to questions from [the prosecutor], you said you were frightened because you didn’t know what would happen next?
APPELLANT: (nods).
DEFENCE COUNSEL: Can you tell us what you meant by that?
APPELLANT: That, that David’s friends or boys were coming down.
Defence counsel then submitted that self-defence was now in issue and that though self-defence would not be raised by the appellant as a defence, her Honour had a duty to put these defences to the jury as being reasonable possibilities on the evidence. Her Honour stated that she did not consider the defences of self-defence and defensive homicide could be left to the jury as there was no evidence to indicate that at the time the appellant stabbed Yu, he was in fear of his life or in fear of really serious injury. Her Honour described manslaughter self-defence as being ‘more problematic’, because the appellant’s evidence that he was ‘in fear’ made it a matter of ‘reasonableness for the jury’.
Her Honour then permitted the prosecutor to further cross examine the appellant. No objection was taken to that course. He gave the following further evidence:
PROSECUTOR: What was the concern for your safety from Ricky who was standing there in front of you, if any?
APPELLANT: I wanted the whole group to run away, to get away.
HER HONOUR: No, can you please deal with the question, Mr Zhu. Right. What you're asked, what was the concern you had for your safety from Ricky standing in front of you?
APPELLANT: I didn't want him to stand there, just to stand…
PROSECUTOR: Why didn't you want him to stand there?
APPELLANT: I don't know, just, they were just standing there, so I didn't want them to stick around.
HER HONOUR: No, no, you're being asked very much at this stage about Ricky. Your counsel in re-examination can ask you something. But at this stage you're just being asked about Ricky standing there?
APPELLANT: Right. I just didn't want him to be around there at that stage.
PROSECUTOR: And why did you not want him to be around there?
APPELLANT: I was scared of what might happen next.
PROSECUTOR: The – at no time, I take it, did you actually think that there was going to be some physical attack upon you by Ricky, did you?
APPELLANT: I don't know. At that stage I don't know.
PROSECUTOR: It certainly didn't occur to you that he's going to kill you or anything, did it?
APPELLANT: No.
PROSECUTOR: I mean, after all, he was a 17 year old, well, a young person standing in front of you, unarmed, saying nothing and doing nothing, and I think you've already said it didn't occur to you that he would kill you, correct?
APPELLANT: That's right.
PROSECUTOR: And it didn't occur to you that he was going to cause really serious injury to you, did it?
APPELLANT: No.
PROSECUTOR: This unarmed young person?
APPELLANT: Well, I wasn't sure but I don't – I don't, I don't think so.
PROSECUTOR: There wasn't the slightest reason to think that, was there?
APPELLANT: No.
PROSECUTOR: And nor did you think that?
APPELLANT: At that stage my fear was of David's boys coming down, not of
PROSECUTOR: Not of Ricky?
APPELLANT: Well, yeah.
PROSECUTOR: David had already run away, correct?
APPELLANT: Yes.
PROSECUTOR: And was nowhere to be seen at the time you stabbed Ricky, do you agree?
APPELLANT: Yes.
PROSECUTOR: And when you stabbed Ricky you're not suggesting, are you, that you were acting in self-defence?
APPELLANT: No.
PROSECUTOR: You're not suggesting, in fact, that you deliberately stabbed him at all, are you?
APPELLANT: I didn't deliberately stab him, no.
PROSECUTOR: But insofar as you've admitted moving the knife towards him, you're not suggesting that you did that because you feared some attack by him?
APPELLANT: No.
The appellant accepted that from the time David fled to the 7-Eleven, no-one else in the group said or did anything threatening towards him. He also agreed that he was not acting in self-defence. He accepted that at the time he swung the knife at Yu, he had no fear that Yu was about to attack or hurt him in any way. The appellant’s counsel when invited, did not seek to further re-examine the appellant.
The appellant’s counsel did not thereafter make any submission that self-defence was open on the evidence or that the trial judge should direct the jury as to such a defence. Accordingly the trial judge did not leave self-defence to the jury. No exception was taken to her Honour’s charge.
We turn to the argument now raised on appeal that the trial judge erred by failing to leave self-defence for consideration of the jury. When on appeal a different defence to that pursued at trial is raised or there is a change in the way the defence was presented, it is necessary when evaluating criticisms of a trial judge's directions to a jury to relate those criticisms to the manner in which the trial was conducted. A fundamental shift from the way in which the defence case is conducted at trial brings to mind Gleeson CJ’s observation in Doggett[1] that the manner in which a trial is conducted and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary.[2]
[1]Doggett v The Queen (2001) 208 CLR 343.
