Zheng v R

1. [1]

   GLEESON JA: The applicant, Ms Biyun Zheng, seeks leave to appeal against conviction following a judge alone trial in the District Court. Alternatively, the applicant seeks leave to appeal against sentence.

2. [2]

   The applicant was charged with and pleaded not guilty to alternative counts relating to the stabbing of her husband, Mr Wenhui Pan (the complainant), on 4 June 2017 at their Auburn home. Count 1 alleged wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). The alternative count 2 alleged wounding being reckless as to causing actual bodily harm contrary to s 35(4) of the Crimes Act.

3. [3]

   The applicant’s first trial in the District Court was terminated in August 2019 after seven days of hearing, following a joint application of the parties to discharge the jury. Her second trial in the District Court before a judge alone was conducted over 9 days between June and August 2020. At trial, the applicant admitted to stabbing the complainant and relied upon self-defence in answer to the two offences with which she was charged.

4. [4]

   On 12 August 2020, Judge Payne found the applicant not guilty on count 1 and convicted the applicant on count 2, an offence carrying a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years. Her Honour published her reasons for decision on that date (the verdict judgment).

5. [5]

   On 21 May 2021, her Honour sentenced the applicant to a term of imprisonment of 2 years and 6 months with a non-parole period of 10 months. The applicant filed a notice of intention to appeal against sentence on the day sentence was imposed. Her Honour granted bail pending appeal.

6. [6]

   The applicant seeks leave to appeal against conviction on two grounds, or alternatively sentence on a single ground, as follows:

7. [7]

   To the extent that either of the grounds of appeal against conviction does not involve a question of law alone, leave is required: Criminal Appeal Act 1912 (NSW), s 5(1)(b). Leave to appeal against sentence is also required: Criminal Appeal Act, s 5(1)(c). The Crown did not oppose the grant of leave for both appeals. There should be a grant of leave to appeal against both conviction and sentence.

8. [8]

   I have concluded for the following reasons that leave to appeal should be granted, the conviction appeal should be dismissed, and the sentence appeal should be allowed. On resentence, I consider that a lesser sentence is appropriate and therefore the sentence imposed upon the applicant on 21 May 2021 should be set aside. In lieu, a sentence of two years imprisonment is appropriate which should be served by way of an intensive correction order (ICO). The term of imprisonment actually recorded and imposed should be adjusted in recognition of the period of pre-sentence custody reducing the term of imprisonment imposed to be served by way of an ICO to 1 year and 10 months. The conditions attaching to the ICO are referred to below.

Summary of the Crown case

1. [9]

   The applicant and the complainant were married in 2010. They purchased a house in Auburn in 2013, subject to a mortgage in favour of Westpac Banking Corporation (Westpac). After separating in 2014, they continued to reside in the Auburn house in separate rooms. As of June 2017, the other residents included Mr Jiahao Zhang aged 21 years, the applicant’s adult son from a previous relationship, and JP aged 6 years, the applicant’s younger son from the marriage with the complainant. Both sons shared a room at the rear of the house. Two boarders, Mr Kuang Yu (David) Liu and Ms Shu Qi, also occupied separate bedrooms. The complainant slept in the loungeroom.

2. [10]

   A floorplan of the Auburn house tendered at trial (Ex B) depicted an “L” shaped house with the front entry door in about the middle of the house which opened into a foyer. To the left of the front entry door was a hallway that led back away from the front entry to a bedroom occupied by the applicant, a bathroom, and the front bedroom occupied by Ms Qi. Straight ahead, the hallway led to the kitchen, with a bedroom on the left opposite the kitchen occupied by Mr Liu. To the right of the entrance foyer was a doorway leading to the loungeroom, which the led to a separate covered area occupied by the applicant’s two sons.

3. [11]

   The relationship between the applicant and the complainant was volatile. There was a long history of verbal arguments and police had attended the Auburn house on four occasions in the past due to complaints about arguments and raised voices. There was a dispute at trial as to whether the complainant had been physically violent towards the applicant during any of these arguments.

4. [12]

   The Crown case was that when the complainant returned home from work at about 6:30 pm on 4 June 2017, he was confronted by the applicant who began arguing about the mortgage. All the other occupants of the house were in their rooms. The verbal argument occurred in different rooms in the house for about one hour and culminated in the complainant being stabbed by the applicant in the hallway outside the applicant’s bedroom, near the bathroom.

5. [13]

   On the Crown case, during the argument the complainant took the younger son JP from his bedroom to the loungeroom and held him in his arms as he sat down on the couch. The applicant followed the complainant and continued to argue with him. Eventually, the complainant stood and moved towards the kitchen still with JP in his arms. The applicant followed and continued to verbally argue with the complainant in the kitchen. After arguing in the kitchen, the complainant moved down the hallway to get away from the applicant still holding JP in his arms. The applicant followed the complainant and used a small kitchen knife to stab him in the back towards the lower left-hand side. The complainant put JP on the floor and took some steps down the hall before collapsing. The applicant was immediately remorseful. The tenant, Mr Liu, came out of his room and alerted the adult son, Mr Zhang, requesting that he call emergency services. Mr Liu told the applicant to use a cloth to stop the bleeding. While the applicant was tending to the complainant’s wound, both Mr Zhang and Mr Liu heard the applicant say, “I’m sorry, I’m sorry”.

6. [14]

   When police arrived at the house, they observed the applicant kneeling alongside the unresponsive complainant in the hallway, blood around the complainant had been cleaned up, and a blood-covered rag was found in the bathroom. Drops of blood were located in the hallway leading into the kitchen. Police later located three blue-handled knives in the kitchen pantry, several of which appeared to have blood on them. The other tenant, Ms Qi, was not present when police arrived; it was not clear when she left the house, although she was apparently at the house at the time of the incident.

7. [15]

   The complainant was taken to hospital and underwent emergency surgery for the stab wound at the posterior line on the left side near the T10 vertebrae. He underwent further surgery the following day for re-exploration of the abdomen. A scan showed a laceration of the left kidney, which did not require surgery. The complainant was discharged from hospital on 9 June 2017. The Crown led photographic evidence of the precise location of the stab wound (Ex E), together with a report from Dr Savitha Bhagvan, which described the complainant’s injury as being a depth of 2 cm (Ex M).

8. [16]

   The applicant participated in an electronically recorded interview with police (ERISP) with the assistance of a Mandarin interpreter, very early on the morning of 5 June 2017. During the interview, the applicant admitted to arguing about the mortgage, which was a regular argument with the complainant. She said the complainant spent his money on gambling and had an affair with someone else, and that he had insisted that the house be sold, and they then divorce. She denied injuring the complainant, denied knowing how he was injured, and denied she had been assaulted that night. She also made no mention about being previously attacked by the complainant.

9. [17]

   After the police interview, photographs of the applicant were taken, including of her face, neck, hands, and arms. Detective Snr Con (DSC) Muscat gave evidence at trial, reading from his statement, that he did not see any visible injuries on the applicant. Nor was such a suggestion put to DSC Muscat in cross-examination.

10. [18]

    On the Crown case, at no time during the evening of 4 June 2017 was the complainant physically aggressive towards the applicant and he did not touch her. Further, from the time the complainant took the young son from his room, JP was being held by the complainant with both hands, meaning he was never in a position to strike or hold the applicant.

11. [19]

    On the question of whether the applicant acted in self-defence, the Crown case was that this claim by the applicant was not true and was made up by her after the incident. The Crown emphasised that the applicant had denied being attacked by the complainant when she was interviewed by the police immediately after the incident and there was no evidence of injuries suffered by the applicant.

The defence case

1. [20]

   The defence case was that the Crown had failed to exclude the possibility that the applicant was acting in self-defence when she stabbed the complainant.

2. [21]

   On the defence case, the verbal argument on 4 June 2017 turned physically violent in the loungeroom and this violence continued in the kitchen when the complainant used his free hand while holding JP to repeatedly punch and hit the applicant in the head, neck, and arms, followed by choking. The defence case was that the applicant was being choked and could not speak immediately prior to the complainant being stabbed in the kitchen, not the hallway. In closing submissions, defence counsel accepted that if the applicant followed the complainant down the hallway while he was trying to get away from her then, on the complainant’s version of what occurred, the applicant’s response could not be self-defence.

3. [22]

   The defence case relied on asserted tendency evidence that the applicant had three tendencies which provided context for the applicant stabbing the complainant: to be physically and mentally abusive towards the applicant; to ask both the applicant and her son, Mr Zhang, not to tell the truth to police when they attended to investigate the previous incidents of alleged violence; and to make threats to the applicant if she reported the complainant’s abuse, including that she would lose custody of their son or that he would take her son back to China.

4. [23]

   In support of the first tendency, the defence relied upon evidence given by the applicant of previous incidents involving physical and mental abuse by the complainant together with some corroboration of the applicant’s evidence by her adult son, Mr Zhang, with respect to injuries he observed on the applicant’s face and arms, and by the tenant, Mr Liu.

5. [24]

   In support of the second tendency, the defence relied upon evidence of the applicant and Mr Zhang that the complainant told them to tell the police that nothing happened. Mr Zhang’s evidence was not challenged on this topic.

6. [25]

   The defence case also relied upon evidence of the applicant as to her perception of events, and evidence of Dr Peter Ashkar, a neuropsychologist, concerning the applicant’s psychological state at the time of the incident as support for characterising the applicant as suffering “battered woman syndrome” at the time of the incident.

7. [26]

   The unreasonable verdict ground must be determined irrespective of the disposition of ground 2. With respect to ground 2 which asserts inadequate reasons, a finding by the Court upholding that ground would, alone, justify no more than an order for retrial. However, if the unreasonable verdict ground should be upheld, a verdict of acquittal would be entered. It is therefore convenient to commence with consideration of the unreasonable verdict ground, where the applicant had raised self-defence.

Self-defence

1. [27]

   Self-defence is governed by ss 418 and 419 of the Crimes Act which relevantly provide:

2. [28]

   As Simpson J observed in Elias v R [2006] NSWCCA 365 at [21], “[i]t is strictly incorrect to refer to self-defence as a ‘defence’: by s 419, where self-defence is raised, the onus lies upon the Crown to prove that the conduct giving rise to the charge(s) was not carried out in self-defence”.

3. [29]

   The questions to be asked by the tribunal of fact under s 418(2) were stated by Howie J in R v Katarzynski [2002] NSWSC 613 at [22] as follows:

4. [30]

   Howie J stated at [23] that the first issue “is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct”. The second question “is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced”: at [23]. This analysis has been repeatedly endorsed by this Court, for example: Oblach v R (2005) 65 NSWLR 75; [2005] NSWCCA 440 at [50]-[54]; Elias v R at [22]-[23]; Sivaraja v R; Sivathas v R [2017] NSWCCA 236 at [122].

5. [31]

   As Simpson J observed in Elias v R at [23], each of these questions involves an assessment of the state of mind of the person accused. The first question goes directly to the belief of that person, whilst the second goes to the reasonableness of the conduct in the light of the circumstances as that person perceived them to be.

Principles on which the unreasonable verdict ground is to be determined

1. [32]

   In determining an appeal on an unreasonable verdict ground the approach required to be taken by the Court is exactly the same where the trial has been before a judge alone as where the trial has been by jury: Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221 at [15]. Thus, the approach to be taken is in accordance with M v The Queen (1994) 181 CLR 487; [1994] HCA 63, as applied in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ) and [82] (Gageler J).

2. [33]

   In Dansie, the joint judgment of Gageler, Keane, Gordon, Steward and Gleeson JJ said at [8]-[9] that the reasoning in the joint judgment in M requires:

3. [34]

   Dansie continued at [16]:

4. [35]

   The same point had earlier been made in Filippou by French CJ, Bell, Keane and Nettle JJ at [12], and by Gageler J at [83].

5. [36]

   It was observed in Dansie at [17] that the advantage of the trial judge in seeing and hearing the evidence “will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial”. In a case like the present, where the testimonial evidence adduced by the prosecution was largely contested and the applicant also gave evidence, the advantage enjoyed by the trial judge was significant.

6. [37]

   In this case, the applicant did not limit her argument about unreasonableness of the verdict to particular components of the evidence, or discrete aspects of the trial judge’s reasoning. In accordance with Dansie, for this Court to decide whether it feels a reasonable doubt about the applicant’s guilt and, if so, whether such doubt cannot be resolved by taking into account the trial judge’s advantage in seeing and hearing the evidence, it is necessary to review the whole of the evidence. That is to be done with a focus on the issues in the trial.

Evidence as to the incident on 4 June 2017

1. [38]

   The major component of the Crown case was the evidence of the complainant. The Crown also called evidence from Mr Liu, Mr Zhang, various police witnesses, and tendered expert certificates from medical and forensic experts. The applicant gave evidence at trial. Each of the complainant, Mr Liu, Mr Zhang, and the applicant gave evidence with the assistance of a Mandarin interpreter.

2. [39]

   The complainant’s evidence-in-chief was principally given by way of a recorded DVEC interview when he was at Westmead Hospital on 7 June 2017. At the beginning of the interview the complainant said that on the evening of 4 June 2017 he was at home with the applicant who kept arguing with him, he tried to ignore her, but she swore at him and later she began to swear at his son, JP, who was scared so the complainant had to hold him. He said that the applicant was holding a pair of scissors and said, “I will die with you”, while he was holding JP in his arms and JP was very scared. Later, the applicant was in the middle of the hallway and was very angry, he had no idea she was holding a knife, he believed she was holding scissors and only scaring “us” with those. While the complainant was holding JP, the applicant stabbed him from behind. The complainant said, “she didn’t realise that, she said she saw that there was a cover, to cover the knife”. It was dark and the complainant didn’t know what he was stabbed with, but he thought it was a knife; he did not see what type of knife or colour.

3. [40]

   The complainant’s DVEC evidence continued that “at the beginning” the applicant was holding scissors and “I think … hitting me” and “then later” she was swearing and upset. He “tried to ignore her, you know, she was always like that”. He was holding JP in his arms when he was stabbed in the hallway outside the doorway to the applicant’s room, not far from the bathroom. After he was stabbed, there was a burst of blood and he sat down and asked JP to leave. The tenant, Mr Liu, came out and saw him bleeding and called the ambulance. He did not see what happened to the weapon that cut him as he was “out”, but he thought the tenant told the applicant to use a cloth to stop the bleeding.

