Regina v Li

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0504; 02/11/0505 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60276/03

SPIGELMAN CJ DUNFORD J HIDDEN J

Tuesday, 23 December, 2003 REGINA v Wu LI judgment 1 SPIGELMAN CJ: I agree with Dunford J, including in each of the respects in which his Honour adopts the judgment of Hidden J. I agree with the orders proposed by Hidden J. 2 DUNFORD J: In this matter I have had the opportunity of reading in draft form the judgment of Hidden J where the evidence in the trial and the issues in the appeal are sufficiently set out. 3 In my opinion the evidence, which his Honour admitted of the previous events, was all admissible as relationship and background evidence. It showed a deteriorating marriage which had at times been accompanied by some violence and attempts by the appellant to control the complainant (e.g. the incident at Sydney University in 1998), allegations of affairs, separation, divorce, requests by the appellant to revive the marriage and the complainant's refusal. 4 It also showed conduct on the part of the appellant comprising violence, domination and control of the complainant. Although disavowing same, the Crown sought to use this evidence in relation to the first count as showing that the appellant had a tendency to act in a particular way, namely to use violence towards the complainant, which explained why she did not attempt to leave the apartment by walking past him to the front door, but instead went to the balcony and attempted to climb to the lower level. 5 As far as I can tell the Crown did not seek to rely on this evidence in respect of the second count (common assault) and did not in terms ask the jury to infer that because he had assaulted her in the past, he had also assaulted her on this occasion. 6 As his Honour said in his judgment on the voir dire (at pp 7-8): "Secondly, the evidence would tend to provide proof that in some circumstances, particularly in dealing with marriage issues, and I use the word marriage issues in a fairly broad spectrum, that the accused was likely to react violently against the complainant… clearly the jury would be entitled to know the context in which the current offences are said to have been committed. In that circumstance the evidence involved is simple relationship evidence. However the Crown also seeks to show that by these various prior incidents, the accused had a tendency or a propensity to deal with stressful marital situations with violence to the complainant rather than in another way. On that basis the evidence must be tendency or propensity evidence and needs to satisfy the criteria of s 97 and s 101 of the Evidence Act ". 7 This last passage echoed the provisions of s 95 which in effect provides that even if evidence is relevant, and therefore admissible, for another purpose it cannot be used to prove tendency or coincidence unless it complies with Part 3.6 (ss 97-101). It is important to clearly distinguish between evidence admitted as relationship evidence, as tendency evidence or as both: R v AH (1997) 42 NSWLR 702 at 708-9. 8 The test for determining the admissibility of tendency evidence is that laid down in the legislation and not the common law test expounded in Pfenning v The Queen (1995) 182 CLR 461: R v Ellis [2003] NSWCCA 319. 9 It was submitted that the appropriate notice required by s 97(1)(a) had not been given, but this point was not taken at the time of the voir dire and, in my opinion the appellant should not be permitted to raise it now. 10 His Honour found that the evidence had significant probative value (s 97(1)(l)) and its probative value substantially outweighed its prejudicial effect (s 101(2)), noting that the Gold Coast incident shortly before the final incident was "probably admissible" as part of the relationship evidence. I consider these findings were open to his Honour and I would not upset them, adding only that in my view all the evidence his Honour admitted as tendency evidence was properly admissible as relationship evidence and was therefore before the Jury in any event. 11 I am also satisfied that the evidence was admissible as tendency evidence on the first count notwithstanding that it did not tend to establish a tendency or propensity to detain. Section 97 is not directed only at evidence showing a tendency to commit a particular crime but showing a tendency "to act in a particular way". In this case it was directed to showing that the appellant had a tendency to use violence to the complainant and to seek to control her in stressful marriage situations, and was relevant to whether he did by his actions on the night in question effectively "detain" her; but it was not necessary for this purpose to show that he had detained her on any other occasion. 12 For these reasons I am satisfied that the evidence in question was properly admissible not only as relationship evidence, but also as tendency evidence, at least in relation to the first count. 13 I do however share Hidden J's reservations about the admissibility of the evidence as tendency evidence in relation to the second count, even though it may seem artificial to draw a distinction between the two counts in this regard; but in relation to the second count the only probative value of the evidence invited the line of reasoning "he has done it before, so he probably did it on the night in question"; and on that basis it was highly prejudicial and would not satisfy the test prescribed by s 101(2). 14 I also share Hidden J's concern in relation to the directions in relation to this evidence in the Summing up, where clear and specific directions were required distinguishing between its use as relationship evidence and it use as tendency evidence and how as tendency evidence it was relevant to the first count (and, in my opinion, not relevant to the second count). 15 Hidden J has set out the main passages from the Summing up dealing with these issues. Although they refer to both tendency and relationship evidence, they draw no distinction between how the evidence may be used as relationship evidence on the one hand and as tendency evidence on the other, and they do not specify the tendency sought to be proved in relation to the first count. One can only speculate how the jury would have understood the directions, and how they may have used the evidence. 16 In my opinion the ground of appeal that the trial judge failed to adequately direct the jury in relation to the tendency evidence has been made good. 17 I agree with the orders proposed by Hidden J. 18 HIDDEN J: The appellant, Wu Li, was found guilty after a trial in the District Court of detaining for advantage (s90A of the Crimes Act) and common assault (s61 of the Act). There was a third charge in the indictment, arising out of a separate incident, of which he was acquitted and about which no more need be said. He appeals against conviction only. 19 The complainant in respect of each of the charges was his estranged wife, Mansuo Zhao, and the events giving rise to them took place at a home unit at Summer Hill on 23 July 2001. They had been divorced in that same month, having been married since 1995. They had one child, Jerry, who was five years old at the relevant time.