[2]R v Tran [2007] VSCA 19, [7] (Nettle JA).
That said, the fact that defence counsel does not stress an alternative case before the jury (which he or she may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it. As Barwick CJ inPemble v R said:
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.[3]
[3](1971) 124 CLR 107, 117.
A concomitant obligation is to confine such directions of law to those facts the jury need to know in order to resolve the issues in dispute.[4] The ambit of these duties in a particular case will be determined by the evidence and not by the issues which the parties choose to pursue. Notwithstanding a forensic decision not to rely on a defence, a trial judge must put to the jury any matter or defence on which a reasonable jury, upon the evidence, could find for the accused.[5] While no narrow view of the evidence should be taken, the matter or defence must, as Redlich JA observed in R v Tran, ‘be a “real issue” plainly arising from the evidence as distinct from a remote or artificial possibility.’[6]
[4]Nicholls v The Queen (2005) 219 CLR 196; Tully v The Queen (2006) 230 CLR 234.
[5]Pemble v The Queen (1971) 124 CLR 107; Van den Hoek v The Queen (1986) 161 CLR 158.
[6][2007] VSCA 19, [42].
On appeal, the Crown argued that the rule in Pemble and Kear[7] should be re-considered in light of recent decisions of this Court, such that a higher hurdle should be imposed on parties seeking to argue that a trial judge was bound to put a matter to the jury even if it had been disavowed by counsel. The Court may in the future need to consider to what extent the rule in Pemble will have application as a result of the Jury Directions Act 2013 (Vic).[8] That said, the rule in Pemble has been applied by this Court in numerous cases[9] and there is no reason to qualify its application in present case.
[7]R v Kear [1997] 2 VR 555.
[8]While s 16 abolishes the trial judge’s obligation to direct the jury as to any defences or alternative offences which have not been identified during the trial, s 16(2) preserves the trial judge’s obligation to give the jury any necessary direction to avoid a substantial miscarriage of justice.
[9]R v Bertrand (2008) 20 VR 222, 240 [113]; Farquharson v The Queen [2012] VSCA 296; R v Staszewski [2004] VSCA 176.
The decision of the appellant’s counsel not to rely on self-defence was understandable – given that the appellant’s primary defence was a lack of intent to stab Yu. It would have been inconsistent for the appellant to also claim that he was acting in self-defence. The trial judge, in determining whether self-defence ought to have been left to the jury, was obliged to look beyond the appellant’s explicit statements that he was not acting in self-defence. She was required to look not only to direct evidence but also to whether there was circumstantial evidence from which the jury might infer that the appellant acted in self-defence.[10]
[10]R v Kear (1997) 2 VR 555, 566 (Ormiston JA).
The question is whether, in light of the evidence cited above, the trial judge was obliged to leave self-defence to the jury. The appellant submitted that his evidence – that he was not acting in self-defence, that there was no imminent threat from David or his friends and that he did not swing the knife at Yu because he feared some attack from him – did not negate the reasonable possibility that he was acting in self-defence. It was put that there was enough circumstantial evidence to raise a real possibility that the appellant was acting in self-defence because he was in fear of an imminent attack.[11]
[11]R v Hiep Tran [2007] VSCA 19.
In our view, her Honour was correct to conclude that no direction as to self-defence was required. Any concerns the trial judge earlier had about whether self-defence was in issue were allayed during re-examination and further cross-examination. In addition to expressly resiling from relying on self-defence, the appellant confirmed that no-one in the group, particularly Yu, posed a threat to him. The appellant did not fear that Yu would attack him, nor did he fear anyone else presently standing before him would do it. By stabbing Yu, he had not been seeking to protect himself from imminent harm.
There was no circumstantial evidence that could have reasonably founded a claim to self-defence. On the evidence, viewed as a whole, it would not have been open for the jury to infer that the appellant thought it was necessary to kill or cause serious injury to the victim in order to defend himself from the infliction of death or really serious injury. Had her Honour included self-defence in her charge, it would have served only to confuse the jury and raised the possibility of the jury reaching an improper verdict. This ground of appeal must fail.