4. [41]

   The complainant described the argument as being about paying the mortgage. He said that he did not have enough money to pay the mortgage and wanted the applicant to get some money. He was planning to sell the house, but the relationship was not very good. The applicant said they should leave the house to their son, and the complainant said, “[a]fter I sell the property, I can give it to my son”. He said the applicant wanted a divorce first, and then to sell the property, but he preferred to sell and then apply for a divorce. They had been arguing for four or five years. He denied assaulting the applicant that night.

5. [42]

   The complainant did not see the applicant change to another weapon. He said when the applicant was holding the scissors he was sitting on the couch or lounge, the scissors were not very sharp, and the applicant said, “I want to die with you”. He was stabbed by the applicant in the hallway when “I was holding my son, and he was holding me and, uh, did not let me go”. She was “next to me, face to face”, and he was stabbed while holding JP, who had asked the complainant to take him to his room. It was very dark, he was holding his son, the applicant was standing opposite him and then he was stabbed, and he felt the blood burst out.

6. [43]

   In cross-examination, the complainant was first asked about earlier incidents. He agreed that there had been verbal arguments during the relationship and denied being physically violent towards the applicant. He admitted that after the applicant returned from China in October 2013, they had an argument about the complainant regularly calling a female person according to phone records. He denied punching the applicant on this occasion with a closed fist and choking her around the neck. He denied that he was regularly violent to the applicant after 2013. He agreed that police had come to the Auburn house four times, and he had used his stepson, Mr Zhang, to translate. He denied physically assaulting the applicant during several incidents that were specifically put to him in cross-examination. These are conveniently referred to below in the context of the applicant’s evidence of prior incidents: see at [91]f.

7. [44]

   When challenged on his version of the incident on 4 June 2017, the complainant said that the applicant “went to harass the child” and he took JP from his bedroom because his son was frightened and crying. He agreed that he said to the applicant, “I want to sell the house”. He told the applicant, “[d]on’t argue with such a loud voice, the child gets scared”. The complainant confirmed that after he went to the bedroom to get his son, he sat on the couch in the living room holding JP in his arms. He denied punching the applicant with one hand and grabbing her throat when she attempted to take JP away from him on the couch. He said he was holding JP with both hands. He denied punching he applicant when he stood up from the sofa. He denied JP was holding him around the neck, he denied that he held JP with one hand and continued to punch the applicant, trying to punch her and grab her around the neck.

8. [45]

   He said the applicant kept on arguing with him as he carried his son JP to the kitchen and the applicant followed him. He denied that he pushed the applicant towards the kitchen as she walked backwards from the loungeroom. It was not put to the complainant in cross-examination that he threw something at the applicant when they were in the kitchen. After arguing in the kitchen, the complainant said he walked towards the bathroom to get away from the applicant. The stabbing happened in the hallway before he got to the bathroom, outside the applicant’s room, opposite the bathroom.

9. [46]

   It was put to the complainant that whilst holding his son in one arm he was choking the applicant with his free hand, both on the couch and immediately prior to the stabbing. The complainant denied that he choked the applicant, whilst agreeing that the arguing continued leading up to the stabbing. He said there was nothing physical before the stabbing. He said that he was not concerned for JP’s safety because the applicant “wouldn’t hurt my son” and the “argument was only verbal”.

10. [47]

    Although the complainant initially described the distance from the kitchen to where he was stabbed as between 10 to 20 metres, he qualified this estimate and said the distance was “about the size of a room, a little bit bigger than that. I don’t know how many metres”. When asked whether he moved far from where he was stabbed before he was lying on the ground, the complainant said “[n]o”. He then gave the following evidence:

11. [48]

    At the end of the first day of his cross-examination, the complainant was asked directly whether the applicant had held scissors at any point. He immediately confirmed that she had. He said he thought she was joking. On the following day, defence counsel suggested to the complainant that he had left the scissors “out of the story” until it was raised in cross-examination the previous day. The complainant responded, “[b]ecause you were asking what happened later on. So, what my answer covered was what happened later on”. The complainant denied making up his evidence about the scissors.

12. [49]

    At the request of defence counsel, the complainant marked a copy of the diagram of the Auburn house with an “X” where the stabbing occurred, which he said was “just outside her door, near the bathroom” (Ex 1). The complainant indicated that he was stabbed when, “I was holding my son like this, and she stabbed me from the back”, which the Crown noted for the transcript, “the witness indicated holding his son with two hands in front of his stomach area”. The complainant said that there were two sets of arguments “over there as well”, referring to when the applicant followed him down the hallway, and that after the argument in the kitchen, he went down the corridor and the applicant followed and in front of the bathroom, stopped and “[t]hen the argument goes on here, and then the stab”. He agreed that he was “face-to-face” with the applicant at the time of the stabbing. The complainant adhered to his evidence that he was holding his son with both arms when he was stabbed by the applicant. He rejected the cross-examiner’s suggestion that his son was supporting himself by holding him “round the neck and with his legs”, responding “[i]t is nothing like that”. He denied that he had a free arm which he used to assault the applicant.

13. [50]

    At the conclusion of his evidence, the complainant indicated that he wished to say something further, which was written down and translated as, “[s]he did not do it on purpose”. He agreed with the proposition put by defence counsel that, “the stabbing by your ex-wife was not deliberate” and said that the applicant “was impulsive and emotional”. He said that during the incident “we didn’t get into anything physical”.

14. [51]

    Mr Zhang gave evidence that the complainant and applicant frequently argued leading up to 4 June 2017 and since about 2016, they had been arguing about money a lot, that the complainant had missed mortgage payments and had gambled on occasions.

15. [52]

    On the evening of 4 June 2017 at about 6:30 pm, Mr Zhang was sleeping in his room, his younger brother JP was on the computer in that room, and the bedroom door was closed. He heard the complainant and the applicant arguing about mortgage repayments, and the arguing continued back and forwards. About 10 or 20 minutes after the argument begun, Mr Zhang heard what he thought was a porcelain object smash; it sounded like it came from the kitchen. He heard the complainant and the applicant swearing at each other loudly and what sounded like cutlery falling to the ground and drawers and doors slamming. The arguing lasted for one hour. After a loud knock, he opened the door (to his room) and saw Mr Liu who asked him to come because “something had happened”. He saw the complainant on the floor in the hallway approximately outside the toilet door between the applicant’s bedroom and the bedroom occupied by the lady tenant.

16. [53]

    In cross-examination, Mr Zhang confirmed that he gave evidence in the previous trial on 1 August 2019 that the complainant and the applicant were arguing about the mortgage and the custody rights of their son; he heard the applicant say, “[i]f you don’t want to pay, let’s get divorced”; the complainant said the applicant should be making all the repayments; there was a reference to being $10,000 behind in the mortgage repayments; and during the argument the complainant came into the room and took JP away.

17. [54]

    Mr Zhang said that JP was on the computer with his headphones on when the complainant came into the room and took him away and that after JP was taken away, he heard the beginning of the argument about JP. Mr Zhang gave differing evidence as to whether JP was crying when the complainant came to collect him from the bedroom. In cross-examination, he initially responded to an open question as follows:

18. [55]

    However, later in later cross-examination on the following day, he gave this evidence:

19. [56]

    The cross-examination continued, with the following leading questions:

20. [57]

    Mr Zhang agreed that he gave evidence at the previous trial that he heard the complainant say to the applicant “that night” that he was going to take JP back to China without her, that he heard both of them shouting at each other in the kitchen, then heard the crashing noises in the kitchen, and that after Mr Liu came and knocked on his door, he came out and saw the complainant in the hallway and heard the applicant saying, “I’m sorry, I’m sorry” to the complainant. He observed that the applicant was very upset and crying.

21. [58]

    With respect to earlier incidents, Mr Zhang said that he had seen his mother injured in the past but did not recall the “specific numbers”. He described the injuries he observed on the applicant as being the “[f]ace and the arm, or arms”. When asked if he saw bruises to his mother’s forehead and face “about one to two years before the stabbing occurred”, Mr Zhang answered “[y]es”, and said the applicant had told him that the complainant “did it”. Although he asked the applicant, “[w]hy don’t you go to the police?”, he did not recall the detail of any response, or the specific year it happened.

22. [59]

    Mr Zhang was the asked about attending Auburn Police station, together with his mother and Mr Liu, following an argument which he said resulted in “some injuries on her face or – sorry, and on her arm or arms”. When asked whether that was the “same occasion that you spoke about a little while ago”, he responded, “[i]t’s – it’s the same occasion”. He agreed that he gave evidence at the previous trial that when he attended Auburn police station on 23 January 2017, he observed the applicant’s “face was swelling”, and his mother told him that she was hit by the complainant. Defence counsel noted that although she had previously asked Mr Zhang about an occasion one or two years before the stabbing, Mr Zhang had said it was the “same occasion” as when he attended the Auburn Police station in January 2017.

23. [60]

    Mr Zhang also confirmed that he gave evidence at the previous trial that the complainant told him to tell the police nothing had happened if the police turned up at the Auburn house. When asked “[h]ow many times did he tell you that?”, he answered, “[e]very time”. When asked what injuries he observed, Mr Zhang responded that he could not see the other places, “most of the time I can see on the arm”. When asked what he saw on the applicant’s arm, Mr Zhang responded, “I don’t recall clearly”.

24. [61]

    In re-examination, it was put to Mr Zhang that he had not seen anything before he had the conversation with the complainant telling him to say to the police that nothing had happened. He responded, “[s]ometimes I saw it; sometimes I do not”.

25. [62]

    The tenant, Mr Liu, gave evidence that at about 6:30 pm on 4 June 2017 he was watching television in his room with the door closed. He heard the complainant “eating outside”, he heard some noise, but he did not pay much attention. He said there was probably some chat between the complainant and the applicant.

26. [63]

    Following an application by the Crown, leave was granted pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr Liu who then gave evidence that he heard an argument between the complainant and the applicant. Initially the argument was not “that intense”, and then “it became more intense”. He heard arguing about the mortgage. He turned his television louder as he did not want to listen. At one point he heard a sound of a glass cup being smashed or broken in the kitchen; his room was next to the kitchen. He said there might have been a short pause in the argument, but he did not have much interest and did not pay attention.

27. [64]

    At the end of the arguing, Mr Liu heard the complainant say something like, “I am very hurt”. At that point, Mr Liu walked out of his room and looked down the hallway in the opposite direction to the kitchen; he saw the complainant lying on the ground and the applicant next to him. Mr Liu marked Exhibit B the letter “P” with a line to a circle, the location where he saw the complainant lying. He described the applicant looking, “pretty worried or anxious”, and heard her say, “I’m sorry, I’m sorry”. Mr Liu went to the bedroom occupied by Mr Zhang and the younger son and called him to come quickly and to call emergency services.

28. [65]

    In cross-examination, Mr Liu agreed that while waiting for the ambulance the applicant was crying and rocking back and forth on the ground, kneeling over the complainant, and using the towel to put pressure on the complainant’s wound. In response to the suggestion that blood was all the way down the hall and in the kitchen, Mr Liu said that he was quite shocked when he saw the scene but did not pay very close to attention to such detail. Mr Liu agreed that he saw the “lady tenant” (Ms Qi) cleaning up after finding the complainant wounded.

29. [66]

    Turning to earlier incidents between the applicant and the complainant, Mr Liu agreed that he accompanied the applicant and her son, Mr Zhang, to the police station following an incident on 23 January 2017. He recalled the applicant said she had an argument with the complainant who had hit her. When asked about noticing red marks and swelling on the side of the applicant’s face he responded that he had “some vague memories” but could not recall the detail.

30. [67]

    When asked about his relationship with the applicant at the time she was arrested, Mr Liu said it was an ordinary landlord and tenant relationship and they were just friends. He agreed he visited the applicant in prison on one occasion but could not recall visiting on two other occasions. He denied being in regular contact with the applicant after she was given bail in late July 2017.

31. [68]

    Mr Liu was directed to answer a series of questions to which a certificate under s 128 of the Evidence Act was attached regarding the evidence he gave. He denied asking the applicant for between $20,000 to $30,000 for all the help he had given the applicant and he denied that he said to the applicant, “[i]f you give me $30,000, I will help you when you go to court”.

32. [69]

    DSC Muscat gave evidence, reading from his statement signed on 13 June 2017, that he arrived at the Auburn house on 4 June 2017 at 7:23 pm. After entering the front door of the house, he saw the complainant lying down on his right side in the hallway with his eyes closed. He saw a paper towel and an item of clothing which appeared to be blood-soaked. By reference to Exhibit B, being a plan of the Auburn house containing a hand drawn circle and a mark with the letter “P”, he agreed that the complainant was lying in the hallway in the place where there was a “circle”. He agreed that paragraph 8 of his statement recorded that there were apparent bloodstains on the wall in the hallway and throughout the floor in the kitchen area and in the main bathroom in the vanity sink, together with a blood-soaked cloth in the bath.

33. [70]

    At the conclusion of the applicant’s police interview of the applicant at 1:15 am on 5 June 2017, DSC Muscat undertook a forensic procedure which was video recorded. He obtained a DNA sample from the applicant and a total of 16 forensic photographs of the applicant. He agreed that paragraph 17 of his statement recorded that he did not see any visible injuries on the applicant.

34. [71]

    At about 4:10 am on the morning of 5 June 2017, DSC Muscat attended the crime scene and together with other police officers conducted a search of the Auburn house, which was video recorded (Ex 5). At about 4:36 am, Constable Kani Kinard announced that she had located items of interest in the kitchen pantry. DSC Muscat looked inside the kitchen pantry and saw three identical, blue-handled knives on the shelf, one of which had a clear plastic cover on the blade which appeared to have blood on it. Another of the three knives appeared to have bloodstains on the blade and blue handle. The blade of each knife measured about 12 cm in length. Photographs of the knives were obtained.

35. [72]

    It was suggested to DSC Muscat in cross-examination that he made a note of his observation of bloodstains because it indicated where the complainant may have been bleeding. He answered, “[i]t’s possible, or something could have dripped in the kitchen area, with blood on it”. He could not recall if it was “quite a lot of blood”. He said it may have been droplets throughout, but he could not remember the volume of blood.

