DPP v Wang [2020] VSC 701

As such, I find Ning Wang not guilty of murder.

Given my verdict of not guilty of murder, I must now consider whether Ning Wang is guilty of manslaughter by unlawful and dangerous act.

In relation to the offence of manslaughter by unlawful and dangerous act, the Prosecution must prove beyond reasonable doubt the following four elements:

1. that the accused committed an act that caused the death of another person;
2. that the relevant act was committed consciously, voluntarily and deliberately;

The first two elements are the same as in the offence of murder and as I have said I am satisfied they have been proven beyond reasonable doubt. I'm also satisfied that the third element, that the assault was unlawful, has been proven beyond reasonable doubt. This was not an issue in the trial.

The only remaining issue at trial relevant to the offence of manslaughter by unlawful and dangerous act was that of 'dangerousness'.

I am satisfied beyond reasonable doubt that the assault on Qin Wang was dangerous and therefore that all four elements of the offence have been proven beyond reasonable doubt.

As such, I find Ning Wang guilty of manslaughter by unlawful and dangerous act.

1 Ning Wang is charged with the murder of his sister, Qin Wang at Clayton South in Victoria on 27 February 2019. Ning Wang was also charged with intentionally cause injury contrary to s 18 of the Crimes Act 1958 (Vic), to his nephew, Kuan Yang, at Burwood East on 27 February 2019.

2 Without intending any disrespect, I will refer to Ning Wang as the accused and Qin Wang as the deceased throughout this judgment. Again without intending any disrespect and to avoid confusion, I will also refer to members of the family by their first names.

3 This is the first trial by judge alone in the Supreme Court of Victoria and the first on the charge of murder in Victoria.[1] The COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) ('COVID Act') commenced on 25 April 2020. The COVID Act made various temporary changes to how courts, corrections and the justice system operate in order to address the coronavirus crisis in Victoria. These changes included amendments to the Criminal Procedure Act 2009 (Vic) ('Criminal Procedure Act') that allow some criminal trials to be heard by judge-alone.

4 By notice dated 13 July 2020, the accused applied for a trial by judge alone pursuant to s 420D of the Criminal Procedure Act. That application was granted on 16 July 2020.[2]

5 Additionally, the entire trial was conducted remotely due to the coronavirus restrictions in force at the time of the trial. The parties had agreed to this prior to the commencement of the trial. Pursuant to ss 42E(1) and 42G(1) of the Evidence (Miscellaneous Provisions) Act 1958, I was satisfied that the technical requirements for an audio-visual link were met and during the trial I directed that all persons would appear and make submissions on each day of the trial by audio-visual link.

6 On 16 September 2020, the accused was arraigned at the commencement of trial and pleaded not guilty to murder, and guilty to the second charge of intentionally cause injury contrary to s 18 of the Crimes Act 1958 (Vic). If I find the accused not guilty of murder, then I must consider the alternative offence of manslaughter by unlawful and dangerous act.[3]

7 In accordance with the amendments to the Criminal Procedure Act facilitating judge alone trials, I may make any decision that could have been made by a jury.[4] My decision has, for all purposes, the same effect as a verdict of a jury.[5] In this judgment I must include the principles of law that I have applied and the facts on which I have relied to reach my verdict.[6]

8 Section 4A of the Jury Directions Act 2015 (Vic) ('Jury Directions Act') applies to this case.[7] This means that my reasoning with respect to any matter to which Parts 4, 5, 6 or 7 of the Jury Directions Act applies must be consistent with how a jury would be directed according to the Act_._ Similarly I must not accept, rely on, or adopt a statement, suggestion or direction that Parts 4, 5, 6 or 7 of the Jury Directions Act prohibit a trial judge from making or giving a jury.[8]

9 While Part 3 of the Jury Directions Act does not apply to this trial, counsel nonetheless addressed me at the conclusion of evidence on the directions and principles to which I should have regard. In reaching my verdict, I have had regard to each of those matters, where appropriate.

10 As in a trial by jury, the onus of proof is on the Prosecution and the accused comes to this Court with the presumption of innocence in his favour. The accused is regarded as innocent unless and until the Prosecution has proved his guilt beyond reasonable doubt. In order to do so, the Prosecution must prove each of the elements of the relevant offence beyond reasonable doubt.[9] The Prosecution does not need to prove every fact that they allege to this standard; however, facts must be clearly proved before they can be treated as established.[10]

11 It falls to me to consider all the evidence and decide the facts of the case. I must then apply the law to the facts I have found in order to determine whether the accused is guilty or not guilty of the offence charged.

12 In order to decide what the facts are in this case, I must assess the credibility and reliability of the witnesses who gave evidence. It is for me to decide whether a witness' evidence is to be believed and the weight which should be attached to any particular evidence.

13 On the whole, the credit and the reliability of the witnesses was not an issue in this trial.

14 No adverse inference may be drawn from the fact that the accused chose not to give evidence at trial.[11]

15 The expert evidence in this case on the whole is not disputed. I must have a very good reason not to accept any undisputed expert evidence. A very good reason includes: the facts underlying the opinion not being present; the process of reasoning leading to the opinion being unsound; or a factor that casts doubt on the validity of the opinion.[12]

16 In order for me to return a verdict of guilty for the common law offence of murder, the Prosecution must prove each of the four elements of the offence beyond reasonable doubt. The four elements of the offence of murder are that:

(a) the accused committed acts which caused the victim's death;

(b) the accused committed those acts consciously, voluntarily and deliberately;

(c) the accused committed those acts while intending to kill someone or cause them really serious injury;[13] and

(d) the accused did not have a lawful justification or excuse for those acts.

17 The Prosecution allege, and it is not disputed, that at some point on the morning of 27 February 2019, the accused assaulted the deceased at the accused's Clayton South home. It is also not disputed that, later that morning, the accused placed the deceased's body in the boot of his car and drove to the Burwood East home of another sister of his, Jin Wang, where he assaulted Jin's son, Kuan, with a metal pole. The accused was eventually disarmed; however, he and Kuan continued wrestling until police arrived at the property. The accused was arrested and the deceased's body was found in the boot of his car a short time later.

18 The accused does not dispute that he represented to family members, and subsequently to police, that he had killed the deceased. However, the accused denies that he caused the deceased's death and, if he is found to have caused her death, he denies that he had a murderous intention at the time he assaulted the deceased. For the sake of convenience, where I refer to a murderous intention in this judgment I am referring to an intention to kill or cause really serious injury.

19 If I am not satisfied beyond reasonable doubt that the accused caused the deceased's death then I must return a verdict of not guilty for murder, as well as for the alternate offence of manslaughter by unlawful and dangerous act. However, if I am satisfied beyond reasonable doubt that the accused's assault caused the deceased's death but am not satisfied beyond reasonable doubt that the accused had the necessary intention for murder, then it falls for me to consider whether the accused is guilty of unlawful and dangerous act manslaughter.

20 The Prosecution's case against the accused relies heavily on 'indirect' or 'circumstantial' evidence. The principles concerning cases that turn upon circumstantial evidence, are well settled.[14] When a case rests substantially on circumstantial evidence a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the accused's guilt. I therefore cannot be satisfied of the guilt of the accused unless his guilt is the only reasonable inference that the circumstances of the case would enable me to draw.[15]

21 For an inference to be reasonable, it must rest upon something more than mere conjecture. All of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence cannot be considered in a piecemeal fashion.[16]

22 At trial there was very little disputed evidence. Having considered all of the evidence presented at trial, I can readily find the following facts, unless otherwise mentioned.

23 For convenience I refer to the family tree displayed below that was admitted into evidence.[17]

24 The accused is shown on the far left of the second row of the family tree and is the eldest of his five siblings. While the deceased is the youngest of the accused's five sisters. Jin, who lives at the Burwood East property that the accused drove to on 27 February 2019, is the fifth sibling out of the six children. Jin lives with her son, Kuan, his wife, Xue Zhang, and their two children.

25 The deceased lived in China. She arrived in Australia on 3 December 2018 primarily to see family. Jianyao Xu is the deceased's son. He is 32 years old. The deceased lived with Jianyao while she was in Australia visiting.

26 The accused arrived in Australia in 1989 to study. He is now an Australian citizen.[18] By 2019, several members of the accused's family had moved to Australia.

27 In 2009 the accused's father, Shuhuai was diagnosed with kidney cancer. In order to take better care of him, his children decided to move him to Australia. Shuhuai arrived in Australia in 2012 and he lived with another of the accused's sisters, Yue Wang, for a year before moving into Jin's home.[19]

28 There was evidence that the accused's relationship with his sisters had deteriorated over the years. In particular, there was evidence of two longstanding disputes between the accused and his sisters in relation to the division of family property in China and of two sums of $50,000 which the accused had provided to his sisters. There was further animosity between the accused and his sisters relating to his recent care of Shuhuai, the financial cost of caring for their father and the accused's inability to visit Taiwan for his uncle's birthday.[20]

29 The evidence in relation to these disputes will be considered further below. However, I note that while the history of the disputes provides a reason for the deterioration in the sibling relationship, the actual facts of what actually transpired and the specific dollar sums that were paid or owed as between the siblings are immaterial for this judgment. What is important is that there were disputes about money and the care of Shuhuai, how the accused perceived those events, and how these events were relevant to the accused's state of mind when he assaulted the deceased.

30 Shuhuai was admitted to the Peter James Centre, a rehabilitation hospital, in late November 2018 from Box Hill Hospital.[21] On his discharge from the Peter James Centre on 7 December 2018, Shuhuai moved into the accused's home as Jin had been diagnosed with cancer and could no longer care for her father.

31 The undisputed evidence is that from the time Shuhuai moved into the accused's home he required high-level full-time care. By this time, Shuhuai had dementia, renal cancer and other comorbidities, an indwelling catheter, he was wheelchair bound and required assistance with all activities of daily living including feeding, medication and toileting. The accused provided the necessary care to Shuhuai, including overnight care, which involved the accused having his bed abutted next to Shuhuai's so that he could ensure that Shuhuai did not remove the indwelling catheter.[22]

32 Shuhuai was subsequently admitted to Box Hill Hospital on 22 February 2019. He was discharged on 26 February 2019, the night before the incident. The accused stayed with Shuhuai most of the time while he was in hospital, including overnight. By the time of the incident, the evidence is that the accused was suffering from fatigue and exhaustion related to his caring responsibilities for Shuhuai.[23]

33 By February 2019, the accused wanted to put his father in a nursing home because he could not cope with looking after him anymore. This was prompted by an injury to his lower back resulting in the accused not being able to move for three days. On or about 8 February 2019, the accused messaged the family group chat asking the deceased specifically for help with Shuhuai, as the accused had twisted his back helping his father to the toilet. The deceased did not reply for about a week which angered the accused.[24]

34 In the weeks preceding the incident on 27 February 2019, the accused had attended Jin's house complaining about family members not being grateful to him, as well as and family members lying and cheating him of his money. The situation escalated to the point where Kuan told the accused that he should leave the family alone and that if he wanted money he should give Kuan a specific figure and leave them alone.[25]

35 There was also evidence about some tension between the accused and the deceased in the days before the incident. Kuan recalled an incident on or about 22 February 2019 when Shuhuai had been admitted to Box Hill Hospital. Kuan observed what he described as quite a tense situation between the accused and the deceased while they were at Box Hill Hospital.[26]

36 On 26 February, the night before the incident, Li Li, the accused's girlfriend, visited the accused at his home. Shuhuai had been discharged from Box Hill Hospital on that day and the deceased was at the accused's house to help with Shuhuai's care and was staying overnight. Li Li noticed the deceased and the accused ignoring each other when she initially arrived.[27]

37 Li Li said that she heard them talk about one of the longstanding disputes and $50,000. She observed the volume of the deceased's voice going up a bit at allegations the accused made. Li Li also recalled the accused raising his voice during the conversation. Eventually things settled down and the deceased asked Li Li if she wanted to stay for dinner. Li Li left at approximately 6:20pm and indicated that she would not have left the house if they were still arguing. Li Li was at the house for approximately 45 minutes to an hour and noted that the accused looked tired and exhausted when she visited.[28]

38 Relevantly, when she was at the home she recalled discussing the deceased's medical conditions. The deceased told Li Li that twice last year she had difficulty breathing while lying down, she could not sleep and she would need to sit up for the whole night. The deceased said she was on medication for these issues. The deceased said she had frequent dizzy spells which caused buzzing in her ears. The deceased said that she could not look after Shuhuai.[29]

39 At about 7:00pm on the evening of 26 February 2019, the accused's neighbour, Konstantinos Karatzias also briefly visited the accused at his home to see how he was. Mr Karatzias described the accused as looking 'tired and withdrawn'.[30]

40 Following the assault on the deceased which I will discuss below, at approximately 9:15am on 27 February 2019, the accused left his home at Clayton South and drove to Jin's home in Burwood East in his white Holden sedan. The accused arrived at Jin's home some time before 9:38am, when Kuan's wife, Xue , called triple zero.[31]

41 When the accused arrived at Jin's home, Kuan, Xue and their youngest child were at the front door and Jin was walking in the front yard. The accused drove into the driveway with his window down. Both Kuan and Xue heard the accused say he wanted to talk to Kuan. The accused then left his car with a metal bar in his hand and approached Kuan. The accused struck Kuan about three times with the steel bar and the two began to tussle, during which the accused dropped the metal bar.[32] It was this incident which is the subject of the intentionally cause injury charge to which the accused pleaded guilty.

42 During the tussle, Xue called the police while holding her youngest child who was crying.[33]

43 At approximately 9:44am Senior Constable Chris Cooper and Constable Mitchell Lording arrived at the scene and approached the address. They observed the accused and Kuan wrestling or fighting on the ground in the bushes of the driveway. As they approached, Kuan stood up and moved back, while the accused spoke aggressively in Mandarin towards Kuan. There was evidence that during the assault and upon his arrest, the accused made statements to the effect of 'I killed her' and 'she's in the boot'.[34] This evidence is considered later in this judgment.

44 In response to one of these statements, police checked the boot of the car where they found an Asian female, aged approximately 50 years old, in a 'very unusual' position and partially covered with a white Ambulance Victoria blanket.[35] Police believed the woman to be deceased and this was subsequently confirmed by the paramedics who attended the scene. The woman was later identified as the deceased.[36]

45 On discovery of the body, the accused was arrested for murder and subsequently transported to Melbourne West Police Station.

46 On execution of a search warrant of the accused's home, police found two handwritten notes, one in the bedroom where they also found Shuhuai, and another on the dining table in the lounge room.

47 The second note which was found on a shelf on a desk located in a bedroom states:

PLEASE CONTACT

MIS LU TO LOOK AFTER

OUR FATHER. THANK YOU!

NING (JUSTICE MAKER)

MOB: [Lu's mobile number]

[Lu's address][37]

48 The first handwritten note on the lounge room table states:

DEAR OFFICERS:

I HAVE KILLED MY SISTER QIN AT 7 AM

TO ACHIEVE MY JUSTICE.

I WOULD LIKE TO THANK YOU TO CONTACT MY OTHER SISTER LU [Lu's Mobile Number] OR YUE

TO TAKE CARE OF OUR FATHER

HE HAD HIS BREAKFAST AT 9 AM.

Lu [Lu's mobile number] CHINESE (MANDARIN)

[Lu's address]

27-02-19[38]

49 The Prosecution and Defence agreed that the accused wrote the two handwritten notes located at the Clayton South property.[39]

50 In addition to the two handwritten notes the accused left at the Clayton South property on the morning of the incident, three months later, on 30 May 2019 at 1:55pm, Senior Prison Officer Philip Sellman conducted a search of the accused's cell at the Metropolitan Remand Centre. During the search, a handwritten note was located on the counter in the accused's cell.[40]

I'VE KILLED ONE OF BLOOD SUCKERS. ONLY ONE OF MANY.

IT'S A SHAME.

