Citation: R v So (No 4) [2023] NSWSC 1292
Court: Supreme Court of New South Wales
Date: 10 November 2023
Judge: Ierace J
Background
The accused, a Cambodian-born woman raised in Vietnam and later New Zealand, stood trial charged with the murder of a 71-year-old man at his rural property near Elong Elong, approximately 45 kilometres north-east of Dubbo, between 14 and 15 June 2016. The accused had been invited to stay at the deceased's 88-acre property from 11 June 2016, during the Queen's Birthday long weekend. The deceased was last seen alive by a third party on the morning of 14 June 2016.
The accused told police that on the evening of 14 June 2016, the deceased left the property in a vehicle that had called by, saying he was going to a party and would return by 10pm. He did not return. His mobile phone was last detected by a cell tower in the Elong Elong area at 2.54pm on 15 June 2016. Neither his remains nor his phone have ever been located.
The trial proceeded before a judge alone at Dubbo, commencing 14 August 2023. The Crown's case was entirely circumstantial, and the vast majority of the evidence was not in dispute between the parties. The accused required the assistance of Vietnamese interpreters throughout the proceedings.
Legal Issues
- Whether the Crown had established beyond reasonable doubt that the deceased was murdered by the accused between 14 and 15 June 2016.
- Whether the evidence excluded a reasonable possibility that the accused's exculpatory account, namely that the deceased left voluntarily with an unknown person, was true.
- Whether the evidence excluded a reasonable possibility that other persons, with whom the deceased had associations, were involved in his disappearance and death.
- Whether the Crown could establish beyond reasonable doubt that a blood-shedding event identified in the main bedroom occurred at the time of the deceased's disappearance, and was causally connected to the accused.
Decision
Ierace J found that the Crown had not established beyond reasonable doubt that the accused murdered the deceased. The judgment turned on the cumulative weight of several independently significant doubts, each of which the Crown could not exclude to the requisite standard.
First, the court was not satisfied beyond reasonable doubt that a blood-shedding event identified in the main bedroom of the deceased's house occurred at the time of his disappearance, or that it was connected to the accused's conduct. This intermediate factual finding was essential to the Crown's circumstantial case, and its failure to be established undermined a core strand of the prosecution's reasoning.
Second, Ierace J found there was a reasonable possibility that the accused's account of events was accurate: that the deceased told her he was going to a party, and that if he said so knowing it was false, he was deceiving her. The court could not exclude the possibility that the deceased had arranged to meet someone else and was killed by that person or persons. The deceased had associations with multiple local people connected to prohibited drugs and organised criminal networks, and his mobile phone's last detection in the Elong Elong area was consistent with his body having been disposed of nearby by third parties.
Third, the court considered it unlikely that the accused could have disposed of the deceased's body within the available time frame and within the confines of the property without leaving traces that would have been detected during the thorough searches conducted by police and others in the days following his disappearance. The court also noted that another woman, referred to by a pseudonym, appeared to have had a closer and less disclosed association with the deceased than she admitted to police, raising a further possibility not adequately resolved by the Crown's case.
Orders Made
- The accused, Kylie So, was found not guilty of the murder of Robert Dickie between 14 and 15 June 2016 at Elong Elong, New South Wales.
- Suppression and non-publication orders were made under ss 7 and 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting disclosure of information tending to reveal the identity of certain vulnerable witnesses and other persons referred to in the proceedings.
Key Takeaways
- In a circumstantial murder trial where no body, cause of death, or direct evidence of the killing exists, the Crown must exclude all reasonable possibilities consistent with innocence, including that third parties were responsible for the death.
- A reasonable possibility that the accused's exculpatory account is true is sufficient to generate reasonable doubt, even where parts of that account appear implausible or where the accused's conduct after the disappearance may have been suspicious.
- Where the deceased had documented associations with persons connected to criminal networks and prohibited drugs, the court found that possibility of third-party involvement could not be excluded beyond reasonable doubt.
- The practical difficulty of concealing or disposing of a body within a bounded rural property, without leaving detectable traces, formed part of the court's reasoning that the Crown's account of events lacked the necessary degree of certainty.
- Suppression orders protecting vulnerable persons involved in proceedings remain available under the Court Suppression and Non-Publication Orders Act 2010 (NSW), including where those persons' mental health is the relevant consideration under s 8(1)(e).
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8(1)(e)
- Criminal Procedure Act 1986 (NSW), ss 133, 161A
- Evidence Act 1995 (NSW), ss 53, 65, 165B
Cases:
- R v So (No 2) [2023] NSWSC 1052 (admissibility of hearsay statements and tendency evidence)
- R v So (No 3) [2023] NSWSC 1113 (admissibility of expert opinion evidence)