DPP v Zhuang

2 Sometime in the afternoon, it would appear between 3 pm and about 4 pm, an argument arose between the two women. In the course of that argument the accused struck Selina Lin a number of blows to the head with a hammer. The pathologist's evidence, to which I shall shortly refer, reveals that as a result of those blows Selina Lin sustained 33 lacerations to her scalp and to her face. In addition, she suffered a complex deep depressed cranial fracture and a fractured mandible. Unsurprisingly, she died as a result of those injuries. The pathologist, Dr Dodd, ascribes the cause of her death to the acute loss of blood caused by the lacerations to which I have just referred.

3 After Selina's death, the accused then placed her body in a large nylon zip-up bag. She then obtained a wheelie bin from neighbouring premises and placed the bag containing Selina Lin's body into that bin, and she left the bin outside the premises at 33 Tasman Drive. She then cleaned up the areas in which the incident had occurred in order to remove any trace of blood, and she left, in fact leaving her young grandson on his own. She was picked up by her daughter Guimei from a nearby shopping centre and driven to her home at Reservoir.

4 Later that evening at the request of the accused she was driven to the home of her other daughter Xuemei in Coburg, where she went to bed.

5 Subsequently, at about 2 am on the next day, the accused requested her younger daughter Xuemei to drive her back to the premises at Tasman Drive. When they arrived there, the accused alighted from her daughter's car and then proceeded to push the wheelie bin containing Selina Lin's body some 800 metres to the Darebin Creek. There she tipped the bag containing Selina Lin's body down a steep embankment to the edge of the creek. She then wheeled the bin away from that site and left it amongst some other bushes there.

6 Later on the same morning, 4 May, the accused in the company of her two daughters attended at Preston Police Station where she handed herself in. She underwent an interview which was recorded at the station. In the interview she admitted striking the blows which caused the death of Selina Lin. In the interview she said that she struck those blows in defence of herself and her grandson, Alfred. In particular, she stated that if she had not defended herself in that way, she and/or Alfred would have been killed.

7 It appears from her interview, which is not always easy to follow, that the argument had originally arisen because she had complained to her daughter-in-law that the bath into which Selina Lin had intended to put Alfred was too full and too hot. The accused stated that, on her raising that matter, Selina Lin attacked her with a hammer. The accused wrested the hammer from her grasp and then struck the blows which caused her death.

8 The prosecution has almost closed its case. The prosecution has given notice that it wishes in final address to rely on the conduct by the accused as incriminating conduct and particularly seeks to rely on the conduct consisting of the placing of Selina Lin's body in the bin and the depositing of it at the creek.

9 Secondly, it relies on the actions of the accused cleaning up the blood from the premises at 33 Tasman Drive; and thirdly it relies on what it alleges to be the disposal by the accused of the hammer which she admitted using to kill Selina Lin. In that third respect, the prosecution rely on an inference that the accused disposed of the hammer as it has not been able to be located since the events which I have just described.

10 Mr Gardner, who appears on behalf of the accused, has opposed the prosecution relying on the conduct of the accused after the killing of Selina Lin for the purposes foreshadowed by the prosecution.

11 Thus it is necessary for me to rule on that matter. In submitting to me that the prosecution should be entitled to rely on the post-offence conduct, Mr Kidd of Senior Counsel, who appears with Mr J Lewis on behalf of the prosecution, pointed firstly to what he submitted was a strong body of evidence that made it clear that the accused was not acting in self-defence at the time at which she struck the blows that caused the death of Selina Lin. In that respect he points to the use by the accused of a hammer, the large number of blows which she struck Selina Lin, the fact that she struck those blows to a vulnerable part of Selina Lin's body, that is the head, the fact that the injuries sustained by Selina Lin were not only multiple but indeed serious, the fact that there were a number of defensive injuries detected by the pathologist on the arms, hands and fingers of Selina Lin and the fact that when the accused herself was medically examined on 4 May there was no sign of injury to her.

12 In those circumstances, Mr Kidd submitted that the forensic evidence, if it had remained undetected, would point, as it has, to a strong case of murder, and also a strong case rebutting any suggestion of self-defence. He submitted that, faced with that simple circumstance, the accused had gone to great lengths to endeavour to hide what was the incriminating evidence in the case, namely the body of the deceased woman Selina Lin which would have disclosed those matters. She also went to great lengths to clean up what would have been a large amount of blood which would have been spilt by Selina Lin as a result of the fatal attack on her.

