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[2019] NSWSC 483
Supreme Court of NSW
2019-03-29
Wright J, Fagan J
Original judgment source is linked above.
Solicitors: Solicitor for Public Prosecutions (Crown) Armstrong Felton (Defence) File Number(s): 2016/00028690
Background to the Special Hearing
The Special Hearing
Overview
Legal principles
Presumption of Innocence
Onus and Standard of Proof
Drawing Inferences from Direct Evidence: Circumstantial Reasoning [15]
Witnesses and Fact Finding
Evidence from a witness whose evidence may be unreliable
Expert Evidence
Consciousness of Guilt [18]
What the Crown has to Prove: Essential Elements
What the defence has to prove in this case when relying on s 23A of the Crimes Act
The Evidence
The crime scene
Neighbours
The deceased's family and other persons from Campsie
Autopsy findings
Bag located at Fred Caterson Reserve and Castle Hill Cemetery
Shoe mark, DNA and blood stain investigations
The officers in charge of the investigation, telephone records, records of interview and surveillance
The deceased's whereabouts on the evening of 28 March 2015
The accused's ex-wife, Mr Shen and the accused's records of interview
The psychiatrists
Findings
The accused's background
The pre-existing relationship between the accused and Mr Shen
The deceased and his relationship Mr Shen
The accused and Mr Shen on 28 March 2015
The movements of the deceased on the evening of 28 March 2015
The death of Mr Xun Ke
The movements of the accused and the deceased's mobile phone late on 28 and early on 29 March 2015
The bag found at Fred Caterson Reserve
Determination - Count 1
Was the accused the person who inflicted the wounds which caused the death of the deceased?
Consciousness of guilt
The Crown case is circumstantial
Has the Crown excluded beyond reasonable doubt the hypothesis that Mr Shen was present and killed the deceased?
Text Messages: Shen and the Accused
Description of person outside the deceased's unit block
Cigarette butt with Shen DNA (Marker G)
The DNA of the accused being on the shoe belonging to the deceased (Marker K)
Shoe prints in blood consistent with the shoes seized from the accused
Description of the person at the bin area after the screams were heard
Phone records of the deceased's and accused's phones having a similar path
Police interviews and listening devices
The considerations taken together
The Crown has excluded the hypothesis that Mr Shen was present and killed the deceased
Preliminary conclusion on Count 1
Partial defence of substantial impairment
Determination - Count 2
Verdicts For these reasons: 1. The verdict of the Court in relation to count 1 is that the accused is not guilty of murder but, on the limited evidence available, the accused committed the offence of manslaughter, being an offence available as an alternative to the murder offence charged. 2. The verdict of the Court in relation to count 2 is that, on the limited evidence available, the accused committed the offence of robbery armed with an offensive weapon charged.
Endnotes
Amendments 02 May 2019 - Verdict in relation to count 1 amended to make explicit that the accused was not guilty of murder. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2019
R
Le
(1993) 178 CLR 193
(2003) 214 CLR 118
(1993) 35 NSWLR 428
(1990) 170 CLR 573
[2003] HCA 22