Ground 2: consciousness of guilt
Ground 2 of the grounds of appeal alleges that there was a substantial miscarriage of justice by reason of three pieces of evidence being left to the jury as ‘post offence conduct’ on the basis that they were capable of amounting to implied admissions that the appellant had the requisite mens rea for murder. Those items of evidence were:
· The flight by the appellant, in his motor vehicle, from the scene of the stabbing;
· Lies told by the appellant in a call he made to the 000 emergency telephone number;
· Steps by the appellant constituting his involvement in planning to obtain a false passport to flee Australia.
As we have already stated, immediately after the stabbing, the appellant drove away from the scene, in haste, in his motor vehicle. In cross-examination, he agreed that he drove away as quickly as he could. Within a few minutes he then telephoned the police on the 000 number. He agreed that he told six lies to the operator in the course of that call, which lasted three minutes and 15 seconds. Those lies were to the following effect:
· The ‘other guys’ jumped him.
· They produced a knife.
· One of them tried to stab him.
· The appellant grabbed the knife with his hand and pulled it out.
· One of the other group fell, ‘but I don’t know what happened’. (Which he said three times).
· ‘I am really scared but I didn’t stab him or anything’.
The appellant then drove to his home in Doncaster. There he contacted Sam Toms, on his mobile telephone, and asked him to come over. In due course, Toms and Fan Fang arrived. They commenced driving to the Doncaster Police Station, but first went to a service station to obtain cigarettes and materials with which to treat the injury to the appellant’s hand. At that point, according to the appellant, Sam Toms questioned why they were going to the police. Ultimately, the appellant made a decision to go to Chinatown to meet up with a friend, Wu Lu. After meeting Wu Lu, the appellant went back to Doncaster. He was then driven to Wu Lu’s house in Carson Street, Reservoir, where he remained until he surrendered to the police on 4 December.
The prosecution called a witness, Andy Tsai, who was a friend of Wu Lu. Mr Tsai gave evidence that he was present when Wu Lu first received a telephone call from the appellant. He described a brief meeting between the appellant and Wu Lu on that night. On the next day, Tsai visited Wu Lu’s house in Carson Street. He gave evidence as to some conversations which took place at that house. In particular, Tsai said that, in the course of those conversations, Wu Lu and the appellant spoke about steps which had been taken to obtain a false passport for the appellant, so that he could leave the country.
The question of the admissibility of those items of evidence, to prove a ‘consciousness of guilt’ by the appellant, was argued before another judge, Robson J, in November 2010. On that occasion, counsel for the appellant objected to the admissibility of each of the three items of evidence, to which we have just referred. On behalf of the appellant, it was contended that the evidence of flight, by the appellant from the scene, was ‘intractably neutral’. In particular, counsel submitted that the explanation, that the appellant had fled the scene because he was frightened, was so inherently likely that a jury could not properly regard the flight as evidence of guilt. It was submitted, on behalf of the appellant, that each of the six lies, in the telephone call to the 000 emergency number, related to the actus reus. It was pointed out that the issue at the trial was not whether the appellant had stabbed Yu, but whether he did so with the intention to kill Yu or cause him really serious injury. Thus, it was submitted, the issue at trial would be whether the appellant was guilty of murder, or manslaughter. It was submitted that none of the alleged lies were capable of amounting to evidence of a consciousness of guilt of murder. Counsel for the appellant did not object to the evidence of the 000 call being tendered, but he submitted that the parts of it, in which the alleged lies were spoken, should be excluded, either as being irrelevant, or, alternatively, in the exercise of the discretion pursuant to ss 135 or 137 of the Evidence Act 2008 (Vic).
In a detailed ruling,[12] Robson J was satisfied that the post offence conduct of flight by the appellant was capable of demonstrating consciousness of guilt to prove an intention to kill, or to cause really serious injury. His Honour was satisfied that the lies, told in the 000 telephone call, were capable of demonstrating consciousness of guilt to prove intent or mens rea, and also to negative self-defence, defensive homicide and manslaughter self-defence. The judge considered that the evidence in relation to the passport was ‘slim’, but he considered that it was capable of demonstrating consciousness of guilt by the appellant that he had had the requisite intention for murder.
[12]R v Zhu [2010] VSC 557R.
