R v Philip Wan Por Leung [2011] NSWSC 785

Supreme Court New South Wales

Medium Neutral Citation: R v Philip Wan Por Leung [2011] NSWSC 785 Hearing dates: 18 - 28 April 2011 Decision date: 29 July 2011 Jurisdiction: Criminal Before: Adams J Decision: Acquittal by direction Catchwords: CRIMINAL LAW - manslaughter - directed verdict - no evidence upon which jury could properly convict - significant gaps in Crown case when taken at its highest - cause of death and deliberate act speculative - jury not permitted to overcome gaps by engaging in impermissible conjecture - verdict directed on manslaughter. Cases Cited: Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 Haw Tua Tau v Public Prosecutor [1982] AC 136 R v JMR (1991) 57 A Crim R 39 May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 R v R (1989) 18 NSWLR 74 Wilson v R (1992) 174 CLR 313 Category: Principal judgment Parties: Regina (Crown) Philip Wan Por Leung (Accused) Representation: Counsel N. Williams (Crown) W. Terracini SC/ J. Trevallion (Accused) Solicitors Office of the Director of Public Prosecutions (Crown) Legal Aid (Accused) File Number(s): 2008/6766

Judgment Introduction 1The accused stood trial for the manslaughter on 7 April 2007 of his partner. On 28 April 2011 I directed the jury to bring in a verdict of not guilty. At the time I gave a brief explanation for this direction and undertook to give more detailed reasons at a later date. These are those reasons. The legal test 2In Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 the High Court restated the applicable principle (at 212) - "There is no doubt that it is a trial judge's duty to direct ... [a verdict of not guilty] if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict..." It is now accepted in this State that, in deciding whether there is sufficient evidence to warrant a conviction, the "evidence which favours the accused as, for example, by contradicting, qualifying, or explaining" the evidence supporting a conviction is to be disregarded: R v R (1989) 18 NSWLR 74 per Gleeson CJ (Maxwell and Wood JJ agreeing), adopting the view expressed by Mr Justice Glass in "The Insufficiency of evidence to Raise a Case to Answer" (1981) 55 ALJ 842. The Chief Justice pointed out that this rule "is the corollary of the proposition that it is for the jury to determine what parts of the evidence are to be accepted and what parts are to be rejected", citing Haw Tua Tau v Public Prosecutor [1982] AC 136 at 151. 3It follows that questions of credibility and reliability are for the jury to determine, not the judge. Furthermore, the mere fact that, in a circumstantial case, it is possible to formulate a reasonable hypothesis consistent with innocence which the prosecution has failed to exclude cannot justify a direction that the jury should acquit if there is evidence upon which the accused could be convicted. As was explained in Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 at 416, the need to exclude hypotheses consistent with innocence is a mere restatement of the requirement of proof beyond reasonable doubt and whether there is a reasonable doubt is a matter for the jury; see also R v JMR (1991) 57 A Crim R 39. 4It remains to note that that the evidence calling for assessment on a no case submission is the whole of the material capable of supporting the Crown case, especially where that case is circumstantial. Factual background 5The following is a brief account, to some extent incomplete of course, of the evidence. 6The accused and the deceased had been in a relationship for some years, there is some evidence that the relationship had become fraught and that the deceased was contemplating bringing it to an end. On 6 April 2007, they had an argument concerning the laying of some tiles, after which the accused stormed off. However, there is evidence that, on the morning of 7 April 2011, the couple had consensual sexual relations. 7The evidence of a neighbour was read. Her premises and those of the accused and the deceased shared a common wall. She said she could hear loud noises from their premises, such as drilling, talking, loud vacuuming, chopping. Between 8.15am and 8.30am on 7 April 2011, she heard a sound like a shelf falling, pots clanging and lids rolling around the floor. The neighbour heard what she described as a shout or singing, adding that "Mario sings opera from time to time, like high notes", lasting "five, eight seconds even". She later said, "It could have been a word even, it was muffled, it was like - I don't know what it was - it was a shout or a roar, it could have been somebody saying something or crying out". She did not know which of the accused or the deceased it was. In her statement to the police (made on 7 April 2011), the neighbour said that, following what sounded like pan lids continuing to roll around, "I thought I heard Mario singing as he sang opera loud from time to time" lasting for about ten seconds. At about 8.45am (timing this by her husband's return to the house) she heard what seemed to be somebody crying like a child having a temper tantrum. This went on for some time (and was certainly the accused). There is no evidence one way or another as to where either the accused or the deceased were at the time of the sound of pots falling or the shout/singing noises, except that they were both in the house. 