Crown Case 20 The complainant gave evidence about her unhappy relationship with the appellant, including incidents prior to July 23 2001 in which he had been violent to her. Some of that evidence had been objected to, and it is the subject of the grounds of appeal. 21 The complainant said that in March 1998 the appellant saw an entry in her diary which suggested that she might have been in love with another man. He became angry, slapped her and pushed her onto a bed. She protested that she did not have a lover and that he should not treat her like that. He slapped her with his open hands, such that one side of her face became swollen. He prevented her from calling the police to report the matter. 22 She described another incident, said to have occurred on the night of 3 June 1998. They were in bed and she rejected his sexual advances. He became angry, telling her to leave and to go to her office. At the time she had an office at Sydney University, where she was studying. She dressed and went there. 23 At about midnight the appellant arrived at her office and asked her to return home with him. She refused and he hit her on the face. She fell to the floor, and he covered her mouth with his hand and said, "Don't let today be your death day." She was frightened and she told him that she needed to go to the toilet, because she wanted to get away from him. She went to communal toilets in the building and locked herself in a cubicle. 24 The appellant came into the toilets and asked her to come out, demanding money from her, saying that she would not see Jerry anymore and threatening to put hot water on her face. She called for help, but no one came because there was nobody in the building at that time. The appellant came into the cubicle next to her and seized her, putting his arm around her throat and telling her not to try to get help as nobody would help her. He then left. She waited for a lengthy period, possibly two hours, before she emerged from the toilets. She reported this matter to the police. 25 During the last two years of their marriage, the complainant received information from various sources that the appellant was having affairs with other women. In the first half of 2001 he sometimes told her that he wanted a divorce, or that he wanted to find happiness with someone else. 26 In July 2000 the family moved into the unit at Summer Hill where the offences occurred. After the relationship broke down in the following year, the appellant retained a key to the unit and kept some of his clothes there. On occasions he would have a meal there and even sleep there (although not in the bedroom occupied by the complainant and Jerry). In June 2001 he gave her $5,000 towards the upkeep of Jerry. 27 In mid-July 2001, at the time of the divorce, the complainant and the appellant were in Queensland with Jerry, celebrating the boy's birthday. During the car trip to Queensland the appellant had asked the complainant to remarry him, but she had said that that would be impossible. He became angry and told her to get out of the car, but she did not. 28 They arrived at the Gold Coast and booked into a hotel. He again asked her to remarry him, but she said that it was not possible after he had had affairs with other women. He did not deny having done so but challenged her with having communicated with a man on the Internet, calling her "shameless". She said that she needed someone to talk to because she had been upset about his affairs. He became very angry and slapped her on the face. She went to the bathroom and, when she emerged, he told her that if she did not remarry him she would not see Jerry again. He said that she had one month to think about it. She told him that she did not intend to have another man in her life and that she wanted to stay with her son. 29 This brings me to her account of what occurred on the night in question, 23 July 2001. She was in bed in her room, with Jerry asleep beside her, making a phone call to a man whom she had met on the Internet. Unknown to her, the appellant had come to the unit and he entered her bedroom. He looked at her angrily and she hung up the phone. He called her "shameless", and seized a belt from the back of the bedroom door and hit her on the head with it. It was this which gave rise to the count of common assault. He then pulled the phone from the bedroom wall and went out of the room. She heard the phone from the lounge room also being pulled from the wall and smashed on the balcony. 