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[2025] NSWSC 907
General information, not legal advice.
Supreme Court of NSW
2025-08-12
Slattery J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Estate of Jian Ming Li [2025] NSWSC 907
Hearing dates: 3 June 2025
Date of orders: 12 August 2025
Decision date: 12 August 2025
Jurisdiction: Equity - Probate List
Before: Slattery J
Decision: Motion dismissed. Applicants pay the respondent’s costs.
Catchwords: EVIDENCE – Litigants in person – leave to issue subpoenas – legitimate forensic purpose – Improperly or illegally obtained evidence – motion for order for access to human tissue of deceased person for DNA testing – the senior next of kin, the respondent to the motion, did not consent to the removal of human tissue from the body of the deceased – criminal charges brought against the first applicant to the motion for improperly interfering with a corpse – first respondent pleads guilty to the charges – the human tissue the subject of this motion was illegally obtained – whether the applicants should be allowed to issue a subpoena for the illegally obtained evidence.
Legislation Cited: Crimes Act 1900
Evidence Act 1995
Human Tissue Act 1983
Status of Children Act 1996
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183
Kadir v R (2020) 375 ALR 80
National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372
Poy v Darcey (1898) 15 WN (NSW) 161
R v Ireland (1970) 126 CLR 321
R v Tastan (1994) 75 A Crim R 498
Samootin v Shea [2004] NSWCA 115
Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921
Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284
Texts Cited: N/A
Category: Procedural rulings
Parties: First Applicant: Jian Zhong Li
Second Applicant: Quin Ying Liu
Respondent: Cheng Zhang Li
Representation: Counsel:
First Applicant: In person
Second Applicant: By her tutor, the first applicant
Respondent: S Hill
Solicitors:
Applicant: N/A
Respondent: Russell Kelly & Associates
File Number(s): 2022/101169
Publication restriction: N/A
Jian Ming Li (“the deceased”), died intestate at his residence between 27 February and 3 March 2022, due to complications following a COVID-19 infection. Cheng Zhang Li (“Cheng”), the deceased’s son, located his body. The deceased was cremated on 15 March 2022.
Cheng commenced these proceedings in 2023 seeking letters of administration on the basis he was the only child of the deceased and the senior next of kin. Jian Zhong Li (“Jian”), the older brother of the deceased and the tutor of Quin Ying Liu (“Quin”), the mother of the deceased challenged Cheng’s claim. They contended Cheng was not the biological child of the deceased. Avuncular DNA testing (using DNA from the deceased’s relatives but not his own body tissue) in late 2023 established to a very high degree of probability that Cheng was the son of the deceased. Letters of administration of the deceased’s estate were granted to Cheng.
On 22 May 2025 Jian and Quin brought a motion as applicants against Cheng as respondent in the probate list seeking to have certain extant samples of the deceased’s own body tissue released from police custody for DNA testing. This material had been removed from the deceased’s body by Jian in circumstances which led to his prosecution for interference with the deceased’s corpse. The respondent, Cheng, says that the material should not be released to the applicants.
Jian conducted the motion himself on behalf of both applicants. It was difficult to interpret all the relief sought in his May 2025 motion which Jian had drafted without the benefit of legal representation. But it appears that in alternative relief that Jian also seeks payment as a creditor of the estate. These issues will be dealt with separately below.
Ms S Hill of Counsel appeared on behalf of the respondent instructed by Russell Kelly & Associates.
The paternity of Cheng had been an issue prior to the deceased’s death. The deceased did not attempt to settle the issue during his lifetime by having Cheng take a DNA test.
During the early course of the proceedings before Hallen J in 2023, Jian sought to have Cheng submit to DNA testing. Cheng was sceptical as to the necessity and accuracy of DNA testing. Following extensive correspondence between the parties, Cheng agreed to undertake DNA testing on the basis that there were several familial samples made available for testing in lieu of the deceased’s body tissue. Samples were taken from the applicants and Jian’s son. Meek J ordered the parties to undertake the testing on 2 August 2023.
On 14 September 2023, the DNA test results returned a 99.9% probability that Cheng was related to the applicants. On 23 October 2023, Meek J made a declaration that Cheng was a child of the deceased under s 21(2) of the Status of Children Act 1996. He ordered that Letters of Administration, in accordance Succession Act 2006, s 127, be granted to Cheng. The proceedings concluded and the Court file was closed on 11 December 2023.
The applicants did not challenge the results of the DNA testing at the time of the orders of Meek J by seeking to have competing DNA testing done based on the deceased’s own body tissue. Nor did they attempt to exercise any rights of appeal.
Jian’s purpose in the current motion is obscure. He may be seeking to reopen Meek J’s declarations. Jian articulated some additional reasons for his present course in a letter to the NSW Police dated 7 October 2024:
“1. My mother Qin Ying Liu requires her son [the deceased]**’s DNA results in order to prove that they are mother and son. Thus she is entitled to claim maintenance from her son’s estate.
