DPP v Wan

2 The notice states that the prosecution proposes to rely on three related forms of evidence as incriminating conduct, namely:

(a) Steps taken by the accused to arrange to borrow money to pay for the deletion of the CCTV footage which recorded a substantial part of the incident in which the offence is alleged to have occurred.

(b) The accused paid Ge Cao (aka Wu Ya) to delete the CCTV footage of the incident.

(c) The accused told Yixin ('Fancy') Zhang not to tell the police anything and to delete her chat record.

3 In order to determine the admissibility of that evidence, it is not necessary to set out the circumstances of the offence in detail. A short summary is sufficient.

4 The offence, with which Mr Wan is charged, is alleged to have occurred in a laneway called La Trobe Place between Little Bourke Street and Bourke Street, Melbourne on Friday 16 April 2016. During the evening of that day, an altercation occurred at that place between Longxiang Hu and another man, Wuyang Ji ('Jason'). The accused man, Shengliang Wan, became involved in that altercation, and the prosecution alleges that in the course of it he inflicted blows to the head of Longxiang Hu, which resulted in the death of Longxiang Hu one week later in hospital.

5 In late March 2016, Longxiang Hu commenced a boyfriend/girlfriend relationship with Yongying ('Victoria') Jiang. At that time they were both students at Yarra Valley Grammar School. Yongying Jiang was then 18 years old. She lived in the CBD area. Before she commenced a relationship with Longxiang Hu, Yongying Jiang had been friendly with Wuyang Ji ('Jason'). Apparently Jason had become jealous or upset over the relationship that developed between the deceased (Longxiang Hu) and Yongying Jiang. The two men arranged to meet in the evening of 16 April, and they did so in the area of La Trobe Place. At the time, there were a number of other people present, including the accused man, Shengliang Wan.

6 After they met up, Wuyang Ji and Longxiang Hu became engaged in an altercation. In the course of it, Wuyang Ji injured his shoulder. The accused man, Shengliang Wan, and another man, Hanjie Liu, then intervened and commenced to fight Longxiang Hu. The prosecution alleges that in that altercation, the accused man slung Longxiang Hu to the ground, and then stomped on his head a number of times.

7 As a result of those blows, Longxiang Hu suffered a number of injuries, including a fractured skull, and bleeding on the brain (an extradural haematoma). After some delay, he was conveyed to the Royal Melbourne Hospital. He was placed on life support which was removed seven days later, and he died on 23 April 2016.

8 A substantial portion of the incident in LaTrobe Place was captured on CCTV footage, which will be played to the jury and tendered in evidence at the trial.

9 The incriminating conduct, on which the prosecution proposes to rely, took place in the days that immediately followed that incident. The following is a short summary of the evidence that the prosecution proposes to adduce in relation to each of the three matters contained in its notice.

10 The prosecution proposes to call evidence of three witnesses in respect of the first category of incriminating conduct - steps taken by the accused to arrange to borrow money to pay for the deletion of the CCTV footage - namely, Summer Nalinbaoran, Ruoyi Pu and Shufan Guo. Each of those witnesses, with the exception of Shufan Gao, witnessed the incident, and Shufan Guo later heard about it.

11 On the day after the incident, Ruoyi Pu was asked by an acquaintance to attend at the residence of Ge Cao (also known as Wu Ya) ('Wu Ya') in Swanston Street. When Ruoyi Pu arrived at the premises, the accused, a solicitor, and a number of other persons were present. Wu Ya said that Longxiang's condition was very bad and that he might die. He told the persons who were at the unit to delete all of their WeChat and any photographs they had. He also said that he could delete the CCTV footage, but that this would cost money.

12 In her statement, Summer Nalinbaoran said that on the day after the incident, the accused sent her a WeChat message. He told her that Longxiang Hu had been taken to hospital and that he might not survive. About five days after the incident, Ms Nalinbaoran had a conversation with the accused at an internet cafe, in which he said he regretted that he had used too much force on Longxiang Hu. Two days later, Ms Nalinbaoran attended at the same premises and had another discussion with the accused. Ms Nalinbaoran's friend, Shufan Guo, was also present. Ms Nalinbaoran, in her statement, said that the accused told them that Wu Ya had told him he could delete the CCTV footage of the fight, and that he had asked for $100,000 to do it. The accused said to Ms Nalinbaoran that he and Hanjie Liu were trying to collect money to pay Wu Ya in order for him to delete the CCTV footage. The accused asked Ms Nalinbaoran and Ms Guo to lend him money.