8At 9am a witness rang the home and the accused was hysterical. At 9.12am the accused telephoned "000". He was hysterical and incoherent and extremely difficult to understand. The transcript records him as saying, "I have a fight with my friend and my friend is dead". Witnesses arrived at the house at about 9.15am and saw the accused wailing or crying hysterically, cradling the deceased's head tightly, rocking back and forward, his arms around the deceased's neck and head. The deceased was lying in a narrow corridor at the foot of some stairs. The accused was in a state of extreme hysteria. Ambulance officers arrived at 9.25 am. The deceased's heart had stopped and resuscitation, which involved forceful CPR, was unsuccessful. 9Police found the metal bowl from a fruit juicer on the floor in clear sight about half a meter from the deceased's body. It is clear that the juicer had been used at some time in the morning. It was stained with a red colour that looked like and possibly was blood but there was no scientific evidence that it was blood. Certainly, no blood was found on the floor near it. The house was small with a deal of furniture and bric-a-brac, none of which looked as though it had been disturbed. (The jury had the advantage of a view.) The kitchen was also clean and tidy, though there was a mark on the plaster above the door opening onto the corridor, immediately opposite the bottom of the stairway was some plaster powder on the floor indicating that some hard object, very likely the juicer bowl, had struck and slightly damaged the wall. A small number of bloodstains were found on the wall and timber frame near the body and on the stair handrail. 10The stairway which led from the first to the ground floor, at the bottom of which the accused was found cradling the deceased, was steep and narrow. Something over a dozen stairs were separated by a small landing at a 90 degree change of direction. A banister ran along the outside, supported by ornate turned balusters with small protruding bulbs and square bases with sharp edges. The wall was uneven in parts with some protruding brickwork under plaster. 11The deceased was still wearing slip-on backless slippers, which would be highly unlikely after a fall downstairs, although it is quite possible that the accused put them back on the deceased. 12When, after some time, the accused was placed in the back of the police car, he was cautioned and asked, "What happened this morning?" The accused said, "We had a fight". He was then asked, "What was the fight about?" and replied, "I want my medication" and said nothing further. (The accused had been prescribed medication for depression.) A support person was called to the police station shortly after arrival. He spoke to the accused and told him that the police needed to know what happened. He said that the accused was hysterical and couldn't stop sobbing. The accused told him, however, "I was making carrot juice with a juicer. Mario kept at me". The accused's sobbing increased and he said something more about the juicer but the exact words could not be made out. He added that he was holding Mario. The support person continued trying to calm the accused down. The accused was spoken to by police and said, when he was told he was under arrest and cautioned, "No, I didn't murder him, he's not dead, he's only in hospital". The officer responded, "No, Mario is dead. Can you tell me what happened?" The accused replied, "I don't remember. We have breakfast, Mario argue with me. He criticise me a lot....Oh, Philip [a self reference]. Then my head start spinning. Then I don't know what happened". The support person with the accused then discussed with the officer the need for legal advice and the conversation ended. Medical evidence as to the cause of death 13Although the deceased did not die of natural causes, there was considerable uncertainty as to what caused his death. The pathologist, Dr Botterill, concluded that death was caused by a blunt force injury/injuries to the head and/or neck area, perhaps a combination of the two. The deceased had some lesions, scratches and bruises on his body (particularly the upper chest, neck and chin areas), all relatively trivial in themselves. 14The pathologist's opinion was that, although any individual injury may have been caused by a simple fall from a standing position onto the floor, the extent and distribution of the injuries was in keeping with multiple blunt force contacts. With a complex fall (as down the stairs, which the pathologist viewed for the first time before giving evidence in this trial) involving a lot of rotation and tumbling more injuries might occur but, even so, the distribution is not what he would expect. If it were a single incident, the fall would be remarkably complex. In short, a fall down the stairs might account for some or a number of the injuries but not all of them. The most obvious injury was a complex laceration of about three centimetres to the edge of the chin which may have been caused by the juicer bowl. In short, the head injuries are not inconsistent with being hit over the head with a blunt instrument, or with being hit on the chin by the juicer bowl, falling back and hitting the head or with falling down the stairs. 