The trial commenced in July 2011. At no stage during the trial, did defence counsel raise again, the admissibility of the three items of evidence, relied on by the Crown as evidencing a ‘consciousness of guilt’. It was not submitted that the prosecutor was not entitled to cross-examine the appellant with a view to demonstrate that each of those matters revealed that the appellant was conscious that he had intentionally stabbed Mr Yu in the neck with the knife. The prosecutor cross-examined the appellant, in some detail, as to each of the three items of evidence to which objection is now taken. After cross-examining the appellant, the prosecutor noted that he had raised the issue of consciousness of guilt ‘in a bit of detail’ in cross-examination, and stated: ‘I don’t know that there is any dispute that they could properly be left as going to consciousness of guilt’. The judge observed that there did not appear to have been any challenge to Robson J’s ruling. Neither at that point, nor subsequently, did defence counsel object to the items of evidence being relied on by the prosecutor, in final address, as matters demonstrating a consciousness of guilt.
In her charge to the jury, the trial judge gave thorough and detailed directions concerning the principles, which the jury needed to apply in determining whether any of the items of evidence, relied on by the prosecution, constituted an implied acknowledgment by the appellant that he was conscious that he had intentionally stabbed Yu and inflicted the fatal wound to him. No point was taken by the appellant as to the adequacy of those directions.
On appeal, it was submitted on behalf of the appellant that the evidence of the flight of the appellant, from the scene of the stabbing, was ‘intractably neutral’, because of the inherent probability of the alternative explanation, namely, that the appellant had fled the scene out of fear for his safety. It was submitted that that explanation may be derived from the 000 call, in which the appellant stated to the operator that he was then scared.
It was further submitted on behalf of the appellant that the lies, told in the 000 call, were not probative of a consciousness of guilt by the appellant that he had intentionally stabbed Yu, with the intention of killing him or causing him really serious injury. It was submitted that the lies, told by the appellant, were equally explicable on the basis that the appellant knew that he had inflicted a serious injury on Yu as a result of his dangerous act, namely, of brandishing the knife in Yu’s direction. Thus, it was submitted that the lies fell into the exceptional category of cases, referred to by the Court of Appeal in its judgment in R v Ciantar,[13] in which was held that post offence conduct is incapable of being probative of guilt of the charged offence, as opposed to a lesser alternative offence.
[13](2006) 16 VR 26, 47 [65].
In respect of the passport, counsel submitted that the evidence of Mr Tsai was so equivocal that it could not constitute an appropriate basis, upon which the jury could conclude that the appellant had instigated, or was party to, a plan to obtain a false passport for himself in order that he might flee the country. While counsel accepted that the allegation that the appellant had been involved in an attempt to obtain a false passport, was potent evidence of consciousness of guilt by him that he had intentionally killed Mr Yu he maintained that the evidence of Tsai was insufficient to establish that the appellant had been involved in the attempts to obtain the false passport for himself.
In our view each of the three items of evidence were properly admitted in evidence, and were admissible as evidence of a consciousness by the appellant that he had intentionally stabbed Yu, with the intention of killing him or causing him really serious injury. The real issue in the trial was not whether the appellant intended to kill, or cause really serious injury to Mr Yu, but rather whether the prosecution had proven, beyond reasonable doubt, that the appellant had intentionally stabbed Yu, thereby inflicting the fatal wound to him. Obviously, it could not be gainsaid that if the appellant was proven to have intended to stab Yu, he thereby intended to kill him or cause him really serious injury.
Thus, the critical issue is whether the initial flight by the appellant from the scene, and the lies which he told to the 000 operator, were reasonably capable of giving rise to an inference that the appellant acted in that way, because he knew that he had intentionally inflicted the wound to Mr Yu’s neck. In other words, the question is whether the evidence of the flight by the appellant from the scene, and the evidence as to the lies which he told in the 000 call, were capable of demonstrating a consciousness by the appellant that he had intentionally stabbed Yu in the neck.[14] In addressing that question, it must be understood that the court does not consider the post offence conduct, or lies, in isolation from any other evidence. Essentially, lies, and post defence conduct, are a species of circumstantial evidence. As such, the question whether they had probative value must be considered in the context of all the evidence in the case.[15]
[14]Ibid 48 [71].
[15]R v Ciantar (2006) 16 VR 26; R v Lam (2008) 185 A Crim R 453, 471 (Buchanan, Vincent and Kellam JJA); Johnstone v R (2011) 31 VR 320, 330, [54]–[55] (Neave JA); R v Jakimov [2007] VSCA 9, [93] (Ashley JA).