13 Shufan Guo was told about the incident by Summer Nalinbaoran. Over the following days, she 'bumped into' the accused on a few occasions. On one of those occasions, when she was with Ms Nalinbaoran at a café at the intersection of Swanston Street and Little Lonsdale Street, Melbourne, the accused came up to them. He asked them if they could lend him money. He said that he needed it urgently 'after what happened'. According to Ms Guo, the accused said he needed the money to get Wu Ya to help him, but he did not go into detail about the matter. A couple of days later, the accused again asked Ms Guo, together with a friend called Jennifer, for money. As a consequence, Ms Guo arranged to borrow some funds from two friends. She was able to compile over $1000 or $1200. After she had done so, the accused told her that he was in a hurry. He asked her for $200 cash, and he asked her to deliver the rest of the funds to Wu Ya. Accordingly, Ms Guo and Jennifer attended at Wu Ya's address in Swanston Street. She gave either $800 or $1000 to a friend of Wu Ya who answered the door.

14 The prosecution seeks to adduce evidence from two witnesses, namely Ming Xiao Ma ('Ming Ma') and Shufan Guo, in respect of the second category of incriminating conduct, namely, that the accused paid Wu Ya to delete the CCTV footage of the incident. I have set out above the evidence of Shufan Guo on that matter. In her statement, Ming Ma stated that a couple of days after the incident, she visited Wu Ya at his residence. She said that there were a number of other people there, including the accused and Hanjie Liu. Wu Ya was talking about how to delete the record off the camera, and he wanted those who were in attendance to pay him to do so. He said he wanted the accused and Hanjie Liu to pay him $10,000. Ming Ma stated that she saw the accused hand money to Wu Ya.

15 The prosecution seeks to rely on the evidence of Yixin Zhang, together with WeChat records, in relation to the third aspect of the incriminating evidence that it proposes to adduce, namely, that the accused told Yixin Zhang not to tell the police anything and to delete her chat record. Ms Zhang did not witness the incident. Subsequent to it, she learnt that Longxiang Hu (Jeremy) was in intensive care in the hospital. She sent a WeChat message to the accused to ask him about it. The accused said that a fight occurred between Jeremy (Longxiang Hu) and Wuyang Ji, in which Jeremy had the upper hand, so that the accused tried to pull them apart. As a result, Jeremy stepped on a can or a bottle, and fell with his head striking the side of a rubbish bin. The accused further said that Jeremy then stood up and started to push the accused, and that they had a fight, after which they made peace with each other. Subsequently, the accused received a telephone call that Jeremy was in hospital in a coma. Ms Zhang said that on the following Saturday, the accused left a message on her WeChat that Jeremy had died.

16 In her statement, Ms Zhang acknowledged that investigating police had shown her eleven printed pages of WeChat messages between the accused and herself. She agreed that they were accurate. The messages related to WeChat conversations which she had with the accused about the condition of Jeremy, and the accused telling her to delete her messages.

17 Mr B Kissane QC, who appears with Ms J Warren on behalf of the prosecution, submitted that the evidence, specified in the notice, is relevant for two purposes. First, he contended that it is relevant to the issue of causation. Mr Kissane pointed out that not all of the altercation was captured on the CCTV footage. Thus, as foreshadowed in the defence response to the draft prosecution opening, it may be contended on behalf of the accused that the jury could not exclude that in the part of the altercation, that was not recorded on the CCTV footage, another person or persons might have inflicted the fatal blow or blows on Longxiang Hu which resulted in his death. Mr Kissane contended that the fact that the accused attempted to have the CCTV footage deleted was relevant to displaying a consciousness by him that it was he, and no other person, who had been responsible for the infliction of the injuries as a result of which Longxiang Hu had suffered very serious injuries (as a result of which he subsequently died). Secondly, Mr Kissane contended that the conduct of the accused, in seeking to have the CCTV footage deleted, is relevant to the assessment by the jury of the probabilities that the accused intended to kill, or cause really serious injury to, Longxiang Hu, at the time at which he inflicted the blows which are captured on CCTV footage. He contended that taken in the context of the whole of the case, the evidence of the attempts made by the accused, to dispose of the CCTV footage, is not intractably neutral, but rather it supports an inference in respect of the accused's intentions at the time that he inflicted the blows that are depicted on the CCTV footage.