13 As a result of those matters, Mr Kidd submitted that the jury should be permitted to draw the inference as the only reasonable inference that the accused acted in the way in which she did because she knew that she had murdered Selina Lin, that in doing so she was not acting in self-defence, and that she believed that if she did not seek to both hide Selina Lin's body and to clean up the blood from the premises and get rid of the hammer, then she would be implicated in that crime.

14 In response Mr Gardner submitted that the evidence as to the post-offence conduct by the accused was intractably neutral. For, he submitted, a jury could not logically or rationally exclude the reasonable possibility that all of that conduct, which I have just described, was borne out of a feeling of panic by the accused in response to what had been an extraordinary and shocking incident in which she had become unintentionally involved.

15 In that respect Mr Gardner pointed to what he described as the timeline, and in particular the fact that the acts of the accused in placing her daughter-in-law's body in the wheelie bin and in cleaning up the premises took place almost immediately after the killing.

16 A witness who attended the premises at 4 pm saw no evidence of the body and did not see any evidence of blood in the premises. Thus Mr Gardner submitted that all of that conduct is consistent with a state of raw panic felt by the accused.

17 In addition he submitted that the conduct of the accused in later returning to the scene was simply a consequence of the same feelings of panic, not knowing what to do, having already proceeded thus far to attempt to dispose of the evidence.

18 Mr Gardner further submitted that the explanation of panic is inherently plausible, particularly taking into account the background of tension and difficulty which existed between Selina Lin and the accused, the intractable cultural differences and the issues that were at large in their relationship, the fact that the accused was only newly arrived from overseas from a very different culture and tradition, and the fact that he accused comes from a country in which she might readily have apprehended the authorities could have acted in a very different way to those in which the authorities are required to act when investigating an incident of this type.

19 In those circumstances Mr Gardner also pointed to the extracts from the interview of the accused with the police in which she said that she acted in the way in which she did after the death of Selina Lin because she was afraid.

20 In essence in this case the prosecution will be inviting the jury to draw an inference from the conduct of the accused after the incident. In particular it will be submitting to the jury, if it is permitted to do so, that the only reasonable inference is that the accused acted in the way, in which she did after the death of Selina Lin, because she knew that she had murdered Selina Lin and that she was not acting in self-defence, and that she believed that if she did not hide the body and dispose of any other evidence relating to the killing of Selina Lin, she would be correctly implicated in that crime.

21 The question in any case whether a jury should draw a particular inference is of course essentially a question of fact for the jury and not for the judge. It is not my task to determine whether the jury should draw the inference contended for by the prosecution. Rather at this stage my task is to determine whether the jury acting rationally could conclude that the only reasonable inference from the post-offence conduct indulged in by the accused is that contended for by the prosecution. (See R v Cengiz.)[1]

22 Thus, where the prosecution seeks to rely on post defence conduct, the test for myself as the trial judge is whether the jury could rationally conclude that the only reasonable inference to be drawn from that conduct is that contended for by the prosecution, namely an awareness that she had murdered her daughter-in-law and was not acting in self-defence; see R v Ciantar;[2] the Juries Directions Act 2013 s 25(1)(a)(ii).

23 Further, the test which I must consider is not whether standing alone the only reasonable inference to be drawn from that conduct is that the accused acted as she did, because of a belief that she had murdered Selina Lin without justification. Rather it is plain that that question must be considered in the context of all the evidence in the case, and the background circumstances to it. R v Ciantar;[3] Juries Directions Act 2013 s 24(1)(b).

24 In a case such as this, which involves the question of drawing of inferences, those principles are particularly apposite. The submission made by the parties in this case will essentially involve an assessment by the jury of the significance of the evidence of the conduct of the accused after the killing of Selina Lin. That involves a judgment by the jury as to the likely or possible human behaviour in circumstances in which the accused found herself after she had killed Selina Lin.

25 Such a judgment is in my view essentially a judgment which is in the province of a jury, using its collective experience and wisdom. Thus in my view, in a case in circumstances such as this, a judge should be slow to exclude or to preclude the prosecution from relying on the evidence for the purposes foreshadowed by Mr Kidd.