In particular, the flight by the appellant from the scene must be considered in the context of the events which immediately preceded it. In the course of those events, the appellant possessed himself of a knife, and proceeded to inflict three stab wounds on Jay Jiang (David). When Jay Jiang fled, the appellant turned around, and (to put it neutrally) his knife penetrated Yu’s neck to a depth of 15 centimetres. In doing so, the knife incised the head of the clavicle. The pathologist gave evidence that it required a degree of force to cause an incised injury to the bone. She estimated that the degree of force involved would have been at least moderately severe. In addition, the appellant then inflicted a stab wound to the lateral aspect of Yu’s left upper forearm. That wound was consistent with Yu raising his left arm to defend himself from a second blow from the knife.
In that context, in our view, the flight of the appellant from the scene could not be properly characterised as ‘intractably neutral’ of the question whether the appellant had intentionally inflicted the wound to Yu’s neck. Certainly, there was an alternative explanation available for the appellant’s flight, namely, that he was frightened for his safety. However, in the circumstances in which the appellant had conducted himself in the manner in which we have just described, it could not be concluded that that alternative explanation was so inherently probable that the evidence of the appellant’s flight from the scene was thus ‘intractably neutral’.
Further, the appellant was cross-examined, in detail, concerning each of the three items of evidence on which the prosecution relied in support of the proposition that he had demonstrated a consciousness of guilt. In cross-examination concerning his flight, he said that he had fled the scene because ‘amongst other things’ he was very scared of what might happen next. When pressed by the prosecutor, he then agreed that he drove away as quickly as possible, because, ‘amongst other things’, he did not want to get into trouble. He then agreed with the proposition, put by the prosecutor in cross-examination, that that was the ‘main reason’. That concession, in cross-examination, reinforces our conclusion that it was reasonably open to the jury to conclude that the appellant fled the scene, because he knew that he had intentionally inflicted the knife wound to the neck of Mr Yu.
Similarly, the lies told by the appellant, in the course of the 000 telephone call, were reasonably capable of giving rise to an inference that the appellant lied because he knew that he had intentionally inflicted a serious wound on Mr Yu’s neck with his knife. It is clear, from the course of the call, that the appellant was intent on setting up, for himself, a false account of what had occurred. In essence, he endeavoured to give an explanation to the operator that he had fled because he had been the victim of an attack with a knife, and that in the course of that attack, someone had fallen down, but that he did not explain how that had occurred. On three occasions, he said that he saw one person go down ‘but I don’t know what happened’.
Once again, those lies must be viewed in the context of the incident which had just occurred, and from which the appellant had just fled. In those circumstances, we do not consider that an alternative hypothesis – that the appellant told the lies because he had unintentionally stabbed Yu in the neck while he was waving the knife in the direction of the deceased – was so inherently probable as to render the evidence as those lies ‘intractably neutral’. Having acted in the manner in which we have described, and having fled the scene in great haste, the appellant, within minutes, concocted an elaborate story to the police on the telephone, in which he told at least six (if any eight) deliberate lies, in the space of a little over three minutes. In our view, a reasonable jury could properly conclude that the explanation for the appellant’s conduct, in telling those lies, was that he knew that he had intentionally inflicted the knife wound to the neck of Yu, and that, unless he concocted a false story as to how the incident occurred, he would be implicated in that intentional stabbing of Yu. We therefore reject the submission that the evidence was ‘intractably neutral’.
As we have already indicated, the point raised by the appellant, in relation to the evidence concerning the passport, was different. Essentially, it was submitted that the evidence of Mr Tsai was insufficient to establish that the appellant had been involved in an attempt to obtain a false passport for himself.
That submission focused on parts of the evidence of Mr Tsai, in which he stated that it was Wu Lu, and not the appellant, who instigated the plan to try to obtain a false passport for the appellant. However, it is clear that Tsai, in his evidence in chief, and in cross-examination, stated that the appellant was aware of, and was a party to, the attempt to obtain a false passport for himself. In his evidence in chief, Mr Tsai stated that, at Carson Street, Wu Lu had told him that he was planning to obtain a false passport. When asked whether the appellant said anything to him about that matter, Mr Tsai responded that the appellant told him that Gary Zhou was getting a passport for him, and that Wu Lu was fixing it. There then followed these questions and answers:
Did the accused tell you why he wanted this passport? … To leave the country.
Where was he going to? … China, I don’t know.
And why was that? … Because he stabbed someone, he needed to leave.
