Crown v Accused

1 Mr Tan is charged with the murder of Ju Zhang at Epping on 1 February 2021.

2 The principal issue in the trial will be whether the prosecution can prove it was Mr Tan who killed Ms Zhang. A further issue is whether the prosecution can prove that at the time Mr Tan killed Ms Zhang, he intended to either kill her or cause her really serious injury. The prosecution case is entirely circumstantial.

3 Pursuant to s 19(1) of the Jury Directions Act 2015 (Vic) ('the Act'),[1] the Director of Public Prosecutions has given notice that the prosecution intends to adduce evidence of incriminating conduct. The prosecution rely on the evidence to prove not only that the accused killed Ms Zhang, but that he did so with murderous intent.

4 The defence accept that the evidence is capable of being used as an implied admission by the accused that he is responsible for the unlawful killing of Ms Zhang. However, they submit that the post-offence conduct is not capable of sustaining an inference that the accused acted with murderous intent.

5 On 2 May 2023, I ruled the prosecution could rely on the evidence in the two ways sought, and indicated I would provide more detailed reasons later. These are those reasons.

6 The prosecution case is summarised in my earlier ruling[2] and I will not repeat that summary. This ruling should be read together with my earlier ruling.

7 The prosecution's Amended Notice of Incriminating Conduct dated 26 April 2023 ('Notice') itemises the following five pieces of evidence:

i. A lie told by the accused that the deceased left the house herself and that was the last time he saw her alive. This lie was repeated to police, Ms Chi, Mr Zhu and others. It includes details as to the circumstances of the deceased leaving, what she was wearing and what she was carrying.

ii. The accused hid the deceased's body in the laundry of her home and asked Mr Chan to assist with its disposal.

iii. The accused disposed of the deceased's body by placing it in a wheelie bin and driving the bin to Heidelberg West so it could be collected by a garbage truck on the morning of 2 February 2021. He then retrieved the bin, cleaned the bin and returned it to the deceased's carport.

iv. From on or about 5 February 2021, the accused sought to avoid police and attempted to flee the State of Victoria.

v. On 6 February 2021, the accused made three internet searches inquiring 'how many years for killing a person in Australia?', 'How is stinky garbage disposed of in Australia?' and 'Garbage disposal in Australia'.

8 Two other items contained in the Notice were deleted, including that the accused had tampered with the CCTV system at the deceased's home. During argument, following issues raised by the defence, the prosecution sought to re-add this item to the Notice. It is agreed between the parties that any argument as to whether the alleged tampering with the CCTV system may be relied upon as incriminating conduct will be heard after the evidence has concluded.

9 It is necessary to set out the evidence concerning the accused's post-offence conduct in more detail.

10 The morning after the killing, the accused contacted the deceased's close friend, Ms Chi. He told her that the deceased had gone out and did not come back. He said she was wearing pyjamas and a dressing gown. Later that day, the accused attended at the Epping Police Station with Ms Chi and Mr Zhu (the deceased's ex-husband) and gave a similar but not identical account. In his police statement dated 4 February 2021, the accused repeated a version of the same story, and said the deceased took nothing with her except her mobile phone. He further repeated this account in his first record of interview on 7‑8 February. I will refer to this evidence, collectively, as 'the lie'.

11 On 1 February 2021, having killed the deceased, the accused telephoned Mr Chan at approximately 9:20pm. He told Mr Chan it was an emergency and asked him to attend at the deceased's home in Epping. Upon arrival, the accused made substantial admissions to Mr Chan. He said, 'I had an argument with my girlfriend. I saw her bringing back other guys three or four times. I am so pissed. We had an argument then had a fight. I killed her by accident.' The accused told Mr Chan that he had cleaned up and the deceased's body was in the laundry cabinet. He told Mr Chan to go and look, but Mr Chan refused. He then asked Mr Chan to find a rubbish bin for him, as he did not want to chop the body up. The accused said, 'Just put the whole body in the rubbish bin and get rid of it'. Mr Chan was scared and went to look for a bin, using the opportunity to leave and not return. The accused made over 90 mostly unanswered calls to Mr Chan on the night of 1 February and morning of 2 February.