... I'VE HAPPEN TO KILL ONE OF THE DEALY

BLOOD SUCKERS. IT'S A SHAME. THERE ARE

MOOR OF THEM WHN MY FAMILY. [41]

52 Returning to the day of the incident, there was evidence that observations made of the Clayton South property by Sergeant Kingston-Lee was that the home was 'fairly neat and tidy' and that 'there didn't appear to be any signs of disturbance throughout the house at all'.[42] Sergeant Kingston-Lee observed in the lounge room an orange coloured L-shaped couch in the corner. It appeared to be made up as a bed and there were some cushions, a doona and a towel on the couch. Sergeant Kingston-Lee did not observe blood on any of the fabric items in the lounge room.[43]

53 At the Clayton South property the police observed what looked like three droplets of blood on the lounge room floor. DNA analysis of the three droplets concluded that it was 100 billion more times more likely if the deceased is the source of the blood than if the deceased is not the source of the blood.[44]

54 Following the accused's arrest at the Burwood East property, he was transported to the Melbourne West Police Station where he arrived at approximately 11:55am, and subsequently gave a record of interview.

55 After his arrival at the Melbourne West Police Station the accused was read his rights and cautioned by Detective Acting Sergeant Megan Adams.[45] The accused requested they call his sister Lu and his girlfriend. The accused said he needed his sister 'to go and look after my 91 year old father.'[46] The accused was subsequently informed that Lu was already with his father and he said that he no longer needed to speak to her.[47]

56 At 2:48pm on 27 February 2019, the accused had a telephone conversation, in Mandarin, with his girlfriend, Li Li, which was recorded by police.

57 At the beginning of the call, Detective Adams told Li Li that the accused was under arrest for the deceased's death. The following exchange then took place between Li Li and the accused:

LI: What have you done again?

WANG: I can only find a way out by getting into trouble and going to jail. uh.

LI: (Unintelligible)

WANG: They have driven me mad. They have driven me mad.[48]

58 The accused then told Li Li that he had killed the deceased. The accused told her that '[t]his kind of person doesn't deserve to live in this world'.[49]

59 When Li Li asked the accused about the future care of Shuhuai, the accused said 'Wei Wang [sic] will now come to look after him [sic] ... I have already left a note on the table. He will be looked after.'[50]

60 The following exchange then took place between the accused and Li Li:

WANG: Don't be nervous. We all will die as human beings. I can't stand this. I won't swallow this anger and live on like this.

LI: Oh. (Unintelligible)

WANG: You should have known it.

LI: Why can't you be rational?

WANG: I have been rational enough.

LI: You have killed Qin Wang? (Unintelligible)

WANG: Right, right, right.

LI: What is the point for you to kill her? You should go and kill Yao Wang instead.

WANG: Nonsense. You really don't understand it. You have no idea. She was the leader of the pack. She instigated it. She was the first one to instigate it in our family. Huh?

LI: Is she dead?

WANG: Dead.

LI: Oh my. How did you kill her?

WANG: I bashed/hit/beat her to death.[51]

It is accepted that the accused did not use all three of the words 'bashed', 'hit' and 'beat', but rather that the Mandarin word used by the accused could have any one of those meanings.

61 After this exchange, Li Li asked the accused whether he will be sentenced to death and the accused said the following:

I am not afraid of death. If I die ... if I am afraid of death, why would I do this? ... there is no point for me to live on. What is the point to live on? ... Don't be nervous. It's no big deal. People die everyday.[52]

62 The accused was interviewed at Melbourne West Police Station on Wednesday 27 February 2020 by Detective Senior Constable Brendan Devenish and Detective Senior Constable Anna Kirishian. Also present were two different Mandarin interpreters during different segments of the interview.

63 The interview took place between 4:56pm and 9:51pm. The interview was lengthy and covered a range of topics. Having had regard to the entirety of the recording and transcript of the interview, I include here the most relevant parts of the interview for determining the elements of the offence.

64 The accused spoke to Li Li and a Victoria Legal Aid lawyer prior to the interview. In the course of the interview the accused was examined by Forensic Medical Officer Dr Supriya Krishnan. A DNA buccal swab and fingernails scrapings, from both hands, were also taken from the accused. Subsequent DNA testing of the fingernail scrapings identified mixed DNA profiles on both the left and right hands. The deceased was excluded as a contributor to those profiles.[53]

65 The accused was asked how the deceased died. He replied 'No comment.' The accused would be asked questions to this effect several times during the interview and he repeatedly provided a 'no comment' answer. I obviously draw no negative interference against the accused for these answers. Indeed I have paid no regard to these statements whatsoever.

66 After providing an extensive explanation of his family tree and relations, the accused was asked about Shuhuai. He explained that he took care of his father 'day and night' and did 'everything'.[54]

67 Detective Senior Constable Devenish asked the accused if he remembered speaking to people at Burwood East during the assault on Kuan:

Q 435 O.K. Do you remember what you said to those people about your sister in the boot?

A No, I can't remember that much.

Q 436 O.K.

A There's a lot of things going on in my head.[55]

68 Detective Senior Constable Devenish questioned the accused about one of the handwritten notes left in the Clayton South address:

Q 453 When did you write that note?

A Before I left.

Q 454 O.K. What does that note say?

A Basically call somebody to look after my father.[56]

69 The accused descended into detail as to the background of the family dispute, his relations with his family members, his care of Shuhuai and the morning of the deceased's death.

70 The accused said he looked after his father overnight while the deceased slept in the living room.[57]

71 The accused detailed that he had a sleepless night prior to the morning of the deceased's death, getting up between three and five times overnight as Shuhuai was agitated. He said that the deceased slept and did not assist him with caring for their father.[58] He recalled that she got up once, but 'she didn't help, just watched. Watch what I do'.[59] When asked how her sitting and watching made him feel, he replied '[s]he doesn't know what to do'.[60]

72 The accused was questioned about the trip to Taiwan for his uncle's 90th birthday. The accused explained that he 'had to cancel because nobody come [sic] to look after my father.' When asked who did he ask to look after Shuhuai, the accused replied '[e]verybody'.[61]

73 After explaining that his sisters are not generally around to assist with the care of Shuhuai, the accused propounded at length the dispute between him and his family members, including how he perceived his family's actions. He said he felt 'cheated' out of $50,000 and that his family 'lied' to him.[62]

74 The accused further explained the communication issues he had with his sisters and the requests he made for them to contribute to the care of Shuhuai:

1. Now I ask them - "If you can give me some back then everybody contribute a little bit." No talk, don't come any more. I write to them, "We should talk." No talk, don't talk. Making more lies....[63]

75 The accused continued, more specifically focusing on the deceased:

1. One thing - but this one, she come to my place. She came from China, come to my place, we had negotiations. Previously was, I think - say two or three weeks ago I tried to negotiate with him - with her to contribute a little bit of money because father at my place. If she - he gets sick I - I wouldn't be able to cope. Also I need money to buy grave. At father's age we needed to - to build - to - to pay for the - for the - for the cemetery funeral. She's got millions and billions of dollars. I said, "You pull out one hair, that would be enough to solve the problem." No, no money. Not even cents, a penny. Now, this time I try to talk to her again, same thing happens. It's just one drop in the - a sesame on the ground. I give them money without asking. They don't ask me for money, I don't know ......... I know they're lying ...

1. I said, "You had a responsibility. You gain more, you have more responsibility." The family have to be supported by everybody, not by one person. It will collapse, you destroy the whole the family, the - the - the - the - the relationship destroyed. Nobody cares, just take. Nothing come back. How I can survive with it this way since they - I was getting angry. Extremely selfish. You can't talk to them, can't - you can't .......... they don't even believe, yeah.[64]

76 Further on in the interview, the accused detailed his interaction with the deceased on the morning of her death:

Q 561 O.K. So how has all this impacted on what happened this morning?

1. What happen in this morning, I had a chat with - with her. I said, "You just pull one hair, we solve all the problem. For you it's nothing." But nothing happens, they just don't .......... enough to give nothing. "And it won't - won't hurt you." One - say you spend the $50,000 some - for - for her it's absolutely nothing. He's got billions, maybe billions ...

...

Q 565 - - - but she didn't, what happened next?

A I got angry again, yeah. That's all, I - I just say stop here.

Q 566 Tell me about how angry you were.

A This is not the first time I got angry.

Q 567 Mm.

1. Many times I think I should die. I can't live in this - I can't - I can't - cannot stand all these things. Here I'm taking care of my father, there they are making it hard - difficult for me. Now, only to .......... a - a week - no, they won't allow you to go.[65]

77 The accused confirmed what he said when police arrived at Burwood East:

Q 662 But can you tell me what you told the police when they arrived?

A Yeah, they arrived, yes, I said, 'I killed my sister, she's in the boot.'[66]

78 The accused then explained that he gave his father breakfast at approximately 9:00am. After giving his father breakfast, he put the deceased's body in the boot prior to leaving, by dragging her body from the living room. In the record of interview, the accused suggests that he left for Burwood East at 9:30am or 9:45am. However, CCTV footage from a neighbour's property establishes that he left for Burwood East at 9:15am.[67]

79 The accused provided additional information on the confrontation when questioned by Detective Senior Constable Kirishian. He described that they were in the living room. She was sitting on the couch while he was standing up, and they had a fifteen to twenty minute conversation.[68] The accused was then questioned as to how the conversation started:

Q 814 And then how did that conversation start?

1. Yeah, I just ask her - I said, "Hey, I've been" - I didn't sleep all night, I'd been thinking about it. I got very upset. "You got that much money, you just spend a penny it's all solved". If I was in the situation I wouldn't hesitate.[69]

80 Replying to questions from Detective Senior Constable Devenish, the accused commented on the deceased's behaviour during this confrontation:

Q 779 How - how was she behaving?

A Behaving?

Q 780 Yeah - - -

A ..........

Q 781 - - - or what - in terms of her - her tone of voice, her body language.

1. Oh, O.K. She's very calm, she never panic and not - she telling lies with - with no - you can't see the face change. She cheating you with a smile. I learned - I learned - - -[70]

81 When the accused was asked why he wanted to put the deceased's body in the boot, the accused replied:

1. Because I don't want the body there at house, I want to bring to my sister's place as the consequence.

Q 793 And why do you - what were you trying to achieve by doing that?

1. Well, it could've been a peaceful situation, now you push me to the corner. I couldn't live with this any longer. You - you go nowhere. I've got my father, I will pay everything. They just wash their hands, walk away. Nobody come. .... And they the winner; they got all the properties, they get rid of father. Now I've got nothing.[71]

1. I don't care where he dies. I'm prepared to die a million times, not this times. I don't want to live this way, being cheated all the time. I have no capability with - play games with these people. They have a thing because they have same interests. I've got no information, I'm in Australia. I've got no information, they don't tell you.[72]

83 The accused continued that 'I wanna go to gaol, I'll be happy to go - go to gaol.'[73]

84 After a lengthy to and fro with the interviewers, the accused, referring to the family members he had a dispute with, stated that 'these people got no heart'.[74]

85 When Detective Senior Constable Kirishian brought up Jianyao and the fact that he had his mother taken away from him, the following exchange took place:

Q 868 So his mum's been taken away from him.

A Yeah, yeah, yeah.

Q 869 Why?

A That's a tragedy.

Q 870 Mm.

1. It's my fault. It's my fault, I don't blame anybody else. I'm human. That shouldn't happen.

1. I don't think it's the right thing to do. It's not a perfect world. I don't look at excuse for myself. So I may be short in the brain. I said, "I'd better go to gaol, I can't stay like this any longer." It's not just one day, it's been seven years. You get stressed, upset, you cannot concentrate and do any work. You think about the - nasty things.[75]

86 Each of the offences of murder and manslaughter by unlawful and dangerous act require a finding, beyond reasonable doubt, that the accused's actions caused the deceased's death.

87 The principles in relation to causation are well established. The question of causation is not a philosophical or scientific question. Instead causation is determined by applying common sense to the facts. The purpose of the enquiry is the attribution of legal responsibility in a criminal matter.[76]

88 In order to demonstrate that the accused's assault on the deceased caused her death it is sufficient for the Prosecution to prove, beyond reasonable doubt, that the assault was 'a substantial or significant', 'sufficiently substantial' or 'substantial and operative' cause of the deceased's death.[77]

89 The Prosecution need not prove the assault was the sole or principal cause of the deceased's death.[78] Thus, it is open for me to be satisfied that the accused's assault caused the deceased's death even if it was not the sole, immediate, or most proximate, cause of her death.[79]

90 The Defence does not dispute that the accused physically assaulted the deceased on the morning of 27 February 2019. Having done so the accused must take the deceased as he found her.[80] Any medical condition the deceased may have had, rendering her more susceptible to death than a person of normal health, cannot of itself enable the accused to claim that the deceased's death should not attract criminal liability.[81]

91 While I have considered all of the evidence, the most important evidence relating to causation includes: Dr Archer's evidence; and the lay evidence given in relation to the deceased's health. I will first consider this evidence before moving on to consider the parties' submissions on causation.

92 Dr Melanie Archer, a forensic pathologist employed by the Victorian Institute of Forensic Medicine, attended the Burwood East property on 27 February 2020 at 3:41pm and observed the body the boot of the car.

93 On the same day at 6:36pm, Dr Archer performed an autopsy and later prepared a report.[82]

94 For the purpose of the autopsy report, Dr Archer conducted an external and internal examination of the body, special investigations including tissue taken for histopathology, post-mortem whole body CT scan, post-mortem plain x-rays of the larynx and hyoid bones, extended post-mortem toxicology, post-mortem biochemistry and photographs. Dr Archer organised for specialist radiologist review of the post-mortem CT scan performed by Dr Chris O'Donnell on 28 February 2019.[83]

95 Dr Archer included in her autopsy report a verbatim extract from a report prepared by Dr Linda Iles, a forensic pathologist that specialises in neuropathology. Dr Iles conducted a neuropathology examination on the deceased's brain on 4 March 2019.

96 Dr Archer explained that she listed the injuries under the heading 'Trauma' because they were, in her opinion, traumatic injuries sustained in life. This includes the neuropathological findings which were listed separately in her report by Dr Iles.

97 Dr Archer summarised her autopsy findings as follows:

1. Petechia over the upper chest, neck and face (including the eyelids and oral mucosa).

a. bruising to the left and right scalp;

b. bruising to the jaw and cheeks bilaterally;

1. bilateral periorbital haematomata with right medial wall orbital blowout fracture;

d. bruising to the tip and left lateral edge of the tongue;

e. abrasions over the nose;

f. strap muscle bruising over the anterior neck;

g bruising into the posterior neck musculature;

h. right thyrohyoid ligament haemorrhage;

i. possible kinking of the greater horn of the hyoid bone;

j. bilateral anterior and lateral rib fractures;

k. deep bruising of the left pectoralis major and minor muscles;

1. bruising over the right hand (dorsum and metacarpophalangeal joints of the index, middle and right fingers);

m. bruises over the knees bilaterally and left shin;

n. patchy bruising over the upper back.

3 Neuropathology finding (see separate report):

a. 'minor focal sulcal subarachnoid haemorrhage only'.

1. Impressed parallel lineal marks over the left arm and left leg (favoured to be impression marks from objects under the body).