36. [73]

    After confirming that the Auburn house was searched for items of interest, DSC Muscat was asked whether scissors would have been an item of interest to police. He responded that it depended “where the scissors would be and if there was blood on them”. He added that at the time of the search of the Auburn house he had already interviewed the applicant and she had made no mention of scissors that would make them an item of interest.

37. [74]

    DSC Muscat gave evidence that he was told that the jury in the first trial was discharged on 6 August 2019 because there was an allegation that a text message had been received by the applicant from Mr Liu demanding money. There was no investigation of this allegation because Snr Sgt Fischer had told him that the applicant did not want to provide a statement to police and had deleted the text message.

38. [75]

    Snr Sgt Fisher also gave evidence and was led, without objection, through his statement which he had provided on 30 June 2017. He said that upon entering the Auburn house with DSC Muscat and two other uniformed police officers he saw the complainant lying on his side down the hallway with the applicant kneeling beside him. In the bathroom he could see “blood, soaked clothes in the bathtub”. He declared the residence a crime scene and instructed officers to search and arrest the applicant. When shown the hand-drawn plan of the Auburn house, he agreed that the marking on Exhibit B showing a circle, a line and a “P” accorded approximately where he saw the complainant upon arrival.

39. [76]

    Snr Sgt Fischer was present during the applicant’s police interview when she said that she did not know that the complainant had been stabbed, denied stabbing the complainant; said she did not know who else stabbed him and did not know anything about any pots being broken that night; agreed that she cleaned up blood from the floor and that she had a heated argument with the complainant; denied having a knife in her hand when they were arguing or going to get a knife (107-108); said that they were in the kitchen and the loungeroom during the argument, mostly in the kitchen; denied that anything was thrown in the kitchen during the argument; and denied that she was assaulted at all that night.

40. [77]

    In cross-examination, Snr Sgt Fisher was asked about the blood found at the house. He said that the applicant had said in her police interview that she had cleaned the complainant’s face and the wound, and he thought that would explain the blood in the bathroom, the cloths in the bathtub and the blood droplets that went back towards the kitchen where the knife was later located. When asked about the broken pots in the kitchen, he agreed that he had asked the applicant about this in her interview, but he could not clearly remember much about that.

41. [78]

    The Crown tendered a written statement by Crime Scene Officer Paul Weldon (Ex L), who attended the Auburn house at 11:15 pm on 4 June 2017. He obtained photographic evidence of the layout of the house, bloodstaining on the hallway wall from the front entry door, bloodstained clothes, and a red blood like staining on a green cloth found in the bathroom. He gave evidence of observing red blood-like stains along the hallway floor, two elliptical red-blood like stains on the hallway wall directly in front of the foyer entry, bloodstaining in the bathroom and bloodstaining on the floor in the kitchen.

42. [79]

    The Crown tendered expert certificates from Dr Bhagvan, the surgeon who treated the complainant’s stab wound at Westmead Hospital between 4 and 6 June 2017 (Ex M), and Ms Emily Clarke concerning DNA testing on blood swabs from the hallway of the Auburn house and from the blade or handle of various knives seized from the house by police (Ex O).

43. [80]

    In June 2017 the applicant was aged 47 years. Her evidence-in-chief was that the argument began in the kitchen when the children and the tenants were in their rooms. The complainant left and collected JP from his room and returned carrying JP. He said he was going to take her son away and when she tried to stop him, he sat down on the sofa in the loungeroom. JP was not crying when she first saw him. The applicant reached out trying to get JP away from the complainant on the sofa. The complainant whilst sitting on the sofa started punching the applicant in the head and reached out for the applicant’s throat using his left hand. There was some pushing and pulling and the complainant suddenly stood up from the sofa and reached out with his arm putting his hand in front of her, pointing to her. They both moved to the kitchen area. The applicant tried to get JP from the complainant, he did not let go of the child who was frozen and crying. The applicant said the complainant “kept punching me and hitting” as they both moved into kitchen.

44. [81]

    After giving evidence that the complainant was holding JP with one arm wrapped around him, defence counsel asked the applicant where her son’s arms were. The applicant answered, “I’m not sure, he was holding my son very tightly”. When asked directly were her son’s arms around the complainant’s neck, the applicant answered, “[n]o. No.”.

45. [82]

    The applicant said the argument continued in the kitchen, with further arguments about JP, while the complainant and the applicant stood at different sides of the kitchen. The complainant was holding JP and threw something at the applicant, who said she was calling the police. It was common ground at trial that it was never put to the complainant that he threw something. At that point, the complainant got angry and rushed towards the applicant and started to punch and hit the applicant, while JP was between them, and then started to choke the applicant.

46. [83]

    The applicant gave the following evidence as to when she picked up the knife:

47. [84]

    When asked what caused her to use the knife, the applicant said that the complainant was punching her head and kept saying “[d]rop dead. You go die”. At the time she used the knife, the complainant was “punching my head, and he was also choking – choking me with his hand”, “he placed his hand on my throat, and he was squeezing his fingers”, “I couldn’t breathe”. The applicant’s evidence continued:

48. [85]

    The applicant said that she used the knife in her right hand when the complainant still had his hand on her throat and was squeezing his fingers. After the applicant stabbed the complainant, he put JP down on the ground and said that “… it hurts”. She saw blood on the blade of the knife which she put back on the benchtop. The complainant “walked a couple of steps” and fell to the ground. The applicant grabbed a piece of cloth and attended to the wound whilst the complainant was on the ground. The applicant said she believed the knife had a cover on it. This was consistent with the complainant’s evidence in his DVEC (see [39] above).

49. [86]

    Defence counsel asked the applicant to mark the floor plan of the Auburn house (Ex B) with a blue cross where the complainant was lying down. She marked a location outside the door to her bedroom. When asked to mark with a circle where she stabbed the complainant, she marked a location in the hallway, although close to the kitchen; this became Exhibit B1. In the absence of the witness, defence counsel suggested that the applicant’s evidence was incorrect, and counsel believed that the applicant had misunderstood the question.

50. [87]

    When asked by defence counsel about the lies and vague answers she gave in her police interview, the applicant said that at the time she was scared as to what would happen to her sons and she did not want to think about what had just happened.

51. [88]

    In cross-examination, the applicant said that whilst in the loungeroom the complainant was hitting her in the arms, neck, and head. When challenged as to how it was that the complainant was both choking and pointing to the applicant with the same hand when in the loungeroom, the applicant said, “he was pointing at me and choking me”, and later said, “[h]e wasn’t pointing at me. Maybe – … Maybe I – maybe it was misunderstood”.

52. [89]

    The applicant said that when they got into the kitchen, the complainant momentarily released his hand from her throat and walked to the other side of the kitchen. At that point she sent a text message to Mr Liu telling him that he needed to move his car because she was going to work. (It was not put to Mr Liu by defence counsel that the applicant had sent him a text message to this effect.) The applicant agreed that she did not call out for help from any of Mr Liu, her son, Mr Zhang, or Ms Qi, who were each in their rooms. There was a point where the complainant had stopped and she texted Mr Liu telling him that she needed him to move his car because she had to go to work. When asked why she did not call out to her adult son, the applicant said that it happened very quickly, and the complainant “lunged at me”.

53. [90]

    When taken to her record of interview, the applicant agreed that her statement to police that she did not stab the complainant was untrue; she accepted that she told police that she did not know the complainant had been stabbed, saying that she was sorry as a lot of things happened that night and she could not stop thinking about what happened and “about my child”. When it was put to her that she told police she had not been assaulted “at all tonight” and that was because she had not been assaulted, the applicant disagreed saying that she was not lying about what occurred.

54. [91]

    The applicant denied that she used a pair of scissors to threaten the complainant when they were in the living room. She adhered to her evidence that the complainant put his hand around her throat and was hitting her when he was also holding JP. She said that she kept telling the complainant to put the baby down, but he wouldn’t. She denied that the complainant tried to ignore and leave her and moved down the hallway away from the kitchen. She said that she was standing near the entrance to the kitchen next to the table or a bench, the complainant was holding JP and he wanted to leave and take JP with him, and she tried to stop him because he had been drinking. She denied that the complainant moved away from the kitchen and headed towards the bathroom and that she followed him with the knife.

55. [92]

    The cross-examination turned to the location where the stabbing occurred. When it was put to the applicant that the complainant was lying on the floor in the hallway near to where she stabbed him and that took place in the hallway, not the kitchen, the applicant responded, “I’m not sure”. It was then put to the applicant that she stabbed the complainant in the hallway, and she answered, “[t]hat’s about right”. When it was suggested to the applicant that she had made up the whole story of stabbing the complainant in the kitchen defending herself, the applicant answered:

56. [93]

    When asked about marking the floorplan (Ex B1) the previous day with a blue pen and drawing a circle around where she said she was standing when she stabbed the complainant, the applicant said, “I don’t remember where happened – where it happened”. Finally, the applicant said, “I, myself, don’t even know where I stabbed my husband”. Defence counsel noted for the record that at this point the applicant was very upset and started to cry.

57. [94]

    The applicant denied that she was angry with the complainant on the night of the incident, though she suspected he was having an affair, he was not a good father and he spent very little time with his own family. She agreed that the day before the stabbing the complainant had only paid $700 to the mortgage and that was one of the reasons they were arguing. She also agreed that she did not show the knife to the complainant to try to make him stop, saying that she did not do so because, “I wouldn’t … display a knife in front of my son”.

58. [95]

    In re-examination, the applicant agreed that she did not mean to hurt the complainant that night. She agreed that she said “I’m sorry. I’m sorry”, when tending to his wound. She confirmed that the table she was referring to in her evidence when asked where the stabbing occurred was in the bottom of the photo of the kitchen which became Ex 4.

Evidence of prior incidents

1. [96]

   The applicant gave evidence of six prior incidents when the complainant physically assaulted her. Police had attended the Auburn house on four occasions, which were the subject of COPS reports. The complainant agreed that police had come to the Auburn house about three or four times because of complaints about raised voices. He described the arguments as “basically just oral arguments, nothing serious”. Addressing the incidents chronologically, the evidence of the applicant and the complainant, and Mr Zhang and Mr Liu was as follows.

2. [97]

   On 11 November 2013 the applicant and the complainant had an argument in the carpark of Auburn Shopping Centre following her querying the complainant about a telephone bill; she had suggested to the complainant that he had been telephoning another female person. A passenger in another car saw the incident and contacted police.

3. [98]

   The applicant’s evidence was that when sitting in the car the complainant started hitting her, that he was driving and “he punched me on my face” and “he kept hitting me on my face”. The applicant received a phone call from her son who told her that the police were at their home. The complainant told her not to say anything to the police when they got home. When she got home the police were there, but she could not recall speaking to them.

4. [99]

   In cross-examination, when it was put to the applicant that she told police that there was nothing wrong and there was no assault, she responded, “I don’t – I don’t remember”. When pressed that it was not true that the complainant hit her whilst driving the car, the applicant disagreed and said this was the truth.

5. [100]

   The complainant denied hitting the applicant while parked in a car at Auburn Centro parking centre. He also denied that his stepson, Mr Zhang, called him and told him to come home because police were looking for him. His evidence was that he reported the argument to police and then they did not turn up and he left and went out. The complainant agreed that police had come to the Auburn house four times and his stepson had translated for the police. He denied telling his stepson to tell the police that nothing happened, he said “[w]e – we just told the truth”.

6. [101]

   The COPS entry for 11 November 2013 records that police spoke with the applicant and the complainant independently of each other with the assistance of a telephone interpreter; neither party disclosed fears for their safety; the argument became heated due to the complainant’s gambling habits; and the applicant stated that she is an angry person and was very angry. Both parties stated that there was no assault and refused to supply police with a statement. The witness gave no further details than he saw only what looked to be a male and female fighting.

7. [102]

   The applicant and the complainant were in their car at the front of their house in Auburn when an argument began. According to the applicant, after the complainant had come home from work and had a shower, he received a phone call and indicated that he wanted to go out. She tried to stop him, but the complainant ignored her and went to the car. The applicant followed and got into the driver’s seat and the complainant started punching her while she was sitting in the car. She said she was holding onto the steering wheel and the complainant “started hitting me – hitting my hands”. She said that the complainant was hitting her on her head, face, and arms, and that “he was still hitting me when I actually saw the police vehicle arriving”. When the police attended the Auburn house the applicant told police there was a verbal argument however it never became physical. She said she didn’t say anything because the complainant told her not to say anything happened.

8. [103]

   In cross-examination, when it was put to the applicant that she told police that it was a verbal argument and never became physical (as recorded in the COPS entry), she said that was because she was worried that the police might take her husband away. When asked would not that have been of assistance to her if the complainant had been assaulting her, the applicant said that “[w]ell, he is the father of my son, after all”.

9. [104]

   The complainant agreed that they argued with “raised voice” during the argument in the car about his gambling and taking money from the mortgage. He denied that whilst driving before parking, he punched the applicant in the head three time. In response to whether he told the applicant to tell the police nothing happened, the complainant answered, “[w]e basically had nothing. We only argued, and someone else reported to the police” and “we argued at home just like this, verbally”.

10. [105]

    The COPS entry for 14 September 2014 records that when police attended the Auburn house the applicant stated that there had been a verbal argument, however it never became physical. The entry also recorded that the applicant did not have any injuries to her person, and the informant who had contacted police stated that he thought the applicant was being physically assaulted, however, he could not be sure.

11. [106]

    The applicant gave evidence of an incident, not reported to police, which she said was witnessed by a then tenant of the Auburn house known as Ms Wang. The applicant said that the complainant hit her and punched her when she was in the hallway of the house. She said it was rather serious, some heavy punches, and one of the tenants saw what happened. Ms Wang did not attend the trial to corroborate the applicant’s evidence.

12. [107]

    The complainant was not specifically cross-examined by defence counsel about this alleged incident.

13. [108]

    The applicant gave evidence of receiving a phone call from an employee at Westpac in early 2017 informing her that the mortgage repayments were in arrears. The complainant was standing close to her and listening to the conversation. The applicant said, “he punched me on my face, on my hand where I was – which I was holding the phone”. She told the complainant to “stop doing that to me”, and the female person on the telephone call suggested that she call the police. The complainant responded, “[d]on’t call the police”, and the applicant told the person she was speaking to on the telephone, “[t]hat’s alright, nothing happened”. The applicant said she did this because the complainant said, “[d]on’t call the police”.