15The bruising to the neck demonstrated on reflection of the skin and shown in the tendered diagrams must be considered with caution. Because bruising is the result of bleeding into the adjacent tissue, the area of bruising extends beyond the immediate site of the injury to the vessel that has been damaged. The injuries to the neck are not inconsistent with strangulation although, given the absence of petechial haemorrhages and damage or fracture to the langio cartilages or the hyoid bone, it is an unusual strangulation, if it be one. It may be consistent with pressure on the carotid sinus, causing the heart to slow and/or stop. The bruising to the neck is also not inconsistent with falling down stairs if there were protruding items into or onto which the deceased fell. Other possibilities would also include contact with the metal juice bowl, either at the bottom of the stairs or because the deceased was holding it and came in contact with it on the way down the stairs or at the bottom of the stairs and some may well have been caused by the attempted resuscitation. Of course, these are not discrete alternatives. So far as the blow to the chin which resulted in the complex laceration is concerned the pathologist concluded that it "may be sufficient to explain the changes that were in the brain and, therefore, resulted in his death ... [but] I can't say in this case that the blow alone was enough to explain all of those changes, therefore, I can't say with certainty that it was just the blow to the chin that resulted in ... death". Death from such a blow is "extremely uncommon" but it depends on the way in which "the body lands and certainly it is possible for a relatively minor head injury, particularly if the airway is compromised, for subsequent death to occur". 16Significantly, the pathologist said that "[i]t's conceivable that any of the injuries could have occurred within a day or so of [the] time of death and they would effectively look the same to me". So far as the abrasions were concerned, he could not say "that they hadn't all occurred around the same time or time span of what is perhaps up to about a day". If the neck injuries, for example had occurred four hours before death, then he would defer to the head injuries as causing death and vice versa. The head injuries, however, may have occurred between four and eight hours before and still have had a role to play. He said that the most serious injuries were those to the deceased's head, whether it be the chin or areas of bruising to the back that resulted in the transmission of force to cause the bleeding over the brain surface. The other brain changes were also significant. He concluded that the aggregate of those areas of bruising over the neck had the potential to, either by compression of arteries supplied to the brain or by pressure involving the carotid sinus, cause cardiac arrhythmia but stated "which [of the head or neck injuries] was more responsible for his death, I can't say". He agreed that the more serious of the two (the head injuries) "plainly can be caused by falling downstairs and hitting your head". He was then asked - "Q In terms of the global picture though, all of those injuries, this is globally we are talking about, all of those injuries can be explained by a fall down those stairs and then having misguided resuscitation attempts made on the body once its been at the bottom of the stairs and that would explain all the injuries, wouldn't it? ... A. Yes, the whole combination together could explain the injuries that are there, yes." 17Dr Rodriguez testified to brain injuries suffered by the deceased, caused by blunt force injury, being a knock to the head either by the application of force to the head by a blunt object or the head hitting a hard object, eg a stair or a wall. He accepted that the brain injuries, of themselves, would not necessarily cause death and "there is some doubt as to exactly why this person died at the time he did", but thought there was a direct link to the blunt force injuries. The blunt force injuries to the head could have been caused by falling down some stairs. He was unable to say whether the deceased died from brain injuries. The Crown case 18The Crown, in brief, submitted that the medical and scientific evidence, the timeline, the tension in the relationship, the lack of any other person with opportunity, what was heard by the neighbour and the statements of the accused permitted the inference that the deceased was strangled and/or hit over the head (either with the juicer bowl or otherwise) by the accused although it is unclear in which order these acts are said to have occurred. (Given that the accused was on trial for manslaughter and not murder, the possible financial gain that might have been a motive was not relied on.) 19The mere fact that, of two possible explanations for the deceased's death, the Crown cannot prove it was one or the other is immaterial, as