12 The prosecution case is that the accused then placed the deceased's body in a wheelie bin belonging to the deceased. He placed the bin into his car and left Epping at about 2:03am on 2 February 2021. He drove to Heidelberg West where there was a scheduled bin collection, left the bin and returned to Epping, arriving at approximately 2:50am. He then contacted Ms Chi and drove the deceased's son to school, before returning to the Heidelberg West area at around 8am. He remained in the area until shortly after 9am, retrieved the now emptied bin, and returned to Epping where he spent approximately half an hour washing the bin before placing it back in the carport.

13 On 4 February 2021 at 11:07pm the accused made a statement to police. He was not a suspect at that point. At 4:20pm on 5 February, police contacted the accused and requested to speak with him. The accused agreed to meet police at his home address in Doncaster within the hour. The accused then set about avoiding police, by arranging false meeting locations and turning his phone off. Still on 5 February, an associate of the accused's, Mr Liu, saw a news article about the deceased's disappearance and recognised the accused as the person police wanted to speak with. Mr Liu contacted the accused, who said the police had taken his laptop and it contained information about credit card fraud. The accused said that he knew the police wanted to speak to him again and he had already left Melbourne. He was in a small Victorian country town waiting to catch a boat to another country and hide there before returning to Malaysia. The accused had two mobile numbers, and asked Mr Liu not to provide the new number to police. He also asked for help to leave Victoria.

14 Returning to the morning of 5 February, the accused contacted a friend, Ms Chuah, and begged her to let him stay with her. She agreed he could stay for two days. The accused said 'something happened' but would not expand. He stayed in Ms Chuah's bedroom for the next two days and did not leave the house. Late on 6 February, Ms Chuah and her housemates saw the news and recognised the accused as the person police wanted to speak to in relation to the disappearance of the deceased. The accused was asked to leave the house, which he did after initially refusing.

15 On 7 February, Mr Cheang, a flatmate of the accused, called the accused and informed him the police were looking for him. The accused said it was in relation to fraud matters. At 1:30pm, police were searching for the accused when by chance they identified him walking on Marianne Way, Doncaster. He was arrested and interviewed, and released without charge on the morning of 8 February. The police took the accused's passport prior to his release.

16 On 10 February, the accused asked Mr Cheang for some money so he could leave Melbourne. Later that day, the accused was arrested for the murder of Ms Zhang at Melbourne airport. He told the arresting member he was travelling to Adelaide for a holiday. He then told AFP members he was attending a medical appointment in Adelaide. Investigators later established the accused had a ticket to Adelaide with a connecting flight to Perth.

18 The prosecution submit that there is other evidence in this trial capable of sustaining an inference of murderous intent. They point to the relationship evidence, which provides a catalyst for a conflict between the deceased and the accused, and a reason why the accused would have confronted the deceased in anger on the night of 1 February. In particular, the deceased had spent the night of 31 January with another man, Mr Hung, and it may be inferred the accused knew this.

19 Further, the prosecution rely on the nature of the injuries sustained by the deceased. The deceased's body was found in landfill on 18 June 2021. She had sustained multiple crush and sharp force injuries, and the cause of death was 'unascertained'. Significantly, however, the injuries included multiple sharp force injuries to the chest and defensive‑type injuries on both arms. There was a sharp force injury to the pericardium with altered blood, in keeping with the injury having occurred during life.

20 The prosecution argue the admission to Mr Chan, if accepted, proves the accused is the one who killed the deceased. They concede it is an admission to manslaughter but not murder.

21 The prosecution submit that the lie told by the accused concerning how the deceased left the house on 1 February is provable through Mr Chan and does not involve 'bootstraps' or circular reasoning. There is also evidence that after her disappearance, the deceased's mobile phone (when switched on) only connected with the phone tower closest to her home, which suggests the accused lied when he said the deceased took her mobile phone with her.

22 The prosecution argue the post-offence conduct is extreme and protracted, and inconsistent with the accidental killing of a lover in her own home. They argue the facts here bear many similarities with the facts in The Queen v Baden‑Clay[3] ('Baden‑Clay'). Here, the accused denies killing Ms Zhang and that is a key issue in the trial, as it was in Baden-Clay. Further, there is evidence of potential motive, or at least a reason for conflict, as there was in Baden-Clay.