18 In response, Mr J Kelly SC, who appears with Mr J Moore on behalf of the accused, submitted that the evidence, that is specified in the notice, is intractably neutral. Mr Kelly noted that a number of the witnesses, as to the attempts by the accused to dispose of the CCTV footage, referred to the involvement of other persons, including Hanjie Liu and Wuyang Ji, in those attempts. It is not suggested that either those two persons intended to kill or cause really serious injury to the deceased, at the time at which they assaulted him. Accordingly, Mr Kelly submitted, the involvement of both Hanjie Liu and Wuyang Ji in the attempts to dispose of the CCTV footage was inconsistent with the proposition that the accused's involvement in those attempts was probative of an intention by him to kill or cause really serious injury to the Longxiang Hu.

19 Mr Kelly submitted that the evidence is not admissible on the issue of causation, because the argument in favour of its admission, for that purpose, pre-supposes that the accused knew what part or parts of the altercation were captured on the CCTV footage. In particular, the accused was not to know that the part of the altercation, which took place in the small alcove off Latrobe Place, was not also the subject of CCTV footage.

20 The resolution of the question, as to admissibility of the evidence proposed to be adduced by the prosecution, depends on the application of the principles stated by the Court of Appeal in R v Ciantar[1] and in subsequent cases, including the recent decision of the High Court in R v Baden-Clay.[2]

21 The legal context to the decision of the Court of Appeal in Ciantar was the earlier decision of the Court in R v Heyes.[3] In that case, the accused was convicted of murder. At his trial, the prosecution relied on lies told by the accused to the police as evidence of consciousness of his guilt. The Court, by a majority (Buchanan and Vincent JJA; Charles JA dissenting) allowed the appeal, on the basis that the jury should have been directed that the lies by the accused could not be used to determine whether he was guilty of murder rather than manslaughter by an unlawful and dangerous act. Buchanan JA (with whom Vincent JA agreed) expressed the view that, ordinarily, where murder and unlawful and dangerous act of manslaughter are in issue, post-offence conduct by an accused could not be used to determine whether the accused was guilty of murder as opposed to manslaughter. Buchanan JA considered that there might be two exceptions to that principle, namely, first, where the post-offence conduct was of such a dimension that it would be out of proportion to a consciousness of culpability of the lesser offence, and, secondly, where the issue in the case included whether the accused was guilty of any crime at all.[4]

22 In Ciantar, the accused was convicted of culpable driving and failing to stop after an accident. On his appeal, he contended that the judge erred in his directions to the jury about the applicant's flight from the scene of the collision. It was contended that the judge should have directed the jury that that evidence could only be used as evidence of consciousness of guilt, if it were satisfied that it sprang from a realisation by the accused that he was guilty of the crime charged, namely, culpable driving, as opposed to a realisation of having been engaged in some lesser unlawful activity. The Court of Appeal rejected that submission. In doing so, it departed from the statement of principles by the Court in Heyes. The Court stated:

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'.

We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post-offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases. And, to the extent that Heyes implies the contrary, in our view it should not be followed.[5]

23 In stating those principles, the Court observed that post-offence conduct is a species of circumstantial evidence, the effect of which must be viewed in the entire context of the evidence in the case.[6] The Court then concluded:

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.

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.

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.[7]

24 The effect of the decision in Ciantar has been considered in a number of subsequent decisions of the Court.

25 In Butler v The Queen[8], the accused was charged with the murder of one Tascas, who was a boarder at his house in Whittington. Tascas disappeared in October 2005. The prosecution case was substantially dependent on the evidence of one witness, Jodie Harris. She said that the accused had told her that he had had a dispute with Tascas about the rent, in the course of which the accused had knocked Tascas out. Ms Harris also stated that she assisted the accused to dispose of a blood soaked hessian bag in October 2005. In support of its case, the prosecution relied on four lies which the accused told to the police in his record of interview, concerning what happened to Tascas's dog, concerning the account of the accused that Tascas had told him that he was travelling to Bathurst, and concerning the accused's assertion that he did not know what had happened to Tascas's vehicle.