30 She remained in the bedroom and locked the door. Jerry was still asleep. The appellant tried to open the door from the outside and demanded that she come out. She told him not to hit her anymore. He told her that the door was not strong enough to hold him and again told her to come out. She knew that he might be able to break the door down and, as she did not want Jerry awoken, she opened the door and left the room. 31 He was sitting on a sofa in the living-room and he told her to sit down next to him. She took a Swiss Army knife from the drawer of the table next to the sofa, opened the blades, held it in front of her chest and said, "Don't hit me any more". He went to the kitchen and returned with what appears to have been a carving knife. He pointed it at her and said, "Don't try to scare me with that, you put that back." She put the Swiss Army knife on the table and asked him to put down the knife he had. He said, "No, this is for killing pigs." 32 He told her to sit down beside him on the sofa, which she did in the hope that she might calm him down and resolve things by talking. He put the kitchen knife on the coffee table in front of the sofa. He demanded that she return the money he had given her for the maintenance of Jerry, and that she leave the unit and not return. He added, "You give me back your key, you will never see Jerry again." She said that it was too late to get the money as the bank was closed, but that she would get it the next day. 33 He abused her, again calling her "shameless". She said that they were divorced and he did not have the right to treat her in this way. He slapped her on the face. She told him not to hit her any more, but he said that he hated her and hit her again. He seized the kitchen knife and pointed it at her chest, demanding that she make him a cup of tea. She went to the kitchen, filled the kettle with water, returned to the living room and said, "You're not going to hurt me with that knife, are you?" He stood in front of her, holding the knife to her chest, and she feared from his angry expression that he would hurt her. 34 She walked to her bedroom because she felt that he was "getting crazy". She changed into street clothes and put on her backpack, containing her purse and keys. She returned to the living-room, saying that she was going to leave. He said to her, "I won't make things easy for you. The night is still long, you just stay here." At this stage he was not holding the knife but it was on the table within his reach. She would have had to pass him to leave the unit by the external door, and she felt that he would not allow her to do so. This incident was directly relevant to the detaining for advantage charge but, as I understand it, the Crown relied upon the whole of the appellant's behaviour in the unit in support of that charge. 35 She walked to the balcony and he followed her. She told him that she was simply trying to relax and calm herself down. He went back to the living-room and she followed a few minutes later. She went to her bedroom, thinking about how she could get out of the unit. She had not seen anyone when she was out on the balcony, and she realised that she couldn't call for help, as he would hear her. She feared that he would stop her calling for help, just as he had done during the incident at Sydney University in June 1998. She also knew that she could not contact anyone by phone. 36 She decided to get away by climbing over the balcony down to the level below, where she hoped she could get help. Tragically, she slipped and fell two storeys onto a concrete driveway. She suffered severe injuries, resulting in quadriplegia. 37 For the purpose of the first count, it was the Crown case that the advantage sought by the appellant was the return of the money he had paid her or his psychological domination of her (perhaps to have her agree to remarry him), or both. There was other evidence in the Crown case but, apart from brief reference to the appellant's interview by the police, it is unnecessary to refer to it to deal with the grounds of appeal.

