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Supreme Court of Fiji |
IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA
CRIMINAL JURISDICTION
PETITION FOR SPECIAL LEAVE TO APPEAL NO CAV0017/2007S
BETWEEN:
THE STATE
Petitioner
AND:
LI JUN
Respondent
Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court
Hearing: 22 July 2008
Counsel: Ms A Prasad for the Petitioner
Ms B Malimali for the Respondent
Ms T Leweni
Judgment 13 October 2008
JUDGMENT
SACKVILLE J
1. The petitioner (‘State’) seeks special leave to appeal to this Court from a judgment of the Court of Appeal given on 25 June 2007. The Court of Appeal quashed the respondent’s convictions on four counts of murder by reason of what it held were errors in the summing up at the trial and ordered a new trial on each count. The respondent had been convicted after a trial before Gates J and three assessors, which was held over six hearing days from 17 November 2003 to 26 November 2003.
2. The charges against the respondent arose out of events that took place on 14 June 2002 at 21 Lekutu Street, Samabalu, in the Central Division. On that day, Li Lianzhan, his wife (Wei Zhongyun), their son (Li Chung) and their niece (Wei Lan) were stabbed to death at their home, the ground floor flat at 21 Lekutu Street.
3. The respondent did not dispute that he had stabbed each of the deceased. His case at trial was that he acted in self-defence and that he should therefore be acquitted on each of the four counts of murder. In the alternative, the respondent raised the issue of provocation in relation to the count of murdering Li Lianzhan. Towards the end of the trial the respondent’s counsel also relied on what Gates J described as "non-insane automatism when he started to lash out wildly with the knife".
4. After a trial held over six hearing days from 17 to 26 November 2003 before Gates J and three assessthe assesassessors found the respondent guilty on each of the four counts. Gates J concurred in nanimous opis opinion of the assessors. He directed himselferms of the summing up given to the assessors and rejected cted the pleas of provocation and self-defence, as well as any suggestion n-insane automatism. He sene sentenced the respondent on each count to life imprisonment with a minimum term of 17 years, each sentence to be served concurrently.
5. The grounds of the State’s petition are that the Court of Appeal erred in finding that the summing up:
"1. ... did not adequately direct the assessors on the transaction as it affected the accused and each of the deceased persons.
The Evidence
Background
6. The respondent, who was born in 1957, is a Chinese citizen who arrived in Fiji on 8 February 2000. The respondent married shortly after his arrival, but that relationship apparently soon broke down.
7. In about February 2002, some three or four months before the killings took place, the respondent moved in with Li Lianzhan and his family at 21 Lekutu Street. At that time, the respondent was apparently short of money.
8. The premises at 21 Lekutu Street comprised a double storey building. The top flat was occupied by the owner of the building, Mr Nand, and his family. Li Lianzhan rented the ground floor flat. According to a plan admitted into evidence, the ground floor flat consisted of bedroom 1 (with one double bed), bedroom 2 (with two single beds), a sitting room (including a single bed), a kitchen area and a bathroom. The respondent slept in the sitting room. Mr and Mrs Li shared bedroom 1 and their son and niece shared bedroom 2. The layout of the ground floor flat assumed some importance at the trial.
9. The respondent was introduced to Li Lianzhan, who came from the same province in China, by a mutual acquaintance. At the time, Li Lianzhan was conducting an electrical business. The arrangement made between the respondent and Li Lianzhan involved the respondent assisting Li Lianzhan in selling certain products associated with the business. Both Li Lianzhan’s wife and niece worked in the business.
10. According to the respondent’s record of his interview with the police conducted four days after the killings, in May 2002 Li Lianzhan asked the respondent to leave the flat. Nothing came of this request, but two or three days before the killings, Li Lianzhan renewed his request for the respondent to leave.
11. At about 7 pm on 14 June 2002, during dinner at the flat, Li Lianzhan asked the respondent whether he had found somewhere else to live. Apart from the respondent, Li Lianzhan and Li Lianzhan’s family, two other people, Mr Zhu and Mr Pan were present in the flat at this time.
12. After dinner, the respondent lay on his bed, which was in the sitting room. The two visitors left the house some time after dinner. They were farewelled by the four family members and by the respondent. The family members and the respondent then returned to the flat.
13. In his record of interview, the respondent claimed that as he was lying on his bed after the visitors had left, Li Lianzhan came out of his room and asked the respondent "what [he] was not [sic] satisfied?" According to the respondent, he answered ‘nothing’ and then Li Lianzhan said:
"Don’t play tricks with me, you better behave yourself". I replied, ‘I don’t play trick with you and I have nothing. If you want me to move I will move out’. Li Lianzhan said, "Don’t talk rubbish to me" and gave me a slap on my left cheek" (Punctuation added.)
14. The record of interview continues as follows (grammatical errors have not been corrected):
"63. Then what happened next?
Q64. Then what happened when you and Li Lianzhan were on the floor?
Q65. Then what did you do>
Q66. Then what happened?
15. Later on, the respondent was asked about the knives he had used:
"Q86. How many knives did you use to strike and stabbed the family members?
Q87. Can you describe the chopper?
Q88. How it look like?
Q89. What about the description of the knife?
...
Q96. These injuries on your right and left small fingers, how did you receive it?
Q97. Can you demonstrate the position of the knife when you grabbed it?
Q98. At what place in the house when you seized the knife from Weilan?
...
Q99. What about these small cuts on your left arm near to the elbow?
Q101. These lines across your chest to the right upper arm, what caused these injuries?
Q102. The injury on your left leg?
16. The respondent was asked further questions about the sequence of events:
"Q112. You said that you kept on striking the knife until no resistance from the family members?