2. I, Jian Zhong Li requests my brother [the deceased]’s DNA results in order to prove that we are siblings. We had bank loans and bought two houses together as well as his taxi licence. Why I had cut a piece of my brother’s ear was to acquire an [sic] DNA sample to show we are related.”
Jian was charged under Crimes Act 1900, s 81C(b) (“Crimes Act”) and pleaded guilty to improperly interfering with a corpse or human remains, namely the deceased’s corpse. A NSW Police Fact Sheet was provided to this Court by Jian himself during the hearing of his motion. Jian did not challenge the facts set out in the Fact Sheet from which the present findings are made.
On or about 12 or 13 March 2022, Jian and his son attended the office of Mr Spiro Haralambous (“Mr Haralambous”), the funeral director responsible for the deceased’s funeral. Jian advised Mr Haralambous that he did not believe Cheng to be the biological son of the deceased and sought to obtain a tissue sample from the deceased’s body for DNA testing. Mr Haralambous informed Jian that DNA samples are usually obtained from the deceased’s hair, nail clippings or a swab. Mr Haralambous told Jian that permission would need to be sought from the senior next of kin to obtain a tissue sample: Human Tissue Act 1983 (“Human Tissue Act”) s 24(3). The senior next of kin was Cheng. Jian recognised that Cheng had that status and did not obtain permission from Cheng.
At about 8:30am on the day of the deceased’s funeral, Jian and his son arrived early for the funeral ceremony. Out of sight of any other person, Jian’s son removed the lock keys from the coffin and managed to lift the coffin lid without being detected. Jian then unzipped the body bag, and using a pair of metal cutting pliers, cut a large piece of the ear off the deceased’s body. The coffin lid was then shut. The funeral ceremony began later without others, including the funeral director, knowing what had happened. The deceased’s body was cremated the following day.
On or about 8 June 2023, over a year after the funeral, Jian informed Mr Haralambous of the tissue extraction. Mr Haralambous informed Cheng and the NSW Police. It is not clear why Jian informed Mr Haralambous a year later. It may have been preliminary to obtaining a statement from Mr Haralambous, to confirm the authenticity of the sample to a DNA testing facility.
On 6 July 2023, NSW Police attended Jian’s property under warrant. Jian took the attending Police officers to his freezer in the kitchen. Jian produced two glass jars containing separate specimens of what Jian said was the deceased’s ear tissue. Jian was questioned and made full admissions. He was charged under Crimes Act*,* s 81C(b). He pleaded guilty to this offence and was convicted on 26 October 2023. This was only three days after Meek J’s decision. Jian was sentenced on 18 December 2023 to pay a monetary fine of $1,500.00.
Jian conducts the present motion on the basis that the tissue specimen he wants produced is the one he took from the deceased from which act he was charged and convicted. The Court can do the same.
Although it has not been specifically sought, it can be inferred that Jian is seeking leave to serve a subpoena on the NSW Police for the release of the tissue specimen. As a self-represented litigant, Jian is required to seek leave of the Court prior to issuing the subpoena: Uniform Civil Procedure Rules 2005, r 7.3(1). Between the time of hearing and the time of this judgment, r 7.3(1) has been amended, but the change is not material here. The Court has a supervisory jurisdiction over litigants in person prior to the issue of the subpoena to ensure that the proposed subpoena is not oppressive. In the absence of a proper forensic purpose, a litigant in person may be declined leave: Sa**mootin v Shea [2004] NSWCA 115; Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 at [6].
A subpoena must call for documents which have apparent relevance to the issues in dispute in the proceedings. A document is “sufficiently relevant” if production is reasonably likely in some way or another to add to the relevant material in the case: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921. However, these proceedings have been long concluded, and the time to seek leave to appeal has long since passed. No application is currently before the Court to re-open the proceedings.
Even if the proceedings were active, the Court must be satisfied that the subpoena has a legitimate forensic purpose, or its issue will be an abuse of process: R v Tastan (1994) 75 A Crim R 498. That purpose must be for the pending litigation, and not for some other purpose, such as in connection with other proposed proceedings, for some private purpose, or with the intention to give them publicly: National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382.
Jian has not submitted how he intends to use the tissue specimen, in these proceedings. While he has submitted he wants to use it for further testing to try and overturn Meek J’s declaration, he is severely limited by several factors. First, he would have to explain why the application was not made to Meek J. Then, the provenance of the sample may yet be challenged despite Jian’s plea of guilty. Furthermore, avuncular DNA testing has already been undertaken with samples from Jian and Quin. This confirmed that Cheng is the nephew of Jian.
Jian may seek to use the DNA samples in prospective proceedings on behalf of his mother, as indicated Jian’s letter to the Police on 7 October 2024. But that Quin is the mother of the deceased is unlikely to be disputed.