26 The trial judge expressed doubt as to whether, if the jury accepted that the accused had caused the death of Tascas, the lies told by the accused to the police could be relied on by the prosecution to prove murderous intent. However, she ruled that the evidence was so admissible, and could be so used by the jury, because it was to be considered in the context of the evidence of Harris that the accused had been involved in the dismembering and burning of Tascas's body, from which they might be able to infer that that conduct was indicative of a callous and deliberate murder.

27 On appeal, Ashley JA (with whom Maxwell P agreed on this point, and Ross AJA agreed generally) expressed similar reservations, but concluded that the judge was correct in permitting the evidence, of the accused lies, to be used by the jury in its determination whether the accused had killed Tascas with murderous intent. His Honour stated:

Like the judge, I have grave doubt whether the evidence was other than intractably neutral. It is notable, I interpolate, that at no stage did the prosecutor argue that an inference of murderous intention could be the more readily reached because the applicant had not given viva voce evidence. Nor did the prosecutor ask the judge asked to give a direction to that effect. But in the end I agree with the judge's conclusion. I consider that the alleged post-offence conduct and lies were in combination capable of sustaining an inference that the applicant killed T with murderous intent, and that such conduct and lies, when the jury came to determine intention, were not necessarily equally consistent with a killing amounting to murder or manslaughter. That is so despite the absence of other evidence which could assist to such conclusions. It is so essentially for the reasons which her Honour advanced, and because I think that there was force to the amplified submissions which counsel for the Crown made in this Court.[9]

28 In Brooks v The Queen,[10] the accused was charged with the murder of his de facto wife by stabbing her. The prosecution relied on two aspects of the accused's conduct as incriminating conduct, namely, his delay of two hours in reporting the death of his wife to the police, and his lies to the police that she had committed suicide, and that he had not stabbed her. At trial, the judge directed the jury that if it were satisfied that the accused had stabbed the deceased, the jury could use the lies told by the accused (that the deceased had stabbed herself) as relevant to the question whether the accused had stabbed her with murderous intent. The Court of Appeal dismissed the appeal. Weinberg JA (with whom Bongiorno JA and T Forrest AJA agreed) noted that evidence, of post-offence conduct, is a species of circumstantial evidence to be viewed in the context of the whole of the case. His Honour noted that there was other circumstantial evidence in the case, including a history of violence between the appellant and the deceased, and the evidence of a neighbour that he had heard screaming in the early hours of the morning in question.[11] Weinberg JA concluded that, in the context of all the evidence, the lie told by the accused was not 'intractably neutral', but, rather, it could be regarded by the jury as probative of a murderous intent rather than of some lesser intent.[12]

29 Finally, in Baden-Clay,[13] the accused was charged with the murder of his wife, whose body was found under a bridge on the bank of a river. The accused made false denials to the police about his ongoing affair with another woman, Ms McHugh. He had suggested to her that she should 'lie low', and he inquired of her whether she had revealed the affair to the police. At trial, the accused denied that he had anything to do with his wife's death and he gave evidence to that effect. On appeal, it was contended that the evidence, as to the accused's post-offence conduct, could not be used on the issue as to whether he had killed his wife with murderous intent, if the jury were satisfied that it was he who had caused her death. The High Court rejected that proposition, stating:

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'.

...

It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife's body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.[14]

30 A number of propositions can be derived from the foregoing analysis of the authorities. First and foremost, where there is an issue as to whether an accused caused the death of the deceased with murderous intent, or whether the accused was guilty of the lesser offence of manslaughter, there is no hard and fast rule whether post-offence conduct by the accused might be admissible to establish that the accused caused the victim's death with murderous intent. Such conduct is ordinarily circumstantial evidence, so that the relevance and effect of it must be evaluated in the context of all of the evidence in the case.[15]

31 In particular, where there is other evidence indicative of murderous intent, the post-offence conduct, when combined with that other evidence, may be used by the jury in order to determine whether the accused had the requisite murderous intent at the time at which he caused the death of the deceased.[16]

32 Further, it is important to examine the nature and content of the post-offence conduct sought to be relied on by the prosecution in the context of the charged offence and any relevant lesser alternative charge. Such evidence may be admissible to demonstrate a consciousness by the accused of murderous intent, where the accused has gone to such lengths, after the killing, that his or her conduct would be unlikely to be actuated by a consciousness of having unintentionally caused the death of the deceased.[17]

33 Ordinarily, it may be permissible, and indeed desirable, for a judge to defer ruling on the question whether the jury may use evidence of post offence conduct by the accused to infer a consciousness of guilt by the accused of the offence charged, or indeed of a lesser offence, until the completion of evidence. In that way, the judge is better placed to assess the effect and relevance of the post offence conduct in the context of all the evidence. However, in this case, the evidence that is sought to be adduced by the prosecution, as outlined in its notice, would not be admissible, if the prosecution could not rely on it as incriminating conduct by the accused. Accordingly, it is necessary for me to rule on the admissibility of the evidence, specified in the prosecution's notice, before the commencement of the trial.