In cross-examination, Mr Tsai stated that when he discussed the passport with Wu Lu, the appellant was always present. He agreed that it was Wu Lu who said to him that he had the idea to help the appellant to get out of the country, and that he would try to obtain him a false passport. However, Mr Tsai said that the appellant also told him that Wu Lu was trying to get him a passport. In re-examination, Mr Tsai said that the first person who mentioned the passport was Wu Lu, in the presence of the appellant. At that time, the appellant did not say anything. However, later that night, Mr Tsai asked the appellant why he wanted to get the passport, to which the appellant responded that he wished to use the passport to leave the country. He said that Wu Lu would get it from Gary Zhou.
In our view, the evidence of Mr Tsai, to which we have just referred, was a sufficient basis upon which the jury were entitled to conclude that the appellant was a party to an attempt by Wu Lu to obtain a passport for himself, so that he could leave the country. As we stated, it was (correctly) accepted on behalf of the appellant that, if there was a sufficient evidentiary basis for that proposition, it could not be argued that the evidence, of the attempt to obtain a passport, could not be used as evidence of a consciousness by the appellant of his guilt of the intentional killing of Yu.
In those circumstances, we reject Ground 2 of the grounds of appeal.
Ground 3
During the cross-examination of Mr Tsai, her Honour was handed a note from the jury, which stated that one of the jurors had just realised that he knew Mr Tsai by sight. The trial judge sought further details from the juror as to his relationship with the witness. In another note, the juror said:
I’ve not formed any form of relationship or friendship with the witness known as Andy. I don’t know him by name. I’ve only ever seen him or spoken to him at poker tournaments. The conversation was only ever about current poker play apart from one occasion when I congratulated him on a tournament win with no other elaboration or comments. I have not formed any opinion regarding him and have not discussed any opinion regarding him with any other juror or anyone.
The juror’s interaction with Mr Tsai cannot be considered a trivial concern. As is clear from the evidence discussed under Ground 2, Mr Tsai was an important witness in establishing that the appellant was a party to the attempts by Wu Lu to obtain a passport for the appellant. Mr Tsai also gave evidence regarding the contested allegation that the appellant had told him that he always carried a knife in his car. The jury’s assessment of Mr Tsai’s credibility and reliability were significant matters with the potential to have a material effect on the ultimate verdict.
Defence counsel made an application to seek to have the jury discharged. He submitted that he did not want the single juror discharged. Her Honour dismissed the application, finding that there was nothing to indicate that the jury was tainted or in any way incapable of bringing in a proper verdict according to law. The trial judge stated that she might have at some earlier point contemplated excusing the juror, and would have ‘unhesitatingly’ excused him had he sought to be excused at the beginning of the trial. She determined that there was no need to excuse him at this stage of the trial. Her Honour ruled that the juror’s remarks indicated that the juror had not formed an opinion about Mr Tsai, nor was he incapable of assessing Mr Tsai’s evidence in a dispassionate way.
After refusing the application, her Honour told the jury:
HER HONOUR: Ladies and gentlemen, in relation to the note that I was given, may I say what a proper course that was to adopt, to bring that to the attention of the court immediately so that we could make an informed decision about it. It will not impact upon you as a jury but I do want to remind you that this is a case that you decided dispassionately. You decide this according to the evidence, you decide it on what the evidence before this court is, what witnesses say. You don't determine it in any way as a result of any preconceived ideas you might have or views you might have formed previously, all right?
No issue was taken with her Honour’s additional warning to the jury during the trial and it is not the subject of any complaint on this appeal.
The appellant contended that notwithstanding the clarifying statements made by the juror, a reasonable apprehension of bias arose which gave rise to the requisite high degree of need required to discharge at least that juror,[16] and that her Honour erred in failing to discharge the jury.
[16]R v Matthews [1999] 1 VR 534, 537 [9].
Infrequently, as the cases reveal, something may occur in the trial process which leads to the conclusion that a juror’s or potential juror’s ability to decide a case impartially is compromised, or that there is a reasonable apprehension that this is so. The trial judge has the discretion to excuse a person from the jury panel if satisfied that ‘the person will be unable to consider the case impartially’ or ‘is unable to serve for any other reason’.[17] The practice of informing the jury panel of the nature of the crime charged before taking excuses provides adequate opportunity for any potential juror to seek to be excused if he or she considers that they will be unable to be impartial for any reason. Once empanelled, the trial judge may discharge jurors who fall into this category.[18]
[17]S 32(3) Juries Act 2000 (Vic).
[18]R v Goodall (2007) 15 VR 673, 679 [30].