Q113. Can you explain what you meant be saying "Until no resistance from the family members".
Q114. Can you recall who you strike or stabbed first?
Q115. Is it possible that you strike and stabbed Li Lianzhan and Weilan in the sitting room next to the main door?
Q116. Did you at any time pulled Weilan into the sitting room while she was trying to walk out of the main door?
Q117. Then what happened?
Q118. When you pulled Weilan back into the sitting room where was Li Lianzhan?
Q119. Is it possible that Li Lianzhan was already lying on the floor next to the main door when you pulled Weilan inside?
Q120. Can you recall what place in the house you caused injury to the son Li Chuag?
Q121. Did Li Chuag say anything to you before you stabbed him?
Q122. Did you say anything to Li Chuag in reply?
Q123. How many times did you stabbed Li Chuag?
Q124. At this time where was the mother Wei Zhongyun?
Q125. What was the mother doing?
Q126. Was the mother wearing any clothes?
Q127. After stabbing the mother what did you do?
Q128. Why you wiped the blood with the towel?
Q129. Why you did not clean the blood inside?
Q130. Then what did you do next?
...
Q140. Did you call for help?
Q141. Why not?
Q142. What was this anger for?
Respondent’s Evidence
17. The respondent gave evidence at the trial. The Judge’s notes of the respondent’s evidence in chief include the following:
"At the beginning relations with the family were very good. I was not getting any wages. I got a pair of trousers and shoes from him. Within ½ a month we sold the paper. Going in his van I helped him. I was just helping him. Later he asked me to drive. He got a drivers licence for me.
After I got the drivers licence, then there was some problem in the shop. Some Fijians came in and took some goods. Due to that robbery some policemen went to inspect the incident. I went away from the shop because I was not meant to work there. It happed in May. The family said they were busy why you go away. Mr Li said nothing. But his wife was particular about it. I told her if I am mistaken I will correct it. If you go on like this you will have to move out, she said.
When she mentioned this, I was in a contradictory state. I had no money left almost. I also owed them for the driving licence. Mr Li had 2 purposes in getting this licence. I could drive the van and sell his goods in the city. When he left for China, I could drive his family members to and from the shop.
He was planning to go to China for a trip. He planned to go in April or May, but due to incident in shop he changed his itinerary several times. He originally planned for me to stay and to drive the van.
It was about 3 or 4 days before the incident before he told me he wanted to leave his place. As I had a little money I tried to look for a cheaper place. I promised to him I would move out before he left for China. On Friday evening he invited Mr Wen and Mr Pan for dinner. They arrived with Wei Lan. Mr Li told me to move out the following day.
I said nothing because if he wanted me to go I would go. Mr Chan offered me to stay with him for a few days before I found a suitable place for myself. I said I would like to stay there with him for a while. I had agreed to move. In my heart I was planning to find a place. I wanted to stay with some of my friends. I was to move the next day, the Saturday. Mr Li heard this and knew of our arrangement with Mr Chan.
I knocked off from the shop at 5 pm. It was around 8 pm when they left. Only the 2 men left. Wei Lan stayed. Each of us went to our rooms. I lay on my bed in the sitting room. During that time the family were not happy with me.
I had no contact with the family members before the incident. Li came out and called me. Li Jun you come I want to talk to you". He said "If I want you to go you must go and don’t play any tricks". He was very arrogant and angry. I told him you must have heard what we discussed and I am ready to go. I do not want to stay one day longer if you do not like me. Then he was very rude. He swore at me. Don’t play tricks on me. You can’t do it".
He was using abusing words. I was very angry. "You son of bitch" he said. He slapped me on the face. I fought back. I had nothing in my hands. I punched him on the chest. He was taller and stronger than I. He got me on the floor and we rolled. He was trying to push me on the floor. I was trying to push him off. His family members came out. He is 2" taller than me. He is stout and fat. He weighs more than me.
I was busy struggling with him on the floor. I saw his wife with a knife in her hand say "kill him, kill him". I can recognise the knife she held. It was a chopper (shown P4). This was it. She held it with both hands.
Li Zhan’s wife was trying to chop me and I was trying to free myself from Li Zhan. I pushed him aside I was almost standing up. When I stood up they were all in the sitting room. I could not see what they were holding. They were all in the sitting room. I cannot recall their position or what they held in their hands.
I am clear his wife was holding a chopper and wanted to chop me and I kicked her in the stomach. I have no special training in martial arts. When I was 18 or 19 I did do training, horizontal bars, etc.
It was a very short time that this happened. After I gave her a kick she fell down and dropped the chopper. I tried to get the chopper. I touched it but didn’t grab it. Li Zhan was behind me. He was trying to catch the chopper.
I saw Wei Lan holding a long knife and rushed towards me. I could identify it. (shown P2) This is it. She was trying with 2 hands to stab me. I tried to stop her with my 2 hands. I step aside and held the knife with both hands. She is small. I remember I seized the knife. I cannot remember what injuries I received.
From instinct if I was slow I would have been killed. I could not understand what they said. Li Zhan was kicking me. He is very good at kicking. Very short time this happened.
They were all there in the sitting room. They were there with weapons. I also try to stab them. Wei Lan went to the kitchen. She came back. I do not know what she did next. It all took place in a very short time. Only when I saw those 4 people they were not moving.
I was surrounded by those 4 people. I saw the one facing me. A very nervous incident. I could not see clearly. It also means scared – nervous. Who was in front of me I could not see clearly.
I had to be very alert as it was very tense, the struggle, the fight. My impression was there were many people attacking me. I cannot remember their positions. All 4 people I found nonetheless on the floor. I could not remember the whole process. I only remember they were attacking me. The struggle was fierce. When I first saw the chopper I knew they intended to kill me, then the knife and I felt my life was threatened.