34 It is apparent, from the defence response to the outline of the prosecution opening, that the two principal issues in this case will be, first, whether the accused performed an act or acts which caused the death of the deceased, and, secondly, whether, at the time that he did so, he intended to kill the deceased, or to cause him really serious injury. In light of the CCTV footage, the accused will not be able to dispute that, at the conclusion of the incident, he slung the deceased to the ground, and stomped on his head quite forcibly four times. On the first issue, the principal question will be whether any of those blows caused the death of the deceased. The resolution of that question will depend on the jury's assessment of the evidence relating to what preceded the infliction of those blows, together with the evidence of the pathologist. The post offence conduct, alleged against the accused, will not be relevant to those matters.

35 The defence response to the draft prosecution opening has left open the proposition that the prosecution may not be able to exclude the possibility that, in the part of the altercation that was not depicted on the CCTV footage, Hanjie Liu, or someone else, inflicted the blows to Longxiang Hu which caused him to suffer the injuries as a result of which he later died. Contrary to the submissions made on behalf of the prosecution, I do not consider that the attempts made by the accused to dispose of the CCTV footage would be relevant to negating that hypothesis. As Mr Kelly correctly pointed out, there is no evidence that the accused could have known what part or parts of the altercation were captured on the CCTV footage. Furthermore, the evidence reveals that other persons, including Hanjie Liu, were involved with the accused in the attempts to have the CCTV footage deleted. It follows that the evidence of those attempts, involving the accused, could not logically negate the hypothesis foreshadowed in the defence response.

36 The prosecution primarily seeks to rely on the post offence conduct in order to prove that the accused intended to kill or cause really serious injury to the deceased at the time that he slung him to the ground and stomped on his head. The critical question is whether the post offence conduct, alleged against the accused, is relevant and probative of that element of the charge of murder, or whether it is intractably neutral in relation to it.

37 On a plain analysis, the evidence, that the accused sought to have the CCTV footage destroyed, and that he sought to prevail on the witness Yixin Zhang not to tell the police anything, is capable of supporting an inference that the accused was conscious that he had engaged in violent conduct, he believed, that had caused very serious injuries to the deceased (as a result of which he subsequently died). In other words, that evidence would be admissible to establish that the accused knew that he had committed serious acts of violence against the deceased that, he believed, had resulted in serious injury being sustained by the deceased as a result of which he was in intensive care in hospital (and from which he subsequently passed away).

38 The critical question is whether that evidence, either alone, or in combination with other evidence to be adduced in the trial, is capable of demonstrating a consciousness by the accused that, at the time at which he struck the critical blows to the deceased, he intended to kill him or cause him really serious injury, as distinct from being conscious that he had engaged in conduct which would be considered to be dangerous, that is, conduct that a reasonable person would have realised would expose the deceased to an appreciable risk of serious injury.

39 The solution to that question is assisted by a more detailed analysis of Ciantar, and the cases which have been decided after it. That analysis reveals that this case is quite different to some of the other authorities which have been decided since Ciantar, and in which it has been held that the post-offence conduct was capable of supporting a conclusion by the jury that the accused had committed the offence charged, as distinct from a less serious alternative offence.

40 In Ciantar, the accused was charged with culpable driving under s 318(2)(c) of the Crimes Act, namely, that he caused the death of another person while under the influence of alcohol to such an extent as to be incapable of having proper control of his vehicle. In that case, the accused had been consuming alcohol at the races, and subsequently at dinner at a restaurant. After returning home, he then went out in his vehicle to visit other friends. While doing so he struck and fatally killed a pedestrian. He left the scene without stopping and rendering assistance. His father telephoned police when he arrived home and accompanied him to the police station. After he was breathalysed, the accused falsely maintained that, after returning home to his parents' place, he had consumed some further alcohol, which would account for the positive reading on the breath test administered at the police station. The Court of Appeal held that the judge was correct to direct the jury that it was entitled to use the evidence, of the accused's flight from the scene, and his lies about his subsequent consumption of alcohol, as evidence of his consciousness of guilt of the offence charged, notwithstanding the contention made on behalf of the accused that the evidence was intractably neutral because it might have equally indicated a consciousness by the accused that he was guilty of some lesser offence (such as dangerous driving). That conclusion stemmed from the fact that the accused's post offence conduct was directed to concealing the fact that he had driven the vehicle when he was under the influence of alcohol. In that way, the evidence of post offence conduct was directed to at least one aspect of one of the elements of the charge brought against the accused, namely, that he had driven the vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of it.