5 Posterior aortic adventitial haemorrhage (just distal to the arch).

6 Pouch of Douglas haemorrhage.

7 Focal moderate coronary artery atherosclerosis.

8 Uterus not identified.[84]

98 Having conducted all of the tests she could think of doing and the full autopsy, Dr Archer could not find the cause of death. Dr Archer determined that the cause of death was 'UNASCERTAINED'.[85]

99 Dr Archer went on to make the following comments in the autopsy report:

1. The cause of death remains unascertained despite a full autopsy with ancillary investigation.
2. There was evidence of blunt force trauma in a pattern strongly indicative of a recent assault. There was bruising to the left and right scalp, jaw and cheek. Further bruising was noted over the upper back, chest and limbs.
3. There were two periorbital haematomata ('black eyes'), and there was an orbital blowout fracture involving the right medial ball of the orbit ('right eye socket fracture'). This fracture type is normally associated with direct blunt force trauma to the eye socket, such as a punch or blow from a solid object.
4. There were bilateral rib fractures of 'buckle' type. These fractures involved the front and side of the chest over multiple ribs on both sides. Autopsy demonstrated that these fractures were acute (recent), although there was no associated inflammation. The rib fractures were multiple in some ribs, including the relatively well-protected second rib.
5. The precise mechanism by which these rib fractures occurred is unknown. Anterior (frontal) fractures may be caused by direct anterior blunt force or anterior compressive force. Lateral fractures may also be indicative of interior compression or direct blunt trauma to the side of the chest. Examples of blunt force trauma that can cause rib fractures include falls, punching and kicking. Anterior compressive force may be delivered by crushing due to a heavy object placed on top of the chest, by kneeling on the chest or by pushing on the chest. Anterior rib fractures are most frequently seen in the setting of cardio pulmonary resuscitation, although ambulance records reveal that this was not delivered by paramedics.
6. There were petechial haemorrhages over the upper chest, neck and face. Petechiae are pinpoint haemorrhages that are caused by raised blood pressure in tiny blood vessels due to obstructed venous blood return. Petechial haemorrhages can be associated with traumatic asphyxia (chest compression) and neck compression. They may also form independent areas after death, for example on the face of a prone body. However, petechiae were present in this case in non-dependent areas (eg behind the left ear).
7. The significance of the petechial haemorrhages is uncertain. However, the possibility of neck compression and/or traumatic compression of the chest is raised due to the combination of findings of bruising to the strap and posterior muscles of the neck, and the rib fractures. There was also possible kinking on x-ray of the right side of the hyoid bone of the neck, with some haemorrhage into the surrounding tissue. But a hyoid fracture was not demonstrated, and this possible kinking is of uncertain significance.
8. Neuropathology examination showed some minor acute subarachnoid haemorrhage in a distribution consistent with blunt head trauma. Loss of consciousness from blunt head trauma is a possibility, which means that positional asphyxia cannot be excluded. This form of asphyxia involves positioning of the body in a way that compromises breathing, and it can cause or contribute to death. The development of hypoxia (oxygen shortage) is reliant on the decedent failing to escape from the adverse position due to a reason such as unconsciousness, intoxication or entrapment.
9. There was focal moderate coronary artery atherosclerosis affecting the left anterior descending coronary artery, with thickening (hyperplasia) of the vessel wall also at this location. However, there is no evidence that this contributed to death. There was also no evidence of any other significant natural disease that caused or contributed to death.
10. Impressed parallel linear marks were noted over the left arm and left leg. There was no evidence of any vital reaction underlying these marks at autopsy, and they are favoured to be post-mortem impression marks (indentations). Review of selected scene photographs reveal that Qin was lying on some ropes when she was in situ in the car boot, and their placement corresponds with the linear marks.
11. Post-mortem toxicology shows no ethanol (alcohol) and no common drugs or poisons.
12. Post-mortem vitreous humour biochemistry showed levels of sodium, potassium, chloride, glucose, creatine and urea within normal post-mortem limits.
13. This report has been reviewed in full by another forensic pathologist in accordance with the Victorian Institute of Forensic Medicine's technical review policy.[86]

100 In oral evidence Dr Archer said that her positive overall finding was 'that there was a lot of blunt force trauma ... in this case ... and the pattern to me was strongly indicative of recent assault' rather than some species of fall.[87]

101 Dr Archer confirmed that in her autopsy report she summarised what Dr Iles found in her examination of the brain and put that in context. Dr Iles found some minor acute (fresh) subarachnoid haemorrhage.[88] Dr Archer said that as evidence of blunt force head trauma was found in the form of scalp bruising and the subarachnoid haemorrhage, this raised the possibility that the subarachnoid haemorrhage could potentially have caused a loss of consciousness, which in turn compromises breathing. In the context of considering what caused the deceased's death, Dr Archer said that in this case, the possibility of death by positional asphyxia cannot be excluded.[89]

102 Dr Archer said that in other scenarios, loss of consciousness is seen with intoxication or entrapment. However, in this case Dr Archer said:

I'm raising the possibility that if you're in an awkward position and you're unconscious there's actually a possibility that you can have some airways compromised and this can cause or contribute to deaths in some instances.[90]

103 Dr Archer said that in cases with an unascertained cause of death it is often prudent to raise positional asphyxia as a possibility.[91] Dr Archer said in this case, it refers to a person's failure to rescue themselves from an adverse position which would imply that they would need to have lost consciousness.[92]

104 Dr Archer agreed that the existence of the traumatic brain injury detected by Dr Iles provided a rational piece of evidence supporting the possibility of positional asphyxia, or more specifically that it raises the possibility of potential loss of consciousness which was one of the ingredients to allow positional asphyxia to occur.[93]

105 At the Court's request and through the questioning of the Defence, Dr Archer was asked about the degree of force required to cause the right eye socket fracture.

106 Dr Archer confirmed that when pathologists are asked to comment on the degree of force used, the general practice is to use the terms 'mild, moderate and severe'.[94] Dr Archer agreed that the terms 'mild, moderate and severe' are subjective and impressionistic categories designed to assist a court to understand matters without being too precise.[95] Dr Archer agreed that in forming the assessment of the degree of force used, there are 'infinite variables' that can be relevant depending on the facts of the case.[96] This includes: the position of the victim; movement of the victim at the time of the trauma; any particular vulnerability of the victim; and any particular strength of the victim.[97]

107 Bearing those matters in mind and the fact that the orbital wall is particularly thin,[98] Dr Archer assessed the degree of force to cause the right eye socket fracture 'as at least moderate'.[99] Dr Archer said that it was possible that a single blow could have caused the injury to the right eye.[100]

108 During cross-examination, Dr Archer was asked about the other facial injuries sustained by the deceased:

Question: ... the other facial injuries may be caused by contacts that are mild or moderate; is that correct?

Answer: That's correct, yes, absolutely. I mean you couldn't - you couldn't rule out severe either but - but you - you'd also accept mild, so it doesn't take much to produce some of these abrasions. A lot of the bruising to the cheeks and jaw, you know, you might be thinking more moderate but certainly the abrasions, it doesn't take much.[101]

109 Dr Archer was asked if there was any connection between the subarachnoid haemorrhage and the right eye socket fracture:

Question: ... Now I'm going to tie the next question back to the eye socket injury [but] we have in this case because of Dr Iles' analysis knowledge of an acute subarachnoid haemorrhage, is that correct?

Answer: Yes.

...

Question: All right. So one rational possibility is that the blow, and hypothesising that it is a blow, the blow which caused the orbital wall fracture is at least rationally capable of being the blow that caused the subarachnoid haemorrhage as well; is that correct?

Answer: That possibility if it was a substantial enough blow. It could definitely do that.[102]

110 Dr Archer had a specialist radiologist, Dr Chris O'Donnell, perform and review a post-mortem CT scan and plain x-ray. Based on her autopsy examination and Dr O'Donnell's radiology tests, Dr Archer's findings in relation to the deceased's ribs were as follows:

There are bilateral anterior and lateral rib fractures:

1 Anterior fractures of right Rib 2 and 3, left Rib 4 and 5;

2 Anterolateral fractures of left Rib 4 and 5;

3 Lateral fractures of right Rib 2, 4, 5;

4 Lateral fracture of left Rib 9.

The rib fractures are not displaced and are of 'buckle' type. There is a patchy subpleural haemorrhage and intercostal haemorrhage surrounding the rib tissue.[103]

111 Dr Archer confirmed that there were multiple fractures in some ribs which she considered was of note, including 'the relatively well protected second rib'.[104] Dr Archer explained in relation to the second rib, 'it's protected by the jutting collarbone, it's protected by the arm, and it's protected at the back ... the scapula'.[105] Dr Archer said that the fractures to the higher ribs, such as the second rib are something a pathologist notices.[106]

112 During examination-in-chief, when Dr Archer was asked why multiple fractures in the same rib was something of note, she gave the following response:

Well, because you don't ah - you don't often see it. Ah it's usually you just get the one ah and to get multiples that's of note. It may either indicate multiple applications of force ah to me or it um may indicate a greater severity of force, by also ah the other thing is in people who are osteoporotic. They just - they - their bones are like glass and they can have multiple fractures. I didn't get that sense from her. I would have commented on it. [107]

113 In the deceased's case, Dr Archer said the way in which the rib fractures were sustained were not known.[108]

114 In relation to the anterior fractures, she said the mechanism that causes the injury could be direct anterior blunt force trauma or anterior compressive trauma.[109] Examples of every day scenarios include CPR, kneeling on someone's chest, falling face first on something, people hitting steering wheels in a motor vehicle accident, or kicking someone in the chest.

115 In relation to the lateral or side fractures, Dr Archer said they can be caused by anterior compressive force,[110] or direct blunt force trauma to the side of the chest.[111]

116 Dr Archer said that the radiologist did not notice the deceased to have any osteoporotic tendencies,[112] and nor did Dr Archer find any osteoporotic tendencies during the autopsy.[113]

117 Dr Archer acknowledged that the rib fractures might reflect a combination of blunt force trauma and a later attempt at CPR. Dr Archer agreed that, in the present case, there was no scientific way to unpack a possible combination of blunt force trauma with a later attempt at CPR.[114]

118 In relation to the degree of force required to cause the rib fractures, Dr Archer classified it as '[p]otentially severe but at least moderate'.[115]

119 In relation to the injuries to the upper chest, neck and face, Dr Archer noted the presence of petechial haemorrhages in those areas.[116] Petechiae are pinpoint haemorrhages that are caused by raised blood pressure in tiny vessels due to obstructed venous blood return.[117] Dr Archer was clear that the presence of petechial haemorrhages is 'very non-specific'[118] and 'uncertain'.[119]

120 In examination-in-chief Dr Archer said she could not be definitive of whether the petechial haemorrhages over the upper chest, neck and face were as a result of chest compression or neck compression. Dr Archer stressed that pathologists needed to be cautious about interpreting the causes of petechial haemorrhages and that they are not diagnostic.[120] However during cross-examination, Dr Archer did acknowledge that a person falling on another's chest with their knees is a potential cause of petechial haemorrhage.[121]

121 Dr Archer said the most significant finding in the neck region was bruising of the strap muscles and patchy bruising in the ligaments between the larynx and hyoid bone.[122] During examination-in-chief Dr Archer said that:

[Y]ou could imagine that if I were to um injure that neck in any way, be that hands, be that striking, be that falling against something, then you might get some bruising into those [strap] muscles.[123]

122 Dr Archer concluded that while the significance of petechial haemorrhages is uncertain, the possibility of neck and or traumatic compression of the chest is raised due to a combination of findings of bruising to the strap and posterior muscles of the neck, and the rib fractures. In evidence in chief, Dr Archer elaborated on the collection of petechial haemorrhages in this case, stating that while she could not be 100 per cent certain what she attributes them to, because pathologists have to be cautious, 'I would say that [raises] my suspicions for chest compression um and we do have that in tandem with the rib fractures ... certainly the chest compression um I would - I would see as a - as a contender, especially with the rib fractures ...'[124]

123 Dr Archer was questioned about the deceased's pre-existing medical conditions, in particular her asthma and coronary artery atherosclerosis. Dr Archer was also asked about what access she had to the deceased's medical records and medical history and what difference access to that information would have made to her findings.

124 Dr Archer said that on the day of the autopsy the deceased's past medical history was unknown to her and subsequent enquiries revealed the deceased had no general practitioner in Australia. Dr Archer explained that there is a liaison unit that speaks with relatives and detectives to try to find medical records. She understood that enquiries were made.[125]

125 In her observations of the cardiovascular system, Dr Archer said that the heart was in the right place, the dimensions of the heart were all within normal limits for a woman of the deceased's age and that she did not see anything significant on the autopsy.[126]

126 In relation to the main coronary blood vessel, the aorta, Dr Archer picked up some mild arthrosclerosis, hardening of the arteries, that was age-related and not of a very significant nature. Dr Archer described a small amount of haemorrhage just over the back of the aorta around the outside of it of uncertain significance, but said it certainly was not something that caused or contributed to the deceased's death.[127]

127 In relation to the histology performed on the heart, Dr Archer said that the coronary arteries she did not observe anything significant.[128] Under the microscope Dr Archer observed what she described as a moderate 60 per cent occlusion of the luminal in the left anterior descending artery.[129] Dr Archer got the laboratory to do multiple slices into her block of the preserved coronary artery in order to give more pieces of it to ensure that the blockage was no worse than 60 per cent[130]

128 The 60 per cent occlusion in the left anterior descending artery was 'literally only in one spot,'[131] and that there was no evidence that the moderate coronary artery arthrosclerosis affecting the deceased's left anterior descending artery contributed to the death.[132] Dr Archer based her conclusion on her interpretation of the blockage being moderate, as well as a lack of evidence in the heart itself in terms of fibrosis formation or significant amounts of scar tissue.[133]

129 In cross-examination Dr Archer agreed that tests conducted on the heart during life can measure heart function and capacity in a way that cannot be done on autopsy.[134] This was in particular relation to measuring blood flow with tests such as an angiogram. Dr Archer explained that a person with a 60 per cent blockage in their coronary artery could still have good blood flow by reason of collateral flow from other vessels rerouting around the blockage, which might mean that the person has surprisingly good blood flow.[135]

130 During cross-examination, Dr Archer was asked about the relevance of the absence of the deceased's medical records in relation to determining whether the deceased had good distal flow despite the 60 per cent occlusion:

Question: [W]ithout having access to her [the deceased's] medical records such as they are, you're not able to say whether she had good distal flow apart from the 60 per cent occlusion, are you?

Answer: What I'm able to say is that I find no evidence that she doesn't have good distal flow um so I thought if she didn't um I should have seen some consequences to her heart um in terms of some fibrosis or scar tissue and sometimes enlargement of a heart as well um even old heart attacks in certain cases but I definitely didn't see any evidence that she's suffered from consequences of a bad heart but I cannot entirely exclude it. It's not something that I found any evidence of.

...

Question: ...[i]n the setting of exposure to positional asphyxia, a cardiac arrhythmia triggered by poor or compromised distal flow could hasten death; couldn't it?

Answer: That is a theoretical possibility. I found no evidence that that would necessary have occurred in this case, but if somebody did have poor distal flow to their myocardium, so their heart muscle, then they would have that potential for a lethal cardia arrhythmia. That's one of the consequences of an oxygen starved heart.

Question: Yes?

Answer: But I didn't find any evidence that moved me or my colleagues to the - to this case to think that this was a possibility we should elevate. .... But I can't exclude it.[136]

131 Dr Archer agreed that it was impossible to entirely exclude if the coronary artery occlusion played a role in the deceased's death in the absence of medical results.[137]

132 During examination-in-chief, Dr Archer was asked whether there was anything in the deceased's heart that may have caused or contributed to her death. Dr Archer said:

The blockage to the coronary artery certainly gave me pause for a thought ah and I did - because you have to consider whether that could possibly have contributed at least, and I don't believe so. Ah I believe that moderate coronary anthracosis with no evidence that she's had a lot of scarring to the heart muscle in the past, no previous heart attacks that I could identify**. I do not believe that that has been a contributor. I can't rule it out, to be completely fair, but I don't believe that it has been.** I did show it around a few colleagues as well, blind, not telling them any of the other case circumstances, just to see what they would grade it at, just to make sure that I wasn't downgrading it through some sort of context bias, ah so I could show it around my neighbours. Um just what do you grade - we do that to each other all the time? And people did not come up with anything more than moderate and I (indistinct) showed it to about five people um so - - -

... . I've discussed this in a departmental meeting and ... nobody else would have elevated it as a significant contributing factor but to be completely fair, I would never entirely exclude it.[138]

133 Dr Archer said that if the deceased had complained of sudden dizzy spells, she agreed it was a matter she would like to have known about, and that she did not know about it.[139]

134 In relation to the history of the deceased's asthma, to begin with Dr Archer talked about her findings in relation to the deceased's respiratory system in general. In relation to the deceased's lungs Dr Archer noted a little bit of black staining associated with smoking or living in a polluted city, but noted that it was mild and she did not assign the description of mild to many people.[140] She said most of us are in the moderate category and the deceased was actually mild. Dr Archer said '[the deceased] had nice pink lungs is what I'm saying there'.[141] In conclusion Dr Archer said that there was 'nothing special going on' in the deceased's lungs.[142]

135 During the autopsy Dr Archer took samples to be later analysed for toxicology purposes.[143] Dr Archer gave evidence that the routine toxicology testing included tests for five common drugs to treat asthma: salbutamol (Ventolin), salmeterol, terbutaline, theophylline and formoterol.[144] It also included testing for ipratropium, which is not an asthma drug but is used for chronic obstructive airways disease.[145] None of these drugs were found in the deceased's system.[146]

136 Dr Archer confirmed that she could not find anything in her examination of the deceased's lungs that may have caused or contributed to the deceased's death.[147]

137 Dr Archer confirmed that she first became aware that the deceased suffered from asthma at the committal hearing on 21 January 2020. She confirmed that there are changes that can be seen on autopsy when someone dies of an asthma attack, but said that she did not see anything on autopsy relating to the deceased's asthma. Dr Archer agreed that this did not rule out the existence of an ongoing asthmatic condition but she would expect when people have asthma to see those changes. There was no evidence of scarring or signs of severe chronic asthma at autopsy.[148]

138 Dr Archer confirmed that there was a thickening of basal membranes at the inner layer of the respiratory tree observed on the histology slide.[149] This was a finding Dr Archer did not make at first instance but agreed with it after discussion with another expert and further review of the histology slides herself.[150]

139 In cross-examination Dr Archer agreed that this finding was consistent with a pre‑existing asthmatic condition and with other airway diseases. However, Dr Archer was firm in her opinion that if all other injuries were taken away in this case and the deceased was found dead in bed, for example, she would still have an unascertained cause of death.[151]

140 In addition to Dr Archer's evidence, there was evidence regarding the state of the deceased's health from Jin, Jianyao, Xue and Li Li.