A trial judge’s discretionary power to discharge a single juror and proceed with 11 jury members derives from s 43 of the Juries Act2000, which provides:
43 Judge may discharge juror
A judge may, during a trial, discharge a juror without discharging the whole jury if —
(a) it appears to the judge that the juror is not impartial; or
(b) the juror becomes incapable of continuing to act as a juror; or
(c) the juror becomes ill; or
(d)it appears to the judge that, for any other reason, the juror should not continue to act as a juror.
It is necessary for the appellant to demonstrate that the trial judge erred in exercise of the powers under s 43. It is the exercise of a discretionary power which attracts the principles which govern appellate review of discretionary decisions discussed in House v The King. As was observed by Mason CJ and McHugh J in Webb:
[T]he decision of the judge is a discretionary judgment in the sense that it involves a value judgment. Where no error of principle is involved, an appellate court is naturally slow to substitute its opinion for the trial judge’s opinion. The law reports contain many cases where the decision of the trial judge to continue a trial has been upheld, notwithstanding irregular incidents.
Although the power to discharge a juror involves a value judgment[19] the broad power under s 43 to discharge a juror has been narrowly construed. The test governing the judge’s exercise of the discretion to discharge a juror was stated in R v Boland:[20]
The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evidence of ‘a high degree of need for such discharge’, that high degree being ‘such as in the wider sense of the word might be denoted by necessity’.[21]
[19]Webb v R (1994) 181 CLR 41, 53 (Mason CJ, McHugh J).
[20][1974] VR 849.
[21]Ibid 866 (footnotes omitted).
A reasonable apprehension of bias in respect of a juror is one of the circumstances that constitutes a high degree of need for the discharge.[22] A juror’s belief that they could bring an unbiased mind to the case while it must be taken into account, is not binding upon a trial judge. A juror's mind may unconsciously be affected by bias even if, in good faith, a juror believes that he or she is acting impartially. The test is an objective one involving a fair-minded and informed observer, who would take account of what was said by the juror but would also be guided by other relevant considerations.[23] In the joint judgment of Mason CJ and McHugh J in Webb v The Queen[24] they cited with apparent approval the decision of the Full Court of the Federal Court in Duff v The Queen,[25] in which a conversation between a juror and a judge’s associate at a party did not give rise to a reasonable suspicion as to the fairness of the trial ‘once the circumstances and the terms of the communication were disclosed’.
[22]R v Matthews [1999] 1 VR 534, [9] (Callaway JA). See also R v Goodall (2007) 15 VR 673, 677 [18]; I v Western Australia (2006) 165 A Crim R 420.
[23]I v State of Western Australia (2006) 165 A Crim R 420, 427 [21] (Steytler P). See also Stanoevski (2001) 202 CLR 115.
[24](1994) 181 CLR 41, 47.
[25](1979) 39 FLR 315, 336–8.
The principle behind the reasonable apprehension test is that it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. The test to be applied by a trial judge to determine whether he or she should discharge the jury on the basis of bias was stated in the joint judgment in Webb. It is held that the test is whether the circumstances of the incident would ‘give a fair minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror’. It is the court’s view of the reaction of the ordinary reasonable and informed member of the public to the irregularity that is determinative.[26]
[26]See R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256, 259; Re JRL; ex parte CJL (1986) 161 CLR 342, 351–2.
The observations made in R v Chung & Rechichi[27] as to the subtle ways in which even minor contact between persons perceived to be connected to a party and a juror might require the discharge of a juror concerned are apposite. Consciously or unconsciously, the relevant harm is the danger that somehow a bond or some other form of connection may be established.[28]
[27](2010) 25 VR 221.
[28]Ibid 229 [32] (Redlich JA).
The trial judge must also take account of the possibility of directions designed to remove any reasonable perception that the jury may not have discharged their duty impartially before adopting the significant course of discharging a juror and thereby altering the constitution of the jury. A reasonable apprehension of bias may be capable of dissipation by a careful direction from the judge to the juror, or to the jury as a whole, or to both the individual juror and the entire jury. Such a course should normally warrant careful consideration, because both the prosecution and the accused are, in the absence of those special circumstances which permit the juror’s discharge, entitled to a trial before the jurors who were duly selected to try the issues between the accused and the Crown.[29]
[29]Ibid 230 [35] (Redlich JA).
The question which arises under this ground is whether it was open to her Honour to conclude that a fair minded lay observer with knowledge of the material facts would not have entertained a reasonable apprehension that the juror would not bring an impartial and unprejudiced mind to the determination of the verdict.
