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JUDGMENT - EX Tempore (REVISED)

1. Mr Pei Lui stands trial for murder. The trial has been progressing with a jury since Monday 18 May 2026.

2. In short, it is alleged that Mr Pei Lui and Mr John Henry were the only other people in a stairwell with the deceased, Mr Tao Cheng, when he was brutally bashed to death on 4 December 2022. Mr Cheng was a 25-year-old man who had fallen into financial hardship and was saving money by living in a stairwell located near a gaming café in a building in Sydney’s Central Business District. The deceased’s body was not discovered until 2:50pm on 7 December 2022.

3. Mr Henry has already been tried for murder in relation to Mr Cheng’s death, but in his trial the jury was discharged after it was unable to agree. Around three weeks after the jury was discharged, Mr Henry pleaded guilty to manslaughter and the Crown accepted that plea in full satisfaction of the indictment. Mr Henry is to be called by the Crown in this trial.

4. The accused has objected to the tender of three categories of evidence. The first is a bundle of emails between Mr Lui and his romantic partner at the time, Ms Amy Mullins, also known as Ms Amy Von Dinklage. The second is a business record of the Westside Motor Inn at Ashfield, together with a Google Map of Ashfield showing the location of a mobile phone tower. The third category, in relation to a different aspect of the evidence, is of Snapchat messages between Mr Henry and Mr Lui at a time before the assault on 4 December 2022, that being 24 November 2022.

5. The assault occurred in a stairwell in the Meriton complex in George Street, Sydney, near a 24-hour gaming café frequented by Mr Lui and Mr Henry. Both men used the stairwell to smoke and drink alcohol when they had a break from gaming.

6. The evidence against Mr Lui includes Agreed Facts and CCTV footage which indicate that having last left the stairwell on 4 December 2022, Mr Lui returned to the gaming café on 7 December 2022 at 6:05pm and walked towards the hallway (near to where the stairwell can be accessed), then back and forth, before exiting the gaming café via the escalator. At the time Mr Lui attended on 7 December 2022 there were plain clothed police officers guarding the crime scene, with the inference available that they would have been visible to Mr Lui.

7. I will first turn to the email bundle. The objection was initially on the grounds of relevance, but the firmer argument was put on the basis that even if marginally relevant, the probative value is substantially outweighed by the danger of unfair prejudice.

8. With the exception of one email, the emails contained within the bundle are dated between 26 November 2022 and 8 December 2022. The email address used by Ms Von Dinklage is consistent over the duration of the conversation, but Mr Lui’s email address changed sometime between 8:09pm and 8:13pm on 7 December 2022.

9. The accused submits that the emails merely indicate Mr Lui was short of money, and that fact is available from his bank records which are already in evidence. In my view, the email chain goes well beyond indicating that Mr Lui was short of money. It goes to the nature of the relationship between Ms Von Dinklage and Mr Lui, and provides a very vivid indication of the change in relationship intensity around the time of the killing. Further, it also shows that following his attendance at the gaming café on 7 December 2022, Mr Lui was keen to avoid the police. In my view, the email bundle is relevant and highly probative for a number of reasons.

10. There is said to be unfair prejudice in relation to the fact that there will not be evidence before the jury about another reason as to why Mr Lui would be concerned about police presence at FBI Gaming (a topic which also emerged from the email exchange), and that is because he had not answered his bail. It is submitted it would be unfairly prejudicial to admit the emails without the additional context being before the jury: that is, Mr Lui not answering his bail would provide an entirely independent reason, separate from the killing, as to why Mr Lui would be anxious to avoid the café and want to get away from the police.

11. Assuming that relevant unfair prejudice can arise from a forensic choice made by the accused (that is, not to lead evidence, in any form, that Mr Lui was wanted by police for a matter unrelated to any alleged murder), the potential cogency of this argument, in my view, diminishes when one looks more closely at the date and time Mr Lui changed his email address. There is no evidence that the date and time have any significance apart from being shortly after the same day Mr Lui attended the café and arguably saw the undercover police officers near the crime scene. It is the combination of those circumstances (together with Mr Lui’s expressed need to change residential addresses) which make the evidence so probative. Prior to that date, as far as I am aware, there is no indication in the evidence that Mr Lui was avoiding police.