14. [109]

    The complainant gave evidence that he did not know about a lady from the bank telephoning the applicant about arrears on the mortgage. He denied getting angry and punching the applicant once in the head while she was on the phone to the lady or remembering the woman from the bank telling the applicant to call the police. He said, “we just verbally argued”.

15. [110]

    Following an incident at the Auburn house on 23 January 2017, Mr Liu and Mr Zhang took the applicant to Auburn police station on 24 January 2017 to make a report. The applicant gave evidence that when she saw Mr Liu the “next morning”, he asked what happened as she had “a bruise on my face and on my arm”. She told him that they were having an argument about the complainant not looking after the family, and that it became physical. She said it was Mr Liu’s idea to go to the police.

16. [111]

    The Crown indicated to the trial judge that it would not cross-examine the applicant about this incident on the basis that it objected to this evidence being led and the matter had been determined in the Local Court.

17. [112]

    As noted, Mr Zhang gave evidence that there had been an argument the night before, which resulted in an “injury on my mum”: see at [59] above. Mr Liu gave evidence that the applicant told her the complainant had hit her but had only “vague memories” and couldn’t recall the detail of any red marks and swelling on the side of the applicant’s face: see at [66] above.

18. [113]

    The complainant denied hitting the applicant. He said, “we were pushing each other”. He agreed that he attended the police station on 24 January 2017 following receipt of a text message from police. He also agreed he saw red marks on the applicant’s face that day. He said he did not know what had happened and that he did not hit the applicant.

19. [114]

    The COPS entry dated 24 January 2017 records an argument about mortgage repayments and gambling, that the complainant became aggressive towards the applicant and punched her with his right clenched fist towards the left side of the face, connecting with the cheekbone. The complainant was charged with common assault. The charge was dismissed following a hearing at Burwood Local Court on 10 March 2017 at which the complainant represented himself and cross-examined the applicant. An apprehended violence order was made against the complainant to protect the applicant.

20. [115]

    The applicant gave evidence of an argument with the complainant in February 2017, which escalated to the point of her being assaulted by the complainant with a closed fist, three or four times. She said police attended the Auburn house in response to a call by someone; she did not remember who called the police. The applicant said that the complainant told her son, Mr Zhang, to tell the police that nothing happened.

21. [116]

    When it was put to the applicant in cross-examination that Mr Zhang was in the room at the time of this argument and he called police because he was concerned that neighbours might hear it, the applicant said, “I have no idea about this matter”.

22. [117]

    The complainant did not recall the incident, incorrectly referred to by defence counsel as occurring on “19 January 2017”, when the stepson called the police who attended the Auburn house “that morning”. When it was put to the complainant that he told Mr Zhang to tell the police nothing had happened when they attended the Auburn home, the complainant answered, “[w]e, basically, had no problem. We only had verbal arguments. We tell them the truth”.

23. [118]

    The COPS entry for 19 February 2017 described the complainant as the “victim”, the applicant as the “person of interest”, and Mr Zhang as the “witness”. The entry records that the applicant had approached the complainant at home and demanded that he pay child support, which he refused, causing a verbal argument. The argument became loud causing Mr Zhang to contact police as a precautionary measure as he did not want the neighbours to hear the commotion. On arrival, police spoke to Mr Zhang as neither the applicant nor the complainant spoke English. Both confirmed the same version, that no threat / physical altercation took place, which was also corroborated with Mr Zhang. The COPS entry recorded that no further police action was required.

24. [119]

    The applicant tendered a report from Dr Ashkar dated 23 May 2019. He had interviewed the applicant on 18 January 2019 and recorded the applicant giving a history estimating up to 20 occasions of physical assault by the complainant, sometimes to the head causing her to become dazed and confused, but with no loss of consciousness and no medical intervention. Dr Ashkar agreed in cross-examination that the applicant was unable to give any further specific details.

25. [120]

    Dr Ashkar assessed the applicant’s intellectual functioning in the low range, specifically the 10th percentile. He expressed the opinion that there is no suggestion from the applicant’s account of the abuse or from neuropsychological testing that the applicant suffered brain damage or permanent cognitive impairment from the abuse, however she may have been concussed from the repeated blows to the head at the time of the alleged offence.

26. [121]

    In response to specific questions, Dr Ashkar gave the following answers (emphasis in original):

27. [122]

    In his oral evidence-in-chief, Dr Ashkar was asked of his understanding of the expression “battered wife syndrome”, which he described as the constellation of symptoms that a person may develop if they have been exposed to repeated physical, verbal, emotional and psychological abuse within a relationship. He was not asked to express any opinion about the applicant in this regard.

The trial judge’s findings and conclusions

1. [123]

   No complaint is made in relation to the directions of law which the trial judge gave herself, including the Liberato direction (Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66).

2. [124]

   Addressing the tendency evidence, the trial judge said:

3. [125]

   The trial judge accepted there may well have been prior arguments between the complainant and the applicant but did not accept the degree of physicality contended by the defence, giving the following reasons for not drawing the conclusion from the objective evidence that the complainant had a tendency to act in the way the defence case contended:

4. [126]

   After summarising the COPS entries, the trial judge continued:

5. [127]

   Turning to the evidence of Dr Ashkar, the trial judge explained her approach to conflicting facts or assumptions underlying his opinion:

6. [128]

   Referring to the Crown submission that, at best, the applicant described five or six occasions of being assaulted by the complainant, four relating to the COPS entries and the occasions of the applicant speaking to the bank officer (at Westpac) and the occasion when an earlier tenant, Ms Wang, apparently saw something (in 2016), the trial judge found:

7. [129]

   The trial judge rejected the defence submission that the applicant was suffering “Battered Woman Syndrome”, finding that Dr Ashkar did not make a conclusion or a finding expressing his view that the applicant was suffering from any kind of clinical or psychological condition known as Battered Woman Syndrome. The judge found that when considering the applicant’s demeanour during her recorded interview with police and when giving evidence, Dr Ashkar’s evidence was of “minimal weight”, giving the following reasons:

8. [130]

   After giving herself directions at law concerning “self-defence” as to which no complaint is made, the trial judge summarised the Crown and defence cases, including the conflicting evidence of the complainant that he was holding JP with both arms, whereas the defence case was that the complainant was holding JP by one arm, and he was using the other arm and hand to punch the applicant or strike the applicant and ultimately, to grab her by the throat, and just before the stabbing she was being held round the neck and was being choked.

9. [131]

   The trial judge’s principal factual findings, leading to the finding that the applicant was guilty of the alternative count 2, are encapsulated in her reasons for accepting the complainant’s evidence beyond reasonable doubt and rejecting the applicant’s evidence beyond reasonable doubt. With respect to the complainant’s evidence, the trial judge found:

10. [132]

    After summarising the defence submissions which challenged the complainant’s evidence and relied upon Mr Zhang’s evidence, her Honour continued as follows:

11. [133]

    The trial judge rejected the applicant’s evidence, giving the following reasons (a) the absence of evidence of physical injuries to the applicant’s head, face, throat, and arms, (b) the lies the applicant told the police in her ERISP, (c) the applicant’s lies to the police were not the result of matters raised by Dr Ashkar, being asserted cultural reasons for not disclosing the complainant’s alleged physical and mental abuse, (d) the location where the complainant was lying relative to the applicant’s bedroom and the distance from the kitchen, and (e) the applicant’s conduct was to some extent a targeted stabbing, given she stabbed the complainant in a way to avoid her own child.

12. [134]

    In view of their importance for ground 2, the trial judge’s reasons for rejecting the applicant’s evidence are reproduced in full:

13. [135]

    Addressing the evidence of Mr Liu, who denied in cross-examination that he had sought money from the applicant to give favourable evidence at trial, the trial judge found:

14. [136]

    The trial judge proceeded on the basis that the applicant had “raised” self-defence as an issue and therefore the Crown had the onus of proving beyond reasonable doubt that the applicant did not carry out the relevant conduct in self-defence: Crimes Act, s 419. Addressing this issue, the trial judge found:

15. [137]

    The applicant submits that the evidence of the complainant was simply too inconsistent with other available evidence to be accepted without corroboration, pointing to six matters:

    1. (1)

       inconsistent evidence given by the complainant that the applicant had threatened him with scissors;

    2. (2)

       evidence of Mr Liu and Mr Zhang hearing arguing and something smash in the kitchen was inconsistent with the complainant trying to get away from the applicant and moving down the hall when he was stabbed;

    3. (3)

       bloodstains in the kitchen were consistent with the complainant being stabbed there;

    4. (4)

       uncontradicted evidence of Mr Zhang that JP was not crying in his bedroom was inconsistent with the complainant’s evidence that he went to get JP from his bedroom because JP was crying;

    5. (5)

       the COPS entries and two other complaints by members of the public contradicted the complainant’s evidence that he had never been physically violent towards the applicant; and

    6. (6)

       the evidence of the applicant and Mr Zhang contradicted the complainant’s evidence that he never told the applicant or Mr Zhang to lie to police about his violence, should they ask.

16. [138]

    The Crown submitted that there was ample evidence to prove the applicant’s guilt in relation to count 2 of reckless wounding, describing the complainant’s evidence regarding the circumstances of the stabbing as cogent and supported by other evidence in the Crown case, including the nature of the wound and its location.

17. [139]

    The Crown further submitted that the trial judge had the advantage of assessing the demeanour of both the complainant and the applicant and that it was open to the trial judge to reject the applicant’s evidence as to the circumstances of the stabbing and to find that the Crown had negated self-defence. The Crown said that the applicant’s evidence was not supported by other evidence in the trial in crucial respects and, in any event, was implausible and self-serving.

Determination

1. [140]

   It is convenient first to address the six matters relied upon by the applicant before examining the other evidence relied upon by the Crown to support the verdict.

2. [141]

   The applicant submitted that the complainant’s evidence as to how the incident occurred was inconsistent because the complainant made no reference to the scissors when first asked in cross-examination to recall how the incident occurred, and this called into question the accuracy of his allegation about the scissors.

3. [142]

   The difficulty with this submission is that it ignored that the cross-examination was initially directed to putting the defence case to the complainant with respect to the incident on 4 June 2017 and it was no part of the defence case that the applicant held scissors at any time during the argument on 4 June 2017. Defence counsel made plain to the complainant that, “I’m putting to you a version of events … this is what your ex-wife said happened”. During this part of his cross-examination the complainant was not directly asked whether the applicant was holding scissors at some earlier time, and if so, what she did with them.

4. [143]

   When asked directly, at the end of the first day of cross-examination, whether the applicant had held scissors at any point, the complainant immediately answered that she had. This was consistent with his evidence-in-chief in the DVEC recording that the applicant was holding scissors “at the beginning” when he was sitting on the couch.

5. [144]

   When defence counsel suggested to the complainant on the following day that he “had left [the scissors] out of the story”, he responded “because you were asking what happened later on. So, what my answer covered was what happened later on”. It is explicable that the complainant had not volunteered when defence counsel was putting to him the applicant’s case, the holding of scissors by the applicant at an early point in the argument. When defence counsel again challenged the complainant’s explanation for not mentioning the scissors the previous day, the complainant adhered to his evidence that the applicant had at one stage held a pair of scissors as they argued.

6. [145]

   Although not relied upon by the applicant, the absence of evidence about the scissors being found by the police in the kitchen or elsewhere during the search of the Auburn house on the morning of 5 June 2017 is neutral for several reasons. First, the police search of the house occurred before the scissors were mentioned by the complainant in his DVEC recording on 7 June 2017. Second, as DSC Muscat said in his evidence, whether the scissors would have been an item of interest depended on where they were found and if they had blood on them. There was no basis for inferring that the scissors had blood on them. Third, as DSC Muscat also said in his evidence, the applicant had not mentioned scissors when she was interviewed (between 12:15 am and 1:15 am on 5 June 2017) such that would make them an item of interest. Fourth, it was no part of the defence case that there were no scissors at all in the Auburn house. This was not put to the complainant, Mr Zhang or Mr Liu.

7. [146]

   The applicant also submitted that it is inherently implausible that the applicant was threatening the complainant with a pair of scissors, yet at no stage was he fearful, and the argument only became physical at the time of the stabbing. This submission ignored the complainant’s evidence that the scissors were not sharp, and he thought the applicant was joking when holding the scissors and saying, “I want to die with you”. The effect of the complainant’s evidence was that he thought the applicant was being melodramatic. There is no inconsistency between the complainant’s evidence that the applicant was holding the scissors in the loungeroom, yet the complainant was not fearful.

8. [147]

   Nor is there an inconsistency between the complainant’s perception that his son was scared by the continued loud arguing and the complainant not being concerned for JP’s safety because, he considered that the applicant “wouldn’t hurt my son”. The complainant’s credibility was not undermined by the cross-examination on this issue.

9. [148]

   The applicant’s challenge to the complainant’s evidence as to where the incident occurred relied upon two matters. First, that Mr Liu and Mr Zhang both gave evidence of hearing arguing and something smash in the kitchen. Second, the applicant gave evidence in her ERISP and evidence-in-chief that the incident occurred in the kitchen. Taken together this evidence was said to demonstrate that the stabbing took place in the kitchen not far from the entrance to the hall, with the complainant walking down the hall before collapsing where he was found.

10. [149]

    The evidence of Mr Liu and Mr Zhang goes no further than what they heard occurring in the kitchen. The argument between the applicant and the complainant continued for an extended time. Their evidence does not support an inference that the stabbing occurred in the kitchen. And, as explained below, the overwhelming evidence is that the stabbing occurred in the hallway outside the applicant’s bedroom, near the bathroom.

11. [150]

    The difficulty with the applicant’s evidence as to where and how the stabbing occurred, is that she gave inconsistent evidence on this topic both in her evidence-in-chief and in cross-examination.

12. [151]

    In her evidence-in-chief, the applicant marked on the floorplan of the Auburn house a location in the hallway, although close to the kitchen, where the stabling occurred: see [86] above. Defence counsel suggested at trial that the applicant’s evidence when marking of the floorplan indicated that she had misunderstood the question. This is problematic because in further cross-examination the applicant agreed that it was “about right” that she stabbed the complainant in the hallway, then said that the stabbing occurred in the hallway near the table (being a reference to the table in the kitchen), before conceding that she did not remember where it happened, and finally acknowledging that, “I myself, don’t not know even know where I stabbed my husband”. On a fair reading of the transcript, the applicant’s evidence that the stabbing occurred in the kitchen was inconsistent and unpersuasive.