23 The prosecution argue this case differs meaningfully from DPP v Ristevski (Ruling No 1)[4] ('Ristevski'), as here, the post-offence conduct is not the only evidence of murderous intent.[5] Further, there is evidence that the accused had learned the deceased was messaging and seeing other men, and was angry about this. This provides evidence of a motive, or reason, why the accused would have argued with and murdered the deceased.[6]

24 The defence submit that the prosecution case is that the accused had learned, at least by the night of 31 January 2021, that the deceased was being unfaithful and this made him angry. However, on the morning of 1 February, the evidence shows that the accused attends the deceased's home. CCTV captures his arrival and departure, and that portion of his interactions with the deceased. There is no suggestion of violence or anger on the part of the accused. The only evidence of violence comes from the deceased; she appears to push or hit the accused briefly in the chest, who does not react. There is also no evidence that the deceased intended to end the relationship. Thus the relationship evidence, to the extent it provides a motive or explanation for the killing, is very weak. Mr Hughan argues that when the evidence is carefully analysed, there is no clear motive for the accused to kill Ms Zhang, unlike Baden‑Clay where the motive was very clear.

25 The defence concede that the evidence of the pathologist is capable of founding an inference that the accused killed the deceased with murderous intent.

26 Mr Hughan readily concedes that the post-offence conduct is capable of being used as an implied admission by the accused that he unlawfully killed Ms Zhang. However, he argues all the post-offence conduct evidence is intractably neutral on the question of whether he did so with murderous intent, or whether he caused her death accidentally or with some lesser intent.

27 Mr Hughan relies heavily on the ruling of Beale J in Ristevski. He accepts that here, unlike Ristevski, the prosecution do not rely solely on post-offence conduct to prove murderous intent. There is also some weak evidence of motive arising from disharmony in the relationship. However, like Ristevski, there is a complete lack of any physical violence by the accused towards the deceased. Mr Hughan referred to the prosecution argument in Ristevski that, 'one would have expected him to raise the alarm if he had killed her unintentionally, not bundle her body into the boot, drive to a remote area, conceal the body and lie about the circumstances of his wife's disappearance to family, friends and investigators'.[7] Mr Hughan argues the prosecution is essentially making the same submission in this case, but they cannot exclude the reasonable possibility that the accused could have feared that the unlawful killing of his girlfriend would attract a substantial prison term, and it was this that underlies his subsequent conduct.

28 Mr Hughan argues that the prosecution argument suffers from the same flaw identified by Beale J in Ristevski - that is, 'the notion that if the accused had unlawfully but unintentionally killed his wife, he was not likely to have viewed it as grave wrongdoing which might be attended by grave consequences'.[8] His Honour found there was much force in the contrary submission - that the accused could well have feared that the unlawful killing of his wife would attract a substantial prison term and cause irreparable damage to his relationship with his daughter - so as to make it difficult to see how a jury could properly find that the only reasonable explanation for the post-offence conduct was that the accused was conscious of having killed his wife with murderous intent.[9]

29 Mr Hughan submits the terms of the accused's internet searches, including 'How many years for killing a person in Australia?', are consistent with an unintentional killing. He points out that the accused is not an Australian citizen, has only been here since 2017, and speaks little English. He argues that it cannot be that the only reasonable explanation for a search in those terms is that the accused knew he had intended to kill or cause really serious injury to the deceased.

30 Mr Hughan argues that the lies told by the accused as to how the deceased left the house do not have any connection to the motive for the offending, or motivation not to disclose the offending, and in this way the case here may be relevantly distinguished from Baden-Clay. Mr Hughan argues that an important feature of Baden‑Clay was that the lies and motive were intertwined, which explains why the High Court, viewing the evidence as a whole, reached the conclusion that it did.

31 Post-offence conduct is dealt with in Part 4, Division 1 of the Act. Both 'conduct' and 'incriminating conduct' are defined in s 18 of the Act. 'Conduct' includes the telling of a lie.

32 Section 20(1) of the Act provides as follows:

The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless -

(a) the prosecution has given notice in accordance with section 19; and

(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

33 Section 21 sets out directions that must be given where the prosecution relies on evidence of conduct as evidence of incriminating conduct, and s 22 lists additional directions that may be requested by defence counsel if the trial judge gives, or proposes to give, a direction under s 21. Pursuant to s 21(2), in giving a direction under s 21, a trial judge need not refer to each act or omission of the accused.[10]

34 Pursuant to s 20(1)(b) of the Act, the task of the trial judge is to determine if the evidence is 'reasonably capable of being viewed by the jury as evidence of incriminating conduct'. Picking up the words of s 21(1)(a), this means it must be reasonably open to the jury to conclude that:

(i) the conduct occurred; and

(ii) the only reasonable explanation of the conduct is that the accused believed he had committed the offence charged or an element of the offence charged.