In our view, it was open to her Honour to exercise her discretion not to discharge the individual juror or the jury.[30] The juror did not know Mr Tsai by name and knew nothing about him. He had only interacted with the witness while competing in poker tournaments and had never discussed anything but current poker play. His conscientiousness in alerting the Court to the fact that he knew the witness no doubt enhanced the trial judge’s confidence in the juror that he could bring an unprejudiced mind to his deliberations. Her Honour was entitled to take the juror at his word when he stated that he had not discussed Mr Tsai with other members of the jury or anyone else. It was safe for her Honour to assume that the juror was in a position to assess Mr Tsai’s evidence without any preconceived opinions about Mr Tsai’s character or his reliability as a witness.
[30]R v Goodall (2007) 15 VR 673. We may have a different view.
Given the juror’s limited contact with the witness and the juror’s demonstrated propriety, it was open to her Honour to conclude that a lay observer in these circumstances would not entertain a reasonable apprehension that the juror would discharge his duty improperly. There was no high degree of need for the discharge of either the juror or the jury. That is not to say that reasonable minds might not differ as to the course that could have been followed when such conduct has eventuated. But no error has been shown in the trial judge’s decision.
The appeal against conviction is dismissed.
Appeal against sentence
The appellant submits that the head sentence of 19 years and the non-parole period of 15 years were manifestly excessive, having regard to the following mitigating factors:
·The appellant’s youth – he was aged 21 at the time of the offence and 25 at the time of sentencing;
·The appellant’s genuine remorse;
·The appellant’s prospects for rehabilitation;
·The delay of four years between the offence and the date of sentence;
·The appellant’s co-operative manner with police and during the course of the trial;
·The appellant’s limited criminal history.
In addition to this constellation of factors in mitigation, the appellant submits that the circumstances of this offence warranted a sentence towards the lower end of the range for murder, given that there was no pre-meditation involved, that he took possession of the murder weapon spontaneously, and that there was a very sudden escalation of violence in the lead-up to the fatal stabbing. It was further put that even if self defence was found not to be open under Ground 1 of the Conviction Appeal, the evidence of the appellant’s fear at the time of the offence cannot be ignored for the purposes of sentencing. But her Honour expressly rejected the appellant’s evidence that he grabbed the knife from Sam Toms and stabbed Ricky because he feared an imminent attack from David’s friends. In consequence, there was no reason for her Honour to take the appellant’s claimed fear into account in sentencing.
All of the factors identified by the appellant as going towards mitigation of sentence were given explicit consideration in the sentencing remarks and taken into account in the appellant’s favour. Her Honour also recognised the appellant as having been a model prisoner with ‘real and substantial prospects for rehabilitation’.[31] Her Honour took into account the appellant’s co-operative manner during the trial. However the seriousness of the appellant’s crime should not however be minimised. In a state of anger, the appellant by stabbing took the life of a 17 year-old boy who had done nothing to provoke the attack. The appellant then fled the scene, gave a false account of the incident to emergency services and hid from police for days before turning himself in.
[31]Sentencing remarks, [36].
This was a crime of wanton and unprovoked viciousness by a youthful offender who resorted to the use of a knife to inflict lethal injuries. The victim was an innocent bystander. Violence of this nature by youthful offenders in public places is so prevalent that general deterrence and denunciation of the conduct must be emphasised.[32] The sentencing judge was obliged to impose a sentence which gave due recognition to not only the sanctity of human life, but which also served to demonstrate that such violence was intolerable in a civilised society and gave emphasis to these sentencing principles.
[32]See for example Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372, [39]–[41] and the cases therein referred to.
We were asked to consider other sentences imposed for murder. Sentencing statistics and comparable cases, as has repeatedly been said, are of only limited assistance. They reveal that a head sentence of 19 years was the average sentence though slightly above the middle of the range, whereas the non-parole period was narrowly below the middle of the range.[33] A sentence of this order cannot be said to be beyond a sound exercise of the sentencing discretion.
[33]See Sentencing Advisory Council, Murder in the Higher Courts: Sentencing Snapshot No 109, May 2011, p 5. The median total effective sentence imposed for murder was 18 years, the average sentence was 19 years from 2005–06 and 2009–10. The median non-parole period imposed for murder was 15 years, the average non-parole period was 15 years and 3 months.
The appeal against sentence must be dismissed.
WHELAN JA:
I agree with Redlich JA and Kaye AJA.
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