This appeal concerns a murder which has received much attention from the media in Western Australia. The background to this case is neatly summarised by Quinlan CJ and Mitchell JA:
‘Sometime between 26 June 2016 and 2 July 2016, Annabelle Chen (the deceased) was murdered in her bedroom in the house in which she resided in Mosman Park (the Mosman Park house). Her body was found by fishermen in a suitcase in the Swan River on the morning of 2 July 2016. The deceased was not identified until her daughter, Tiffany Yiting Wan (Ms Wan), reported the deceased as a missing person on 1 September 2016.
The appellant, who was the deceased’s former husband, and Ms Wan were subsequently charged with murdering the deceased.
At trial, both accused gave evidence and ran a ‘cut-throat’ defence. Each alleged that the other had killed the deceased without his or her involvement. At the conclusion of the trial, the jury found the appellant guilty of murder and Ms Wan guilty of being an accessory after the fact to murder.’ (-)
The appellant argued several grounds of appeal, including that the trial judge was obliged to, but did not, give directions which would obviate a perceptible risk that the jury may reason that if it acquitted one accused of unlawfully killing the deceased, it must convict the other accused for doing so. That is, the trial judge failed to adequately direct the jury that it was open to them to find both accused not guilty of the unlawful killing.
Ultimately Quinlan CJ and Mitchell JA (in a joint judgment) found that the ground was not established and dismissed the appeal. In dissent, Mazza JA would have allowed the appeal on this ground.
The majority summarised the appellant’s submission on this ground as follows:
‘The appellant complains that the trial judge essentially left the case to the jury as one of ‘whodunit’. The appellant submits that the irresistible suggestion from his Honour’s directions, when viewed as a whole, was that at least one of the two accused killed the deceased. The appellant says that the trial judge failed to adequately direct the jury that, if they were not satisfied of the guilt of either accused (when looking at the State’s evidence in the individual case against each), then they could find both not guilty of the unlawful killing of the deceased. The appellant submits that this was a failure in the summing-up that was not fair to him.’ ()
They continued to say that ‘The concern reflected in this ground of appeal is that the jury might… having concluded that Ms Wan was not guilty of murder, [have] reasoned that the appellant must therefore be found guilty. If there was a real and not remote possibility that the jury might reason in that way, a direction of the kind contemplated by this ground would have been required.’ ()
However, the majority found that when considered as a whole, the trial judge’s direction did instruct the jury that they could only convict the appellant of manslaughter or murder if the admissible evidence against him satisfied them, beyond reasonable doubt, that he had in fact unlawfully killed the deceased. Their Honours found that the trial judge did expressly direct the jury that they must acquit the appellant if they were not so satisfied, and that this was emphasised by the question trail document provided to the jury (-). Therefore, a reasonable jury following the directions and the question trail document would not have reasoned that they could not acquit both Ms Wan and Mr Ban ().
In dissent, Mazza JA found that:
‘… [the trial judge did not tell the jury] that it was open to it to deliver verdicts of not guilty in respect of both accused. This may not have been apparent to the jury, particularly when the paramount factual issue for the jury to consider was framed as ‘whodunit?’ or ‘who did it?’. In the context of the present case, where there were only two suspects, at least one of whom unlawfully killed Ms Chen, the framing of the case in this way, to my mind, implied, or at least may reasonably have been understood as implying, that someone was guilty. It brings with it the perceptible risk of the jury reasoning, impermissibly, to guilt by a process of elimination that proceeds in this way: if we are not satisfied beyond reasonable doubt that one accused killed Ms Chen, it follows we must be satisfied beyond reasonable doubt that the other accused killed Ms Chen.’ ()
His Honour also noted that the trial judge’s expression of the issue as ‘whodunit’ gave rise to a perceptible risk that ‘the jury may have understood that it could impermissibly reason to guilt by weighing up which of the accused’s versions they preferred’ (). Further, because of the ‘cut-throat’ defence cases and ‘the understandable desire to bring somebody to justice for the unlawful killing of Ms Chen’ there was a perceptible risk that a jury may think it inconsistent to acquit both accused ().
The judgment was delivered on 15 June 2020. You can access it here. See especially paragraphs - and -.