41 Baden-Clay is also quite different from the present case. In that case, as mentioned, the accused denied that he had caused the death of his wife. At the time of the death of the deceased, the accused was in a relationship with another woman, Toni McHugh. The evidence of the false denials made by the accused to the police, about his ongoing affair with Ms McHugh, and the evidence that he told her that she should not reveal the existence of the affair to the police, was clearly directed to concealing evidence of motive on behalf of the accused. In that way, the evidence, that the accused sought to conceal, was directly relevant to the question whether he had intentionally killed his wife. As circumstantial evidence, it lent weight to the prosecution case that the killing was not accidental or unintended, but rather was intentional. Similarly, as the High Court noted, it was open to the jury to regard the lengths to which the accused went to conceal his wife's body, and to conceal his part in her death, as being beyond what was likely, as a matter of human experience, to have been actuated by a consciousness of having unintentionally killed his wife.[18]

42 In Butler, it is not surprising that the Court (and the trial judge) had doubt as to whether the evidence of the accused's lies to the police were other than intractably neutral. However, the decisive fact was that the lies told by the accused to the police were part and parcel of the accused's endeavour to conceal what had happened to the deceased (Tascas). The evidence of Ms Harris, as to the disposal of Tascas's body, revealed an attitude by the accused of Tascas that was indicative of a callous and deliberate murder. The connection of the lies, to the disposal of the body, thereby gave the lies some probative value as to the accused's mental intention at the time at which he killed Tascas.

43 In Brooks, the prosecution case was entirely circumstantial. The other relevant facts were the difficult relationship between the accused and the deceased, the severity of her wound, and the accused's claim to neighbours and police that the deceased had killed herself. While it was not articulated in the reasons of the Court of Appeal, it would seem that that conduct, of itself, taken together, would give rise to an inference that the accused had a somewhat antagonistic attitude to the deceased. His claim, that she had been responsible for her own death, in that sense was connected with his immediate post offence conduct relating to what he had said to the neighbours and to the police.

44 As I stated, in the present case, the post offence conduct by the accused, logically, could give rise to an inference that the accused was conscious that he had committed an act of serious violence to the deceased which had resulted in the deceased suffering severe (and ultimately fatal) injuries, and that if the evidence of those acts was not concealed, he might be convicted for an offence relating to the commission by him of those acts. The critical question is whether that inference, available from his post offence conduct, could add weight to the ultimate inference sought to be drawn by the prosecution, namely, that the accused intended to kill, or cause really serious injury to, the accused, at the time at which he slung him to the ground and stomped on his head.

45 In Baden-Clay, Butler and Brooks, there was no direct evidence as to the circumstances of the victim's death or the circumstances which immediately preceded it. In each of those cases, the prosecution relied on a circumstantial case to prove how the victim died, that the accused had caused the death of the victim, and that the accused did so with an intention to kill or cause really serious injury to the victim. In each case, the post offence conduct, alleged against the accused, was a part of that circumstantial case. As discussed, in each case, it added weight to the inference, relied on by the prosecution, that the accused had intended to kill or cause really serious injury to the victim.