35 Lies are a particular type of post-offence conduct. In Edwards v The Queen, Deane, Dawson and Gaudron JJ explained:[11]

Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence.

36 If a conclusion that an accused has lied can be reached only by first finding that he or she committed the offence charged, then the alleged lie cannot be used as evidence of guilt. In Lane v The Queen,[12] McClellan CJ at CL referred to R v Zheng[13] and stated:[14]

In Zheng Hunt CJ at CL, with whom Smart and Studdert JJ agreed, stated that if it was only possible to conclude that an accused had lied by finding that he or she committed the offence with which they have been charged the alleged lie could not be used as evidence of guilt. Of course a finding of guilt of the offence may have the consequence that an accused told a lie but because the lie could only be established by a finding of guilt it was not itself evidence of that guilt. This has been described as 'circular reasoning.'

37 The principal issue here is whether the prosecution can prove the accused killed Ms Zhang. If they can, a further issue is whether they can prove he did so with murderous intent. At this stage, manslaughter will be left to the jury because the Crown bear the onus of proving that the accused acted with intent to kill or cause really serious injury.

38 This is a circumstantial case. The prosecution have no direct evidence that the accused killed the deceased, or how he killed her. There is evidence, other than evidence of post‑offence conduct, that bears on the question of intent. First, there is evidence concerning the relationship between the accused and the deceased, which is capable of establishing that the deceased was unfaithful, and the accused knew of this. The admission made to Mr Chan, if accepted, proves this is what led the accused to argue and fight with the deceased on the evening of 1 February 2021. In my view, the fact that the accused did not appear angry or violent when he attended at the deceased's home on the morning of 1 February does not significantly weaken the evidence of motive. The accused had left work briefly to visit the deceased. The fact that he was not angry or violent at that point does not mean he was incapable of later being both. Overall, the relationship evidence provides a plausible reason or motive for the killing, which in combination with other evidence, may be used by a jury to infer intent.

39 Secondly, there is the evidence of the forensic pathologist. Dr Parsons observed a number of sharp force injuries to the deceased's chest and limbs. They had the appearance of stab and incised wounds. The exact wound tracts could not be determined due to the 'disrupted nature of the remains'. However, the sharp force injury to the pericardium was associated with altered blood in keeping with it having occurred in life. There was also altered blood in the left chest wall and pleura that may have been due to sharp force injury or blunt force trauma occurring during life. Finally, there were a number of 'through and through' stab wounds found on the deceased's arms, consistent with defensive-type injuries. Overall, this is significant evidence from which a jury may infer that the person who killed the deceased intended to either kill or really seriously injure her.

40 The phrase 'intractably neutral' was discussed in DPP v Scriven (Ruling No 4)[15]. Maxwell P was considering the task of the judge when determining the admissibility of incriminating conduct evidence. His Honour stated:

In my view, the phrase 'intractably neutral' as used in the cases captures one - but only one - possible result of the judge's evaluation of the evidence. In such a case, the judge concludes that the innocent explanation and the incriminating explanation are equally plausible. Put another way, to say that conduct is 'intractably neutral' is to say that a rational jury could not, on the whole of the evidence, decide which was the preferable explanation.

Logically, however, there will be other circumstances in which the existence of an alternative explanation would prevent a judge making the s 24[16] determination. That is, even where the competing explanations are not of equal plausibility, the judge might still conclude that the innocent explanation was sufficiently cogent, and sufficiently consistent with the surrounding circumstances, that the jury acting rationally would be unable to exclude it. [Citations omitted][17]

41 Where there is an issue as to whether the accused caused the death of the deceased with murderous intent, or whether the accused is guilty of the less serious offence of manslaughter, post-offence conduct is not necessarily or usually 'intractably neutral'. The conduct must be evaluated in the context of all the evidence in the case, and the surrounding circumstances. It must be borne in mind that the drawing of inferences is quintessentially a matter for the jury. They bring to bear their collective wisdom, experience, common sense and understanding of likely or possible human behaviour.[18]

42 It is not for me to determine whether a jury should draw a particular inference. The critical question for me, as trial judge, is whether a jury could rationally conclude that the only reasonable inference to be drawn from the post-offence conduct is that at the time the accused told the lie and engaged in the other conduct, he was aware he had not only killed Ms Zhang, but that he did so with murderous intent. [19] In order to reach such a conclusion, a jury must be able to rationally exclude possible alternative explanations, including that the accused committed an unlawful but unintentional killing and engaged in the post-offence conduct as he did not want to be punished for that grave act.