13. [152]

    By contrast, the complainant gave consistent evidence as to the location of the stabbing and how it occurred. Acceptance of his evidence is supported by the following matters. First, that the complainant did not move far after he was stabbed because he was holding JP, is consistent with: (a) the applicant’s evidence that the complainant “walked a couple of steps” and fell to the ground where he was found, (b) the location where both Mr Liu and Mr Zhang found the complainant lying outside the applicant’s bedroom near the bathroom, and (c) the complainant’s evidence that the stabbing occurred near the applicant’s bedroom.

14. [153]

    Second, the crime scene video of the Auburn house (Ex 1) and the photographs of the Auburn house (Ex L, photographs 10, 11, 12 and 17) corroborate the complainant’s estimate of the distance from the kitchen to the applicant’s bedroom near the bathroom, where the complainant said he was stabbed, as being “about the size of a room, a little bigger than that”. The reasonable inference is that the distance from the table in kitchen near the entrance to the hallway to the applicant’s bedroom is more than a couple of steps. This distance contradicts the applicant’s evidence that the stabbing occurred in the kitchen near the table.

15. [154]

    The applicant relied upon evidence from the crime scene video (Exhibit 5) which showed a small number of blood stains on the walls of the hallway and on the kitchen floor, as being inconsistent with the complainant’s evidence that he was trying to get away from the applicant and moving down the hall when he was stabbed.

16. [155]

    That some bloodstains were found in the kitchen is not inconsistent with the complainant’s evidence that that he was trying to get away from the applicant and the stabbing occurred in the hallway outside the applicant’s bedroom near the bathroom. As the Crown correctly submitted, there could be any number of ways by which those stains came to be on the kitchen floor in that area.

17. [156]

    Relevantly, there was evidence that (a) blood in the hallway near the applicant’s bedroom had been cleaned, (b) blood-soaked rags were found in the bathroom, (c) the blood-stained knife that was used to stab the complainant was found by the police in the kitchen cupboard with its cover on it, and (d) Officer Weldon gave a written statement that there “were some partial pattern elements in the bloodstains” found on the floor in the kitchen. To the extent some blood stains were observed on the kitchen floor and in the hallway, the reasonable inference is that they were the result of the process of cleaning up of blood in the hallway, or the blood-stained knife being placed in the kitchen cupboard.

18. [157]

    The applicant submitted that there was a further inconsistency in the complainant’s evidence as to how precisely the stabbing occurred as both the complainant and the applicant gave evidence that they were facing each other, with the complainant holding JP between them, however, the complainant also gave evidence of trying to get away from the applicant and the applicant followed him down the hallway with the knife before stabbing him.

19. [158]

    It is not in dispute that the complainant and the applicant were facing each other when the stabbing occurred. The complainant gave evidence that although he was trying to get away from the applicant, the argument continued in the hallway. The complainant described the applicant as being “very angry” and as having followed him and in front of the bathroom, stopped and “[t]hen the argument goes on here, and then the stab”: see [39] and [49] above. That is, the complainant and the applicant were facing each other when arguing in the hallway at the time of the stabbing. There was no inconsistency in the complainant’s evidence as to how the stabbing occurred.

20. [159]

    The applicant’s submission, relying on Mr Zhang’s evidence, ignored that Mr Zhang did not give uncontradicted evidence that JP was not crying when the complainant collected him from his bedroom. As noted, when first asked by defence counsel as an open question, “[w]as [JP] crying when [the complainant] came into the room and took him away?”, Mr Zhang answered, “[y]es”, whereas on the following day Mr Zhang agreed with a leading question by defence counsel that, “it’s only after your father (sic) came and got [JP] and they started arguing about his custody that he started crying”.

21. [160]

    The reliability of Mr Zhang’s evidence on this topic was undermined by the inconsistency in his evidence. By contrast, the complainant was not challenged in cross-examination on his evidence-in-chief that JP was crying when he went to his bedroom to get him.

22. [161]

    The applicant submitted that the complainant’s evidence that he had never been physically violent towards the applicant was contradicted by the evidence of the four COPS entries, two complaints by members of the public regarding his violent conduct towards the applicant, and the evidence that Mr Zhang witnessed violence and Mr Liu had taken the applicant to the police station to report an incident.

23. [162]

    The applicant’s reliance on three of the COPS entries is misplaced. The COPS entries for 11 November 2011, 14 September 2014, and 19 February 2017, record that the applicant and the complainant both confirmed to the police that the arguments were only verbal, not physical. Further, the entry for September 2014 expressly recorded that police noted the applicant did not have any injuries to her person, which was inconsistent with the applicant’s evidence that the complainant was punching and hitting her on her head, face, and arms. Nor do the entries for November 2011 and February 2017 record any observation by police of the injuries to the applicant consistent with the applicant’s evidence of being punched and hit in her face (November 2011), or assaulted with a closed fist, three or four times (February 2017).

24. [163]

    The reliability of the applicant’s evidence was also undermined by her inconsistent evidence about the alleged February 2017 incident, stating in cross-examination that she had no idea about this matter when it was put to her that Mr Zhang was in the room at the time of the argument between her and the complainant and he called the police because he was concerned that neighbours might hear it. Further, the COPS entry for February 2017 describes the complainant as the victim, the applicant as the person of interest and Mr Zhang as a witness, which is consistent with the applicant having abused the complainant during the argument and Mr Zhang called the police. It is inconsistent with Mr Zhang making a report to the police of observing the applicant being assaulted with a closed fist three or four times, as she claimed in her evidence. Nor did Mr Zhang give evidence corroborating the applicant’s claim that she was assaulted by the complainant during the February 2017 argument.

25. [164]

    As to the significance of the reports to police by two members of the public in November 2011 and September 2014, the COPS entries for those incidents are lacking in detail as to what they observed. The entry for November 2011 recorded that the witness gave no further details than that he saw only what looked to be a male and female fighting. The entry for September 2014 recorded that the informant refused to supply any further details to police.

26. [165]

    The applicant’s evidence of the alleged incident in the hallway in 2016 when she said that the complainant hit her and punched her was not corroborated by Ms Wang, the alleged witness to the incident, as she did not give evidence. Further and importantly, defence counsel did not specifically cross-examine the complainant about this alleged incident.

27. [166]

    The applicant’s evidence of the alleged incident in early 2017 during a phone call from an employee at Westpac was also uncorroborated. The complainant denied in his evidence that he punched the applicant on her face and hand while she was holding the phone and did not recall the bank officer telling the applicant to call the police, as the applicant claimed had occurred. There was no evidence that Mr Zhang or Mr Liu observed injuries to the applicant relating to this alleged incident.

28. [167]

    Turning to the COPS entry for 24 January 2017, this recorded the applicant’s report to police that she had been punched by the complainant in the left side of the face the previous night. Evidence of red marks observed on the applicant’s face was given by the applicant. The complainant agreed in cross-examination that they were pushing each other on this occasion, and he saw red marks on the applicant’s face the next day, although he denied hitting the applicant. Mr Zhang gave evidence that he observed the applicant’s face was swelling the next day, and Mr Liu gave evidence that the applicant told him she had an argument with the complainant who had hit him. However, he had only “some vague memories” and could not recall the detail of any red marks and swelling on the side of the applicant’s face.

29. [168]

    Other than the January 2017 incident, the evidence of the other incidents does not cause me to have a doubt as to the complainant’s evidence concerning the earlier incidents which the trial judge should have shared. With respect to the January 2017 incident, the Crown did not submit that any issue estoppel arose from the circumstance that assault charge against the complainant in respect of this incident was subsequently dismissed in the Local Court in March 2017. That is consistent with authority that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings: Rogers v The Queen (1994) 181 CLR 251 at 254 (Mason CJ), 278 (Deane and Gaudron JJ).

30. [169]

    As already noted, the applicant made a relatively contemporaneous report to both Mr Liu and Mr Zhang on the morning following the January 2017 incident that she had been punched by the complainant. Mr Zhang corroborated the applicant’s evidence of that report and gave evidence of observing the applicant’s face swelling the next day. Mr Liu also corroborated the applicant’s evidence of that report, however, he could not recall the details of any red marks and swelling on the side of the applicant’s face. Though the complainant denied hitting the applicant, he accepted there was pushing during this argument and also observing red marks on the applicant’s face the next day.

31. [170]

    In my view, the weight of the evidence relating to the January 2017 incident supports the view that the red marks observed on the applicant’s face were not because of some accident or self-inflicted injury unrelated to the complainant’s actions. The evidence is such that, notwithstanding the dismissal of the assault charge in the Local Court, I have a doubt as to the credibility of the complainant’s evidence denying that he punched the applicant during the argument on 23 January 2017. The significance of this doubt about one aspect of the complainant’s evidence, is addressed below after considering the balance of the applicant’s submissions and the other relevant evidence at trial.

32. [171]

    The applicant submitted that the complainant’s evidence that he never told the applicant or Mr Zhang to lie to police about his violence, should they ask, was contradicted by the evidence of the applicant and Mr Zhang.

33. [172]

    This submission misstates the complainant’s evidence. The complainant did not deny that on occasions he had told the applicant and his stepson to tell police that nothing had happened. When it was put to the complainant in cross-examination that on more than one occasion, including the occasion of the alleged incident of punching the applicant whilst he was driving the car in the Auburn area in September 2014, he told the applicant she should tell the police nothing had happened, the complainant responded, “[w]e basically had nothing. We only verbally argued, and someone else reported to the police”.

34. [173]

    Later in the cross-examination, after objection was taken by the Crown to defence counsel’s question of the complainant that he told Mr Zhang to lie to the police and to tell them nothing physical had happened, the question was re-framed and the complainant answered as follows:

35. [174]

    Nor did the applicant or Mr Zhang give evidence that the complainant told them to lie to police. Their evidence was that the complainant told them to tell police that nothing had happened. There is no material difference between the complainant’s evidence and that of the applicant and Mr Zhang on this issue.

36. [175]

    An assessment of the totality of the evidence requires a consideration of the applicant’s evidence as a whole. The Crown submitted that the applicant’s evidence was flawed in several important respects. The following criticisms of the applicant’s evidence correctly make this point.

37. [176]

    The first matter relied upon by the Crown as undermining the applicant’s credibility is the implausibility of her evidence that she was assaulted by the complainant for an extended period on 4 June 2017 whilst he was holding their six-year-old son with one arm, using his other arm to attack her. The complainant rejected this proposition when it was put to him in cross-examination. He said, “[w]ith one hand I cannot hold a six-year-old”. When the related part of the defence case was put to the complainant that JP was “supporting himself by holding you around the neck and with his legs”, the complainant rejected that proposition saying, “[i]t’s nothing like that”.

38. [177]

    Consistent with the complainant rejecting these propositions put to him in cross-examination, the applicant gave evidence-in-chief that her son’s arms were not around the complainant’s neck. The contradiction between the applicant’s evidence and the defence case put to the complainant is significant. The applicant’s evidence of being attacked by the complainant with one arm over an extended period was inherently implausible.

39. [178]

    The second matter is that despite the applicant’s description of a violent and sustained attack to her arms, head and neck followed by choking, the applicant did not give evidence that she had been injured in any way. Nor did photographs taken by the police shortly after the incident show any injuries. DSC Muscat gave evidence, having taken 16 photographs of the applicant, including her face, neck, arms and hands, that he did not see any visible injuries on the applicant. Nor was it suggested to DSC Muscat in cross-examination that the applicant had any visible injuries when photographed following the incident.

40. [179]

    The third matter is the unreliability of other aspects of the applicant’s evidence concerning the incident on 4 June 2017. The applicant gave evidence that after the complainant stood up from the sofa, he was “pointing, and – his finger at me, like this” and “was pointing at me and choking me”. However, when pressed as to how it was that the complainant was doing both these things with the same hand, the applicant quailed her evidence and said, “[h]e wasn’t pointing at me, maybe … maybe I – maybe it was misunderstood”. The applicant’s evidence that she was being choked by the complainant when he was moving from the sofa in the loungeroom to the kitchen was unreliable.

41. [180]

    The fourth matter is the credibility of the applicant’s explanation for why she did not call out for help to either Mr Liu or Mr Zhang, or to anyone else in the house, notwithstanding the location of the kitchen next to Mr Liu’s bedroom, and the applicant knew that Mr Liu was in his room, and also knew that her son, Mr Zhang, was in his room, which was accessed through the living room area.

42. [181]

    When asked in cross-examination why she did not call out to Mr Liu, the applicant said that there was a point where the complainant stopped and she texted Mr Liu telling him she needed him to move his car because she had to go to work. Her evidence was that her phone was in her pocket. There are several difficulties with this evidence. One is that it was not referred to in the applicant’s ERISP. That might be explicable given the time at which the ERISP occurred, early in the morning of 5 June 2017. Another difficulty is that this was not referred to by the applicant in her evidence-in-chief. That may explain why this matter was not put to Mr Liu by defence counsel. Yet another and significant difficulty is that it was inconsistent with the applicant’s evidence-in-chief that when in the kitchen she told the complainant she was going to call the police and that “I was going to use the phone to call the police”, but “he kept lunging at me”. The applicant’s evidence that she texted Mr Liu about moving his car was not corroborated by Mr Liu and was otherwise inconsistent with her evidence that she was prevented from calling the police because the complainant kept lunging at her.

43. [182]

    When asked why she did not call out to Mr Zhang, the applicant said, “[i]t happened very quickly … he lunged at me”. Again, this evidence is implausible, given the applicant’s evidence of continued violent assaults at various locations in the house, including the lounge room which adjoined the bedroom where the applicant knew Mr Zhang was.

44. [183]

    The fifth matter is that the applicant denied that she was angry with the complainant on the night and had had enough of him even though, at the time, she suspected that he was having an affair, considered that he was not a good father “because he was having an affair … he spent very little time with his own family”, and agreed that the day before the stabbing, the complainant had paid only $700 to the mortgage and that was one of the reasons they were arguing. Given this combination of circumstances, the applicant’s denial that she was angry with the complainant is inherently implausible.