When I saw them all quiet on the floor, I asked myself what had happened. I looked around[;] there was a lot of blood stains. I felt more frightened. I was not sure if they would stand up and attack me. I wanted to leave as soon as possible. I planned to get out and go to a police station.
I first took one towel and tried to wipe. I found it was blood stains. I took off my trousers and shoes and I wanted to go out. I could not control myself. I took some clothing from the wall. My hands and body had blood stains. I wanted to wash away my blood stains. So I did wash.
When I saw one knife on the floor, I took it as I was afraid I might be attacked again. After I washed my hands and body I came out of the shower room. I could not find my clothes. I was not myself. I took my shirt and my trousers.
Then I ran out. I went over the fence at the back. I dropped the knife I stopped in Tawake Street. I sat there. I saw vehicles which I tried to stop. Later I saw 2 Fijian boys and called them. I said I am Chinese and I want to go to the police station.
I told the reporter I want to go to the police station. They said police will come and take you to hospital. I had my trousers on but maybe no shirt on.
A police van came and took me to the hospital. I realized I was injured when I was waiting for the police van. I did not realise I was injured.
I had injuries to my leg, my back, finders, and a lot of minor injuries on my body. When the police came I almost lost consciousness. I had pain from my injuries. I was 1 or 2 days in hospital." (Emphasis added.)
18. In his cross-examination, the respondent denied that he had pulled Wei Lan back into the house and claimed that this was ‘a creation’ of the police officers. He also said that:
"All of them were trying to grab weapons. My purpose was to grab the knife. Wei Lan did not have the weapon after that. Only Wei Lan had time to get free. She was then unarmed.
The fight did not take place in his [presumably Li Chung’s] bedroom only in the passage. A little inside bedroom door only."
Other Evidence
19. Evidence was given by Mr Nand, the occupier of the upstairs flat at 21 Lekutu Street. He said that at about 9.30 pm on 14 June 2002, he heard noise from the bottom flat. He went half-way down the stairs and saw two ‘Chinese males struggling and the lady was naked in the kitchen’. Mr Nand identified the two men as the respondent and Li Lianzhan. He said he called the police, who arrived about 20 minutes later. Mr Nand told them to follow a man who had run out of the flat. Mr Nand also testified that during the brief time he observed the struggle he saw ‘the lady holding the stool’.
20. A neighbour of Mr Nand, Mr Lagivola, said that shortly after 9 pm on 14 June 2002 he heard a woman screaming in the downstairs flat in Mr Nand’s building. He saw a man and woman struggling in the sitting room. Although he did not see the woman clearly, he thought that she was trying to get outside the front door of the flat, while the man was trying to push her inside the house. The man was holding something but Mr Lagivola could not see what it was.
21. Evidence from police witnesses established that the son’s body had been found on the bed in bedroom 1. The naked body of the wife was found in the kitchen, close to the bathroom. The bodies of the father and the niece were found in the sitting room more or less next to each other. An upturned chair lay on the body of the niece and a chopper was resting on the chair.
22. The deceased all had wounds in the chest area, arms and on their hands. The wounds on their hands, according to a police witness, indicated that they were attempting to defend themselves. There were signs of a struggle in the sitting room and in bedroom 1, but not in bedroom 2. There was a considerable amount of blood throughout the flat, although less so in bedroom 2.
23. The medical evidence indicated that the respondent had deep wounds on his leg and finger that could have been caused by a knife, although the doctor did not regard them as serious. There were also bruises and abrasions that, according to the doctor, could have been caused by climbing fences or coming into contact with barbed wire.
SUMMING UP
24. The Court of Appeal and this Court have both had the advantage of a written record of the summing up given by Gates J.
25. His Lordship pointed out that each element of the charge had to be proved beyond reasonable doubt. He said that the respondent had been charged with four courts of murder but directed that:
"you must consider each of the charges separately, when you examine the case in your deliberations. You are not obliged to find the [respondent] guilty either on all of the charges or not guilty on all four. Look at the evidence as it affects each of the charges separately. Your opinions about the charge could differ from one to the other, depending on the view you took on each of the charges."
26. Gates J identified four "relevant elements that the prosecution [had to] prove on each of these counts of murder". Two of these elements were not in dispute. The deaths of each of the deceased on 14 June 2002 were admitted facts. Similarly, the respondent had admitted that his acts had caused all four deaths. The live issues were therefore whether the prosecution had proved beyond reasonable doubt that:
27. After briefly recounting the respondent’s uncontentious evidence of the events leading up to the dinner on 14 June 2002, Gates J observed that there was little difference between the respondent’s evidence and the record of interview as to what happened next. His Lordship read out the answers to Questions 63 and 64 in the record of interview and also read out the bolded passages of the respondent’s evidence at the trial, reproduced [17] above.
28. Gates J gave directions first on the issue of provocation. His Lordship stated that before the assessors considered the question of provocation in relation to what he described as the "murder of Li Lianzhan", they had to be satisfied that the State had proved beyond reasonable doubt "all the other elements of murder, including the necessary intent". He did not explain, however, why he addressed the question of provocation before dealing with the respondent’s claim of self-defence. As the summing-up later directed, if the assessors were in doubt as to whether the respondent was acting in self-defence, it was their duty to express the opinion that he was not guilty.
29. Gates J next proceeded to give directions on self-defence. He pointed out that a person who acts reasonably in self-defence commits no unlawful act but a person who is attacked may do ‘only what is reasonably necessary’.