141 An extract of Jin's evidence at the committal was read into evidence.[152] Jin identified a medical record of the deceased's from a clinic in China which contains a diagnosis of asthma. Jin acknowledged that the deceased had asthma but that 'it doesn't happen every year' and did not affect her work until she retired.'[153] Asked how asthma effected the deceased after her retirement Jin answered that she lived 'as normal as other normal people.'[154] Jin said that she saw the deceased approximately three times between her arrival in Australia on 3 December 2018 and her death but had not seen her affected by asthma.[155]

142 Jianyao gave evidence that his mother had been diagnosed with asthma.[156] His evidence was that she had a Ventolin inhaler but that she only used it in China and not Australia; his mother had given him her own inhaler because he experienced hay fever.[157] He said he had never seen his mother use a Ventolin puffer in Australia.[158]

143 Jianyao said that his mother had told him in 2018 that she had been diagnosed with sudden deafness.[159] Jianyao said he was told this in a phone conversation where his mother was crying and said she was getting older and he did his best to comfort her.[160] However, Jianyao denied that his mother told him that she suffered from any occasional shortness of breath, even if lying down.[161]

144 Jianyao also denied that his mother ever told him that she suffered from any sort of heart condition.[162] Asked if his mother ever told him that she had had a heart test, he responded 'I think so. By her age she should get checked.'[163] He said that in 2018 he was back in China and that the whole family went to a hospital to have a check-up.[164] Jianyao was not aware of any results of his mother's heart tests.[165] He said it was his father who was on heart medication and not his mother.[166]

145 He denied that his mother lost weight during her time in Australia and said, 'She always be skinny'.[167] He said that his mother's weight of 47 kilos was the same as when she was in China and that before her death his mother ate and slept well in Australia.[168]

146 Xue's evidence was that she was not aware of any medical tests the deceased had in 2018. Nor was she aware that the deceased was suffering from sudden deafness until it was raised at the committal hearing.[169] Xue said she was not asked by police to help obtain the deceased's medical records from China.[170]

147 Finally, as set out in paragraph [38], there is also Li Li's evidence about the deceased's medical conditions, which she discussed with the deceased on the night before the incident.

148 I will now summarise the parties' submissions on causation, framed against the evidence above, before moving on to my findings and analysis.

149 It is the Prosecution's case that the accused's assault on the deceased was a substantial and operating cause of her death, regardless of any pre-existing vulnerability she may have had.[171]

150 The Prosecution point to four categories of evidence which are said to establish, cumulatively, that the accused's assault caused the deceased's death:[172]

(a) the medical evidence;

(b) statements the accused made after the deceased's death;

(c) anecdotal evidence of the deceased's family in relation to her health; and

(d) the accused's post-offence conduct.

151 The first category of evidence is the medical evidence. The Prosecution acknowledge that while this evidence does not determine a cause of death, it reveals that the deceased suffered multiple episodes of trauma and injury to her body.[173]

152 In their closing address, the Prosecution identified the following evidence of Dr Archer as particularly relevant to causation:

• the presence of petechiae in non-dependent areas in combination with rib fractures and strap muscle bruising raising the possibility of chest compression;[174]
• the multiple episodes of trauma, largely concentrated around the head, face and chest area;[175]
• Dr Archer's opinion that the pattern and extent of injuries was strongly indicative of a recent assault;[176]
• the lack of evidence of healing or inflammation suggesting the injuries were acute;[177]
• Dr Archer's opinion that the right medial wall orbital blowout fracture required at least a moderate amount of force, and the rib fractures required a moderate to severe amount of force;[178] and
• that the deceased suffered a traumatic brain injury with bruising and swelling to her head, with the neuropathology report indicating that she had a subarachnoid haemorrhage, raising the possibility of an associated loss of consciousness.[179]

153 The Prosecution acknowledge Dr Archer's evidence that rib fractures may have been caused by 'enthusiastic' CPR, but submit that there is no evidence of CPR being performed in this case and that, in light of the totality of the evidence, the most likely scenario is that the deceased's rib fractures were inflicted as an episode of blunt force trauma.[180]

154 The Prosecution also emphasise Dr Archer's evidence that natural disease did not cause the deceased's death. The Prosecution acknowledge that Dr Archer did not completely rule out some contribution but submit that, while a cause of death was unascertained, the deceased did not spontaneously die from a heart or lung condition.[181]

155 In particular, the Prosecution submit that while the deceased had a 60 per cent blockage in one part of the artery, Dr Archer described this as aged-related hardening of the artery. Furthermore, Dr Archer saw no evidence of prior heart attack, fibrosis or scar tissue, nor that the deceased did not have good distal flow through that artery. The Prosecution submit that Dr Archer was a fair and considered witness who canvassed all possibilities, including seeking peer opinion, in coming to the view that the artery blockage did not cause or contribute to the deceased's death.[182]

156 The Prosecution also highlight Dr Archer's evidence that there was no evidence of changes to the deceased's lungs which she would expect in someone with chronic asthma.[183]

157 In relation to the possibility that positional asphyxia played a role in the deceased's death, the Prosecution note Dr Archer's evidence that positional asphyxia is not a standalone cause of death as it relies on an inability to rescue oneself.[184] In the Prosecution's submission, if positional asphyxia played a role in the deceased's death it did not break the chain of causation because she was only in that situation as a direct result of the accused's assault upon her.[185]

158 The second category of evidence the Prosecution rely on for causation is the various statements the accused made after the deceased's death to the effect that he had killed her. In particular, the Prosecution rely on statements the accused made at Burwood East to family members and police, in the notes found in his home and cell, in the phone call to Li Li, and during his record of interview. The Prosecution submit that the accused was in the best position to know whether or not he had killed the deceased and rely on these statements as admissions that he caused the deceased's death.[186]

159 The third category of evidence is anecdotal evidence of the deceased's family, which the Prosecution say supports Dr Archer's opinion that neither a heart or lung condition contributed to the deceased's death.[187]

160 The Prosecution acknowledge the evidence that the deceased was diagnosed with asthma in China in 2015. However, they emphasise Jianyao's evidence that he saw his mother daily from her arrival in Australia on 3 December 2019, and had never seen her with asthma or use her inhaler. The Prosecution also point to evidence that Jin did not see the deceased with asthma and that the deceased was a woman who had been up and about visiting her father in hospital, assisting in his care of him during her visit and exhibiting no signs of illness to her family members.[188]

161 The Prosecution also acknowledge Li Li's evidence that the deceased told her that when she was in China she had had trouble breathing on two occasions, and that those statements are consistent with Jianyao's evidence that she only ever used a puffer in China. In this regard, the Prosecution also note the toxicology evidence that the deceased had no asthma medications in her system at the time of her death.[189]

162 Lastly, the Prosecution also acknowledge Jianyao's evidence that the deceased had some tests, including a heart test, sometime in 2018, but emphasise the evidence that the whole family got tests, and that Jianyao's father had a heart condition and took heart medication but not his mother. They also submit that there does not seem to be any evidence that the deceased was adversely impacted by a heart condition or that she even knew about it.[190]

163 The fourth category of evidence the Prosecution rely on in relation to causation is the accused' post-offence conduct. Specifically, the Prosecution submit that the accused bundled his sister's body into the boot of his car and drove her to the Burwood East address 'as a consequence'.[191] The Prosecution submit that the accused was not trying to hide what he did but instead wanted everyone to know and wanted it all to end.[192] The Prosecution say that this evidence can be used as an implied admission that the accused caused the deceased's death.[193]

164 The Defence position is that the Prosecution has failed to prove, beyond reasonable doubt, that the accused caused the deceased's death.

165 The Defence focus on Dr Archer's findings that the deceased's injuries were not sufficient to cause her death and that the cause of the deceased's death is unascertained. The Defence submit that these findings present a 'very high hurdle' for the Prosecution's case.[194]

166 The Defence concedes the probability that positional asphyxia caused the deceased's death.[195] However, the Defence suggest that a doubt as to causation remains as a result of the absence of evidence the Prosecution has adduced regarding how the assault led to the deceased being in a compromised position, as well as gaps in the evidence in relation to the deceased's health and any vulnerability she may have had.[196]

167 Further, the Defence suggest that there are gaps in the evidence regarding the deceased's pre-existing medical conditions in particular, the deceased's asthma and heart condition. In this regard, the Defence point to the fact that the deceased's asthma diagnosis was only discovered because of material raised by the Defence at the committal hearing, as well as evidence suggesting that the deceased had undergone heart tests in China, the results of which were not before the Court. They also point to Dr Archer's evidence that she had requested, but did not receive, information about the deceased's medical situation, as well as her evidence that she would have wanted to know the results of heart tests and about any dizzy spells the deceased may have been having.[197]

168 The Defence suggest that it is highly likely that the deceased's health played a role, or at least cannot be excluded as playing a role, in positional asphyxia and that the gap in the evidence means there is a serious cloud over causation in this case.[198]

169 The Defence's submissions on intention have relevance for the issue of causation insofar as there is a possibility that the accused performed CPR on the deceased. The Defence submits that CPR cannot be meaningfully excluded as an explanation for the rib injuries. It is argued that the rib injuries are consistent with CPR and that Dr Archer noted rib injuries of the kind in this case are most frequently seen in CPR.[199]

170 The Defence accept that the rib injuries could have come about through CPR or a combination of CPR with some other blunt force trauma. It was posited that one could imagine a situation where a knee contacted and landed upon the deceased, causing injury, and then CPR was administered later causing more injury. The Defence argue that Dr Archer agreed there was no way to scientifically unpack this and it was reasonably possible this occurred.[200]

171 As to the accused's post-offence incriminating conduct, the Defence submits that there is no evidence available about how the accused reacted other than there being 'strong evidence' of CPR activity and that the evidence very much looks like the accused performed CPR.[201]

172 Critical to an analysis of causation is an understanding of Dr Archer's evidence. It is a matter for me to assess the weight to be attached to Dr Archer's opinion having regard to her qualifications. I was impressed by Dr Archer's evidence and the manner in which she gave it. There was no challenge to Dr Archer's evidence. If anything, the parties agreed that Dr Archer gave her evidence in the fairest manner. I accept Dr Archer's findings in the autopsy report and her elaboration in oral evidence. The issue is one of what inferences can be drawn from that evidence.

173 I find the deceased sustained numerous serious injuries as consequence of the assault by the accused. Specifically, I find that the following injuries identified by Dr Archer were from numerous applications of blunt force trauma delivered by the accused to the deceased's upper body:

• deep bruising to the deceased's face, scalp, jaw, cheeks and tongue;
• bruising over the deceased's upper back, upper chest and limbs;
• deep bruising to the left upper chest from the left pectoral muscles extending over the collar bone and into the root of the neck;
• deep bruising to the lateral right deltoid and the right triceps;
• deep bruising lateral to the second thoracic vertebrae;
• bruising to the neck strap muscles;
• abrasions over the deceased's nose;
• a bilateral periorbital haematomata and right medial wall orbital blowout fracture (right eye socket fracture); and
• a minor focal sulcal subarachnoid haemorrhage.

For convenience I will describe these injuries as the 'upper body injuries'.

174 Given the number of upper body injuries, the severity of these injuries, and the totality of Dr Archer's evidence, I am clearly satisfied that the upper body injuries were recent and a result of multiple applications of blunt force trauma and that the degree of force included mild, moderate and, in relation to the right eye socket fracture, at least moderate force. I am therefore satisfied that the accused subjected the deceased to a severe and repeated beating in which she sustained the above injuries to her upper body.

175 I note that Dr Archer considered that the bruising to the strap and anterior muscles of the deceased's neck raised the possibility of traumatic compression and/or neck compression but that a hyoid fracture was not demonstrated.[202] Nor did Dr Archer find any externally visible bruising on the neck.[203] Dr Archer also said the bruising of the strap muscles was consistent with a hand striking the neck.[204] I am satisfied that the bruising to the neck strap muscles was a result of the accused striking the deceased.

176 In relation to the rib fractures, Dr Archer said the way in which the rib fractures were sustained was not known. Dr Archer considered one explanation for how the rib fractures were sustained was as a result of blunt force trauma. She gave examples of kicking, punching, kneeling on someone's chest, falling or a person hitting themselves. Dr Archer also considered the rib fractures could have been caused by crushing due to something heavy or forces applied quickly enough on top of the chest, such as CPR, pushing on a chest or a steering wheel hitting a person's chest in a motor vehicle accident. Dr Archer described these different mechanisms as direct blunt force trauma or compressive trauma.[205] There was no evidence that the deceased had osteoporotic bones.[206] Nor was is it suggested that the deceased's injuries, including the rib fractures, were a result of some species of fall. The photographs of the lounge room where the assault occurred are consistent with a relatively contained event.[207]

177 Dr Archer considered the degree of force required to cause the rib fractures was at least moderate and potentially severe.[208] Dr Archer explained that the multiple fractures of the 'protected second rib' was something of note to pathologists. Although she acknowledged that the first and second ribs can be fractured in everyday situations such as CPR when people are 'particularly enthusiastic'.[209]

178 The Prosecution's case is that the Court should draw an inference that all of the rib fractures were a consequence of blunt force trauma inflicted by the accused in the course of the assault. The Defence submits that I cannot exclude CPR as a reasonable possibility as a cause of some or all of the rib fractures.

179 Mr Pederson, the ambulance paramedic, confirmed that CPR was not administered by the ambulance paramedics.[210] Therefore, if CPR is an explanation for the rib fractures, it must have been performed by the accused.

180 The evidence of what happened after the assault is limited to the accused's accounts after he arrived at the Burwood East property and after his arrest. I consider the accused's accounts in the record of interview were given in a credible and direct manner. The reliability and credibility of the accused's record of interview was not challenged by the Prosecution.

181 While the accused's accounts and conduct establish that he believed that he caused the deceased's death, they do not themselves displace the possibility that the rib fractures were a result of a combination of blunt force trauma and CPR that he administered.

182 However, if the accused did in fact administer CPR on the deceased he must have done so after assaulting her. Any suggestion otherwise would be inconsistent with the accused's account that he and the deceased had been arguing before the assault and with his belief that he caused her death. I note that Dr Archer accepted there was no scientific way to unpack a possible combination of blunt force trauma and a later attempt at CPR in this case.[211]

183 Despite Dr Archer's considered evidence in relation to the possibility of CPR, there is no other evidence in this case to suggest that CPR did in fact occur. In the fairest and most considered manner, Dr Archer did not resile from the possibility that CPR was a cause of the rib fractures. However, this possibility was put as a scientific or theoretical explanation which Dr Archer quite fairly said she could not exclude.