45. [184]

    The sixth matter is that when interviewed by the police shortly after the incident, the applicant denied that she had stabbed the complainant and said that she did not know how he had been stabbed. These lies were highly damaging to the applicant’s credibility and undermined her assertions at trial that she was acting in self-defence. In addition, when interviewed by police, the applicant denied that she had been assaulted by the complainant, nor did she complain of any injury.

46. [185]

    Viewed as a whole, the applicant’s evidence of the incident on 4 June 2017 was unsatisfactory, it lacked plausibility in important respects and could not be accepted in support of the defence case that the applicant was repeatedly assaulted by the complainant with one arm, while holding JP, over an extended period in different rooms of the Auburn house.

47. [186]

    The applicant submitted that her evidence makes it clear that she believed that her action was necessary, and that belief is consistent with Dr Ashkar’s conclusions about her emotional vulnerability at the time because her mental state meant that she believed that there was no other way to preserve herself or son from death or serious bodily injury other than acting the way she did by stabbing the complainant.

48. [187]

    The difficulty with the applicant’s reliance on Dr Askhar’s evidence as support for her belief that her action was necessary, is that Dr Askhar’s opinion is based on an assumption of at least 20 similar incidents to that which was alleged to have occurred on 4 June 2017 and this was not established in the evidence. The highest the evidence goes is that there is credible evidence given by Mr Zhang and Mr Liu which confirms that a contemporaneous report was made by the applicant to each of them that she had been punched in the face by the complainant and there was evidence from Mr Zhang and also the complainant of a visible red mark on the applicant’s face on the morning following the 23 January 2017 incident.

49. [188]

    Addressing the issue of self-defence on which the Crown had the onus of proof, when considering the personal characteristics of the applicant at the time of her actions on 4 June 2017, there was evidence of a long history of marital discord and emotional abuse, and the applicant’s state of mind included fears for her personal safety given what had occurred during the January 2017. The first question is whether on the whole of the evidence the Crown proved beyond reasonable doubt that there was no reasonable possibility that the applicant believed her conduct in stabbing the complainant was necessary to defend herself. Critical to this assessment is the evidence of where and how the stabbing occurred. As indicated, there was a stark difference in the accounts of the complainant and the applicant.

50. [189]

    On my independent review of the evidence, the doubt I have as to the credibility of one aspect of the complainant’s evidence relating to the earlier incident on 23 January 2017, does not cause me to have a doubt as to credibility or reliability of complainant’s evidence of what occurred during the argument on 4 June 2017, nor a doubt as to the applicant’s guilt which the trial judge should have experienced.

51. [190]

    I am satisfied that the evidence established beyond reasonable doubt that after a prolonged and heated argument between the applicant and the complainant on 4 June 2017 in the loungeroom and then the kitchen, the complainant left the kitchen with JP in his arms and moved down the hallway to get away from the applicant, the applicant followed the complainant to stop him taking JP with him, the argument continued in the hallway for a short time and when they were arguing facing each the applicant stabbed the complainant in the lower back while he was holding JP with both arms. The complainant then walked a couple of steps down the hall before collapsing outside the applicant’s bedroom near the bathroom, where he was found lying on the floor by Mr Liu and Mr Zhang.

52. [191]

    Given the location of where the complainant was found in the hallway outside the applicant’s bedroom near the bathroom, the inherent implausibility of the applicant’s evidence of the complainant violently attacking her with one arm over a prolonged period while holding his six-year old son JP with the other arm, the absence of any visible injuries shown in the forensic photographs of the applicant taken by police immediately after the incident and the evidence of the police officer that he did not see any visible injuries on the applicant, I am satisfied that that the evidence established beyond reasonable doubt that the complainant did not punch, hit, or choke the applicant during this argument, while also holding JP in his arms, nor was the applicant being choked by the complainant in the kitchen immediately before she stabbed him.

53. [192]

    I am satisfied on the whole of the evidence, considering the personal characteristics of the applicant at the time of her actions, that there is not a reasonable possibility that the applicant believed her conduct in following the complainant down the hallway and stabbing him while he was holding JP in both arms was necessary to defend herself. It was not the applicant’s case that she argued with the complainant in the hallway near her bedroom or that she was being choked by the applicant in the hallway near her bedroom when she stabbed him. As indicated, defence counsel accepted at trial that if the applicant followed the complainant down the hallway while he was trying to get away from her then, on the complainant’s version of what occurred, the applicant’s response could not be self-defence. That concession was properly made. In the circumstances, no issue arises as to the reasonableness of the applicant’s actions in response to the circumstances as she perceived them. The evidence established beyond reasonable doubt that applicant’s conduct in stabbing the complainant was not in self-defence.

54. [193]

    Ground 1 contending that the verdict is unreasonable verdict has not been made out.

Ground 2: inadequate reasons

1. [194]

   Ground 2 is an alternative to ground 1. The applicant says that the reasons of the trial judge do not comply with the requirement of s 133(2) of the CPA, which provides:

2. [195]

   The requirements of the predecessor provision to s 133 of the CPA, which was in the same terms – previously s 33 of the CPA – were stated by the High Court in Fleming v R (1998) 197 CLR 250; [1998] HCA 68 at [27]-[28]:

3. [196]

   In DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32]-[33], the joint judgment of Kiefel CJ, Keane and Edelman JJ said of the adequacy of reasons:

4. [197]

   More recently, in Byrne v R [2020] NSWCCA 218 at [25], Johnson J said in considering the adequacy of reasons:

5. [198]

   No complaint is made concerning the trial judge’s detailed directions to herself, including as to the onus of proof, the tendency direction, the elements of the offences and the law of self-defence. Nor is there any complaint about the trial judge’s statement of the chronology and factual circumstances and summary of the parties’ submissions.

6. [199]

   The applicant’s complaint is that the verdict judgment does not expose the reasoning process, nor the verdict that is reached. The applicant submitted that there were significant discrepancies in three areas of the evidence in respect of which the trial judge did not disclose reasoning consistent with the requirements of s 133(2) of the CPA, namely:

7. [200]

   The Crown submitted that the trial judge complied with s 133 of the CPA and her obligations at common law to provide adequate reasons. The Crown emphasised that the trial was a relatively short trial and was contested on relatively narrow issues in respect of which the judge had the benefit of detailed closing address from the parties that were comprehensively summarised by her Honour and taken into account in the verdict judgment.

8. [201]

   The Crown further submitted that the trial judge’s determination of the crucial issues in the trial was heavily dependent upon her assessment of the respective credibility of the complainant and the applicant, having regard to the evidence given by each of them, and taking into account other evidence in the Crown case that did or did not support their respective versions of the circumstances of the stabbing.

Determination

1. [202]

   The applicant contended that in dismissing the tendency evidence, particularly the complainant’s alleged tendency to be abusive, the verdict judgment does not (a) address the applicant’s evidence, (b) adequately explain why the complainant’s evidence is accepted, or (c) engage with the self-serving nature of the complainant’s denials, despite evidence of both Mr Zhang and the applicant about previous violence.

2. [203]

   As to (a), according to the submission, the asserted failure to record any finding respecting the applicant’s evidence left as one possibility that the judge simply preferred the complainant’s evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. Reference was made to Douglas v R [2012] HCA 34; (2012) 290 ALR 699 at [14].

3. [204]

   The premise of this submission is incorrect. The trial judge’s reasons addressed and rejected the applicant’s evidence when addressing the defence case that the complainant had the asserted tendencies in the tendency notice. The relevant passages of the judge’s reasons set out above bear repeating.

4. [205]

   Her Honour commenced by giving the following reasons for rejecting the applicant’s evidence that the complainant had the asserted tendencies:

5. [206]

   Her Honour’s reasons continued, with the finding that:

6. [207]

   After noting that there were the six alleged occasions (of physical abuse) between November 2013 and February 2017, her Honour found that the difficulty with the applicant’s history of 20 occasions given to Dr Ashkar was:

7. [208]

   The applicant complains about her Honour’s reasons in the following passages that there was little support for the tendency evidence:

8. [209]

   That there were no medical records was plainly relevant, but not determinative of the allegations of physical abuse. Her Honour noted that Dr Ashkar reported no evidence of brain injury. Contrary to the applicant’s submission, the absence of statements to police is not “entirely” consistent with the asserted tendency that the applicant and Mr Zhang were asked to lie, given the lack of corroboration by medical records of the alleged physical abuse and the lack of corroboration by the COPS entries of any observation by police of physical injuries for the November 2011, September 2014 and February 2017 incidents: see [162] above.

9. [210]

   The applicant also complains that her Honour does not explain why the lack of “specificity” as to when the previous violence occurred is relevant. That there was no precision when these other events occurred was relevant to the reliability of the history given to Dr Ashkar of 20 occasions of alleged physical violence.

10. [211]

    Contrary to the applicant’s submissions, the trial judge considered the second aspect of the tendency argument that he told the applicant and Mr Zhang to lie to the police. Her Honour accepted that there were heated verbal arguments during which the complainant told the applicant to deny to police that any abuse had occurred or to make threats to the applicant that if she reported, what her Honour did not see as abuse, but the heated verbal arguments, she would lose custody of their son or that he would take her son back to China, but found “the difficulty is that there is absolutely no precision as to when these events occurred”. Implicit in her Honour’s reasons is that she was not satisfied that the complainant told the applicant and Mr Zhang to lie to the police as to what had occurred.

11. [212]

    The trial judge made an express finding rejecting the applicant’s evidence beyond reasonable doubt, giving the following reasons for rejecting the applicant’s evidence: (a) the absence of evidence of physical injuries to the applicant’s head, face, throat and arms, (b) the lies the applicant told the police in her ERISP, (c) the lies to the police were not the result of matters raised by Dr Ashkar, being asserted cultural reasons for the applicant not disclosing the complainant’s alleged physical and mental abuse, (d) the location where the complainant was lying relative to the applicant’s bedroom and the distance from the kitchen, and (e) the applicant’s conduct was to an extent a targeted stabbing, given she stabbed the complainant in a way to avoid her own child.

12. [213]

    As to (b) and (c) (relating to the acceptance of the complainant’s evidence), the trial judge did not simply prefer the complainant’s evidence to that of the applicant and proceed to convict the applicant applying a standard less than proof beyond reasonable doubt. Nor do the trial judge’s reasons fail to disclose her Honour’s reasoning on the critical issue of why she accepted the complainant’s version of events, notwithstanding what the applicant submitted were its logical flaws.

13. [214]

    The trial judge accurately recorded the defence case noting that the applicant said that just before the stabbing, she was being held around the neck and was being choked and noted the stark difference between the evidence of the complainant and the applicant:

14. [215]

    The trial judge found that the applicant’s evidence of being repeatedly attacked by the complainant during the argument on 17 June 2017 was inconsistent with her sustaining no injuries and that the applicant’s credit was adversely impacted by the lies she told in her record of interview with the police. Her Honour characterised the whole interview as a “sustained and calculated attempt to distance herself from the stabbing”.

15. [216]

    As to the dispute as to the location where the stabbing occurred, which was critical to the applicant’s claim that she was acting in self-defence, her Honour gave reasons (contrary to the applicant’s submission) why she rejected the applicant’s account beyond reasonable doubt. Those reasons are referred to at [212] above, in particular, in sub-par (d). While the trial judge’s reasons did not specifically address the bloodstains in the kitchen, it is implicit in her Honour’s reasons for accepting the complainant’s evidence as to where the stabbing occurred, that the evidence of bloodstains in the kitchen was explicable given the process of cleaning up the blood in the hallway and returning the knife to the kitchen pantry before the police arrived.

16. [217]

    The complaint that the trial judge’s reasons for rejecting the expert evidence of Dr Ashkar are inadequate asserts that the reasons focus on Dr Ashkar’s failure to use a shorthand expression (battered woman syndrome) and relied on its absence as a justification for dismissing the entire body of evidence and its connection with the applicant’s conduct. This is a mischaracterisation of her Honour’s reasons.

17. [218]

    As her Honour noted in her verdict judgment, the reference to the applicant suffering “battered woman syndrome” was a submission made by defence counsel, relying upon the evidence of Dr Ashkar. Her Honour correctly noted the absence of an express statement from Dr Ashkar that the applicant in fact suffered from this condition.

18. [219]

    Her Honour’s analysis of Dr Ashkar’s evidence did not stop here. Her Honour noted that, other than the six occasions of which the applicant gave evidence, the applicant was not able to provide specific details of the 20 occasions when she was assaulted according to the history given to Dr Ashkar. Consistently with the directions of law which her Honour gave herself regarding the use of expert evidence, which included:

19. [220]

    The applicant also complains that her Honour did not explain why she gave “minimal weight” to Dr Ashkar’s evidence, when considering the applicant’s demeanour during her recorded interview with police and when giving evidence. In his report, under the heading “Behavioural Observations”, Dr Ashkar said that when the applicant attended for assessment she was “introverted and closed with very little eye contact or social engagement” and “I suspect this is due to a combination of mood and cultural factors”. He expressed the opinion that “[c]ultural factors (eg shame) may also explain her lack of disclosure of her history of abuse at the time”. When asked in in cross-examination about the basis or literature or source for concluding that certain matters can be attributed to cultural factors, Dr Ashkar acknowledged that his comments were not scientific and were based on his anecdotal experience with other people from non-Western cultures, who have been in very similar situations. Her Honour’s reasons for giving this evidence minimal weight are apparent from her analysis of Dr Ashkar’s evidence in the following passage:

20. [221]

    The third basis for challenging the adequacy of the trial judge’s reasons focuses on how the stabbing occurred.

21. [222]

    The stark difference between the evidence of the complainant and the applicant as to where and how the stabbing occurred was squarely addressed by her Honour. Insofar as the applicant submitted that her Honour only gave one reason for rejecting the applicant’s account – namely, that her credit was adversely impacted by the lies she told in her record of interview – that is incorrect. Her Honour also took into account the matters referred to at [212] above.