30. His Lordship continued:
"Sometimes it would be only sensible to take some simple avoiding action, such as by defusing a situation before it gets out of control, by making a discreet retreat, by not escalating the confrontation. Nor would it be common sense to retaliate wholly out of proportion to the necessities of the situation. A defensive stance may be wiser than an aggressive stance. But it is not always easy in a fast moving incident to gauge exactly the correct measure of response. A response or a pre-empting move if made should be a reasonable one. A person acting honestly in thinking his response appropriate may convince you that only reasonable defensive action had been taken. It is for the prosecution to prove to you beyond reasonable doubt that the special form plea of not guilty by reason of self-defence has no basis in this case.
You will have to apply your good sense in assessing the two accounts given by the [respondent] here, and in deciding which of them you consider the prosecution have proved to you is closer to the truth, and then go on to consider whether the prosecution have proved to you that the justification of self-defence for these deaths is not made out.
If you are convinced, after considering all of the evidence, the [respondent] is innocent, or if you are in doubt as to whether he was acting in necessary self-defence your duty is to express an opinion that the [respondent] is not guilty."
31. After warning the assessors to treat the respondent’s evidence with caution because he had "related what no one else saw", Gates J noted the following:
32. Gates J directed the assessors that they would have to decide whether the respondent’s actions, as described by him in answer to Question 66 of the interview, were ‘necessary on the part of [the respondent]’. His Lordship continued:
"The wife was found lying in a pool of blood in the kitchen, blood being found on the nearby walls. This would tend to suggest she received the fatal blows from the knife in that area, not the sitting room. Similarly the 14 year old Li Chung received his fatal wounds in his parents bedroom to which he must have retreated.
Was it necessary to pursue these two persons away from the sitting room? Could the [respondent] not have made his escape through the open front door?
The prosecution ask you to compare the number and gravity of wounds on the four victims with the slightness and superficiality of the injuries to the [respondent] when considering the plea of self-defence. They also point to the force required to inflict such wounds on the victims, and suggest that the evidence of both the pathologist and Dr Hing Hong who examined and treated the [respondent] indicates some of his injuries could have been obtained when running away and climbing the fence. You are asked to consider who was the aggressor here, the Lianzhan family or the [respondent]. These are all matters for you to weigh."
COURT OF APPEAL
33. There were substantial delays by the respondent in pursuing his appeal against the convictions for murder. Ultimately, the President granted leave to appeal, limited to the issues of self-defence and provocation. The appeal was heard by the Court of Appeal (Ward P, Ellis and Penlington JJA) on 11 June 2007 and judgment was delivered on 25 June 2007. As already noted, the Court quashed the convictions and ordered a new trial.
34. The Court quoted at length from Gates J’s notes of the respondent’s evidence. On the basis of this material, the Court identified the significant features of the defence as being that:
35. The Court held that the summing up:
"was not sufficiently tailored to the facts of this case and the defence evidence in particular and the appellant may well have suffered an injustice as a result."
36. As the Court’s reasoning is concise, it is convenient to set it out fully:
"The Judge initially directed the assessors to consider each charge separately. He said the accused claimed he lacked the necessary criminal intent and quoted the accused’s evidence as to how the events started. He then read section 203 of the Penal Code which defines provocation and correctly stated the burden of proof to be on the State to disprove the defence of provocation beyond reasonable doubt, but he said "It is for you to decide whether you accept the accused’s account.... And then repeated the burden of proof correctly. The suggestion that acceptance of the accused’s account was necessary to negate the burden of proof on the prosecution may well have confused the assessors. Further before anyone was killed Wei Zhongyan (the wife) and Wei Lan (the niece) had already entered the fray with a chopper and a knife. We realise that when provocation and self defence are raised in the same incident the Judge faces a difficult task in formulating his summing up. In this case while the provocation started the fight, none was killed until the accused was faced with defending himself against 4 people, two of whom were at the time armed with a chopper and a knife. The case turned on the question of self defence.
The contents of a summing up was recently addressed by this Court in Hussein v State [2000] FJCA 1; AAU18.2000 and AAU20.2000 where we quoted the passage from R v Lawrence [1982] AC 510, 519 where Lord Hailsham said:
‘A direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour around the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge’s notebook. A direction to a jury should be custom-built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.’
We have carefully read the whole of the summing up and we think it does not adequately direct the assessors on the transaction as it affected the accused and each of the deceased. Further he did not direct the assessors precisely and separately on the possible verdicts on each count. It appears he placed too much emphasis on provocation and not enough on self-defence.
Again the Judge confused the burden of proof question when he referred to Mr Lagivola’s evidence mentioned above and told the assessors that the accused denied pulling the woman inside. He said ‘you will have to decide who is accurate in this important issue’ That is not correct when the burden of proof is on the State throughout."
SUBMISSIONS
The State
37. The State submits that the Court of Appeal erred in concluding that the summing up did not adequately direct on the transaction as it affected the respondent and each of the deceased. The State argues that special leave should be granted pursuant to s 7(2) of the SupCourt Actt Act because the trial Judge had put the respondent’s case adequately and substantial and grave injustice would otherwise occur. The State also contends that the petition raises a question of general legal importance.
38. According to the State, the only issue at trial was that of malice aforethought. Within that context, it submits as follows:
Respondent’s Submissions
39. The respondent supports the conclusions reached by the Court of Appeal. He submits that the three defences (provocation, self-defence and automatism) were ‘thrown together with very little explanation’, with the consequence that the respondent was denied a fair trial. The respondent says that no basis has been shown for a grant of special leave to appeal.
40. The respondent identifies the following defects in the summing up:
REASONING
41. The Court of Appeal did not criticise the directions of the trial Judge insofar as they related to the law of self-defence in Fiji. However, in order to determine whether the Court of Appeal erred and whether this is an appropriate case for the grant of leave to appeal, it is necessary to set out briefly the relevant principles relating to self-defence.