Defence case 38 The appellant did not give evidence. However, in a recorded interview with police, he agreed that he had gone to the unit and that he and the complainant had argued, but he gave a very different account of their encounter from hers. In particular, he denied assaulting her, threatening her with a knife or trying to prevent her leaving. He said that at the time she must have fallen from the balcony he was in the shower, preparing to leave himself. From some of his answers it appeared that he was suggesting that she may have attempted suicide.

The appeal 39 The complaints on appeal are that the trial judge wrongly admitted evidence of the prior incidents of violence to which I have referred as tendency evidence, and that his Honour failed adequately to direct the jury about that evidence. 40 At the outset of the trial there was argument about this matter. (Both the appellant and the Crown were then represented by counsel other than those who appeared in this Court.) The Crown prosecutor had argued that evidence of those incidents was admissible to prove the relationship between the appellant and the complainant and to put the incident the subject of the charges in its context. She expressly disavowed reliance upon it as tendency evidence, within the meaning of s97 of the Evidence Act. Of course, a distinction is maintained between "relationship" or "context" evidence, on the one hand, and "tendency" evidence as that expression is used in the Evidence Act, on the other: R v AH (1997) 42 NSWLR 702, per Ireland J at 708-9. 41 The Crown prosecutor put it that the evidence disclosed a relationship, marred by violence, in which the appellant sought to dominate the complainant and was possessive of her. This, she argued, tended to explain the appellant's behaviour on the night in question as the complainant described it. The physical violence engendered by feelings of jealousy was said to be consistent with an established pattern of behaviour. In addition, the fact that he had on previous occasions sought to prevent her getting away from him and seeking help was said to elucidate his state of mind for the purpose of the detaining charge, as well as explaining her resort to the balcony to escape from him on this occasion. 42 Defence counsel had acknowledged that some evidence of the relationship between the parties, including their divorce and his desire to remarry her, would be admissible. However, he argued that this purpose would be adequately served by evidence of the Queensland incident in July 2001 (described in pars 27 and 28 of this judgment). Otherwise, he argued, the evidence went beyond relationship or context and amounted to tendency evidence, as it disclosed a propensity on the part of the appellant to behave in a particular way when feelings of jealousy were aroused in him. As such, it would need to have not only significant probative value (s97 of the Act) but also a probative value which substantially outweighed its prejudicial effect (s101). Counsel argued that it did not meet the first of those tests, let alone the second. 43 Before the trial judge for the purpose of the argument was a comprehensive statement by the complainant in which she described a number of prior incidents of violence. Of those his Honour allowed only the three incidents which I have summarised. The effect of the complainant's statement was that there had been no violence over the two year period between July 1999 and July 2001. Although the appellant had been absent overseas for part of that time, this was one of the matters upon which defence counsel relied in support of his objection to the evidence. 44 His Honour appears to have allowed the evidence of the three prior incidents both as relationship and as tendency evidence. In the course of his reasons he said this: When I look at what the Crown seeks to lead and what the defence argues about it, it seems to me the issue that that evidence really goes to is two fold. Firstly, the evidence would tend to provide details of the nature of the relationship between the parties concerned, the accused and the complainant. That is this was not a happy and contented marriage, but was argumentative and abusive. Secondly, the evidence would tend to provide proof that in some circumstances, particularly in dealing with marriage issues, and I use the word marriage issues in a fairly broad spectrum, that the accused was likely to react violently against the complainant, not necessarily in any particular way, but as opposed to reacting in some other way by words alone or peacefully leaving the scene altogether. … However the Crown also seeks to show by these various prior incidents, the accused had a tendency or a propensity to deal with stressful marital situations with violence to the complainant rather than in another way. On that basis the evidence must be tendency or propensity evidence and needs to satisfy the criteria of s 97 and s 101 of the Evidence Act . In my view some of the evidence does have significant probative value given that the parties were only married in 1995 and divorced in 2001, and having regard to the different times it is said that the accused was overseas and in China or somewhere else. It is also my view that in regard to some of these matters the probative value of the evidence substantially outweighs the prejudicial effect of it, particularly as it is conceded that the incident on the Gold Coast which occurred shortly before the final incident on 23 July is probably admissible as part of the history of the relationship between the parties. 45 It will be seen that, insofar as his Honour suggested that the Crown sought to lead the evidence as tendency evidence, that did not represent the Crown prosecutor's position. For present purposes, however, that is of no moment. The fact is that the evidence was admitted as tendency evidence and, as will be seen, it was primarily upon that basis that his Honour directed the jury about it.