12. I acknowledge the sensitivity and potential prejudice of an accused person putting evidence before a jury showing that they are wanted by police in relation to another criminal matter. However, there are ways to put such material before a jury whilst minimising the prejudice, especially in a murder trial where the relative seriousness of any other allegation is likely to be a factor which can be called in aid. To choose, however, not to put any such material before a jury, and then complain that there is unfair prejudice because the opportunity of pointing to an alternative inference is lost, is a difficult argument to sustain.

13. In any event, as the High Court has said on numerous occasions including in The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48] and in *The Queen v Bade**n-*Clay (2016) 258 CLR 308; [2016] HCA 35 at [47], in a circumstantial case, it is important to look at all the evidence together and not in a piecemeal fashion.

14. In my view, it is the combination of the circumstances together, which makes the email evidence (along with other evidence) so probative, to a point where the probative value clearly outweighs any unfair prejudice (assuming there is some). It should be available to the Crown, and accordingly, the email evidence is admitted.

15. The second category of challenged evidence is a Google Map showing the location of a mobile phone tower in Ashfield with which the deceased’s phone was “pinging”; and a set of records from the Westside Motor Inn at Ashfield showing the booking of a series of rooms from 26 November to 2 December 2022 in the name of Amy Mullins.

16. As to the map, counsel for the accused says that it will not be in issue that the accused had the deceased’s phone. However, there is no Agreed Fact in relation to that matter. In my view, the Crown is entitled to have that evidence clearly placed before the jury.

17. As to the motel records, counsel for the accused concedes that the last entry on the motel records, which shows a booking of six nights between December 2 and December 8, is relevant and admissible. However, counsel for the accused submit that the other entries are simply not relevant.

18. In my view, those other entries are relevant, and the whole series of motel records should be placed before the jury, not least to show the last booking in context.

19. To the extent that counsel for the accused submits that the evidence is unfairly prejudicial as Mr Lui will be regarded as a “bludger” because he is, basically, a man living off a woman, there are two answers to that submission. One is, in 2026, I do not understand that to be a live issue, such as to create unfair prejudice within this jurisdiction. But in any event, by far the largest amount of Mr Lui’s income is from Centrelink, which is apparent from bank records in evidence. In my opinion, the full motel record is further evidence which shows the nature of the relationship (including the financial relationship) between Ms Von Dinklage and the accused in proper context, with some rich detail, at a proximate time, and in my view, that full context should be before the jury. The evidence is relevant as it goes to the nature and extent of Mr Lui’s impecuniosity and to his residential arrangements both before and after the killing. There is no unfair prejudice.

20. Accordingly, in my view, the second category of material should be admitted.

21. I now go to the third category of evidence: the Snapchat messages between Mr Lui and Mr Henry dated 24 November 2022. Mr Stratton submits that these messages add nothing because it is already quite clear that the two men knew each other prior to 4 December 2022 (the date of the assault). In my view, these messages are relevant and should be before the jury. The nature of the relationship between these two men is very much a fact in issue and the evidence in relation to the nature of their relationship and the power dynamic, should there be any, between the two men, in the weeks leading up to the assault, should be before the jury. These messages on 24 November 2022 are part of the circumstantial case in relation to the relationship between the two men and should be admitted.

22. Accordingly, I admit all the contested evidence being:

23. The bundle of emails between Ms Amy Mullins and the accused dated between 26 November 2022 and 8 December 2022;

24. The business records of the Westside Motor Inn at Ashfield and Google Map showing the location of a mobile phone tower; and

25. The Snapchat messages between the accused and Mr Henry dated 24 November 2022.

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