42. The Penal Code, CAP 17, s 17, provides that subject to any express law, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law. The provision does not incorporate the common law of Australia.
43. At one time there were significant differences between the common law of England and that of Australia in relation to self-defence. In particular, under Australian law, an accused who defended himself or herself against a threat using more force than was reasonably proportionate to the danger, but who believed that the force used was reasonably proportionate to the danger which he or she believed was present, was guilty of manslaughter, even if the accused intended to kill the victim: Reg v Howe [1958] HCA 38; (1958) 100 CLR 448. In England in such circumstances a plea of self-defence was not available and the accused was guilty of murder unless there were circumstances such as provocation, capable of reducing the charge to manslaughter: Palmer v The Queen [1970] UKPC 2; [1971] AC 814; Reg v Clegg [1995] UKHL 1; [1995] 1 AC 482. Since 1987, however, the High Court has in substance adopted the English approach: Zecevic v Director of Public Prosecutions [1987] HCA 26; (1987) 162 CLR 645.
44. While it is possible that there are some differences between the common law of self-defence in England and Australia (cf Zecevic v DPP, at 650-651, per Mason CJ), they are not material to the present case. As the joint judgment of Wilson, Dawson and Toohey JJ explained in Zecevic, 661, following the Privy Council in Palmer v The Queen, 831-832:
"The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal."
45. The joint judgment in Zecevic added these observations (at 661-662):
"Murder consists of an unlawful killing done with intent to kill or to do grievous bodily harm. Recklessness may be put to one side as having no apparent relevance in the context of self-defence. Manslaughter also consists of an unlawful killing, but without such an intent. A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such an intent it will be manslaughter.
When upon the evidence the question of self-defence arises, the trial judge should in his charge to the jury place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. In attempting to identify those considerations in any abstract manner here, there is a danger of appearing to elevate matters of evidence to rules of law. For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial Judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detailed reflection." (Emphasis added; citations omitted.)
46. It is important to appreciate that the test stated in Zecevic is not wholly objective. It is the belief of the accused, based on the circumstances as he or she perceives them to be, which has to be reasonable. The test is not what a reasonable person in the accused’s position would have believed: R v Conlon (1993) 69 A Crim R 92, 99, per Hunt CJ at CL; R v Hawes (1994) 35 NSWLR 294, 305, per Hunt CJ at CL, with whom Simpson and Bruce JJ agreed. It follows that where self-defence is an issue, account must be taken of the personal characteristics of the accused which might affect his appreciation of the gravity of the threat which he faced and as to the reasonableness of his or her response to the threat: R v Conlon, 99.
47. Several propositions follow from what has been said so far.
48. First, it is incorrect to submit, as does the State, that the only issue in the case was one of malice aforethought, if by this the State means that the only issue is whether the respondent intended to kill each of the deceased. As the High Court made clear in Zecevic, a killing in self-defence is not unlawful even if the accused intended to kill. Of course, for a plea of self-defence to be available, the perceived threat has to be such as to reasonably call for a lethal response. The issue raised by the present case was whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did to each of the deceased.
49. Secondly, the learned trial Judge’s summing up did not make it clear that this was the issue the assessors had to address. Clarity was not served by giving directions on provocation before considering self-defence. As Gates J recognised, the question of provocation (which in any event related only to Count 1) became relevant only if the prosecution proved beyond reasonable doubt that the respondent had not acted in self-defence.
50. More importantly, the summing up did not direct attention to the significance of the respondent’s perception of the threat that he faced at various times during the crucial events of 14 June 2002. The summing up used objective language when explaining the issue to the assessors. They were told, for example, that a person who is attacked ‘may only do what is reasonably necessary’ and that they had to decide whether the respondent’s ‘response was necessary’. The assessors were not told that the question of reasonableness had to be determined by reference to the respondent’s perception of the threat he faced at a particular time. The respondent’s evidence addresses this question. He claimed, for example, that the wife had a chopper in her hands and was saying ‘kill him, kill him’. He also claimed that if he had been slow he would have been killed and that his impression was that many people were attacking him.
51. Thirdly, although the trial Judge told the assessors in general terms that they had to consider each charge separately, the directions on self-defence did not clearly distinguish between the circumstances relating to each of the deceased. Despite the admonition to consider each charge separately, the assessors may well have got the impression that the four charges would stand or fall together. They were directed, for example, to consider which of the two accounts given by the respondent was closer to the truth and then to consider whether the prosecution had proved that the ‘justification of self-defence for these deaths is not made out’. The summing up did not explicitly address the facts relating to Count 1 (Li Lianzhan) in the context of self-defence, the only references to those facts being made for the purpose of giving directions on provocation. Similarly, at the conclusion of the summing up, the assessors were asked to consider who was ‘the aggressor here, the Lianzhan family or [the respondent]’.
52. The true question that had to be answered in relation to each of the four counts, was whether the respondent believed on reasonable grounds that it was necessary in self-defence to do what he did. One possible view of the facts, if the respondent’s evidence was rejected, was that he had never faced a threat of physical violence. However, on his evidence he faced a threat of lethal violence when attacked by Li Lianzhan and his wife, although whether any such threat (assuming it existed) had continued at all relevant times was clearly an important issue for the assessors to consider.
53. The trial Judge was entitled to point to the weaknesses in the respondent’s case, for example, in relation to the son. As the trial Judge pointed out, the son was killed in bedroom 1. Moreover, on the respondent’s own account, he stabbed the son on two separate occasions while the 14 year old was unarmed. But the directions, in order to give a fair account of the respondent’s case should have drawn attention to the evidence which supported his claim to have feared, on reasonable grounds, that his life was in danger at the time he stabbed Li Lianzhan, the wife and the niece.