43 In my view, this case differs from Ristevski in a number of important respects. The first difference is that here, there is other evidence capable of establishing murderous intent. This is important, as the question must be answered 'on the basis of the evidence as a whole'.[20] The principles explained in R v Ciantar[21] ('Ciantar') are relevant. In Ciantar, the applicant was charged with culpable driving and had fled the scene of a motor vehicle collision. Counsel for the applicant argued that, based on the majority's reasoning in R v Heyes,[22] evidence that the applicant fled the scene could not be used to determine he was guilty of culpable driving as opposed to any of the lesser offences such as dangerous driving, careless driving or failing to stop after an accident. The Court rejected that argument and held:

[39] In our view the argument cannot be sustained. For even allowing that a possible explanation of the applicant's post-offence conduct was that he was conscious that he had committed one or more of the lesser offences, as opposed to the offence charged, it does not follow that the post‑offence conduct could not be left to the jury as something which was capable of supporting an inference that the applicant was conscious that he had committed 'the offence charged'.[23]

[65] Of course, there will be circumstances in which post-offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative, or another count on the presentment where there is a multiple count presentment, or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed.

[66] But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing.

[67] Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused's words and conduct before and during the killing and forensic evidence may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent. And comparable reasoning is equally applicable in trials for other offences. [Citations omitted][24]

45 As just discussed, here, there is evidence of a motive or reason for the accused to murder the deceased. In Ristevski, not only was there no evidence of motive, but arguably the relationship evidence ran contrary to a deliberate murder. The Ristevskis had been married for 20 years; there was no history of physical violence or abuse by the accused towards the deceased; and no evidence of threatened harm. I accept that here, there is no evidence of prior physical or verbal violence, threatened or actual, from the accused to the deceased. However, there is evidence of the accused stalking or surveilling the deceased, including accessing her mobile phone messages and attending outside her house when Mr Hung's red Mercedes was parked in the driveway. This behaviour occurred in the week or two prior to the killing, and I note that the latter occurred the night before the alleged murder.

46 There is also the evidence I have referred to of the forensic pathologist, relevant to intent. Additionally, there is evidence of the slip the deceased was found wearing, with what appear to be four cuts or tears through the fabric in the chest area. In Ristevski, there was no relevant forensic evidence.

47 A further difference is that here, the accused has admitted killing the deceased. He has admitted that he knew she was being unfaithful, he was angry, they fought and he killed her. He told Mr Chan the killing was accidental, which if accepted, may leave the jury with a choice between murder and manslaughter. Of course the bald statement, 'It was an accident', might be rejected by the jury, particularly in light of Dr Parson's evidence. The accused does not explain to Mr Chan how he accidentally killed the deceased. The evidence is not just the content of the admission, but the circumstances in which it was made. It was within hours of the killing. The accused's immediate focus was to clean the scene and dispose of the body. There is no evidence that the accused was distressed, panicked or overcome with emotion when he spoke with Mr Chan.

48 Turning to the lie. The evidence of Mr Chan, if accepted, clearly proves that the accused has lied. The lie concerns the very issue in the trial - that is, what happened to Ms Zhang? A jury could conclude the accused had deliberately lied without needing to first find that he had committed the offence charged. Of course, that alone does not mean the lie should be left as incriminating conduct as to murder.

49 I accept that in Baden-Clay, the High Court found that the respondent's desire to conceal his affair from the police, and the killing of his wife, were capable of being regarded by the jury as interrelated. That is, a jury could reasonably regard the respondent's strong anxiety to conceal his affair as indicative that, in his mind, the affair and the killing were interrelated, and that the killing was not an unintended tragic death but an intentional killing.[25]

50 It is readily apparent why the High Court made such an observation. If the reason for the lie and the motive for the killing coincide, then a jury may be more prepared to find that the lie told was an implied admission by the accused that he killed the deceased with murderous intent. However, the High Court went on to state:

[73] In R v White, in the Supreme Court of Canada, Major J said:

As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role.