26 Taking those matters into account, in my view, the jury could rationally conclude that the only reasonable inference from the evidence of the conduct of the accused after she killed Selina Lin is that she knew that she had murdered Selina in circumstances which did not involve her acting in self-defence.

27 The conduct indulged by the accused was in itself quite extraordinary. After all, she had just killed her daughter-in-law, who was the mother of her beloved grandchild. Almost immediately, she reacted by seeking to conceal that fact. She went to elaborate lengths to do that. In doing so, as described, she placed the body of a grown woman into a bag, found a wheelie bin and placed the bag into the wheelie bin.

28 The evidence of the pathologist is that Selina Lin must have bled profusely as a result of the injury she sustained. Accordingly, the accused went to great lengths to clean up the premises, to ensure that there was no trace of blood left there, and to dispose of the towels that she had used for that purpose.

29 She then left her grandson, who I think it is clear, she dearly loved, on his own, notwithstanding the fact that, as she stated in her interview, he had become quite distressed when he observed the incident in which his mother died.

30 All that evidence taken together bespeaks a very strong reaction by a person, to the incident in which she just involved herself. It particularly bespeaks in my view the fact that the accused felt a desperate need to cover up what she had just become involved in.

31 However, the evidence in this respect becomes stronger for the prosecution. As described, some hours later in the middle of the night, she returned to the scene, took possession of the wheelie bin and then wheeled it through suburban streets, and across park land to a secluded part of Darebin Creek.

32 It appears that she selected that part of the creek reasonably carefully because she dumped the body of her daughter-in-law down a steep bank, in a position where she clearly thought it might not be located. Even if the earlier actions of the accused after killing could be ascribed to sheer panic, it would seem that a jury could well conclude that the actions of the accused in the middle of the night could not be attributed to that type of cause.

33 In my view, the jury would be entitled to consider that the actions of the accused after the event are inconsistent with the actions of a mother-in-law and grandmother who, while defending herself and grandchild from the gratuitous attack by her daughter-in-law, had caused the death of her daughter-in-law. Rather, in my view, those actions spoke of a person with a strong reason to wish to dispose of Selina Lin's body, to hide any evidence of the crime she committed and to dis-associate herself from the physical circumstances in which her daughter-in-law died.

34 Furthermore, the fact that she felt such a reason and the strength of that reason is amplified by consideration of the pathologist's evidence and the matters to which Mr Kidd has referred. The killing involved the striking of a large number of blows to the head, which resulted in severe injury, particularly to the back of Selina Lin's head. The pathologist has pointed to a number of defensive injuries sustained by Selina Lin to both of her upper limbs, and as I have already pointed out, there is no evidence that the accused herself suffered any injury in the incident.

35 In those circumstances, the accused performed the acts which I have described in disposing of the deceased's body well knowing that her daughter-in-law's body would have revealed that she had inflicted a ferocious attack on her and well knowing that there was no evidence which could sustain any form of justification for that killing.

36 In addition, the proposition contended for by the prosecution is strengthened by some of the background evidence in this case. I should immediately observe that that background evidence is not all one way, and some of it indeed provides a little support for the accused. But nevertheless there is evidence, that the jury might accept, that the accused, because of cultural differences with Selina Lin, and because of difficulties she had with her, experienced and felt an undercurrent of anger towards Selina Lin which had erupted on at least two previous occasions. In those circumstances, the jury would be entitled to feel some support for the proposition that this was a killing which arose out of feelings of anger in which the accused had then reacted by feeling a desperate need to cover up her wrongdoing.

37 All those factors, taken in combination, have the effect that in my opinion the jury would be entitled to conclude that the only reasonable inference to be drawn from the accused's conduct after the death of Selina Lin is that she knew that she had murdered Selina Lin in anger, that she was not acting in self-defence, and that if she did not indulge in the post-offence conduct I have described then she might be correctly implicated in the murder of her daughter-in-law, Selina Lin.

38 For those reasons I shall permit the prosecution to submit to the jury as Mr Kidd has foreshadowed that the evidence of the conduct of the accused after the death of Selina Lin should lead to the jury concluding, as the only reasonable inference, that the accused acted in that way because she had murdered Selina Lin.

[1] [1998] VR 720 at 735, per Harper, AJA.

[2] [2006] VSCA 263; (2006) 16 VR 26 at Paragraph 52.