Admissibility 46 Counsel for the appellant in this Court, Mr Strickland, did not canvass the question whether the evidence was admissible as relationship (or context) evidence. As I have said, the first complaint on appeal is that it should not have been admitted as tendency evidence. Mr Strickland acknowledged that it might have been admissible for that purpose in respect of the second count, the charge of common assault, although he made no concession to that effect. His primary submission was that the trial judge failed to consider its bearing, if any, upon the first count, the charge of detaining for advantage. He argued that the evidence was not relevant to that charge and that, even if it were, it lacked the probative force necessary to meet the requirements of ss 97 and 101 of the Evidence Act. 47 From a reading of the passages from his reasons quoted above, it does appear that his Honour focused upon the capacity of the evidence to demonstrate the appellant's propensity to violence towards the complainant, without separate consideration of its relevance to the detaining charge. This also is consistent with his Honour's directions to the jury about the evidence, to which I shall turn in a moment. 48 It was necessary that discrete consideration be given to the bearing of the evidence upon the first count. In that regard, I should point out that the complainant's evidence about the March 1998 incident (par 21 above) was somewhat less emphatic than her account of it in her statement. What she said in evidence about her being prevented from calling the police was this: "… I got up and I tried to call the police and stopped (sic) me and hit me again."

In the statement she said: "I tried to call the police but he pushed me down to the floor. … I went out into the sitting room and I tried to leave the house. He held me back and gave me another slap across the face." 49 There is an element of detention in both those accounts, but it emerges more clearly in the statement than in her oral evidence. The Sydney University incident of June 1998 (pars 22-24 above) does not appear to involve detention as such, but he did prevent her from calling for help. Nothing of that kind is suggested in the Queensland incident. 50 On the other hand, what does attend the two incidents of 1998 (and, indeed, the Queensland incident) is the psychological domination of the complainant which, on the Crown case, was the primary advantage sought by the appellant from his detention of her on the occasion in question. This may have justified the reception of the evidence as going to relationship or context, but whether it passed muster as tendency evidence in respect of the first count is another matter. That question required the identification with some particularity of the tendency said to be relevant to that count, as well as an assessment of its probative value in respect of that count for the purposes of ss97 and 101. It is apparent from his reasons that his Honour did not undertake that exercise. 51 In my view, while it could not be said that the evidence was irrelevant to the first count, it was not admissible in relation to that count as tendency evidence. True it is that the complainant gave evidence that her experience in the Sydney University incident had a bearing upon her decision to climb over the balcony on the night in question, although in the circumstances that is an avenue of escape which she might have chosen in any event. I accept that a common thread of psychological domination runs through the three incidents. However, it is only in the first incident of March 1998 that there could be said to be an element of detention. From the complainant's relatively brief account of that incident in her statement and in evidence, it is difficult to determine what the appellant's motivation might have been on that occasion. It could be that he restrained her simply to prevent her reporting his behaviour to the police: a motivation very different from that alleged by the Crown for the purpose of the first count. 52 To determine whether the evidence was admissible as tendency evidence it is necessary to apply the tests expressed in Part 3.6 of the Evidence Act: R v Ellis [2003] NSWCCA 319. In relation to the first count, I would question whether the evidence had significant probative value, within the meaning of s97 of the Act, but I find it unnecessary to decide that matter. I am far from persuaded that, for the purpose of s101, the probative value of the evidence substantially outweighed any prejudicial effect it might have had upon the appellant. The prejudice is obvious and, for the reasons I have expressed, the probative value in relation to the first count was not high. In that respect, I also have regard to the fact that the two incidents in 1998 were separated by three months, and both were three years removed from the incident which brought the appellant to trial. 53 Although it was not the primary thrust of Mr Strickland's argument, I have also reflected upon whether evidence of those three incidents was admissible as tendency evidence in respect of the assault charge and have concluded that it was not. Of course, the Queensland incident, standing alone, could not amount to evidence of that kind: it could do so only in combination with the earlier incidents. Here, again, the age of those earlier incidents was an important matter bearing upon admissibility, and one to which his Honour made no express reference when assessing the probative value of the evidence. In my view, the balancing exercise required by s101 did not favour the admission of the evidence in relation to the second count also. 54 None of this is to deny that the Queensland incident was admissible as relationship or context evidence, as defence counsel at the trial very properly acknowledged. I must say, however, that I have misgivings about the admissibility of the 1998 incidents even as relationship or context evidence. Again, I would be prepared to accept that evidence of them might be relevant to that issue but, given their age and the fact that there was no incident of violence for the two year period leading up to July 2001, a very real question arises whether the probative value of the evidence would not be outweighed by the danger of unfair prejudice to the appellant: s137 of the Evidence Act. 55 This aspect is not the subject of any complaint in the present appeal and, in the absence of argument, I express no concluded view about it. However, I have determined that the convictions must be set aside and I would not wish it to be thought that this is not a matter requiring careful consideration at a retrial. In my view, there is much to commend defence counsel's argument at the trial that evidence of the Queensland incident, against the background of the failure of the marriage and the appellant's desire to reinstate it, was all that justice required to put the events of 23 July 2001 into their proper context. 56 Accordingly, the first ground of appeal is made out. I should record that Mr Strickland also mounted an argument based upon the absence of the notice required for the purpose of Part 3.6 of the Act and of any dispensation of that requirement by the trial judge: see ss97 and 100. However, no complaint about that matter was made by defence counsel at the trial and, in any event, it is unnecessary to decide it.