22. [223]

    As to her Honour’s acceptance of the complainant’s evidence, the applicant submits that there is no analysis or explanation as to why her Honour accepted the complainant’s account and rejected the applicant’s account in circumstances where it was the applicant’s case that JP was holding onto the complainant around the neck and the complainant held him with one hand, while he used his free hand to grab the applicant around the neck. The applicant referred to the following passage in the trial judge’s reasons:

23. [224]

    As the trial judge observed, the applicant’s evidence that JP was not holding his father around the neck while being held during the argument was consistent with the complainant’s evidence. When asked what happened in the kitchen, the applicant gave evidence that the complainant was holding JP at the same time, that she was not sure where JP’s arms were as the complainant “was holding my son very tightly”, and answered the following question in the negative:

24. [225]

    The point which the trial judge made in her reasons was that given the applicant’s evidence that JP was not holding his father around the neck when being held by him during the argument, or she was “not sure” where JP’s arms were, her Honour accepted the complainant’s evidence that he did not have a free arm to attack the applicant while also holding JP with both arms.

25. [226]

    Insofar as the applicant complains that her Honour did not explain why she accepted the complainant’s evidence as to where and how the stabbing occurred, this ignores her Honour’s reasons as to the location where the complainant was found lying in the hallway, as to which her Honour noted the Crown submissions that there was no dispute that the place where the complainant was lying on the floor was the spot marked on Exhibit B by Mr Liu, which was confirmed by the witnesses that saw the complainant on the floor.

26. [227]

    The applicant also complains about her Honour’s reasons that on the complainant’s account there was no act of self-defence on the part of the applicant in relation to herself or in relation to her son, JP. This submission ignored that, as already noted, the issues at trial were relatively confined. Defence counsel had accepted in closing submissions that if the applicant followed the complainant down the hallway while he was trying to get away from her then on the complainant’s version of what occurred, the applicant’s response could not be self-defence. That is what the trial judge was referring to when stating that on the account given by the complainant there was no act of self-defence on the part of the applicant.

27. [228]

    The complaint in ground 2 of inadequate reasons should be rejected. Accordingly, no occasion arises to order a re-trial. I now turn to the sentence appeal.

28. [229]

    Immediately following the verdict, the Crown made a detention application which her Honour refused. The applicant’s bail was continued pending sentencing, with a variation in the bail conditions imposing a stricter condition of daily reporting to police.

The proceedings on sentence

1. [230]

   The Crown tendered on sentence several documents including a statement of facts for sentencing and an assessment report by Community Corrections dated 8 March 2021. In response to several objections by counsel for the applicant, the Crown amended some of the facts which it contended should be found on sentence. The Crown provided a copy of R v Geebung [2020] NSWDC 546, a case cited as comparable for sentencing purposes.

2. [231]

   At the request of the sentencing judge, the Crown handed up Judicial Commission sentencing statistics in relation to s 35(4) of the Crimes Act. For offences between 24 September 2018 and 30 September 2020 (a) in relation to 167 cases where there was guilty plea, 39, being 23.4 per cent, received an intensive correction order (ICO), and (b) in relation to four or six cases in which there was a not guilty plea, one of the four cases received a sentence of two years or less, and two of the six cases received an ICO.

3. [232]

   Counsel for the applicant submitted on sentence that any custodial sentence should be served by way of an ICO and, that in the circumstances of this case, a lesser term of imprisonment was appropriate within the range that an ICO requires, being 2 years or less: Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), ss 7 and 68(1).

4. [233]

   The applicant tendered Dr Ashkar’s report, but only relied upon his assessment that the applicant’s functioning was at the low end of normal limits in most areas of her intellectual (and other) cognitive functioning.

5. [234]

   The applicant also tendered a report from Dr Richard Furst, forensic psychiatrist, dated 11 October 2020. He diagnosed the applicant as suffering from a major depressive disorder. Responding to the question of whether he could identify any causal link between the applicant’s mental condition and the offending, Dr Furst answered:

6. [235]

   Dr Furst said that the applicant would benefit from treatment / counselling in relation to her depressive disorder, parenting and relationship issues, and recommended that the applicant be placed under the care of her general practitioner and be referred for psychological treatment / counselling pursuant to a mental health care plan.

7. [236]

   Dr Furst expressed the opinion that a custodial sentence is likely to be more onerous for the applicant than the “theoretical” average offender, given that the applicant “remains depressed in mood, is anxious about her son and continues to struggle emotionally”. Moreover, several factors render the applicant particularly vulnerable in a custodial setting, namely, she “is far from a hardened criminal, speaks hardly any English and is psychologically frail”.

The sentencing judgment

1. [237]

   After referring to the maximum penalty and standard non-parole period, her Honour noted that the offence of reckless wounding was a “domestic violence offence” and that the Crown had helpfully referred to the provisions of ss 4A and 4B of the Sentencing Act. Her Honour said that a prior relationship between the applicant and the victim did not mitigate an offence of personal violence.

2. [238]

   Next, her Honour referred to the delay in the trial given that the first trial in 2019 was aborted, and the delay in sentencing which was due to a combination of reasons including, her Honour’s unavailability and the applicant’s failure to attend Community Corrections for an assessment report.

3. [239]

   Her Honour identified the following factors as relevant to her assessment of the objective seriousness of the offending as “just” in the middle range of objective seriousness:

   1. (1)

      the injury to the victim involved a single 2 cm wound which required surgery and hospitalisation for two days;

   2. (2)

      there was one action only, by a small kitchen knife; and

   3. (3)

      the applicant thought that there was a cover on the knife, there was no premeditation or planning, and there was immediate remorse once the applicant appreciated the victim was injured.

4. [240]

   Her Honour noted several aggravating features of the offending as set out in s 21A(2) of the Sentencing Act, relevantly: the injury occurred with a weapon (s 21A(2)(c)), in the presence of a child (s 21A(2)(a)) and to the victim at his home (s 21A(2)(e) and (b));

5. [241]

   Her Honour made the following findings and observations in relation to the applicant’s subjective case:

   1. (1)

      the applicant was 51 years of age at the date of sentence (47 years at the time of the offending);

   2. (2)

      the applicant had spent 58 days in custody solely for this offence;

   3. (3)

      at all times since the offence, the applicant was subject to strict bail conditions which were onerous. Those conditions included a reporting requirement five days per week to police; a curfew condition from 9 pm to 5 am; a prohibition on returning to the Auburn home, which was later sold in 2019; and non-contact conditions with respect to her two sons until such condition was varied with respect to the older son in August 2020 after the trial had concluded, and with respect to JP in October 2020;

   4. (4)

      the applicant had no prior criminal record;

   5. (5)

      the applicant was a very hard worker and a good mother, which was also the view of the victim;

   6. (6)

      the applicant had shown remorse immediately after the stabbing;

   7. (7)

      the offence appeared to be out of character, the applicant was not a violent or anti-social person by nature;

   8. (8)

      the applicant’s mental condition at the time of the offending was a feature to be taken into account; and

   9. (9)

      the applicant had good prospects of rehabilitation, whilst expressing a neutral view as to whether the applicant would or would not reoffend.

6. [242]

   Her Honour noted, turning to Dr Furst’s report, that it was difficult to be certain about whether the applicant was suffering a mental condition in June 2017, however, “it is more likely than not” that the explanation for the applicant’s offending was that:

7. [243]

   Her Honour made a finding of special circumstances on the basis that it was the applicant’s first time in custody, her rehabilitation would be better achieved in the community, and the difficulties she would have in custody, including her extremely limited English and being away from her youngest son and older son.

8. [244]

   Her Honour did not find a need for specific deterrence, however she found that the need for general deterrence was “significant” and “looms large” because the offending was a domestic violence offence and involved the use of a knife. Her Honour found that no penalty other than imprisonment was appropriate referring to s 5 of the Sentencing Act. After observing that the sentencing exercise had been “most difficult”, her Honour said:

9. [245]

   The applicant’s claim of manifest excess is based on two matters. First, that apart from referring to it, her Honour did not make any findings about ss 4A and 4B of the Sentencing Act, and it is unclear whether her Honour used those provisions as a basis to find that a fulltime custodial sentence was warranted.

10. [246]

    Second, that the combination of the circumstances of the offence, the sentencing judge’s finding that the applicant was immediately remorseful, the applicant’s good character, the very small likelihood that she would ever reoffend and her psychological diagnoses of suffering from a major depressive order, should not have resulted in a sentence that required a period of fulltime custody. Rather, a custodial sentence less than 2 years was warranted, allowing the court to impose an ICO.

11. [247]

    The Crown submitted that given her Honour’s express reference to the provisions contained in ss 4A and 4B of the Sentencing Act, her Honour had regard to and applied these provisions and there was no requirement for her to state anything further.

12. [248]

    The Crown submitted that a major distinguishing feature between the applicant’s case and the majority of the cases the subject of the sentencing statistics is that the applicant defended the matter at trial and did not receive a discount of any kind. Based on the sentence imposed, the Crown submitted that had the applicant pleaded guilty at an early stage and received a 25 per cent discount, she would have received a head sentence of less than two years, and the statistics must be considered with this in mind.

13. [249]

    The Crown also submitted that the statistics and the case of Geebung do not establish that the present sentence lies outside the permissible range of sentences that could legitimately be imposed, and that in view of the considerations referred to by her Honour in her reasons, the sentence imposed is not manifestly excessive.

Determination

1. [250]

   The contention that the sentence imposed was manifestly excessive requires the applicant to establish that the sentence imposed is unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6].The principles to be applied in determining whether a sentence is manifestly excessive are summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

2. [251]

   By its very nature, appellate intervention on the ground of manifest excess is a conclusion that “does not admit of lengthy exposition”: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. What reveals manifest excess of sentence “is consideration of all the matters that are relevant to the fixing of the sentence”: Hili at [60].

3. [252]

   It is convenient first to address the applicant’s submission that her Honour did not make any findings about ss 4A and 4B of the Sentencing Act. These provisions were introduced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) as follows:

4. [253]

   The operation of ss 4A and 4B was considered in Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 at [79]-[83] (Leeming JA) and [181]-[186] (Simpson AJA). When a court finds a person guilty of a domestic violence offence, it must impose, under s 4A(1), either a sentence of fulltime detention or a supervised order (being an intensive correction order, community correction order or conditional release order that includes a supervision condition). However, the Court may impose a different sentence if satisfied that it is more appropriate in the circumstances, and gives reasons for reaching that view: s 4A(2). Section 4B contains additional requirements designed for the protection and safety of victims. Relevantly, an ICO cannot be imposed unless the Court is satisfied the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected: s 4B(1).

5. [254]

   In this case, the reckless wounding offence was a domestic violence offence and s 4A of the Sentencing Act required her Honour to impose either a sentence of full-time detention or a supervised order, unless satisfied that a different sentence was more appropriate in the circumstances and gave reasons for reaching that view. As noted, the applicant’s submission on sentence was that the term of any custodial sentence should be two years or less, which should be served by way of an ICO. The applicant did not advance any submission on sentence that a different sentencing option to a supervised order was more appropriate.

6. [255]

   Having fixed on a sentence of a term of imprisonment of a length exceeding two years, it was not open to her Honour to direct that such term of imprisonment be served by way of an ICO: Sentencing Act, s 68(1). Thus, there was no occasion for her Honour to make any findings about ss 4A and 4B with respect to serving the custodial sentence which was imposed upon the applicant by way of an ICO. In these circumstances, the applicant’s complaint about absence of findings about ss 4A and 4B does not arise.

7. [256]

   The applicant’s claim of manifest excess is not based on a history of sentencing in other cases. The sentencing statistics provided on sentence for reckless wounding offences were not particularly helpful as there are only a small number of cases involving a not guilty plea to a charge of reckless wounding; of those four or six cases, one of the four cases received a sentence of two years or less, and two of the six cases received an ICO.

8. [257]

   Geebung is the only comparative case to which the Crown referred on sentence and again on appeal. It is well accepted that District Court cases carry less weight than sentences that have been reviewed by an intermediate appellate court: Moodie v R [2020] NSWCCA 160, Appendix at [12] (Bell P), citing DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [144] (Basten JA).

9. [258]

   In Geebung, a jury returned a verdict of guilty in respect of an offence of reckless wounding and the offender was sentenced to imprisonment for 2 years and 3 months, with a non-parole period of 14 months. The offender, a female aged 19 years, was heavily intoxicated when she had stabbed another female repeatedly with a broken bottle which the offender had smashed on the ground during an argument while the victim was leaving a Christmas party. This offending was assessed at “about” the mid-range and was objectively more serious than the present case, given (a) the manner in which the injuries were inflicted by “glassing” the victim, and the nature of the injuries suffered by the victim. There were four separate lacerations. These were to the victim’s left temporal region of 4 to 5 cms, her left cheek of 3 to 4 cms, the right side of her nose below the eye, and the most serious injury, an 8-to-10-centimetre laceration to the neck, 1.5 cms deep. The victim underwent surgery, discharged two days later.

10. [259]

    Whilst there are some similarities to the applicant’s subjective circumstances, as the offender in Geebung had prior good character, a lack of drug and alcohol issues, good prospects of rehabilitation and had been subject to onerous bail conditions for nearly two years (including reporting and curfew as well as conditions that she could no longer visit her father or traditional lands of her peoples during that time), there are differences in that the applicant’s bail conditions had been in place for longer in relation to the applicant, she was older than the offender in Geebung and not of Aboriginal background. Other notable differences were that there was no finding of any remorseful contrition in relation to the offender in Geebung, whereas the applicant was immediately remorseful.

11. [260]

    While the lower head sentence in Geebung is not markedly different from the applicant’s head sentence, the offending in Geebung had greater seriousness than the present offending, and the result in Geebung does not support the Crown’s submission that the present sentence does not lie outside the permissible range of sentence that could be legitimately imposed.

12. [261]

    The claim of manifest excess is not available because this Court is of the view that it would have given less weight to general deterrence and greater weight to the applicant’s favourable subjective case: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. Nevertheless, I am persuaded that in the particular circumstances of this offending, and this offender, the sentence was manifestly excessive. The chief considerations which point to manifest excess are the reasons and circumstances of the offending, the role of general deterrence in this case, and the applicant’s compelling subjective case.

13. [262]

    As to the first matter, it bears repeating that her Honour found “it is more likely than not” that the explanation for the applicant’s offending was that the applicant was highly stressed by marital discord / conflict, including issues of emotional abuse, which her Honour found was emotional abuse and the other matters stated in the passage of her Honour’s reasons set out at [241] above.