long as both can be laid at the hand of the accused. Alternatively (though this argument was not put), as long as the evidence permits the jury to conclude that whatever was done last was done by the accused and that caused death, then there is a case to answer subject, of course, to there being a basis for inferring that the act was intentional, not done in self-defence, and a reasonable person would appreciate that it carried "an appreciable risk of serious injury" ( Wilson v R (1992) 174 CLR 313). Discussion 20It is clear that identification of the cause of death or the precise acts that resulted in that cause need not be identified in every case, though it is obviously usually necessary to do so in order to show that it is the accused who was responsible. Here, the crucial question is whether the deceased's death was caused by the unlawful and dangerous act of the accused. There can be no doubt that answering this question requires focus on what the jury are able, as a matter of common sense and reason, to conclude from the evidence as a whole. The mere fact that the Crown case is possible could not, of course, justify a conviction. The evidence must be such that the accused could, though not necessarily would, lawfully be convicted upon it: May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at [7]. 21It is important, indeed crucial, to understand that reasoning by inference is an essential part of the jury's consideration of the charge and that this may not always be capable of clear articulation, as is evidenced by the injunction frequently given that common sense has a significant part to play in drawing inferences. Of course, technical medical evidence is not a matter of common sense but of expertise, though its significance may well depend on common sense inferences derived from other material. That material, and how it impinges on or is affected by the medical evidence and, ultimately on the issues in the case, are matters for the jury to evaluate. Given the time frame in which it is possible that the injuries were suffered and the uncertainties of the cause of death, the surrounding circumstances - so far as there is evidence of them, are crucially important. Thus, for example, the juicer bowl may have inflicted the laceration to the deceased's chin, but was it wielded by the accused and, if so, in what circumstances? If he had used it, why did he leave it there in full sight and, if it were bloodstained, why was there no blood on the floor? If the deceased fell down the stairs why did the accused not mention it? This would require consideration, amongst other things, of his mental state at the time he spoke. If saucepans falling to the floor explains the noise heard by the neighbour, how did this happen and what inferences arose from it? Was it merely the sound of the juicer bowl hitting the floor and, if so (since it was thrown at the wall above the kitchen door), who threw it and why? Did it cause an injury to the deceased and, if so, in what circumstances? For example, did it cause any serious injury or one or more that was or were relevant to the deceased's death? Did the deceased fall down the stairs and could this event occur independently of the accused and, if not, did the accused do it deliberately or accidentally or in self defence?. I mention these matters by way of example only - the range of factual issues is much wider of course. At the end of the day, one must remain acutely aware that inferences may be able to bridge any apparent gaps in the Crown case. 22Accepting, however, that there is no bright line separating "conjecture" from common sense or inferential reasoning, the evidence must be such as to enable a lawful verdict of guilt. Much might be left uncertain but a judge must direct acquittal where, in his or her view, a guilty verdict would necessarily involve inadmissible conjecture. Inevitably, this will be a matter of fact and degree. In some cases, the multiplication of circumstances, taken together (though ignoring those matters that assist the accused), will be capable of leading to a conclusion of sufficient certainty to justify conviction, in which event, there is a case to answer. Here, however, the number of possibilities and the varying inferences available if one or another path of reasoning be followed add to uncertainty rather than reduce it. The choice of path is fraught with considerable doubt and each has substantial gaps. So far as the medical evidence pertaining to the event or events that caused death, a very significant complicating feature is the evidence, not given at the first trial, of the 24-hour time frame in which the injuries may have been suffered. Amongst other things, this made it distinctly less important than it earlier appeared that a fall down the stairs almost certainly did not explain all the injuries. 23In the result, I concluded that the evidence taken at its highest for the Crown inevitably left significant gaps in the possible lines of reasoning to a conclusion of guilt that could not be bridged without impermissible conjecture. It followed that the accused could not lawfully be convicted. Accordingly, I directed a verdict of acquittal.