184 Relevantly, when considering the mechanism by which the rib fractures occurred, Dr Archer also specifically raised the possibility of blunt force trauma, such as punching and kicking, as well as a compressive force including kneeling on the chest, or by pushing on the chest. In closing submissions the Prosecution did not prefer punching and kicking over kneeling or pushing on the chest. Rather it was simply bundled together that the rib fractures were inflicted by blunt force trauma rather than CPR.

185 I have found that the accused assaulted the deceased by inflicting blunt force trauma to her upper body. There is no direct evidence that the accused punched or hit the deceased in the chest, or that he was kneeling, or fell, on her chest as he assaulted her. However, those hypotheses are most consistent with the multiple applications of blunt force trauma to the upper body. These hypotheses are also more consistent with the fact the accused was angry at the time of the direct assault to the upper body and my finding below that after the assault the accused held a belief that he caused the deceased's death.

186 Given Dr Archer's strong evidence about the pattern of injuries to the deceased's upper body being due to multiple applications of blunt force trauma, and the evidence of the assault to these areas, there is a real possibility that the accused was kneeling on the deceased's chest while he punched or hit her to the face, head, neck, upper back, upper chest and upper limbs. Such a mechanism could range from the deceased deliberately applying force with his knees to the deceased's chest, to him falling into the deceased's chest in the process of inflicting blows to her upper body and remaining in a position which caused him to have his knee or knees on the deceased's chest, without a particular intention to injure her with his knees. This is not to suggest that the act or kneeling in the chest was accidental and not deliberate.

187 A hypothesis that the rib fractures were inflicted by the accused kneeling on the deceased's chest is consistent with the accused's accounts in the record of interview that throughout the whole argument on the morning of the assault, the deceased was sitting while the accused was standing.[212] Bearing in mind Dr Archer's evidence that they are not diagnostic, it is also consistent with the petechial haemorrhages observed on the deceased.[213] Accordingly, it is a real possibility that in the course of the assault the accused knelt, or fell, on the deceased's chest causing some, if not all, of the deceased's rib fractures.

188 While I note there were no abrasions over the chest area or abdomen area, and there was no external bruising to the area (excluding a very small bruise of the interior right breast), it is also a real possibility that the ribs were fractured by applications of blunt force trauma in the form of hitting, punching or kicking to the rib area.

189 Despite Dr Archer's reference to CPR as a possible cause of the rib fractures, when considering all of the evidence in this case, I consider the hypothesis that the accused administered CPR to the deceased following the assault to be only a theoretical or scientific possibility. Bearing in mind the totality of the evidence and common sense, I do not accept that the accused performed CPR on the deceased. This is in no way a criticism of Dr Archer or her opinion, rather, I am undertaking a different exercise to her, which entails considering the totality of the evidence.

190 Ultimately, while I am satisfied that the accused's actions in the course of the assault caused the deceased's rib fractures, I cannot identify the precise acts which caused them. In conclusion, considering all of Dr Archer's findings and the totality of the evidence, I cannot prefer any, or a combination of, the real possibilities that some or all of the rib fractures were inflicted by the accused applying blunt force trauma, in the form of:

(a) hitting, punching; and/or kicking; or

(b) kneeling, or falling, on the deceased's ribs while assaulting her upper body.

This distinction and the uncertainty of the exact type of blunt force trauma applied is relevant to the determination of intention.

191 Following the assault on the deceased, the accused made a number of statements which the Prosecution sought to rely on as admissions in relation to both causation and intention. It is convenient to consider these statements at this juncture.

192 An admission is a previous representation by a party which is adverse to their interest in the outcome of the proceeding.[214] I may only rely on an admission if satisfied that it was made and that its substance is truthful.[215]

193 I accept Kuan's evidence that, while they were wrestling, the accused said to him 'I killed her' and then '[t]he body in the boot'.[216] Jin also stated that when the accused came out of the car with a metal bar he yelled 'I don't want to live! I'll fight you to death! I killed her! She's in the boot!'.[217]

194 While Xue's evidence of the statements made by the accused was different to that of Kuan and Jin, I prefer the evidence of Kuan and Jin on this issue. Both Kuan and Jin were closer to the accused throughout the altercation, while Xue had a crying child in her arms and concentrating on the phone call to 000.

195 I also accept Senior Constable Cooper's evidence that, as he started to handcuff the accused, the accused turned to him and said 'I am the offender' and, when asked 'what do you mean by you're the offender?', the accused responded 'I've killed my sister, she's in the boot of that car' and nodded in the direction of the white Holden Commodore in the driveway.[218] Furthermore, in his record of interview the accused confirmed that when police arrived at Burwood East he said 'I killed my sister, she's in the boot.'[219]

196 It was not in dispute that the accused was the author of the three handwritten notes. The first written note, found on a table in his home, included the statement 'I HAVE KILLED MY SISTER QIN AT 7 AM'.[220]

197 In his phone call to Li Li, the accused told her 'I have killed Qin Wang'.[221] In answer to Li Li's question 'How did you kill her?', the accused said 'I bashed/hit/beat her to death.'[222] It is accepted that the accused did not use all three of the words 'bashed', 'hit' and 'beat', but rather that the Mandarin word used by the accused could have any one of those meanings.[223] In closing addresses, it was conceded by the Defence that the statement 'I bashed/hit/beat her to death' is capable of being used against the accused as an admission that he believed that he caused the deceased's death.[224] The accused also said in the record of interview in relation to the death. 'It's my fault, I don't blame anybody else.[225]

198 While the accused cannot be taken to know the precise medical cause of the deceased's death, each of the above statements suggest that on 27 February 2019 he held the belief that his actions had caused the deceased's death. To the extent that these statements reflect such a belief, I accept them as true.

199 At this stage I also note that the Defence sought to place emphasis on the statement in the third note, found in the accused cell of 'I HAPPEN TO KILLED ONE OF THE DEALY [sic] BLOODSUCKERS'.[226] I do not think that much can be read into this statement and the accused's use of the word 'happen'. This is particularly so given the same note includes the statement 'I'VE KILLED ONE OF BLOOD SUCKER', without any such qualification. In any event, to the extent of any inconsistency in the accused's accounts I prefer those made on the day of the incident rather than those he subsequently expressed in the third note.

200 The Prosecution also sought to rely on the accused's conduct in putting the deceased's body in the boot of his car and taking it to the Burwood East address as evidence of incriminating conduct. Specifically, the Prosecution submitted that evidence of this conduct could be viewed as an implied admission that the accused caused the deceased's death.[227] In accordance with the Jury Directions Act, such reliance was subject to a Notice of Incriminating Conduct filed on 20 March 2020.[228]

201 I can only use this evidence as an implied admission if I find that this conduct occurred and the only reasonable explanation for the conduct is that the accused believed he caused the deceased's death.[229] I also acknowledge that there are many reasons why a person might behave in a way that makes them look guilty and even if a person's conduct makes them look guilty, that does not necessarily mean they are guilty.[230]

202 As the Defence conceded during closing addresses, the accused's conduct can be characterised as incriminating conduct when it is connected with the express statements the accused made when he arrived at the Burwood East property to the effect that 'I killed her, she's in the boot.'[231] However, as with those statements the accused's actions can only properly be viewed as an implied admission that he believed he caused the deceased's death.

203 Accordingly, I accept that in light of the accused's statements this conduct can be viewed as providing additional support for my finding that the accused believed his actions caused the deceased's death.

204 Based on the accused's accounts I can also infer that the deceased was dead by the time he dragged her body to the boot of the car. While I accept that the accused would have been exhausted and distressed after the assault, he repeatedly said and wrote that 'he killed' the deceased. In his first handwritten note stated 'I have killed my sister Qin at 7am',[232] while in his record of interview he stated that his sister died around 7:00 am.[233] The accused also stated in his record of interview that he put the deceased's body in the boot of his car after he gave his father breakfast at about 9:00 am.[234] As discussed above, he was the only person with direct knowledge of the events leading up to, and immediately following, the deceased's death.

205 Dr Archer's finding that the cause of death was unascertained is important in this case. However, even though Dr Archer concluded the cause of death was unascertained, she said she cannot exclude positional asphyxia as a possible cause of death in this case. The Defence acknowledged that positional asphyxia 'looks highly likely to be the cause of death' and conceded the 'probability' of that being the case.[235]

206 The evidence, including the injuries sustained, the multiple applications of blunt force trauma, the degree of force used to inflict the blunt force trauma, are consistent with the accused being in an angered state after arguing with the deceased and inflicting the injuries on her, leaving her so debilitated that she could not move. Dr Iles' finding of the subarachnoid haemorrhage underpins Dr Archer's opinion that the deceased may have sustained a loss of consciousness which, in turn, may have prevented her from moving from a position affecting her ability to breathe, ultimately resulting in her death.[236]

207 Dr Archer's evidence is clear that there was no evidence the deceased died of natural causes. Dr Archer was pressed in cross-examination on the effect of the deceased's asthma and 60 per cent coronary occlusion in the setting of positional asphyxia and if they could contribute or hasten death. Dr Archer said in relation to the 60 per cent coronary occlusion that it was 'a theoretical possibility' that in the setting of positional asphyxia, it could hasten death, but she found no evidence that it occurred in this case.[237]

208 Dr Archer was asked whether she could say whether the deceased had good distal flow without having access to the medical records. Dr Archer said she found no evidence the deceased did not have good distal flow. Put simply, Dr Archer's evidence was that she found no evidence that the deceased suffered from a 'bad heart', however, being fair said, 'but I cannot entirely exclude it'.[238] In relation to the lack of medical records and whether she could exclude whether the deceased's coronary occlusion played a part in her death, she said it was impossible to exclude.[239]

209 Dr Archer's evidence in relation to the asthma was of a similar vein. She found there was nothing special going on in the deceased's lungs and repeatedly said she did not see anything on autopsy relating to the deceased's asthma.

210 I am not persuaded by the Defence's submission about the gap in evidence, namely the lack of the deceased's medical records. Importantly, there was information about the deceased's medical history from the deceased's family members, including her son who saw her most days from when she arrived from China on 3 December until the day of her death, 27 February 2019.

211 There is evidence from Li Li that the deceased had some difficulties breathing on two occasions in the prior year and that she had dizzy spells. Otherwise, there was evidence from the deceased's sister, Jin, which suggested she was a person whose health was consistent with her age. Finally, the autopsy did not reveal any underlying medical condition that appears to have played any part or contribution to her death.

212 The Defence suggested that the deceased's family were downplaying the state of the deceased' health. However, I found Jianyao to be a truthful and forthcoming witness and Jin's evidence was admitted by consent and was unchallenged. Xue had some difficulty giving evidence, primarily due to language barriers, and her evidence on the deceased's health was somewhat unclear. I would not accept a suggestion that she sought to mislead the court. However, to the extent there are any inconsistencies between Jianyao and Jin's evidence and Xue's, I prefer their evidence.

213 While Dr Archer did not have information about the deceased's health at the time of the autopsy, it was put to her in evidence and did not alter her opinion in any significant way.

214 Dr Archer was clear that she did not find any evidence that the deceased's 60 per cent coronary artery occlusion, or any other heart condition or asthma, were a cause of her death, or contributed to her death in any way. At its highest, she said she could not entirely exclude that the conditions may have played a role in her death.[240]

215 Furthermore, as the only person with direct knowledge of the events which led to the deceased's death, the accused's belief that he had caused the deceased's death militates against the reasonableness of any hypothesis that any intervening event caused the deceased's death. It is also consistent with the medical evidence that the deceased did not die of natural causes.

216 Dr Archer fairly said that she could not entirely rule out pre-existing underlying medical conditions hastening the deceased's death in the context of positional asphyxia.[241] This evidence does not go far enough to establish that it was reasonably possible that the pre-existing medical conditions, caused, contributed to, or may have hastened, the deceased's death. Dr Archer was clear when pressed in cross-examination that she found no evidence that the asthma or coronary artery occlusion played any real part in the cause of the deceased's death.[242] However, even if the deceased had other medical conditions that may have hastened her death in the context of loss of consciousness and positional asphyxia, the law says that the accused takes their victim as they find them.

217 In conclusion, I consider that the lack of medical records and the assessment of the impact of the deceased's pre-existing medical conditions was no more than a theoretical possibility. In the circumstances of this case, any conditions raised by the records could not realistically exclude the assault as a substantial and operative cause of death.

218 Considering the totality of the evidence, I find that the only rational inference is that the accused's assault on the deceased was a substantial and operative cause of her death. In the context of the evidence I consider it most likely that the accused's assault on the deceased rendered her unconscious (consistent with the neuropathological findings) and that, as a consequence of the loss of consciousness, the deceased was unable to move and died from positional asphyxia. In any event, there is no reasonable explanation for the death other the assault itself or positional asphyxia as a result of the assault. I therefore conclude that the assault contributed significantly to the deceased's death and was a substantial and operating cause of her death. In so concluding, I note that the accused's conduct need not be the sole cause of the deceased's death.

219 Even if the accused had administered CPR on the deceased - which I do not accept - the delivery of CPR to the deceased would not, in any event, have broken the chain of causation. The accused assaulted the deceased inflicting the upper body injuries. Even if the application of CPR caused all of the rib fractures or contributed to the death, I would nonetheless find that the assault on the upper body was a substantial and operating cause of death.

220 I am satisfied beyond reasonable doubt that the accused's application of blunt force trauma on the deceased's upper body and ribs caused her death.

221 Now that I have reached a conclusion on the issue of causation, I turn to the second of the three issues in dispute at trial: whether the accused had the requisite intention for murder.

222 The four elements of common law murder have been set out earlier in these reasons. I am satisfied that the first two elements have been established beyond reasonable doubt, that is, the accused acted voluntarily in delivering the assault and that this caused the deceased's death. I am also satisfied beyond reasonable doubt that the fourth element is proven, that the accused had no lawful justification or excuse for the acts.

223 The third element requires proof beyond reasonable doubt that the act in question, the assault, was performed with an intention to kill or cause really serious injury to the deceased.

224 In the absence of any admission of a murderous intention, the issue must be approached as an inference to be drawn from the circumstantial evidence. The circumstantial evidence is evidence of a basic fact or facts from which the court is asked to infer a further fact, in this case, the fact of the accused's intention at the time he assaulted the deceased.

225 In order to be satisfied of the accused's guilt, I am required to conclude that the only reasonable inference available on the totality of the evidence, is that the accused held a murderous intention when he assaulted the deceased.

