R v Xinfei Gu [2009] NSWSC 1305

New South Wales Supreme Court

CITATION : R v Xinfei Gu [2009] NSWSC 1305

HEARING DATE(S) : 23/11/09-27/11/09

JUDGMENT DATE : 27 November 2009

JURISDICTION : Criminal

JUDGMENT OF : Barr AJ

DECISION : I find that the accused is not guilty by reason of mental illness of the charge that he murdered Robert Woodger. I order that he be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.

LEGISLATION CITED : Mental Health Act 2007

PARTIES : Regina (Crown) Xinfei Gu (Accused)

FILE NUMBER(S) : SC 2008/11988

Mr R Herps (Crown) COUNSEL : Mr M Ierace SC (Accused)

SOLICITORS : R Herbert (Solicitor for Public Prosecutions) S Sandig (Legal Aid Commission)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

BARR AJ

Friday 27 November 2009

2008 of 11988 Regina v Xinfei GU

VERDICT 1 His Honour: The accused, Xinfei Gu is charged with the murder of Robert Woodger on 20 June 2007 at Eastwood. On 6 February 2009 the accused was found unfit to be tried and was referred to the Mental Health Review Tribunal in accordance with the relevant legislation. The Tribunal considered the matter and concluded that the accused would not become fit to be tried within the ensuing period of 12 months. Accordingly, the Director of Public Prosecutions required that there be a special hearing into the question whether the accused committed the offence charged. 2 The accused cannot be tried for murder because he cannot, because of his mental condition, participate in a trial to the degree required by the law. Although a special hearing is very like a trial there are important differences. The accused cannot be found guilty of the charge and he cannot be sentenced. He can instead be found on the limited evidence available to have committed the offence charged or any alternative offence permitted by law, and, if that happens, the Court can impose an approximation of a sentence, called a limiting term. The accused can, however, be found not guilty, and if that happens all the consequences of an acquittal follow. He may also be found not guilty by reason of mental illness, with all the consequences of such a verdict. 3 The law provides that a special hearing be heard before a judge sitting without a jury unless there is an election on behalf of the accused or the Crown for trial by jury. There has been no such election in the present case and the special hearing has therefore been held before me as Judge of the law and the facts. I have heard the evidence and the submissions of counsel upon it and now deliver my verdict and reasons. 4 Mr Robert Woodger was on duty as a taxi driver in the early hours of 20 June 2007. Records resulting from electronic communications between his vehicle and the taxi base show that he set down a passenger at Marsfield, near Epping, at about 03.00am. At 03.02am Mr Woodger took on board another passenger. There was a camera inside the vehicle and I shall say something later in this judgment about what that camera recorded. At 03.59am the camera stopped working. At 05.35am a motorist saw Mr Woodger's taxi travelling erratically westwards along Rutledge Street, Eastwood, not far from but away from Eastwood railway station. It collided with a garbage truck, continued to the end of Rutledge Street and turned left into Brush Road. It was later found abandoned a couple of streets away at a point only a few minutes' walk from the Clanwilliam Street premises where the accused was then boarding. There was blood in the vehicle. A number of things were found in the back seat including a knife whose blade was covered in blood. 5 A fellow boarder of the accused saw him at the boarding house on the same morning, standing just inside the back door. The boarder stated the time of that event as about 05.00am, though I think that the sighting was made more probably some time not long after 05.35am, the time at which the motorist saw the taxi in Rutledge Street. When the boarder saw the accused he was holding the blue and white umbrella bearing bloodstains. His hands were cut and he asked for bandages. 6 At 09.00am the same day Mrs Ho, the proprietor of the boarding house, visited the accused in his room. She noticed that he had bandages around the index fingers of both hands and it appeared as though blood was on them. The accused told Mrs Ho that he had been robbed by two persons with a knife. Mrs Ho advised him to go and speak to the police, who were canvassing the district following the discovery of Mr Woodger's abandoned taxi. The accused said that he could not do so, as he had an exam that morning. Mrs Ho gave the accused bandages and saw him leave the house. She did not see where he went. She described the clothes he was wearing and added that he was also wearing light blue gloves like the ones doctors wear in the hospital and that he was carrying paper documents. 7 At about 02.00pm on the same day Mrs Ho visited the accused's room. She noticed the untidy state of the room, which was unusual. She could see what looked like blood on the wall. She saw the accused begin packing up his things and putting them into bags. They talked about the arrears of rent and agreed that Mrs Ho would retain the bond, which almost covered the arrears. Mrs Ho asked the accused about an intended visit of his to China, about which he had spoken a few days earlier. He said that he was not going and that he had no money. At about 04.45pm Mrs Ho drove the accused to the library at Macquarie University. He took with him a bag similar to the environmental shopping bags one sees at supermarkets. 