54. The duty of a trial judge in common law jurisdictions was explained in the joint judgment of Gaudron A-CJ, Gummow, Kirby and Hayne JJ in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, 637:
"it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes."
55. The function of the summing up is to tell the assessors what are the issues of fact on which they have to make up their minds in order to determine whether the accused is guilty of an offence: R v Mowatt [1967] EWCA Crim 1; [1968] 1 QB 421, 426, per Diplock LJ; cited by McHugh J in Fingleton v R [2005] HCA 34; (2005) 216 ALR 474 [79]. While the course of the trial may have contributed to the form of the summing up in this case, a trial judge:
"must be astute to secure for the accused a fair trial according to law. This involves ... an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the casse upon the material before them find or base a verdict in whole or in part."
56. There is no rigid rule governing the extent to which a trial judge should canvass the evidence and its relationship to the factual issues confronting the jury. As was said by six Justices of the High Court in Domican v R (1992) 173 CLR 555, 561:
"...it is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way."
The Court must examine the particular summing up in the context of the particular trial: King v R [ 2008] NSWCCA 101, [81], per Mason P.
57. In this case, I am not persuaded that the Court of Appeal fell into error in concluding that the trial Judge did not adequately canvass the evidence insofar as it supported the respondent’s case on each of the four counts and did not adequately identify the particular circumstances relevant to each count. The trial Judge did not explain the respondent’s case on self-defence in relation to the killing of Li Lianzhan, a defect that was attributable, at least in part, to the summing up giving directions on the question of provocation before considering self-defence. A similar criticism can be made in relation to the respondent’s case of self-defence in relation to the wife and the niece, although the facts specifically relating to their killings had not been canvassed on the issue of provocation. The respondent’s plea of self-defence in relation to the son had particular difficulties, but the respondent was entitled to have his case fairly put to the assessors in the summing up.
58. It is true that, as the State has pointed out, that no objection was taken at trial on behalf of the respondent to the summing up. It is also true that as a general principle it is counsel’s duty at trial to draw the trial judge’s attention to deficiencies in the summing up and that a failure to do so may debar the accused from taking the point on appeal: Singleton v Ffrench (1986) 5 NSWLR 425, 440, per McHugh J; Evans v R [2007] HCA 59; (2007) 241 ALR 400, 459-460 [236], per Heydon J. However, where an appellate court is satisfied that, despite Counsel’s failure to object to the summing up, an injustice may have occurred at the trial, it may quash the convictions. R v Glover [1928] NSWStRp 36; (1928) 28 SR (NSW) 482, 487, per Street CJ (with whom Ferguson and Campbell JJ concurred); R V Kalinowski [1930] NSWStRp 89; (1931) 31 SR (NSW) 377, 382, per curiam.
59. For these reasons I do not consider that the State has satisfied any of the criteria in s 7(2) of the Supreme Court Act for the grant of special leave to appeal to this Court. Accordingly, the application for special leave to appeal should be refused.
The Hon Justice Ronald Sackville
MASON & HANDLEY JJ
60. In this matter we have had the considerable advantage of reading the reasons for judgment of Sackville J in draft. He has set out the history of the proceedings, the facts and identified the legal principles which apply when provocation and self-defence are relied on by a person charged with murder. He concludes that special leave should be granted, but that the appeal should be dismissed so that the order of the Court of Appeal for a retrial of the respondent on all four counts of murder would stand.
61. In our judgment the order for a new trial on the count for the murder of Li Lianzhan (the father) should stand, but the appeal by the State in respect of the other three counts should be allowed and the convictions reinstated.
62. As the Court of Appeal emphasised the appeal to that court required leave which was granted by Ward P limited to the issues of self-defence and provocation. The Court said ([para 10]) that the case turned on the question of self-defence.
63. The appeal was allowed because the Court found that the summing up:
"... does not adequately direct the assessors on the transaction [ie the events] as it affected the accused and each of the deceased. Further he did not direct the assessors precisely and separately on the possible verdicts on each count [and] ... placed too much emphasis on provocation and not enough on self-defence.
64. Provocation was only raised in relation to the husband. There was no evidence of any provocation by Li Zhongyun (the wife), Wei Lan (the niece) or Li Chung (the son). There were three possible verdicts on the count for the murder of the husband, guilty of murder, guilty of manslaughter (if provocation was not negatived by the prosecution, but self-defence was), and not guilty (if self-defence was not negatived by the prosecution). On the other three counts the only possible verdicts were guilty if self-defence was negatived by the prosecution, and not guilty if it was not.
65. In our judgment, with respect to the Court of Appeal, there was no need for the trial judge to direct the Assessors "precisely and separately on the possible verdicts" on these three counts.
66. We agree with Sackville J and the Court of Appeal that in relation to the first count for the murder of the husband the judge "placed too much emphasis on provocation and not enough on self-defence." Indeed the judge did not give any directions on self-defence in relation to the husband. However the finding of the Court of Appeal cannot relate to the other three counts where provocation was not raised.
67. We do not wish to add anything to the reasons for judgment of Sackville J in relation to the first count, and we agree that the order of the Court of Appeal for a new trial on this count should be affirmed.
68. The summing up dealt with the issue of self-defence generally in paras [38] – [42] and [53]. The Court of Appeal did not identify error in these paragraphs, nor did counsel for the respondent in this Court. In our judgment they were accurate and appropriate.
69. The judge summed up on self-defence in relation to each of the other three victims. He did this in relation to the wife in paras [43]–[46] and [51]–[52]. In para [43] he referred to the evidence the accused gave about defending himself against her attacks. The judge referred to the evidence that she was naked, and her clothes were found in the bathroom.