[74] In R v White, Major J went on to say that there may be cases where post‑offence conduct, such as the accused's flight or concealment, is so out of proportion to the level of culpability involved in a lesser offence that it might be found by the jury to be more consistent with the more serious offence charged. There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder. There is no hard and fast rule that evidence of post‑offence concealment and lies is always intractably neutral as between murder and manslaughter. As Major J said: 'The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute.' [Footnotes omitted][26]

51 In my view, the interrelated nature of a lie (or other post-offence conduct) and a motive to kill will almost certainly be a relevant circumstance, depending of course on the evidence. However, it is not necessary for the two to be intertwined in order for the lie or other post-offence conduct to be capable of being seen as an implied admission to murder, as opposed to manslaughter. It will depend on the entirety of the evidence peculiar to each case.

52 Here, the post-offence conduct may fairly be described as extreme and out of proportion if the accused had accidentally killed the deceased in the early hours of the evening, in her own home and with her young son nearby.[27] The accused's lie was repeated, and his other post-offence conduct was protracted. Having failed to successfully recruit Mr Chan, he carefully disposed of the body himself, including returning to Heidelberg West to collect the bin, which he later thoroughly cleaned. He repeatedly sought to avoid police and leave Victoria. The internet searches alone would not be reasonably capable of being used as evidence of murderous intent, but when viewed together with the evidence as a whole, including the evidence of the other post-offence conduct, they form part of an ongoing attempt by the accused to thoroughly dispose of the deceased's body, conceal his crime and avoid police. The evidence itemised in the Notice must be viewed together with all the other evidence, including the evidence that the accused was angry with the deceased for being unfaithful, and the evidence of the forensic pathologist, Dr Parsons. In my view, a rational jury could conclude that the only reasonable explanation for the lie and other post‑offence conduct is that the accused knew he had murdered Ms Zhang. They could reasonably exclude the possibility that the accused lied and engaged in this conduct because he had argued with his girlfriend and unlawfully, but accidentally, killed her. That is not to say a jury should or must exclude that possibility, but in my view, they rationally could.

53 I rule that the evidence may be relied on as evidence of incriminating conduct. That is, the prosecution may rely on the evidence as evidence both that the accused killed Ms Zhang, and that he intended to either kill her or cause her really serious injury.

[1] All references to section numbers are references to this Act unless otherwise stated.

[2] DPP v Tan (Ruling No 1) [2023] VSC

[3] [2016] HCA 35. Additionally, the prosecution relied on Brooks v DPP (2012) 36 VR 84; [2012] VSCA 197 and Butler v The Queen (2011) 34 VR 165; [2011] VSCA 417, as relevantly 'aligned' with the facts here. In both those cases, the prosecution relied on post-offence conduct as evidence of murderous intent.

[4] [2019] VSC 165.

[10] Note 1 to s 24 of the Act explains that s 28(3) of the Jury Directions Act 2013 (Vic) ('the 2013 Act') abolished the rules of common law based on Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234. Note 2 explains that, by virtue of s 14(2)(c) of the Interpretation of Legislation Act 1984 (Vic), the repeal of s 23 of the 2013 Act by the Act did not revive anything not in force or existing at the time of the repeal.

[11] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 208.

[12] [2011] NSWCCA 157; (2011) 221 A Crim R 309.

[13] (1995) 83 A Crim R 572.

[14] Lane v The Queen [2011] NSWCCA 157; (2011) 221 A Crim R 309, 314 [14].

[15] [2015] VSC 220.

[16] Now section 20 of the Act, noting His Honour was dealing with the Jury Directions Act 2013.

[17] DPP v Scriven (Ruling No 4) [2015] VSC 220, [25]-[26].

[18] DPP v Zhuang [2014] VSC 276, [24]-[25] (Kaye JA).

[21] [2006] VSCA 263; (2006) 16 VR 26.

[22] [2006] VSCA 86; (2006) 12 VR 401, per Buchanan and Vincent JJA, Charles JA dissenting.

[25] R v Baden-Clay (2016) 258 CLR 308, 331 [72].

[27] The deceased's son, Jack, participated in two VAREs but did not provide any evidence that the accused killed his mother. He was also told by the accused that the deceased had gone out, and she had not come home.