226 The Prosecution argues that the accused was an 'angry, frustrated, resentful' man at the time he killed the deceased and that these feelings manifested into a murderous intention.[243]

227 The Prosecution accepts that the accused cared for his father, but say, that he was at the end of his tether feeding into a pressure cooker situation which resulted in him snapping and forming the relevant intention. The accused is presented as a man who had enough, who wanted it all to end and who was prepared to go to gaol.[244]

228 The Prosecution structures its circumstantial case under the following headings:

(a) the animosity between the parties and the motive the accused harboured;

(b) the nature of the assault and the context in which it occurred;

(c) the extent and variance of the injuries suffered;

(d) the admissions of the accused, in particular the words uttered to Li Li; and

(e) the accused's actions after he killed the deceased.[245]

The animosity between the parties and the motive the accused harboured

229 The Prosecution's case is that the accused held a grievance over a long period of time towards his family, stemming from:

(a) the two sums of $50,000 which he provided to family members and what was done with those sums;

(b) a property inheritance and subdivision in China from which he believed he was excluded; and

(c) the physical and financial care of his father.[246]

230 The Prosecution assert that there was a clear dispute in the family and that relationships between the accused and his family were fractured and he was angry. The resentment and frustration that allegedly boiled over 'had been festering for many, many years' going back to 2006.[247]

231 It is submitted that things came to a head in the lead-up to the deceased's death. The money issues and the sense of being cheated had been eating away at the accused. He had effectively cut off his family, felt he had been hung out to dry and believed that his family were takers and not givers.[248] On top of this, the accused was now caring for his father for about two and half months which prior to this time, was the responsibility of other family members.[249]

232 It is submitted that the accused 'could not take it any longer' and he 'wanted his father in a nursing home but he lacked the financial means.'[250]

233 The Prosecution submit that in the lead up to the incident the pressure had been building on the accused, particularly emphasising that:

• the accused hurt his back and received little response to his request for help;
• the accused was arguing with Kuan about money and Shuhuai's medical treatment about two weeks before the incident;
• there was tension between the accused and the deceased, at Box Hill Hospital on the Friday before the incident; and
• the accused and the deceased were observed by Li Li arguing about money the evening before the incident, with the accused saying he could not look after Shuhuai anymore and calling the deceased a liar.[251]

234 The Prosecution state that the accused said he was angry on the morning of the assault in his record of interview. It is suggested that the accused's frustration is evident in his record of interview when he discusses his attempt at negotiating with the deceased on the morning of her death.[252]

235 The Prosecution argues that the cumulative effect of this pressure cooker situation was the anger, animosity and stress from the lack of sleep and the care of his father built up to a catastrophic incident where the accused could see no way out and took matters into his own hands.[253]

236 It is submitted that the accused's statements in his record of interview demonstrate a clear motive to kill the deceased, as he was buckling under the pressure and she refused to help.[254] It is also argued that the accused's notes are evidence of his motive that can be used to inform an assessment of his intention.[255]

The nature of the assault and the context in which it occurred

237 The Prosecution argues that this was a 'brutal' assault and that the pictures tendered into evidence speak for themselves.[256]

238 Furthermore, the Prosecution submits that the statements made by the accused in the phone call with Li Li, where the accused said he bashed/beat/hit the deceased to death, implies that the accused 'continued to strike her until she died.'[257] The Prosecution submits there is no reason to not accept this interpretation of the accused's conversation with Li Li as the truth because it was made in an unguarded moment with his girlfriend and it is entirely consistent with the medical evidence.[258]

239 The Prosecution points to the medical evidence demonstrating that there are multiple episodes of blunt force trauma to the vulnerable areas of the body, face, head and chest.[259]

240 The Prosecution submit that there were repeated blows of forceful pressure and rely on Dr Archer's evidence that the rib fractures required moderate to severe force and the eye fracture required at least moderate force. The Prosecution opine that if one snaps and lashes out and intends something less than to cause really serious injury or to kill, it might be expected that the injures were less significant post-death.[260]

241 The Prosecution rely on the fact that the deceased sustained significant internal injuries, including fractures and a subarachnoid haemorrhage, to explain the fact that the deceased's death was caused without a bloodied crime scene.[261]

The admissions of the accused, in particular the words uttered to Li Li

242 The Prosecution contend that the accused made a number of admissions wherein he repeatedly and consistently stated he killed the deceased.[262]

243 In relation to intention, the Prosecution particularly rely upon the statements made in the handwritten notes, the phone call to Li Li and the record of interview.[263]

244 The Prosecution submits that when the handwritten notes are read in combination with the evidence of the family dispute and animosity it betrays the accused's murderous intention. It is submitted that the accused perceived an injustice and viewed himself as the justice maker.[264] It is submitted that the clearest indication of this is the first handwritten note, where '[n]ot only is he telling us that he has killed her, he is telling us why, and this is to achieve the justice.'[265] Due to its contemporaneity to the incident, this note is said to provide a window into the accused's mind at the time.[266]

245 The Prosecution submits that the accused's phone call with Li Li, when viewed as a whole, reveals his intention at the relevant time. Reference is made to the accused saying the only way he can find a way out is to get into trouble and go to gaol, that 'they' have driven him mad, that he cannot live on, that the deceased was the kind of person who doesn't deserve to live in this world, that he will not swallow his anger and live on like this, that he had been rational enough and, importantly, that 'Qin's the leader of the pack, she instigated it' and '[s]he was the first one to instigate it in our family.'[267] These statements are suggested to clearly demonstrate the accused's motive and intention.[268]

246 The record of interview with the police is said to provide further support for the Prosecution's case on intention. Although the Prosecution accept that the accused did not say in the record of interview that he intended to kill the deceased or cause her really serious injury, it is submitted that when viewed as a whole, in combination with the other evidence in the case, the record of interview supports the inference of a murderous intention.[269]

The accused's actions after he killed the deceased

247 The Prosecution submits that the accused's post-offence conduct speaks clearly as to his state of mind when he killed the deceased. It is submitted that if the Prosecution's case is accepted it would make sense as to why the accused would, with 'utter contempt,' drag the deceased's body along the gravel and debris, partially clothed, bundle her in the boot, drive her body around to his sister's house as he wanted everyone to know what he had just done.[270]

248 The Prosecution contends that the accused's actions are not only entirely consistent with a murderous intention, they are also are entirely inconsistent with an accidental or unintended killing.[271] The Prosecution states that in between 7:00am and 9:15am the body of the deceased was lying at home while the accused went about his business. This is suggested as evidence demonstrating a man who followed through on his motive.[272]

249 The Prosecution argue that the accused's attack on Kuan around 9:38am occurred as the accused was full of anger and outrage. The accused did not display any remorse or sorrow for his actions but blind rage. It is contended that the accused was entirely unrepentant because the killing of the deceased is what he set out to achieve in the first place.[273]

250 The Defence deny that the accused had a murderous intention at the time of the assault. In this regard, without assuming any sort of burden, the Defence posited a general scenario that the accused was physically exhausted and mentally stressed from caring for Shuhuai, and he was not coping with that stress. The Defence suggest that in an argument following a sleepless night the accused 'suddenly lost control', that is, he 'cracked and committed an assault'. While the assault involves a number of blows it is said to be anything but a lengthy or sustained attack, involving no weapons or finishing off. Indeed the Defence emphasise that the injuries inflicted in the assault were insufficient to cause death. The Defence submit that such a scenario - throughout which the accused at no time formed a murderous intention - is entirely consistent with the evidence in this case and cannot be set aside.[274]

251 The Defence made further extensive submissions on intention. In order to summarise these submissions, I will structure the Defence's arguments on intent using each of the Prosecution's subcategories. This is not to displace the burden of proof, which at all times remains with the Prosecution, but rather for ease of reading, and analysing the strength of the circumstantial evidence and whether there are reasonable hypotheses consistent with innocence as alternatives to the Prosecution's case.

252 I note that while the Prosecution's case considers each of the five sources of evidence to infer intent quite discretely (noting that these are argued to be, in aggregate, evidence of the necessary mens rea), the Defence submissions were more intertwined.

Animosity between the parties and the motive the accused harboured

253 The Defence invite the Court not to be distracted by the idea of a festering financial grievance. It is submitted that a view that there were festering resentments runs up against the fact the accused had never been violent toward his family.[275] The disputes in the family are characterised by the Defence as 'little dramas', leading to frustration but not a festering anger that built up to violence.[276]

254 It is submitted that the motive posited by the Prosecution explains the meltdown which led to the assault.[277] However, the Defence deny that the accused planned the assault.[278] The Defence submit there is no evidence of planning and emphasise that, given his duty and devotion, the accused would have made arrangements for Shuhuai's care before the assault if he had a plan.[279]

255 Instead the Defence submit that the accused's loss of control was attributed to his physical and emotional stress, his sleep deprivation, and his argument with his sister about her unwillingness to help financially.[280] Moreover, the Defence suggest that in his exhausted state on the morning of the incident, the accused perceived the deceased's refusal to 'lift one hair off her head' as a 'calm and mocking refusal' to help, but there is no warrant for interposing into that the formation of some plan or intention.[281]

256 The Defence submit that the pressure the accused was under and the extent of care he was required to provide to Shuhuai explain the fact that he cracked and tells against a purposive act. It is submitted that even if he cracked and delivered a number of blunt force traumas it does not necessarily follow that he formed an intent before or during the assault.[282]

257 To illustrate the pressure the accused was under the Defence took the Court to the Discharge Summary,[283] which noted that Shuhuai was not eligible for subsidised medical services due to his visa status, and expressly noted that 'will be a high risk of carer stress'. The Defence also emphasise the evidence of the extensive care the accused provided to Shuhuai.[284]

The nature of the assault and the context in which it occurred

258 The Defence accept that the assault involved a number of impacts. However, the Defence argues that the strikes cannot be retrospectively disentangled, or each blow isolated and analysed separately.[285] It is submitted that the assault was not lengthy or sustained, but rather, a 'spontaneous and exhausted' eruption and assault, due to a lack of control.[286]

259 The Defence also point to the lack of weapons and a 'finishing' blow, and submit that the Prosecution's account that the accused kept hitting the deceased until she died is inconsistent with positional asphyxia.[287]

260 As for the night before the incident, the Defence contend that while there was an argument, the deceased stayed the night which was evidence that the situation had settled down.[288] The Defence submit that the assault should be understood as the actions of a 'sleep-deprived, stressed, old, not coping' man who had a 'meltdown' or who 'just lost it', resulting in a spontaneous infliction of several impact.[289] This spontaneous meltdown, in combination with the good character evidence and the lack of history of violence even during arguments, is submitted to mean that it is highly unlikely that the accused formed a murderous intention during the assault.[290]

261 In relation to the extent and variance of the injuries suffered, the Defence rely on the facts that the cause of death was unascertained and that positional asphyxia could not be excluded as a cause of death, to submit that injuries from the assault could not, by themselves, explain the deceased's death.[291]

262 The Defence say that limited conclusions can be drawn about the component parts of the assault.[292] The Defence suggest that the evidence leaves one blow of moderate force to the eye, some sort of contact of moderate force to the rib cage and otherwise blows which might be of mild force and submit that the assault could have been inflicted in a matter of seconds.[293]

263 The Defence also point to the absence of the use of weapons or a fatal blow as matters of circumstantial import.[294] The Defence suggest that the assault could be regarded as contained and not as grave as it could have been with no single severe force injury proved.[295]

264 Furthermore, the Defence submits the scene does not betray a lengthy or terrible struggle with limited blood at the scene and no indications of cleaning up by the accused.[296] There was also an absence of any DNA material from the deceased under the accused's fingernails.[297]

265 Overall, the Defence submits that the nature of the assault is not indicative of a murderous intention.[298]

The accounts of the accused, in particular the words uttered to Li Li

266 As to the accused's accounts, and in particular, the notes that he left which the Prosecution rely on to prove intent, it is argued that the only note that 'expressly' conveys what was on his mind at the time of the assault was the final note written in jail, where the accused wrote 'I HAPPEN TO KILLED ONE OF THE DEALY [sic] BLOODSUCKERS'.[299] I have dealt with that submission above in the context of causation.

267 Besides that, and in contrast to the Prosecution's submissions about the accused actions and statements post-assault, the Defence submits that the accused's head 'would have been spinning like a top'.[300] That is, he was reeling and shocked from the events such that his notes and actions could not be viewed as calculated and well-thought out.[301]

268 Additionally, the Defence argue that the accused's admissions and post-offence conduct should be seen in light of his rationalising and self-justifying nature. Ultimately, the Defence rely on this heightened state, in combination with the characterisation of the accused as a rationalising, self-justifying man prone to grandiose speeches, as the alternative explanation for the accused's post-offence actions, as opposed to the Prosecution's 'too rigid and too contrived' analysis.[302] It is emphasised that the accused was of previously good character and now had to confront that '[h]e's failed in life; he'd failed as a carer and now he was a killer'.[303]

269 The Defence disputes the Prosecution's assertions that the other notes were admissions to an intentional killing, as it ignores the context in which they were written. Rather, it is submitted that the purpose of these notes was to ensure proper care for Shuhuai. Given that the notes were not written in his native language, and they were written while he was in that 'heightened and disrupted' state,[304] the Defence warn that the Court should be careful of investing them with too much meaning. It was also argued that he did not write the notes in response to a question about his intention at the time, which makes trying to artificially fit his actions and meaning into a highly specific question of intent at the time of the assault problematic. Finally, it is argued that these notes are also consistent with the accused's nature of justifying, rationalising and posturing, in response to a chaotic state of affairs that left him 'spinning'.

270 The Defence also address the statements made in the accused's conversation to Li Li on the phone, after he was arrested. It is argued that anything said in this conversation should be viewed in context, that is, his first time in custody after he had just been through a significant life-altering event by attacking his sister, and driving to another sister's house where there was another confrontation. Once again, counsel noted that the accused's tone in the interview is indicative of his posturing.

271 Furthermore, it is argued that his responses to Li Li during the call, such as 'this kind of person doesn't deserve to live in this world', '[s]he was the leader of the pack, she instigated it', all reflect animus, but they do not reflect his intention at the time of the assault. Additionally, when he was asked '[h]ow did you kill her', and he responded 'I bashed/hit/beat her to death', it is argued that this was not indicative of intent, but rather, a response as to the mechanism by which she died.[305] The Defence suggest that, while relevant to his state of mind, statements of '[t]hey have driven me mad' cannot go beyond proving what the accused felt.

272 Finally, the Defence submit that none of the accused's statements, or the questions put to him in the record of interview, directly address the accused's intent at the time of the assault.[306]

273 The Defence submit that the accused's actions after the assault indicate nothing about his intent at the time of the assault.[307] The Defence emphasise that in considering the accused's conduct regard must be had for the situation the accused found himself in immediately after he came to the conclusion that the deceased had died.[308]

Submissions on the accused's character and nature

274 The Defence submit that the accused's good character is relevant to an assessment of intention. The Defence emphasise that the accused was 68 years old at the time of the incident and a 'law-abiding' person who was very devoted to his father, and who had never been violent despite the long standing financial disputes in his family.[309]

275 The Defence submit that evidence of the accused's good character includes:

(a) Jin's evidence that the accused had never been violent despite previous disputes;

(b) Mr Karatzias's evidence that the accused was a good man and good neighbour; and

(c) the accused's lack of a criminal history.

276 The specific intent for murder, it must be emphasised, involves an intention to kill or cause really serious injury. It has been accepted by the Defence, and on the evidence I can find it proven beyond reasonable doubt, that when the accused assaulted the deceased, he did so deliberately and consciously. However, it is quite a separate issue whether the accused, in doing so, intended to kill or cause really serious injury to the deceased. Unless I am satisfied beyond reasonable doubt that he did, I cannot convict him of murder.

277 I first turn to the animosity between the accused and his family, and in particular the deceased, and the alleged motive he harboured.

278 It is not in dispute that there was a history of longstanding disputes between the accused and his sisters dating back to events that occurred in the 2000s in China. As I have said, the actual facts of what happened in relation to the longstanding disputes is immaterial. What is relevant, is the disputes existed, which explain and provide a reason for the deterioration in the relationship between the accused and his sisters. I find as a matter of fact that:

• there was a longstanding dispute between the accused and his family relating to the division of family property in China dating back to sometime in early 2000;
• there was a longstanding dispute over the use of two $50,000 contributions made by the accused to family members;
• there was a dispute between the accused and his family arising out of the financial and physical care of Shuhuai; and
• there was a dispute related to the accused asking his family if they could care for Shuhuai so that he could attend his uncle's 90th birthday in Taiwan.

279 I find that the accused was aggrieved over many years in relation to these longstanding disputes including, and up to, the day of the incident. I find that at the time of the incident, the accused's relationship with his family was fractured. The accused thought that in the past he had been cheated by his sisters and that they had extracted money from him. It is clear he believed his sisters had in the past, lied to him about money he had given them and had never paid it back. He believed that his sisters had made a gain in relation to his parents' property in China and the money he gave them, while he got nothing.[310]

280 The accused commenced caring for his father on 7 December 2018 when he was discharged from the Peter James Centre until the day of the incident. When Shuhuai was discharged from the Peter James Centre into the accused's care, Shuhuai's health was parlous. His medical conditions included renal cancer and dementia as well as other serious comorbidities.

281 Due to Shuhuai's visa status he was not a candidate for Medicare subsidised equipment services in the community. Importantly, the Discharge Summary noted 'there will be a high risk of carer stress'.[311]

282 The accused was responsible for, and performed, a very high level of care for Shuhuai in the period he cared for Shuhuai. He provide full-time care to Shuhuai. The care provided by the accused included all transfers to the toilet using a homemade commode chair, cooking for and feeding Shuhuai, dispensing medication, showering Shuhuai, attending to the indwelling catheter, assisting with toileting, and sleeping on a bed abutted to Shuhuai's own bed because Shuhuai would pull out his catheter at night and could not control his toileting needs at night.[312]

283 I find that the accused was experiencing fatigue and exhaustion in the days before and the morning of the incident. I find that the accused was not coping with the demands placed upon him after Shuhuai's discharge from the Peter James Centre into his care up to the day of the incident. The accused's coping ability was further impacted by an injury to his lower back resulting in the accused not being able to move for three days in early February. The accused received one day's help from his sister Lu, and at one point, Li Li stayed for two days to assist him with Shuhuai's care when the accused hurt his back.