The inferred request for leave can be rejected on these grounds. But the subpoena would not serve a legitimate forensic purpose for another reason: the evidence would most likely not be admissible if a subpoena was to be issued, as it was obtained illegally.
“(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
…
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”
The Court has a narrower power at general law to exclude what would otherwise be admissible evidence if it is illegally or improperly obtained: R v Ireland (1970) 126 CLR 321 at 334-5. The Court balances competing interests of public policy when considering making an order under its discretionary power to admit or reject illegally obtained evidence. On one hand, the Court should consider the value of the evidence for what it is intending to prove, but it also should not condone or encourage illegal acts to obtain evidence which is otherwise difficult to obtain. The procurement of the illegally obtained evidence was advanced here by an individual in a private civil suit. The s 138 statutory power applies to private individuals and governmental and Police agencies alike: Kadir v R (2020) 375 ALR 80.
Jian has pleaded guilty to the offence under Crimes Act, s 81C(b) and has been sentenced. Jian claims an order for production of the tissue of the deceased that was the subject of the charge. That tissue was obtained within s 138(1) both “improperly” and “in contravention of an Australian law”, namely Crimes Act, s 81C(b). Section 138 commands that it be excluded unless the desirability of admission outweighs the undesirability of admitting evidence obtained in the way this evidence was obtained. Examination of the non-exhaustive factors under s 138(3) shows the evidence is never likely to be admitted at any later trial initiated by Jian or Quin.
As to s 138(3)(a)–(b), the DNA results obtained specifically from the deceased’s ear have little additional probative value. A highly probable familial connection is already established by the earlier DNA testing, between the applicants and Cheng. This application could have been made in late 2023 before different DNA testing was ordered. No application was brought at that time by the applicants. Even if results were now obtained from the tissue held by the Police, it would be difficult for it to be adduced in evidence in any further proceeding, without an attempt to reopen Meek J’s 2023 declarations, which would be difficult.
As to s 138(3)(c), even after the tissue extraction, the Court has already dealt with the issue of Cheng’s paternity, and a declaration has been made in his favour following earlier DNA testing. Unless the applicants were also not related to the deceased (a conclusion they reject), further DNA testing can have no further benefit to the Court.
As to s 138(3)(d)–(e) and (g), Jian accepted criminal responsibility for his actions. The deliberate removal of tissue also contravenes Human Tissue Act, s 24. The acts admitted were a gross and disrespectful infringement of the dignity of the deceased’s body and risked a scandal at the deceased’s funeral had the acts in question been detected. The impropriety of the act is established.
As to s 138(3)(h), the tissue samples now sought could have been obtained through proper channels prior to the deceased’s cremation. If Cheng had been asked but did not give permission to obtain DNA samples. If Jian disputed that Cheng was the most senior next of kin, and therefore, the only person who could authorise the removal of tissue from the deceased’s body, Jian could have approached this Court for relief before the cremation.
In the alternative, the applicants seek an order for $129,073.00 be paid to Jian as an alleged creditor of the estate. No formal evidence was read on the motion in support of this claim. This alleged debt was listed in Jian’s affidavit attached to the motion. Jian tendered bank statements on the motion in an ad hoc fashion.
But it is not easy to infer how the material tendered supports the claim. The Court cannot determine the debt issue based on what was provided in the course of the motion. Moreover, it is not clear from the material provided that the claim has been made against the estate, in the ordinary course of the estate’s administration. An interlocutory motion is not an appropriate vehicle for determining such an issue. A formal debt claim against the estate should be pursued by filing an appropriate originating application.
The Court did not hear submissions on costs. But costs should follow the event. There is no reason to otherwise order. If any party seeks a special cost order the matter can be relisted for that purposed. But notice of such an application should be given within 21 days.
The first applicant is the tutor of the second applicant and is responsible for the second applicant’s costs: Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284.
For these reasons, the Court:
DISMISSES the motion.
ORDERS that the applicants pay the respondent’s costs of the motion.
**********
Heading prior to [18] insert words
Hamzy
Commissioner of Corrective Services
(2020) 375 ALR 80
(1970) 126 CLR 321
(2009) 76 NSWLR 148
The exclusion of illegally obtained evidence is dealt with under s 138 of the Evidence Act 1995*,* s 138 (“Evidence Act”), which provides:
The illegally obtained evidence would be propounded to advance a private interest. Its use does not obviously serve any public interest. To the extent that access to this evidence would be said to promote the interests of justice that objective could readily have been served without illegality.
At any conceivable future hearing where Jian might tender this evidence, the desirability of admitting the evidence could not foreseeably ever outweigh the undesirability of admitting evidence obtained as this evidence has been obtained. The Court will therefore not either issue a subpoena for, or order the production of the deceased’s body tissue held by the NSW Police.