70. He referred (paras [45]–[46]) to the evidence of the landlord Ishwar Nand who had come down the stairs when he heard the noise and saw the husband and the accused struggling and the wife naked holding a wooden stool over her head apparently trying to throw it. This witness said the door of the flat was open. The Judge said that the accused never appears to have considered going out of the flat.
71. Later at para [51] he referred to the evidence that the wife was found in the kitchen in a pool of blood with blood on the nearby walls. This suggested that she had received the fatal blows from the knife in the kitchen, and not in the living room. He asked rhetorically (para [52]) whether it was necessary to pursue the wife into the kitchen? Could the Accused have not made his escape through the open front door?
72. The case of self-defence in relation to the niece was considered in paras [47]-[50]. The Judge referred to the evidence of the next door neighbour Seci Lagivola who came out when he heard the noise and saw a man and a woman struggling in the sitting room close to the door. The man was holding something in his hands and pushing it. The witness said it looked as if the woman was trying to get out of the door and the man was trying to push her inside. The Judge said that this did not suggest any disengagement by the accused or any retreat.
73. He quoted some evidence of the accused and said (para [49]) that it was not clear why he had to grab the knife from the niece. The accused said she was a small person. The pathologist found three defensive wounds on her body but said that she appeared to have put up little fight.
74. The accused said that he took the knife from the niece. The judge asked rhetorically whether the accused needed to do anything more once he had the knife? The judge quoted a passage from the evidence of the accused and asked the assessors to consider whether the accused’s response referred to in that evidence was necessary.
75. Finally he came to the son. The Judge reminded the assessors (para [51]) that this 14-year-old boy received his fatal wounds in his parents’ bedroom to which he must have retreated. The judge asked (para [52]) whether it was necessary to pursue the son away from the sitting room.
76. With respect to the Court of Appeal it does not appear why they considered that the Trial Judge had not adequately directed the assessors on the relevant events as they affected the accused and the wife, the niece and the son.
77. The Court of Appeal also found that the judge had not directed the assessors "precisely and separately on the possible verdicts on each count". However the judge told the assessors in the course of summing up on self-defence (para [41]):
"If you are convinced, after considering all of the evidence, the accused is innocent, or if you are in doubt as to whether he was acting in necessary self-defence your duty is to express an opinion that the accused is not guilty."
78. The whole structure of the summing up made it very clear that, in relation to the these three victims, the duty of the assessors was to express opinions that the accused was not guilty unless they formed either of the opinions referred to in para [41] quoted above.
79. He had earlier directed them (para [6]) that they must consider each of the charges separately and look at the evidence as it affected each charge separately. He also told them (para [9]) that each of them would be required to state his or her individual opinion orally on each of the charges against the accused.
80. In our judgment the finding below that the judge did not direct the assessors precisely and separately on the possible verdicts on each count was not justified in relation to the last three counts.
81, The Court of Appeal also criticised the judge (para [9]) for some of his directions on the burden of proof. They acknowledged that at various places in the summing up he had correctly directed on the burden of proof in relation to provocation and self-defence. However they referred to para [47] of the summing up where the judge summarised the critical evidence of the eyewitnesses Ishwar Nand and Seci Lagivola and continued:
"The accused in evidence vehemently denied that he was trying to pull [the niece] back inside. He said that such an idea was the creation of the police. These two witnesses are civilians not police officers. You will have to decide who is accurate on this important issue".
82. The Court of Appeal were justified in criticising this part of the summing up which could suggest that the accused had to satisfy them that his denial was the truth whereas the prosecution had to establish that it was false.
83. The summing up on the onus of proof was as follows. In para [4] the assessors were told that the burden of proof was on the State, in para [5] that proof must be beyond reasonable doubt, and if they had such a doubt they must acquit. The accused did not have to prove his innocence para [7], and the prosecution must prove that there was no justification for the killings para [19]. All elements of the charges had to be proved beyond reasonable doubt para [21]. The State had to prove the absence of provocation para [35].
84. At para [36] the assessors were told: "It is for you to decide whether you accept the accused’s account that [the father] spoke and acted in this way." At para [37] the judge said:
"You may answer that question by considering the two versions given by the accused, deciding which ... you accept and in deciding whether the accused’s conduct was justified. Remember the prosecution has the burden of proving to you that the accused’s conduct was not justified."
85. The judge returned to this topic in para [40] where he said:
"You will have to apply your good sense in assessing the two accounts given by the accused ... and in deciding which of them ... the prosecution has proved ... is closer to the truth, and then go on to consider whether the prosecution has proved ... that the justification of self-defence for these deaths is not made out."
86. He continued at para [41]:
"... If you are in doubt as to whether he was acting in necessary self-defence your duty is to express an opinion that the accused is not guilty."
87. The direction in para [36] that the assessors had to decide whether they accepted the accused’s account of the provocation was not happily expressed because it suggested that the accused had an onus in that regard. On the other hand the directions in para [37] and [40] were too favourable to the accused because they invited the assessors to decide which of the two versions he had given they would accept, or would find was closer to the truth. The judge did not tell the assessors they could reject both if they were satisfied that neither was the truth.
88. The first statement in para [37] that the assessors had to consider whether the accused’s conduct "was justified" suggested that he had some onus, but this was immediately followed by a correct direction, which was then repeated in paras [39] and [40]. The judge then gave the correct direction, with some emphasis, in para [41] quoted above para [77].
89. Taking the summing up to this point as a whole, as an appellate court must, we find that the single sentence in para [37], which might suggest there was an onus on the accused, was a slip which the judge immediately corrected. In the light of the later directions, and his earlier general directions, the assessors could not have been in any doubt at this point that the State had the onus of establishing that the accused was not acting in self-defence.