284 I am satisfied that the accused messaged his family on or about 8 February 2019 asking for help and that he specifically asked the deceased to help as he had twisted his back. The deceased did not reply for about one week, which angered the accused.

285 I find that there was animosity and tension between the accused and the deceased in the weeks prior to the incident. His account is that he had asked for financial assistance to care for his father and to pay for his father's grave, and that the deceased was not forthcoming with that assistance.[313]

286 The night before the incident Li Li observed tension between the deceased and the accused. However, she said she would not have left if the accused and the deceased were still arguing and the deceased chose to stay overnight, suggesting she did not have any concerns for her safety.[314]

287 The accused had little sleep on the night before the incident, in part because he woke several times to attend to his father's needs and he had been thinking about the lack of financial support from the deceased and being cheated all the time. On the one occasion throughout the night that the deceased woke, the accused's account was that she did not help him with Shuhuai but just watched what he was doing. Although when the accused was asked how that made him feel in the record of interview he fairly acknowledged that she did not know what to do.

288 On the morning of the incident I find that the deceased and the accused conversed. In his record of interview, the accused said that he and the deceased spoke for approximately 10 to 20 minutes before the incident. They spoke about the longstanding disputes and the accused said he had been treated unfairly.

289 I find that during the argument on the morning of 27 February 2019, the accused became angry towards the deceased. This anger emerged in the context of the accused's animosity towards the deceased over the longstanding disputes and, more recently, over his frustration that she would not help with Shuhuai's financial needs in circumstances where he believed her to be wealthy, in conjunction with her refusal to assist him so he could attend his uncle's birthday in Taiwan.

290 The events of the weeks prior to 27 February 2019, including the arguments with Kuan at Burwood East, at Box Hill Hospital and at the accused's home, in addition to the content of the handwritten notes and the accused's comments in his record of interview, establish that he had a generalised hostility towards his family and a specific resentment and hostility towards the deceased.

291 I take into account that a murderous intention need not be of a long duration, and it need not be accompanied by any significant planning or premeditation. Although the evidence establishes specific resentment and hostility by the accused against the deceased, there is no evidence that he had pre-planned or pre-meditated a course which involved an assault, let alone a plan to murder his sister. At the risk of repeating myself, the events the night before the incident and on the morning of the incident consisted of a brother and sister talking and arguing over the long standing issues and are bereft of any suggestion that the accused had a plan to kill or even assault the deceased. I consider the events that transpired the night before the incident and in the 10 to 20 minutes before the assault are inconsistent with any planning or premeditation. These events and circumstances are sadly suggestive of a man of 68 years of age who was exhausted and tragically in the moment, snapped out of frustration and anger and assaulted his sister without necessarily harbouring in that moment a murderous intent.

292 Additionally, for a man so devoted to the care of his father, the complete absence of any arrangement for Shuhuai's care post-assault strongly militates against an inference that the accused planned to kill the deceased before the assault. For these reasons the absence of preplanning and premeditation is a significant factor and weigh against the existence of a murderous intention at the time of the assault.

293 The Prosecution submitted that I can infer that the accused held a motive to kill the deceased. Motive is not the same as intention. Motive can be 'the emotion which gives rise to the intention.'[315] Motive may be relevant, sometimes highly relevant, in a criminal trial for the drawing of inferences and for determining the chain of proof.[316] In some circumstances in criminal trials, evidence of motive may be 'of the greatest importance.'[317]

294 Motive is one item of the evidence of the case that may tend to show that a person committed an offence. The fact that a person has a motive, and even expresses or expressed it, does not per se constitute proof of involvement in a crime.[318] Ultimately, I must weigh up all of the circumstances of the case when determining whether there is evidence beyond reasonable doubt as to the charge of murder.[319]

295 In a circumstantial case such as the present, with the limited facts available to me, the complete lack of any planning by the accused leads me to conclude that it is unlikely the accused held a motive to kill the deceased.

296 The 'pressure cooker,' as phrased by the Prosecution, certainly built up to the tragic assault that caused the deceased's death. In such a situation, the context of animosity may provide an explanation for the accused's assault on the deceased, but it does not necessarily suggest he held a murderous intention at that time.

297 I turn now to the nature and extent of the injuries and the context of the assault.

298 At the risk of repeating myself, I have found that the accused inflicted the upper body injuries which I have set out above, at [173]. The upper body injuries were as a result of multiple applications of blunt force trauma inflicted by the accused during the assault. The force required to cause the upper body injuries ranged from mild to moderate, and specifically in relation to the right eye socket fracture, 'at least mode[320]e'.320

299 I have also determined that based on Dr Archer's evidence in combination with other evidence, that I cannot exclude as a real possibility that the rib fractures were a consequence of the accused kneeling on the deceased's chest while delivering the blunt force trauma to her upper body.

300 As I have said, based on Dr Archer's evidence I cannot exclude as a real possibility, that the accused inflicted no more than one act of compressive force, that is kneeling on the chest, which resulted in the rib fractures. At no stage did Dr Archer conclude that a compressive force, such as kneeling on the chest alone, could be excluded as a reasonable possibility and that such an act was insufficient to result in the rib injuries. Dr Archer could do no more than postulate a number of potential mechanisms by which the rib fractures occurred. As such, the evidence leaves open the real possibility that the ribs were all or mostly fractured during the assault to the upper body while the accused was kneeling on the deceased's chest.

301 The kneeling is, nonetheless, a deliberate and severe act. The evidence does not establish if kneeling on the chest was itself an act done with a murderous intention, or if it was part of the position the accused found himself in while inflicting the assault on the deceased's upper body. The degree of force required to fracture the ribs, was according to Dr Archer, at least moderate or potentially severe. The combination of multiple applications of blunt force trauma to the upper body while kneeling on the deceased's chest at the same time, clearly evinces an intention to cause the deceased injury. The combination amounts to a serious and severe assault on the deceased which is concentrated and continuous. The kneeling on her chest along with the assault on the upper body and the injuries they caused bespoke a hostile intent by the accused towards the deceased.

302 The act of kneeling, however, is to be contrasted with the alternative hypothesis which is that the mechanism of injury to the ribs was by kicking and punching, which suggest a more protracted assault requiring multiple applications of punching and kicking to the chest in addition to the assault to the upper body. If this were the case, the kicking and punching in combination with the assault on the upper body evinces an intention more suggestive of a murderous intention.

303 In conclusion, taken together and in isolation, I agree that it could be argued that the upper body injuries and rib fractures sustained by the deceased are capable of suggesting that the accused, at the relevant time, intended to kill the deceased, or cause her really serious injury. However, the nature and extent of the injuries do not exclude the real possibility that the combination of injuries were inflicted with no more than an intention to cause injury or serious injury. This means that the combination of injuries is not indicative of a murderous intention.

304 Relevantly, I must consider the likelihood that none of the deceased's injuries were sufficiently serious to result directly in her death. I also note that there was no evidence of a weapon being used to inflict the injuries. The crime scene was contained, suggesting a relatively confined assault. There was no fatal blow that killed the deceased.

305 The accused's statements at Burwood East, his phone call with Li Li and, in particular, his handwritten notes are concerning evidence supporting the Prosecution's submission that the accused had a murderous intention. The handwritten notes demonstrate an animosity held by the accused against the deceased.

306 I agree with the Prosecution that, when viewed in combination with the record of interview, an inference can be drawn that the accused harboured a belief that he was wronged when he assaulted the deceased. The contemporaneity of the first and second handwritten notes amplify this inference.

307 The accused's statements in the third note, written sometime after the assault, to the effect that he has killed one of the 'bloodsuckers' in his family, is similarly persuasive evidence levied by the Prosecution. It is patent that the accused continued to harbour his feelings of resentment and injustice against the deceased even after the events that unfolded on 27 February.

308 The conversation with Li Li is also supportive of the Prosecution's case, although not to the extent contended. The accused's claim that the deceased was 'the kind of person [who] doesn't deserve to live in this world,' that 'they have driven me mad' and that 'she instigated it' speak to the level of resentment and anger the accused harboured against the deceased.

309 However, the Prosecution's assertion that, because the accused stated he hit/bashed/beat the deceased to death means that the accused hit the deceased until she died is unfounded. This assertion is inconsistent with the evidence regarding positional asphyxia. The statement is best viewed as a cause and effect assertion by the accused insofar as he believed that he caused the death of the deceased. There is no evidentiary basis to support this aspect of the Prosecution's submissions.

310 The cumulative impact of this evidence against the accused is persuasive. At this juncture, however, it is important to recall:

[I]t is essential not to start from a presumption of guilt and look to see if the conduct is consistent with guilt. The starting point is the presumption of innocence and in assessing the conduct of the accused the possibility of 'innocent' explanations for the conduct must always be carefully considered.[321]

311 In that regard, the Defence's submissions as to the statements of the accused require careful analysis. I accept that it must be borne in mind that English is not the accused's first language. The expressions used in the statements are vague and amorphous and at times bizarre. It is impossible to suggest what an appropriate response would be for a person in the accused's position. He committed a life-altering assault on his sister.

312 I accept that it was most likely the accused was in shock and reeling from this life-altering event. It would be dangerous to interpret his notes as calculated and well-thought out, especially when the absence of planning is considered. The bizarre and cryptic notions of 'TO ACHIEVE MY JUSTICE' and 'JUSTICE MAKER' make determining the precise meaning of the statements very difficult. Keeping in mind that I must start from the presumption of innocence when assessing alternative explanations for conduct, this vague reference to 'JUSTICE MAKER', stands in stark contrast to a specific identifiable action that is unambiguous, such as the instructions to contact Lu (with her phone number and address) to look after their father.

313 This leads me to my next point. Resentment, anger and injustice were not the only reasons for the first and second handwritten notes. A key reason that the accused wrote the notes was to ensure someone was available to care for Shuhuai. The accused described the purpose of the notes to 'basically to call someone to look after my father.'[322] This concern for Shuhuai continued at all times after the assault and during the record of interview.

314 The accused also did not make any statements in the record of interview that when he assaulted the deceased he intended to kill her or to cause her serious injury

315 When considered cumulatively with the rest of the evidence, the accused's statements are not necessarily indicative of a murderous intention. For example, I cannot exclude the real possibility that the accused's statements are ex post facto or retrospective rationalisations and self-justifications. These hypotheses are rational and reasonable explanations of the accused's conduct and, when considered cumulatively, cannot be discounted or excluded.

316 The accused's post-offence conduct of placing the deceased in the boot of his car, driving to the Burwood East property and assaulting Kuan are indicative of him being in a heightened and angered state. However, like the accused's various statements, this conduct must be treated with caution.

317 I note that this is not a case where there was post-death mutilation of the body which would clearly show 'contempt' for the body or that he was trying to conceal that he killed his sister. I also note that the accused covered the body in an Ambulance Victoria blanket, however imperfectly, when the body was put in the boot which again is inconsistent with contempt for the deceased's body.

318 Although the accused's actions of putting the deceased's body into the boot of his car and driving to Burwood East are unsettling, I cannot view the accused's conduct as an implied admission of murderous intent.

319 The Prosecution also contend that the accused showed a 'lack of remorse' after the deceased's death. As the Defence correctly pointed out, the Notice of Incriminating Conduct is limited to the action of putting the deceased's body in the boot of the car and bringing it to the Burwood East address. Therefore I consider this submission only insofar as it relates to other circumstantial facts in the case.

320 Similarly to the statements made by the accused, the actions of the accused do not necessarily reveal a murderous intention. I accept that the accused professed anger and resentment against the deceased in his statements. He also tried to justify his actions on a number of occasions and to a number of individuals. However, I am not satisfied that all of the accused's actions can be characterised as showing a 'lack of remorse.' When Detective Senior Constable Kirishian pointed out to the accused that Jianyao had his mother taken away from him, the accused responded:

1. It's my fault. It's my fault, I don't blame anybody else. I'm human. That shouldn't happen.

1. I don't think it's the right thing to do. It's not a perfect world. I don't look at excuse for myself. So I may be short in the brain. I said, "I'd better go to gaol, I can't stay like this any longer." It's not just one day, it's been seven years. You get stressed, upset, you cannot concentrate and do any work. You think about the - nasty things.[323]

321 The accused's response acknowledges the death is a tragedy, that it is his fault and that it should not have happened. The accused does not attempt to excuse himself. These sentiments are consistent with feelings of remorse and do not reveal a murderous intention.

322 I accept the Defence's submission and find that the accused was a person of good character at the time of the alleged offence.

323 There was evidence that the accused had no prior criminal history. The accused's neighbour, Mr Karatzias, described him as a 'good man' and a 'good neighbour'.[324] The accused was a devoted carer of his father. Jin confirmed that 'nothing physical happened in the past' despite the protracted disputes with the accused's family.[325]

324 In assessing the circumstantial evidence going to intention, I will bear in mind that a person of good character is unlikely to have formed a murderous intention. I acknowledge, however, that the mere fact a person is of good character cannot alter proven facts. I also bear in mind that a person who has previously been of good character can commit a crime for the first time.

325 While good character is a factor that can affect the likelihood of an accused committing a crime charged, the weight of the factor will depend on the nature of the evidence and the character of the crime.[326]

326 The assault was a violent and serious act. However, aside from the one impact of at least moderate force which caused the right eye socket fracture, the injuries to the deceased's upper body could be explained by multiple blows of mild force. The injuries to the ribs were possibly caused by the accused kneeling on the chest or by kicking or punching to the chest. There is an absence of a fatal blow or 'finishing off', no weapons were used, an absence of DNA of the deceased under the fingernails of the accused and a relatively clean crime scene.

327 The character of the crime is consistent with an assault fuelled by a person who was angry and despairing about how he could possibly continue to care for his elderly ill father, with the belief that he had no real support from his family or the community. The accused was a devoted carer and someone who had never behaved violently or physically aggressively in the past, even in tense and combative situations with his family.

328 The nature of the crime in this case coupled with evidence of behaviour in the past with family and neighbours leads me to conclude that his good character is a significant factor in this case in assessing his intention at the time of the assault. The importance of his good character is buttressed by my findings that there was no pre-planning, premeditation or motive involved and that the assault was inflicted in circumstances where the accused 'snapped' in a tired and frustrated state.

329 In assessing the Prosecution's circumstantial case on intention, I must consider and weigh all of the circumstances established by the evidence in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[327]

330 I am satisfied beyond reasonable doubt that the accused caused the deceased's death. I am satisfied that the injuries to the deceased were the result of an assault by the accused upon the deceased. I am satisfied beyond reasonable doubt that the assault was a conscious and voluntary act and committed without lawful justification or excuse.

331 However, on the totality of the evidence, I am not satisfied beyond reasonable doubt that the only rational hypothesis is that the accused held a murderous intention at the time he assaulted the deceased. In particular, I cannot exclude the possibility that the accused - in a tired and frustrated state - snapped and assaulted the deceased with no more than an intention to cause injury or serious injury.

332 For completeness, if I were to consider that all the rib fractures were a consequence of the accused punching or kicking the deceased in the chest, the rib fractures would be a more significant factor in the overall assessment of intention. However, even when I consider this scenario, with the totality of the evidence including the accused's good character, the character of the assault including the injuries, the lack of planning and pre-meditation, the explanations for his post-offence conduct and statements, I would nonetheless not be satisfied that only rational inference was that the accused had a murderous intention.

333 I therefore must find the accused not guilty of murder. It now falls to me to consider the alternative offence of manslaughter by unlawful and dangerous act.

334 In order to prove the offence of manslaughter by unlawful and dangerous act, the Prosecution must prove the following elements beyond reasonable doubt:

(a) the accused committed an act that caused the death of another person;

(b) the relevant act was committed consciously, voluntarily and deliberately;

(c) the relevant act was 'unlawful'; and

(d) that the relevant act was 'dangerous'.