46 By contrast, in the present case, the prosecution will rely principally, if not wholly, on direct evidence as to the circumstances that immediately preceded the fatal altercation between the accused and Longxiang Hu. Similarly, the prosecution will rely on the CCTV footage and the direct evidence of eye witnesses as to the blows inflicted by the accused on Longxiang Hu in the course of that altercation as a result of which, the prosecution alleges, Longxiang Hu died. The prosecution will rely on that evidence, not only to establish what acts were performed by the accused, but also to constitute the basis for an inference to be drawn by the jury as to the intention of the accused at the time at which he inflicted those blows to Longxiang Hu. In such circumstances, an inference that the accused was subsequently conscious that he had committed an act of serious violence to the deceased, which had resulted in the deceased suffering severe (and ultimately fatal) injuries, could not, in my view, add any material weight to the inference to be drawn by the jury, from the direct evidence, as to the intention of the accused at the time at which he struck the critical blows that resulted in the death of Longxiang Hu. In other words, in the circumstances of this case, the fact that the accused sought to have the CCTV footage destroyed, and that he sought to persuade Yixin Zhang not to tell the Police anything, could not, rationally, add materially to the probabilities that the accused had inflicted the fatal blows to the deceased with a murderous intention, as distinct from the accused having engaged in conduct that would be characterised as being dangerous for the purposes of the principles relating to manslaughter.

47 Further, and if I am not correct in that conclusion, as a matter of logic, the evidence, as to the accused's endeavours to have the CCTV footage destroyed, and to induce Yixin Zhang not to tell the Police anything, could, at most, only have limited probative value in respect of the intentions of the accused at the time at which he inflicted the fatal blows on Longxiang Hu. On the other hand, that evidence - and particularly the steps taken by the accused to have the CCTV footage deleted - would have the potential to involve unfair prejudice to the accused. It would demonstrate that the accused had been prepared to engage in conduct that amounted to an attempt to pervert the course of justice in order to conceal his own wrong doing. Such conduct would be considered by the jury to reflect adversely on the character and disposition of the accused. While that prejudice might be offset, at least to some extent, by an appropriate direction to the jury, there is a significant risk that the jury could be distracted by the evidence, so that the danger of prejudice to the accused would out-weigh any limited probative value that it bore.

48 In particular, the evidence, as to the steps taken by the accused to have the CCTV footage of the incident deleted, would involve a number of witnesses in the case. There is a substantial risk that, if the evidence were admitted, it would assume a prominence in the trial that would be out of proportion to any probative value it might have, and could thus inappropriately distract the jury from the central issues in the case.

49 I should also add that the third category of post offence conduct sought to be led by the Prosecution, from Yixin Zhang, is somewhat problematic in any event. Yixin Zhang did not observe the incident. The only account that the accused gave to her about it was quite exculpatory of him. It would appear that the accused used Yixin Zhang to obtain information as to the condition of Longxiang Hu during the period between the incident and the date of his death one week later. By requesting Yixin Zhang to delete her chat record, and not to tell the police anything, it would appear that the accused, at most, was concerned that the police not gain the impression that he had a personal interest in, or anxiety about, the condition of Longxiang Hu. While that evidence might reveal that the accused had a consciousness that he had been responsible for Longxiang Hu's critical condition, nevertheless it would leave open to the jury a number of paths of speculation, and would additionally distract the jury from its task.

50 Accordingly, if the evidence of post offence conduct, sought to be adduced by the Prosecution, was of any probative value, it would be substantially outweighed by the risk of unfair prejudice to the accused. I would therefore exclude it under s 137 of the Evidence Act 2008.

51 For those reasons, I rule that the evidence, referred to in the notice of evidence of incriminating conduct, served by the prosecution, is not admissible in the trial.

[1] [2006] VSCA 263; (2006) 16 VR 26 ('Ciantar').

[2] [2016] HCA 35; (2016) 258 CLR 308 ('Baden-Clay').

[3] (2000) 12 VR 401 ('Heyes').

[4] Heyes (2000) 12 VR 401, 414 [49]-[50].

[8] [2011] VSCA 417.

[10] [2012] VSCA 197; (2012) 36 VR 84.

[12] Ibid [68]-[69]; see also Flora v The Queen [2013] VSCA 192, [81]-[82] (Redlich, Weinberg and Coghlan JJA); Zandipour v The Queen [2017] VSCA 179 [139] (Warren CJ, Weinberg and Kaye JJA).

[13] [2016] HCA 35; (2016) 258 CLR 308.

[14] Ibid 332-333 [74], [76] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted).

[15] Ciantar [2006] VSCA 263; (2006) 16 VR 26, 43 [54], 47 [64]; Brooks [2012] VSCA 197; (2012) 36 VR 84, [68]-[69].

[16] Ciantar [2006] VSCA 263; (2006) 16 VR 26, 47 [67]; Butler [2011] VSCA 417 [134].

[17] Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 333 [76].

[18] Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 333 [76].