Directions 57 The second complaint in the appeal is that the trial judge failed adequately to direct the jury about the use which they might make of the evidence of the three prior incidents. 58 His Honour's directions about this matter were relatively brief and very general in their terms. He explained to the jury that this was evidence of conduct which was not the subject of any charge, that they should disregard the evidence unless they were satisfied beyond reasonable doubt that the incidents occurred, and that they still must be satisfied to the requisite degree that the appellant behaved on the night in question in the manner alleged by the complainant. 59 Otherwise, the effect of his Honour's directions can be fairly represented by extracting two passages from this part of the summing-up: …you are entitled to use the fact of those other acts as tending to prove that the accused is likely to have behaved in a similar way on the night in question. That is because those acts can be used by you as evidence of what's called a tendency on the part of the accused to behave in a certain way in certain circumstances. … If you are satisfied that the evidence of the other acts has been proved beyond reasonable doubt you can consider that evidence for the limited purpose of deciding on the likelihood or not, that the accused behaved on the evening in question in the way suggested by the complainant, and also for the purpose of putting into context the nature of the relationship between the complainant and the accused. 60 The problem with those directions, as Mr Strickland rightly submitted, is their lack of specificity. The jury needed to be directed with particularity about the way in which the evidence might be used in relation to each of the two charges, by reference to the elements of those charges and the issues raised in relation to them. Particularly was this so of the first count, for the reasons which I have identified in dealing with the previous ground of appeal. At the trial the point was taken by defence counsel but his Honour gave no further direction. 61 This ground also is made out.

Proviso 62 The Crown prosecutor in this Court submitted that, even if error had been shown, we should dismiss the appeal by the application of the proviso to section 6(1) of the Criminal Appeal Act. He argued that the Crown case was a strong one, given the support which the complainant's evidence derived from other evidence in the case. There was evidence that she complained about the appellant's behaviour in a manner consistent with her account to a hospital social worker the day after the event, and later to a friend. Her account was also afforded some circumstantial confirmation by the evidence of two other residents of the block of units where the incident occurred, who saw a disconnected phone on her balcony. It must also be said that the very fact of her fall from the balcony lends weight to her version of events. 63 That said, the Crown case turned primarily upon the complainant's evidence, of which her account of the earlier incidents was a significant part. The principles governing the application of the proviso were considered in recent times by the High Court in Festa v The Queen (2001) 208 CLR 593, and there is no need to re-state them. The grounds of appeal raise serious issues bearing upon the fairness of the trial and I am not satisfied that, in the absence of the errors identified, the jury would inevitably have found the appellant guilty. 64 I would allow the appeal. I would quash the convictions on the first and second counts and would order a new trial.

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