90. However they were further problems. In para [47], in the passage noted by the Court of Appeal, the judge referred to the evidence of the neighbour that the accused was trying to pull the niece inside the house, which the accused vehemently denied. He told the assessors: "You will have to decide who was accurate on this important issue", again suggesting that the accused had some onus.
91. Then in para [50], after referring to some evidence of the accused, he told the assessors: "You have to decide whether this response was necessary on the part of the accused." They should have been told that they had to decide whether this response was unnecessary. In para [52] he asked rhetorically whether it was "necessary to pursue these two persons away from the sitting room?" The correct question was whether the prosecution had established that it was not necessary for the accused to pursue them.
92. Finally the judge asked, again rhetorically, para [53] "Who were the aggressors here, ... the family or the accused?" The correct question for the assessors was whether they were satisfied beyond reasonable doubt that the family were not the aggressors.
93. The directions in paras [47], [50], [52] and [53] quoted above were at best ambiguous, and should not have been given in that form. The assessors were invited to ask themselves various questions without any explicit reference to the onus of proof. They were appropriate questions but they should either had been framed to reflect the onus of proof on the State, or they should have been followed by a clear reminder of where the onus lay.
94. These ambiguous directions followed unambiguous instructions, first general and then specific, in relation to self-defence, about the onus on the State. The accused was represented at the trial by competent and experienced counsel. If his counsel had any misgivings as to the overall effect of the directions on the onus of proof it was his duty to seek an appropriate redirection from the trial judge. The onus of proof beyond reasonable doubt which the prosecution bears in a criminal trial, in this and other common law jurisdictions, is not exactly rocket science.
95. It was also the duty of the public prosecutor to draw any perceived ambiguities in the directions on the onus of proof to the attention of the judge and to seek an unambiguous redirection. No redirection was sought by either counsel. Where an appellate court is satisfied that a miscarriage of justice has occurred the appeal will be allowed, despite the failure of counsel to object. However the failure of counsel to object is a relevant factor in deciding whether there has in truth been a miscarriage of justice: Stirland v DPP [1944] AC 315, 327-8; La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62, 72, 81.
96. We are comfortably satisfied that the summing up as a whole did not leave the assessors in any doubt as to where the onus of proof lay on the issue of self-defence.
97. The Court of Appeal do not appear to have considered applying the proviso in s 21(6) of the Court of Appeal Act. This provides that notwithstanding that a point or points raised by the appeal might be decided in favour of the appellant, the Court may nevertheless dismiss the appeal if it was satisfied that no substantial miscarriage of justice had in fact occurred.
98. In our judgment the evidence in favour of the State on the last three counts of murder was overwhelming and properly directed assessors could not have failed to convict.
99. In the case of the wife the presence of her naked body in the kitchen, the nature of her fatal wounds, the force that the pathologist said was used to inflict them, the existence of wounds received in defending herself (defensive wounds), and the evidence of the landlord established an overwhelming case. The front door was open, the accused could easily have escaped, and he had no need to pursue the naked wife into the kitchen in self-defence.
100. The evidence of the two independent witnesses, if accepted, established that the accused prevented the niece escaping through the open door through which he himself could easily have escaped. He made the following admissions in his record of interview:
"Q116 Did you at any time pull [the niece] into the sitting room while she was trying to walk out of the main door?
A. Yes, I brought her back into the sitting room.
Q117 Then what happened?
A. I used the knife but I can’t remember whether I strike or stabbed her."
101. The accused had earlier said (Q65) that the niece had rushed towards him holding a sharp knife in both hands, but (Q66) he managed to seize the knife from her and "strike forward ... I have strike many times. I kept on chopping until they fell on the floor."
102. As the judge told the assessors, having disarmed the niece, and armed himself with a knife he had no further need to defend himself from this unarmed woman. He could have escaped through the front door, or allowed her to escape without, in either case, any risk to his personal safety. Here again the presence of defensive wounds, the fatal deep wounds, and the force with which the latter must have been inflicted were eloquent circumstantial evidence that she was not killed in self-defence.
103. In the case of the son the presence of his body on the bed in his parents’ bedroom, the nature of his seven life-threatening wounds, one of which was in his back, the force that the accused must have used to inflict them, and the presence of a lot of defensive wounds established a powerful circumstantial case that he was not killed in self-defence. The pathologist said that the son put up a good fight.
104. The accused made damaging admissions in his record of interview. He did not claim then, or in his evidence at the trial, that the son ever possessed a dangerous weapon. He only claimed (Q66) that "The son was punching me on my side". He also said (Q125) "... I stabbed the son first, came out stabbed the mother and then returned to the bedroom and stabbed the son again".
105. At the trial his case on self-defence in relation to the son was that he was fighting four people who had surrounded him and were attacking him.
106. The pathologist who examined the accused said in evidence that his own injuries were shallow and superficial, inflicted with moderate force, and not life-threatening. They were mostly "blunt weapon injuries", not consistent with the use of either the chopper or the knife in evidence that were used on the victims.
107. For these reasons the prosecution case on the last three counts was overwhelming, and properly directed assessors could not have failed to convict the accused of murder on these counts. We therefore make the following orders:
(1) Special leave granted;
(2) Appeal allowed in part;
(3) Set aside the order of the Court of Appeal for a new trial on all counts and substitute an order for a new trial on the count for the murder of Li Lianzhan;
(4) Appeal to the Court of Appeal from the convictions on the counts for the murder of Wei Zhongyun, Li Chung, and Wei Lan dismissed.
The Hon Justice Keith Mason
The Hon Justice Kenneth Handley
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