335 The first two elements are identical to the first two elements of murder and, in relation to the third element, it is not in dispute that the accused's assault on the deceased was unlawful. However, the accused denies that the assault on the deceased was 'dangerous'. For this element, the Prosecution must prove that a reasonable person in the accused's position would have realised that their actions were exposing the deceased to an appreciable risk of serious injury.

336 It does not require a reasonable person to have realised that death or even really serious injury would result. The reasonable person is required to realise that they were exposing another to an appreciable risk of serious injury.[328]

337 The test is assessed by reference to a reasonable hypothetical person in the position of the accused, that is, in the circumstances of the accused and imbued with the qualities of age, experience and knowledge of the accused.[329]

338 The Prosecution notes that the deceased was 57 years of age, was petite and weighed 47 kilograms.[330] The Prosecution contends that when one takes into account the nature and severity of the injuries in this case, coupled with the injuries having been caused by multiple applications of blunt force trauma, the reasonable person would have been absolutely aware that they were exposing the deceased, as an older woman with a very small body frame, to an appreciable risk of serious injury.[331]

339 In support of this, the Prosecution highlight that there are multiple acts causing multiple injuries. The Prosecution particularly notes blunt force trauma in a number of places to the face, head, neck and upper body. Although the Prosecution accepts that it is not known how many applications of blunt force trauma were involved or how these acts were applied, it is submitted that the deceased had bruising and swelling to her head, face and significantly her eyes including, a fracture in the wall of the right eye socket.[332]

340 The Prosecution further highlights that even if one forceful punch could cause those injuries in and of itself this would necessarily still engender in a reasonable person an appreciation of serious injury. The Prosecution argues the multiple episodes of blunt force trauma elevates that awareness, which in this case, is in addition to the possibility of 'asphyxiation,' neck and chest compression and the loss of consciousness.[333]

341 Furthermore, the Prosecution contends that the applications of force to vulnerable parts of a person's body, such as the face or head, is necessarily a dangerous act,[334] because such a strike is unpredictable and risky, and that this is something the reasonable person would appreciate.[335]

342 The Defence argues that to meet the definition of dangerousness, what the reasonable person has to realise is not that the act was likely to expose the deceased to the appreciable risk of serious injury; rather, it is that the act was exposing the deceased to that level of risk. That is, the reasonable person 'would have' rather than 'might have' realised they were exposing the deceased to an appreciable risk of serious injury.[336]

343 Second, the Defence submits that the test is one of serious injury rather than just injury. It is submitted that determining what constitutes serious injury is a question for the finder of fact relying on logic, common sense and experience.[337]

344 The Defence suggest that there is room for reasonable doubt that a reasonable person of 68 years old would have realised that the assault was exposing the deceased to an appreciable risk of serious injury.[338] Without seeking to trivialise the assault, the Defence characterises it as:

[A] confined assault with a confined number of blows, none of which were severe in force, only one of which can clearly be said to be moderate in force, which did not occur in a struggle involving great bloodshed or gross external injury, which did not feature weapons, which did not cause great physical disruption to the environment it was in. It's a number of punches and some other acts.[339]

345 The assault is seen as being short in time, incapable of killing and did not of itself kill.[340] The Defence also emphasise that the assault is hard to reconstruct in any exact detail.

346 The Defence submit that 'the unfolding of the struggle ... and its nature are not to be taken for granted.'[341] It is asserted that I should not 'assume that any blows struck were struck clinically and with care and with understanding' and that 'there is room for a number of different possibilities to account for the force of any particular blow'.[342]

347 The Defence argues that the reasonable person is 'not a perfect citizen,' but is to be considered as the same age profile and vested with any specialised knowledge and experience the accused had or lacked.[343] Moreover, the reasonable person is not vested with any greater knowledge of particularities and weaknesses of the victim than what the accused knew.[344] The Defence states that this is pertinent to the heart and asthma issues the deceased suffered.[345] Furthermore, it is submitted that the accused had no special fighting skills or knowledge.[346]

348 The Defence submits that is it not so clear that a blow to the head, even with moderate force in the context of a number of blows, delivered by a 68-year-old man is necessarily dangerous or that a reasonable person would have regarded it so.[347]

349 Finally, the Defence contends that because the nature of the incident and the assault is uncertain, it is not clear 'what nature of assault the reasonable person's dealing with'.[348]

350 For the reasons stated above, I am satisfied that the first and second elements have been proved beyond reasonable doubt. As to the third element, I am satisfied beyond reasonable doubt that the relevant act, that is, the application of blunt force trauma to the upper body and the rib fractures, was unlawful.

351 For the purpose of manslaughter by unlawful and dangerous act, the test for 'dangerousness' is objective and requires me to be satisfied beyond reasonable doubt that a reasonable person in the position of the accused, performing that act, would have realised that they were exposing the deceased to an appreciable risk of serious injury.[349] The term 'serious injury' is an ordinary English term and it is a question of fact whether there was an appreciable risk of 'serious' injury rather than any degree of lesser injury. The phrase 'serious injury' differs from the phrase 'really serious injury' used in the context of murder.[350]

352 It is not sufficient that there was a risk of some injury resulting, albeit not serious. In the decision of Redlich J in R v Bessim,[351] his Honour considered the development of the common law, in the United Kingdom and Australia, concerning manslaughter by unlawful and dangerous acts. Justice Redlich referred to the leading authority of Wilson v The Queen (which confirmed that the degree of potential injury required to render an act dangerous must rise to the level of serious injury),[352] when considering the objective test. Justice Redlich in R v Bessim considered the objective test. He concluded:

The expression 'a reasonable man in the accused's position performing the very act the accused performed' relates to the physical circumstances of the accused and the nature of the act performed by the accused as viewed by a reasonable person. It is an objective test concerned with foreseeability of serious harm to the victim. Emotions, passions or the mental state of the accused at the time the act was performed and which may have impaired the accused's capacity to assess the risk are not to be attributed to the reasonable person.

While the idiosyncrasies or mental state of the accused which may diminish the accused's capacity of reason are not to be taken into account, any knowledge possessed by the accused that would bear upon whether the act was dangerous is to be attributed to the reasonable person.[353]

353 I am satisfied beyond reasonable doubt that when the accused committed the assault, his acts were dangerous in the sense that a reasonable person in the accused's situation would have realised that his acts carried with them an appreciable risk of serious injury to the deceased.

354 The accused was 68 years old at the time of the deceased's death.

355 In my view, a reasonable person in the accused's position would have known that an assault by delivering multiple applications of blunt force trauma to a person's upper body, while kneeling on their chest, or also punching and/or kicking their ribs, would expose that person to an appreciable risk of serious injury. In this case, I consider that a reasonable person would have been aware that they were exposing the deceased, a woman of 57 years of age, weighing 47 kilos and 162 centimetres tall, to an appreciable risk of serious injury.

356 While it is not known precisely how many applications of blunt force trauma were delivered to the deceased's upper body, there were multiple and the deceased had significant bruising and swelling to her head, face and bruising to her neck strap muscles. Significantly, she had bilateral haematomas to her eyes, a right eye socket fracture and a subarachnoid haemorrhage on her brain. The degree of force required to cause the right eye socket fracture was at least moderate. Additionally, the deceased had multiple rib fractures which required moderate or potentially severe force.

357 I consider that in the circumstances of this case, a reasonable person would have appreciated that they were exposing the deceased to an appreciable risk of serious injury.

358 For the avoidance of doubt, even if I were to accept that all of the rib fractures were caused by CPR administered by the accused, I consider that a reasonable person would have appreciated that they were exposing the deceased to an appreciable risk of serious injury based on the accused's assault to the deceased's upper body alone.

359 Accordingly, I find the accused guilty of manslaughter.

360 I direct that in relation to the indictment numbered K10532361.1, on Charge 1, that Ning Wang at Clayton South in Victoria on 27 February 2019 murdered Qin Wang, that Ning Wang be acquitted on the charge of murder.

361 I further direct that he be convicted, in the alternative, of the crime of manslaughter by unlawful and dangerous act.

362 For completeness, the accused has also pleaded guilty on 16 September 2020 when he was arraigned, to Charge 2 on the indictment, that on 27 February 2019, he, without lawful excuse, intentionally caused injury to Kuan Yang.

[1] I note that two trial by judge alone judgments have been handed down by the County Court of Victoria in DPP v Bui [2020] VCC 1063 and DPP v Williams [2020] VCC 1662.

[2] DPP v Wang (Ruling No 1) [2020] VSC 438.

[3] Crimes Act 1958 s 421(a).

[4] Criminal Procedure Act 2009 s 420E(1).

[5] Ibid s 420E(2).

[6] Ibid s 420F.

[7] Ibid s 420ZF.

[8] Ibid s 420ZF; Jury Directions Act 2015 (Vic) s 4A ('Jury Directions Act'). See Makeham v Sheppard [2020] VSCA 242 for the operation of s 4A of the Jury Directions Act in the context of the Magistrates' Court of Victoria.

[9] Jury Directions Act ss 61-62.

[10] R v Dickson [1983] VicRp 19; [1983] 1 VR 227, 235 (Starke ACJ, Crockett and McGarvie JJ); R v Van Beelen (1973) 4 SASR 353, 374-80 (Bray CJ, Mitchell and Zelling JJ).

[11] Jury Directions Act s 41.

[12] Taylor v R (1978) 22 ALR 599; R v Matusevich & Thompson [1976] VicRp 47; [1976] VR 470; R v Matheson [1958] 1 WLR 474; R v Hilder (1997) 97 A Crim R 70; R v Klamo [2008] VSCA 75; (2008) 18 VR 644.

[13] The Prosecution did not raise the issue of recklessness on the charge of murder.

[14] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 323 [46]-[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ) ('Baden-Clay').

[15] Baden-Clay 323 [46] (French CJ, Kiefel, Bell, Keane and Gordon JJ); R v Barca [1975] HCA 42; (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ).

[16] Baden-Clay 324 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

[18] Exhibit 28, Transcript of Record of Interview 3 ('Transcript of Record of Interview').

[19] Exhibit 25, Statement of Jin Wang [5] ('Statement of Jin Wang'); T60.2-7.

[20] T101.6-11; T220.14-221.6; T222.13-23; Transcript of Record of Interview 16-17.

[21] Exhibit D1, Discharge Summary of Shuhuai Wang from the Eastern Health Peter James Centre dated 06/12/18 ('Discharge Summary').

[22] Ibid; T102.23-105.20; T233.14-236.8.

[23] T94.18- 96.27; T110.19-111.9; T175.28-29; T236.4-23; T201.30-203.6; T242.27-243.16.

[24] T237.17-26; Transcript of Record of Interview 77.

[30] T175.27-29; Exhibit 20, Statement of Konstantinos Karatzias ('Statement of Konstantinos Karatzias').

[31] Exhibit 36, CCTV Footage of Clayton South ('CCTV Footage'); T421.14-16; T422.1-9.

[34] T61.26-30; T97.25-98.22; T119.28-122.18; T135.1-137.4; T169.19-170.8.

[37] Exhibit 8, Handwritten Note #2 ('Handwritten Note #2').

[38] Exhibit 7, Handwritten Note #1 ('Handwritten Note #1').

[39] Exhibit 30, Original Notice of Agreed Facts, [2] ('Original Notice of Agreed Facts').

[40] T254.17-255.2; Exhibit 39, Statement of Philip Sellman.

[41] Exhibit 29, Handwritten Note #3 ('Handwritten Note #3').

[44] T267.20-22; T268.11-19; T269.11-26.

[48] Exhibit 34, Transcript of Call between Ning Wang and Li Li 2 ('Call between Ning Wang and Li Li').

[54] Transcript of Record of Interview 17.

[76] Campbell v The Queen (1980) 2 A Crim R 157, 161 (Burt CJ); Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, 387 (Mason CJ), 411 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ) ('Royall').

[77] Royall 411-2 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ), 442-4 (McHugh J); Swan v The Queen (2020) 376 ALR 466, 472-3 [24] (Bell, Keane, Nettle, Gordon and Edelman JJ); Freeburn v The Queen [2020] VSCA 155 [72] (Kyrou, Kaye and Emerton JJA) ('Freeburn').

[78] Freeburn [72] (Kyrou, Kaye and Emerton JJA).

[80] R v Blaue [1975] EWCA Crim 3; [1975] 1 WLR 1411, 1415 (Lawton LJ); Robb v The Queen [2016] VSCA 125 [73] (Ashley, Osborn and Priest JJA) ('Robb').

[82] Exhibit 33, Report of Dr Melanie Archer dated 14 June 2019 ('Autopsy Report').

[86] Autopsy Report 4-5 (emphasis added).

[136] T391.1-12; T391.25-392.7 (emphasis added).

[152] T62-64; Exhibit 26, Committal evidence of Jin Wang ('Committal evidence of Jin Wang').

[153] T63.1-4; Committal evidence of Jin Wang 91.

[154] T63.6-7; Committal evidence of Jin Wang 92, 94.

[205] T368.28-370.3; Autopsy Report 4.

[207] Exhibit 16, 'Photobook 4 - Crime Scene Clayton South'. See also Exhibit 6, 'Crime Scene Video - Clayton South'. See also T286.16-19.

[212] Transcript of Record of Interview 80, 81.

[214] Evidence Act 2008 (Vic), Dictionary pt 1.

[215] Burns v The Queen (1975) 132 CLR 258.

[219] Transcript of Record of Interview 70, 72.

[220] Original Notice of Agreed Facts [2]; Handwritten note #1.

[221] Call between Ning Wang and Li Li 2.

[225] Transcript of Record of Interview 92.

[228] Jury Directions Act s 19-20.

[229] Ibid s 21.

[230] Ibid s 22.

[231] T515.8-516.4; T98.13-16; Statement of Jin Wang [17].

[232] Original Notice of Agreed Facts [2].

[233] Transcript of Record of Interview 70-71, 72.

[236] T373.25-375.8; T379.12-21; Autopsy Report 5.

[301] T514.4-20; T520.8-523.28; T524.24-525.30; T527.4-14; T527.27-529.3.

[310] Transcript of Record of Interview 54.

[313] Transcript of Record of Interview 56.

[315] Hyam v DPP [1974] UKHL 2; [1975] AC 55, 73 (Lord Hailsham).

[316] De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85, 99 [55] (Kirby J) ('De Gruchy').

[317] Ibid 100 [56] (Kirby J) quoting Mutual Life Insurance Co of New York v Moss [1906] HCA 70; (1906) 4 CLR 311, 321 (Griffith CJ).

[318] De Gruchy 101 [57] (Kirby J).

[319] Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 242 (Dixon CJ).

[321] Western Australia v Rayney [No 3] [2012] WASC 404 [658] (Brian Martin AJ).

[322] Transcript of Record of Interview 46.

[323] Transcript of Record of Interview 92-3 (emphasis added).

[324] Statement of Konstantinos Karatzias [13].

[326] R v Arundell [1998] VSCA 102; [1999] 2 VR 228, 251 [58] (Callaway JA).

[327] Baden-Clay 324 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

[328] Wilson v The Queen [1992] HCA 31; (1991) 174 CLR 313, 332-3, 335 (Mason CJ, Toohey, Gaudron and McHugh JJ) ('Wilson'); DPP (Vic) v Singleton (2010) 29 VR 351, 355 [27] (Williams J).

[329] R v Bessim [2004] VSC 169; (2004) 148 A Crim R 28, 38 [38]-[39] (Redlich J) ('Bessim').

[349] Wilson 335 (Mason CJ, Toohey, Gaudron and McHugh JJ); R v Gould [2009] VSCA 130 [47] (Vincent, Nettle and Neave JJA).

[350] Wilson 333 (Mason CJ, Toohey. Gaudron and McHugh JJ); R v Schaeffer [2005] VSCA 306; (2005) 13 VR 337, 358 [95]-[96] (Eames JA, Warren CJ and Ormiston JA agreeing); DPP (Vic) v Singleton (2010) 29 VR 351.

[351] [2004] VSC 169; (2004) 148 A Crim R 28.

[352] Wilson v The Queen [1992] HCA 31; (1991) 174 CLR 313.

[353] Bessim 38 [38]-[39] (Redlich J) (citations omitted).