14. [263]

    Further, the offending was not premeditated or planned, it followed a prolonged argument about the mortgage and child custody issues, the applicant thought there was a cover on the small kitchen knife, the injury was a single small wound, and there was immediate remorse once the applicant realised that she had injured the complainant.

15. [264]

    As to the second matter, general deterrence will usually be of significance where the offending involves the use of a knife and is a domestic violence offence. However, given the finding by her Honour that the applicant’s mental condition at the time of the offending was a subjective feature to be taken into account, her low intellectual functioning and her psychological diagnosis of now suffering from a major depressive disorder, this was a case in which general deterrence had a more limited role to play in the sentencing process because such an offender is not an appropriate medium for making an example to others.

16. [265]

    As to the third matter, accepting that a strong subjective case cannot result in the imposition of a sentence which is not properly reflective of, or which is disproportionate to, the objective seriousness of the offending (Clarke-Jeffries v R [2019] NSWCCA 56 at [45] (Bellew J, Simpson AJA and Campbell J agreeing), citing R v Dodd (1991) 57 A Crim R 349), the applicant’s compelling subjective case called for not inconsiderable mitigation.

17. [266]

    In my view, ground 3 has been made out.

Resentence

1. [267]

   In resentencing the applicant, I have adopted and acted upon the sentencing judge’s uncontested factual findings and assessments: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]; Turnbull v R [2019] NSWCCA 97 at [44]-[46] (Simpson AJA, Ierace J agreeing, Wilson J not deciding); RO v R [2019] NSWCCA 183 at [82] (Beech-Jones J, Bathurst CJ and N Adams J agreeing). Those findings and assessments include the objective seriousness of the offending, and the applicant’s moral culpability, remorse and contrition, prospects of rehabilitation and special circumstances.

2. [268]

   My assessment coincides with her Honour’s implicit finding that the applicant is not an appropriate candidate for specific deterrence, given her low intellectual functioning and her major depressive disorder.

3. [269]

   The applicant did not rely on any additional evidence on resentence, other than the inference to be drawn from her compliance with her onerous conditions of bail, since the sentencing hearing in May 2021.

4. [270]

   Turning to the sequence of determinations to be made by a sentencing court under the Sentencing Act, as Gageler J recently observed in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [30]:

5. [271]

   As to the question of whether the threshold in s 5(1) of the Sentencing Act is met, I accept her Honour’s unchallenged finding that no penalty other than imprisonment is appropriate. The applicant did not argue to the contrary.

6. [272]

   It is next necessary to determine the appropriate term of the sentence of imprisonment and, where the issue arises, consideration of whether or not to make an ICO. An ICO is a sentence of imprisonment for the purpose of s 5(1) of the Sentencing Act that is directed, under s 7(1), to be served by way of intensive correction in the community rather than full-time detention. The determination of the appropriate term of the sentence of imprisonment to be imposed is to be made without regard to, and cannot be adjusted to reflect, the manner in which the sentence is to be served: R v Zamagias [2002] NSWCCA 17 at [26]; Wany v R (2020) 103 NSWLR 620; [2020] NSWCA 318 at [20].

7. [273]

   The applicant submitted that the Court should place significant weight on the mitigating factors which would lead to a lesser sentence than that imposed by her Honour, and that a sentence of two years or less is appropriate. The factors relied upon by the applicant are that there was no premeditation or planning, the applicant thought there was a cover on the knife, the offending occurred in circumstances where the applicant was highly stressed by marital discord / conflict including emotional abuse, and the applicant’s subjective features, specifically her low intellectual functioning and major depressive disorder.

8. [274]

   As noted, the applicant has a particularly strong subjective case. She has no prior criminal history. Her Honour found that the applicant is hardworking and a good mother, that the applicant showed immediate remorse after the stabbing, the offence appeared to be out of character, and she has good prospects of rehabilitation. Her Honour also found that as a result of her conduct the applicant lost the Auburn house. As indicated, the applicant has complied with onerous bail conditions since her release on bail in August 2017, following time spent in custody of nearly two months from 5 June 2017 to 1 August 2017.

9. [275]

   When weighing the objective gravity of the offending and the need for general deterrence and the subjective circumstances of the applicant, I am of the view that in this case, and for this offender, the weight to be given to general deterrence should be moderated in favour of rehabilitation, given the applicant’s strong subjective case. I consider that a sentence of imprisonment for two years is appropriate in all the circumstances of this offender.

10. [276]

    The applicant submitted that this Court should make a direction under s 7 of the Sentencing Act that the sentence of imprisonment be served by way of an ICO. This mode of sentence is available where the sentence of imprisonment in respect of a single offence does not exceed two years: Sentencing Act, s 68(1).

11. [277]

    The Court is required by s 66(1) of the Sentencing Act to have regard to community safety as the “paramount consideration” when deciding whether to make an ICO in relation to an offender, and by s 66(2) is obliged to assess whether making an ICO or serving the sentence by way of fulltime detention is more likely to address the offender’s risk of reoffending. By s 66(3) the Court is also required to consider the purposes of sentencing under s 3A, any common law sentencing principles, and may consider any other matters that the Court thinks relevant.

12. [278]

    There is a prohibition on the power to make an ICO in respect of, relevantly, domestic violence offences (s 4B), which includes reckless wounding in the context of this case. This is addressed separately below.

13. [279]

    In R v Pullen [2018] NSWCCA 264 at [84], Harrison J (Johnson and Schmidt JJ agreeing), said of the concept of “community safety” in s 66:

14. [280]

    Recently, in Stanley, the joint judgment held that the failure to consider the paramount consideration of community safety in s 66(1), by reference to the assessment required by s 66(2), constituted jurisdictional error: Stanley at [88], [115] (Gordon, Edelman, Steward and Gleeson JJ); cf in dissent Kiefel CJ at [12], Gageler J at [20]-[33] and Jagot J at [240]-[241]. Addressing the construction of the power to make an ICO, the joint judgment said at [72]-[77]:

15. [281]

    Five points emerge from the joint judgment in Stanley.

16. [282]

    First, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender’s risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety: at [72], [75].

17. [283]

    Second, s 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety: at [74].

18. [284]

    Third, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending: at [75].

19. [285]

    Fourth, the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender’s risk of reoffending: at [74].

20. [286]

    Fifth, while community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it will usually have a decisive effect unless the evidence is inconclusive: at [76].

21. [287]

    The evidence at the sentencing hearing included an assessment report prepared by Corrective Services NSW dated 8 March 2021. The report included assessments that the applicant was a “Medium-Low” risk of reoffending and was suitable to undertake community service work. The report outlined a supervision plan which would be implemented by Community Corrections if the Court makes an ICO which involved:

22. [288]

    The nature and content of the conditions that might be imposed by an ICO which are relevant in measuring the risk of reoffending include the two standard conditions of an ICO under s 73(2) of the Sentencing Act, namely:

    1. (1)

       The offender must not commit any offence.

    2. (2)

       The offender must submit to supervision by a community corrections officer.

23. [289]

    Section 73A(1)–(1A) of the Sentencing Act requires the Court to impose at least one additional condition unless there are exceptional circumstances. The additional conditions under s 73A(2) include home detention, electronic monitoring, specific curfew, community service, rehabilitation or treatment, abstaining from alcohol or drugs, a non-association and place restrictions.

24. [290]

    In the remarks on sentence, her Honour noted that following the variation in the applicant’s bail conditions, the applicant and the complainant have corresponded by way of text message since October 2020 in relation to the arrangements permitting contact with the younger son, JP, on a weekly basis. The Crown did not submit that there had been any difficulty with these arrangements. Given these circumstances and the elements of the supervision plan proposed by Community Corrections, the applicant’s compliance with her onerous bail conditions over a lengthy period exceeding four years, that the offending was not alcohol or drugs related, and the applicant’s low intellectual functioning and major depressive disorder, I am satisfied that there are exceptional circumstances not to require any additional condition under s 73A(2) of the Sentencing Act if the sentence was directed to be served by way of an ICO.

25. [291]

    Applying the forward-looking approach referred to in the joint judgment in Stanley to the evaluative exercise of whether community safety as the paramount consideration, together with the subordinate considerations in s 66(3), warrant full-time detention or an ICO, I am satisfied that the risk of the applicant reoffending in a manner that may affect community safety would be better reduced by an ICO than full-time imprisonment for the following reasons:

    1. (1)

       the assessment report assessed the applicant’s risk of reoffending as “Medium-Low”;

    2. (2)

       her Honour found that the applicant was not a violent or anti-social person by nature and assessed the applicant’s prospects of rehabilitation as good;

    3. (3)

       the applicant has complied with her onerous bail conditions over four years, including the non-contact condition with the complainant; and

    4. (4)

       the standard supervision condition of an ICO (s 72(2)(a)) is more likely to promote the applicant’s rehabilitation, given her major depressive disorder.

26. [292]

    Since the applicant’s offending is a domestic violence offence, ss 4A and 4B of the Sentencing Act also apply. These provisions are set out at [252] above.

27. [293]

    As to s 4A, the applicant did not contend for a different sentencing option than a supervised order, relevantly an ICO.

28. [294]

    As to s 4B, I am satisfied that the complainant will be adequately protected by an ICO because (a) the applicant and the complainant ceased to reside in the same house after the offending in June 2017, and (b) the applicant has complied with her onerous bail conditions for a period of over four years, including a non-contact condition with respect to the complainant.

29. [295]

    As to the safety of persons with whom the applicant is likely to reside, at the time of sentence the applicant was living in shared accommodation at a specified address and proposed to move to new premises, with her older son Mr Zhang. I am satisfied that there is no issue as to the safety of the older son, Mr Zhang, with whom the applicant resumed contact in August 2020 following a variation of the non-contact bail conditions which had prohibited her having contact with Mr Zhang, who was a prosecution witness.

30. [296]

    Accepting that the imposition of an ICO represents some degree of leniency, I am satisfied that in this case it still incorporates a substantial degree of punishment having regard to the length of the ICO and the obligations which attach to the mandatory conditions in s 73(2) of the Sentencing Act, as prescribed by the regulations, specifically the supervision condition under reg 187 of the Crimes (Administration of Sentences) Regulation 2014 (NSW).

31. [297]

    In my view, the sentence of imprisonment for two years should be served by way of an ICO for the period specified below, which should commence on the date of this judgment. The ICO will be subject to the two standard conditions under s 73(2) of the Sentencing Act:

    1. (1)

       The offender must not commit any offence.

    2. (2)

       The offender must submit to supervision by a community corrections officer.

32. [298]

    The applicant spent 58 days in custody before she was granted bail. She then spent a significant period on particularly onerous bail conditions. Section 71 of the Sentencing Act requires an ICO to commence on the day it is imposed; it is not possible to back-date the sentence (ICO). On the other hand, “ss 24(a) and s 47(3) oblige a sentencing court (including this Court when resentencing) to take into account any period of pre-sentence custody served by the offender”: Mandranis v R [2021] NSWCCA 97 at [55] (Simpson AJA). This gives rise to a potential injustice whereby an offender does not receive the benefit of the period of pre-sentence custody: Mandranis at [56]. The solution to this problem was addressed by Simpson AJA in Mandranis at [61]:

33. [299]

    I would adopt the same approach and would reduce the term of imprisonment actually recorded and imposed to a period of 1 year and 10 months which is to be served by way of an ICO. This involves a very small amount of rounding down, but that is appropriate given the length of time the applicant complied with onerous bail conditions.

Orders

1. [300]

   I propose the following orders should be made:

   1. (1)

      Grant leave to appeal against conviction and sentence.

   2. (2)

      Appeal against conviction dismissed.

   3. (3)

      Appeal against sentence allowed.

   4. (4)

      Set aside the sentence imposed by her Honour Payne DCJ on 21 May 2021.

   5. (5)

      In lieu, sentence Biyun Zheng to a term of imprisonment of one year and 10 months commencing on 22 March 2023 to be served by way of an Intensive Correction Order commencing on 22 March 2023 and expiring on 21 January 2025.

   6. (6)

      The Intensive Correction Order is subject to the following conditions:

   7. (7)

      The applicant is to report on or before 5 April 2023 to the Parramatta office of Corrective Services NSW, or such other location as may be advised by the Commissioner for Corrective Services.

2. [301]

   HAMILL J: I have had the great advantage of reading the draft reasons of Gleeson JA. His Honour’s comprehensive analysis leaves me with very little to say.

3. [302]

   I agree that the guilty verdict on the alternative count (in short, reckless wounding) was not unreasonable and is able to be supported on the evidence. On a review of the record of the trial I have reached the same factual conclusions as Gleeson JA, particularly those set out with precision at [188]-[192]. The evidence disproved or eliminated self-defence beyond reasonable doubt, despite the urgency of circumstances, the tendency case concerning the history of marital discord and past abuse and its likely impact on the applicant’s belief as to what constituted a reasonable response in the circumstances. Of particular significance, as Gleeson JA demonstrates, is the location of the stabbing within the hallway and the fact that the complainant was carrying a small child at the time.

4. [303]

   I also agree with Gleeson JA that the reasons of the trial Judge were adequate to fulfil their function, albeit they may not have been perfect. In this regard, it is worth noting that Judge Payne delivered judgment just five days (including a weekend) after closing submissions were delivered.

5. [304]

   I also agree with Gleeson JA that the sentence imposed was manifestly excessive in the circumstances of this case and this individual applicant. There was no suggestion that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was not crossed, and I proceed on the basis that a sentence of imprisonment was the only appropriate sentence. However, a sentence of 2 years (adjusted to take into account the period of pre-sentence custody), adequately reflects the criminality when one takes into account the objective criminality, the history of the relationship and the applicant’s compelling personal circumstances. Ms Zheng has never offended before, and I doubt she will ever offend again. I also agree with Gleeson JA that the sentence should be served by way of an Intensive Correction Order (ICO) with the minimum number of conditions. In reaching that conclusion, and like the presiding Judge, I have considered the relevant statutory considerations including those which generally prohibit the imposition of ICOs in domestic violence cases.

6. [305]

   I agree with the orders proposed by Gleeson JA.

7. [306]

   IERACE J: I also agree with the orders proposed by Gleeson JA, his Honour's reasons and the additional observations made by Hamill J at [304].