Citation: R v Lui (No 1) [2025] NSWSC 1106
Court: Supreme Court of New South Wales
Date: 18 September 2025
Judge(s): McNaughton J
Background
The accused stood charged with the murder of a man who was found dead in a stairwell of a Sydney apartment building in December 2022. The Crown alleged the deceased had been viciously beaten in that stairwell over a two-hour period, and that the accused and an alleged co-offender were both present during that time. The accused's proposed defence was that he did not participate in the assault at all.
The co-offender had previously been tried separately before the same judge. That jury was unable to reach a verdict and was discharged. The co-offender was expected to be called as a Crown witness at the accused's trial, though a potential application for a certificate under s 128 of the Evidence Act 1995 (NSW) remained unresolved at the time of this pre-trial hearing.
With the accused's trial set to commence on 29 September 2025, his legal representatives applied to exclude two categories of evidence before the jury was empanelled.
Legal Issues
- Whether evidence of the accused's post-offence conduct (socialising, verbal aggression at a hotel, and a violent incident in Hyde Park) should be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice
- Whether evidence of a prior interaction between the accused and the deceased, approximately one month before the alleged assault, should similarly be excluded under s 137
Decision
Issue 1: Post-offence conduct evidence
McNaughton J identified two sub-categories of post-offence conduct the Crown sought to adduce. The first was evidence that the accused and the co-offender went out socialising together in the hours following the alleged assault, including attempting to enter a hotel, attending a nightclub, and returning to a hotel room with others. The second was evidence of the accused's aggressive and violent behaviour during that same period: a heated verbal exchange with security staff and an unprovoked assault on a man in Hyde Park.
The judge found this evidence highly probative. It provided direct evidence of the accused's state of mind in the immediate aftermath of the alleged offending and shed light on the dynamic between the accused and the co-offender both before and after the assault. Given the central factual issue at trial, namely which of the two men (or both) was legally responsible for the deceased's death, the demeanour of both men that night was directly relevant to rebutting the accused's proposed defence. The court applied the framework in Harriman v The Queen (1989) 167 CLR 590 and Gall v R [2015] NSWCCA 69, noting that Harriman remains pertinent despite predating the Evidence Act.
While acknowledging some prejudice in this evidence, McNaughton J concluded it was not unfair prejudice within the meaning of s 137. There was no real risk the jury would misuse it through an irrational or emotional response, or attribute to it more weight than it deserved. The probative value was not outweighed by the danger of unfair prejudice, and the evidence was admitted. Whether any anti-tendency direction would be appropriate remained a matter for further submissions if required.
Issue 2: Shiven Single's evidence of prior contact with the deceased
The Crown also sought to lead evidence from a witness who had encountered the accused at the gaming café about a month before the alleged assault. On that occasion, the accused had accompanied the witness to the stairwell, where the deceased was sleeping at the base of the stairs. The interaction was unremarkable, though the accused became briefly irritated when the deceased refused a cash offer.
McNaughton J found this evidence highly relevant. It established the nature of prior contact between the accused and the deceased and provided some contextual explanation for what would otherwise appear to be a random and inexplicable attack. The court found the jury was entitled to have that context. The evidence was admitted, with what the jury made of it remaining a matter for the jury.
Orders Made
• Allow the evidence of all the post-offence conduct
• Allow the evidence of Mr Single relating to the previous contact between Mr Lui and the deceased
Key Takeaways
- Post-offence conduct evidence, including socialising and displays of aggression in the hours following an alleged offence, may carry high probative value where the central factual issue at trial is the identity of the person legally responsible for the offending.
- Under s 137 of the Evidence Act 1995 (NSW), the relevant question is whether probative value is outweighed by the danger of unfair prejudice, not whether prejudice exists at all. McNaughton J found that prejudice alone does not meet that threshold.
- Harriman v The Queen (1989) 167 CLR 590, a pre-Evidence Act High Court authority on post-offence conduct, was treated as still pertinent to the s 137 analysis in this jurisdiction, consistent with the approach in R v Quach (2002) 137 A Crim R 345.
- Evidence of prior contact between an accused and a deceased, even where relatively limited and innocuous, may be admissible where it provides context for an otherwise apparently random attack.
- The court reserved the question of whether any anti-tendency direction would ultimately be appropriate, noting the practical concern that such a direction can draw the jury's attention to the very prejudice it is designed to guard against.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 128, 137
Cases
- Gall v R; Gall v R [2015] NSWCCA 69
- Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
- R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519
- Elomar v R; Hasan v R; Cheikho v R; Cheikho v R
- Jamal v R (2014) 316 ALR 206; [2014] NSWCCA 303
- LJW v R [2010] NSWCCA 114
- R v Adam (1999) 47 NSWLR 267; [1999] NSWCCA 189
- R v Beserick [1993] 30 NSWLR 510
- R v Player (2000) 217 ALR 578; [2000] NSWCCA 123