8 Some time before 11.50pm on the same day cleaners in the University library noticed bags there. They called security officers to investigate. Two officers attended. The bags contained a number of items about which I shall say more later in this judgment. While the inspection was being carried out a cleaner reported that she had seen a man. The security officers investigated and came upon the accused. He was shaking. He had bandaids on the fingers of both hands. He was asked about bags and directed the attention of the officers to one of the four bags which were there. That one was separate from the other three. The police were called. Police officers attended and arrested the accused for trespass. They took him to the police station. They suspected him of having been involved in an attack upon Mr Woodger and over the course of the next few hours interrogated him. The content of this conversation has not been put before the Court, and I shall not refer to it. It is sufficient to say that after that the officers had no particular intention of asking the accused any more questions. 9 The facts that I have so far related come from the oral and written evidence of several witnesses, none of whom has come under challenge. 10 The accused was charged with the murder. He was denied bail and taken to Silverwater gaol. The police were convinced that Mr Woodger must have died, but were concerned that after such a long time his body had still not been recovered. On 23 June the accused sent a message through a corrective services officer to the investigating police officers that he wished to speak to them. Three police officers responded, Detective Sergeant Dodd, Detective Sergeant Richardson and Detective Sergeant Bowden. The officers were directed to an interview room where the accused was seated. What happened is recorded in a statement made by Detective Sergeant Richardson on 18 July 2007 at paras 47 - 53, thus: "47. About 1.40pm Detective Sergeant BOWDEN, Detective Sergeant DODD and I entered the room and sat at the table with GU. Inside the room I saw an ERISP machine with display lights showing. GU indicted the ERISP machine and said, "Turn that off". Detective Sergeant BOWDEN turned off the ERISP machine at the power point on the wall and the display lights went out. I saw Detective Sergeant BOWDEN open a notebook. The accused said, "No writing." 48. GU looked around the room then he spoke quietly. As he spoke GU insisted that no recording be made of the conversation. GU attempted to negotiate a deal to enable him to speak to his family in China, to speak to a friend in Sydney from the same village as himself and to be given a written guarantee outlining what his sentence would be before providing us with information concerning the location of the body of the taxi driver. The conversation was not recorded as it took place however the content of the conversation was as described. 49. I indicated to GU that no written guarantees or deals would be made. GU said words to the effect, "Then you find him yourself." That conversation was not recorded as it took place. Detective Sergeant BOWDEN, Detective Sergeant DODD and I stood up and began walking out of the room. 50. As we walked out GU called out to us to return to the room. Detective Sergeant BOWDEN and I returned to the room and sat at the table. GU said words to the effect that he could tell us where to look for the body of the taxi driver however he continued to attempt to negotiate a deal. I cautioned GU that he did not have to tell us anything unless he wanted to. That conversation was not recorded as it took place. 51. Detective Sergeant BOWDEN handed GU a street directory opened to map reference 193 depicting the Eastwood, Marsfield areas and a pen. I saw GU look around the room then he appeared to doodle with the pen marking May Street and Ethel Street, Eastwood. As he did he was mumbling to himself during which I heard him say something about hearing trains and running water. 52 Detective Sergeant DODD returned to the room. 53. I again cautioned GU that he did not have to say or do anything unless he wanted to however that conversation was not recorded as it took place. I indicated the markings GU had made in the street directory and then I said words to the effect, "Did you drive with him in the taxi?" GU said words to the effect, "He was driving then I stab him then he stop here, I think." I saw GU circle the southern area of Ball Avenue, Eastwood then I saw him sign his name above those markings. GU said words to the effect that was where to search fro the body of the driver. I offered GU an opportunity to record what he had told us electronically. He declined saying words to the effect of, "No, no more video." I offered GU the opportunity to have our conversations written down so he could sign them. He said words to the effect, "No, no more." The whole of that conversation was not recorded as it took place however the content of the conversation was as described." 11 Having eschewed the making of any electronic or written record of the conversation, as demanded by the accused, the three officers left. They transmitted a message to other police officers about what the accused had told them about where the body was. They entered a police vehicle and went to that place. By the time they arrived the body had already been found. It was in exactly the spot marked by the accused on the street directory page. 12 As the officers sat in the car Detective Sergeant Bowden made notes of the events and the conversation that had taken place in the interview room. At his invitation Detective Sergeant Richardson read them and signed them as correct. A copy of the notes came into evidence as Exhibit T. The page of the street directory marked by the accused in the interview room came into evidence as part of Exhibit A.