Fan v The King

[2024] NSWCCA 114

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Fan v R [2024] NSWCCA 114

Hearing dates:

16 February 2024

Decision date:

12 July 2024

Before:

Bell CJ at [1];
Button J at [2];
McNaughton J at [202]

Decision:

(1)   Leave to appeal against conviction granted.

(2)   Appeal dismissed.

Catchwords:

CRIME – appeals – appeal against conviction – murder – joint criminal enterprise – basic and extended relied upon by Crown – directions to jury – where Crown case at trial alleged that the applicant and co-offenders had accepted a contract to kill – person fatally shot – applicant not the shooter – where deceased not the intended target – where jury directed that necessary mental element for murder established even though someone other than the deceased was the intended target – whether error in failing to direct jury that the killing or serious injury of the deceased had to be agreed to or foreseen by the applicant – transferred malice – nothing further required to be proven beyond orthodox elements of murder and joint criminal enterprise – no miscarriage of justice occasioned

CRIME – appeals – appeal against conviction –unreasonable verdict – murder – separate count of shoot with intent to murder – whether guilty verdicts were open on the evidence adduced at trial – circumstantial case – credibility of civilian witnesses – where applicant took steps to conceal his involvement – admissions – acceptance of circumstantial fact that applicant attended rear door of premises whilst armed after initial shots fired – well open to jury to return verdicts of guilty on both counts – appeal dismissed

Legislation Cited:

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Crimes Act 1900 (NSW) s 18

Cases Cited:

Batak v R [2024] NSWCCA 66

Carbone v R (No 2) [2024] NSWCCA 7

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

Dawson v R [2024] NSWCCA 98

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Wilio [2022] VSC 86

Royall v R (1991) 172 CLR 378; [1991] HCA 27

Russell v R [2023] NSWCCA 196

Shepherd v R (1990) 170 CLR 573; [1990] HCA 56

The Queen v Saunders & Archer at Warwick Assizes (1575) 75 ER 706; 2 Plowden 473

Category:

Principal judgment

Parties:

Ian Fan (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Buchen SC with C McGorey (Applicant)
M England (Respondent)

Solicitors:
Ting Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/168582

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 November 2020

Before:

Hamill J

File Number(s):

2017/168582

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 24 November 2020, Mr Ian Fan (the applicant) was convicted of two offences following the conclusion of a joint trial at the Supreme Court of NSW. The applicant stood trial alongside five co-accused persons; some were charged jointly with the applicant, and others were accused of separate (but factually related) offences.

The Crown case at trial was that, weeks before the offending took place, Mr Ying Chen Luo accepted a contract to murder a Mr Jun Jia, who had owed a debt to two significant drug dealers. On the evening of 1 February 2017, the applicant travelled to an address in Guildford with Mr Luo and another man, Mr Jaiyu Liu. Mr Luo and Mr Liu entered the property, while the applicant remained outside. Inside, Mr Liu fired multiple shots. Mr Jia was able to flee unharmed, but an unintended victim, Mr Wu, was shot and killed.

Liability for the offending on the basis of both basic and extended joint criminal enterprise was left to the jury. The applicant was ultimately found guilty on both counts; first, the murder of Mr Wu, and second, shooting with intent to murder Mr Jia.

The applicant sought to appeal against his conviction on two proposed grounds; first, that the directions on joint criminal enterprise liability for the murder of Mr Wu involved error and occasioned a miscarriage of justice; and, second, that the verdicts of guilty are unreasonable.

The Court held (Button J, with Bell CJ and McNaughton J agreeing), dismissing the appeal:

As to ground one:

1. Though submissions for the applicant contended that the necessary mental element for murder could not be satisfied in the applicant’s case where the deceased was not the intended target, the Court did not accept that directing the jury in this way was erroneous: [49]-[53].

1. The longstanding doctrine of transferred malice is applicable to both the principal offender (here, the shooter) as well as the non-actors involved in the joint criminal enterprise (including the applicant): [55]-[56].

2. In the context of basic joint criminal enterprise, the applicant bears primary liability. The Court observed it would be very difficult to envisage a situation in which anything more would be required to be proven against the applicant, above and beyond that already required to be made out against the shooter: [57]-[58].

3. In the context of extended joint criminal enterprise, the liability of the applicant has been explained to be derivative. The Court found that it was difficult to see how the doctrine of transferred malice could not be applied against the applicant, in the context of derivative liability, when the shooter had been found guilty by the same jury: [59]-[63].

Batak v R [2024] NSWCCA 66; Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5, considered.

2. The outcome of an unintended, or “wrong”, person being harmed or killed does not entitle the applicant to acquittal purely on the basis that the joint criminal enterprise anticipated that a different person would have been the victim: [63]-[65].

3. No miscarriage of justice was occasioned by the directions given to the jury at trial: [1], [70], [202].

As to ground two:

4. The Court accepted that adverse credibility issues did arise regarding most, if not all, of the civilian witnesses: [173].

5. However, the Court found it was open for the jury to return verdicts of guilty on both counts based on the following evidence: see [177]-[193].

1. The applicant was close to the other co-offenders, and travelled with them to Guildford (where Mr Jia was located) on the night of the offending.

2. Though the applicant remained outside while the shooting took place, he thereafter attended at the back door of the property whilst armed, and in the company of both co-offenders, shortly afterwards.

3. Soon after the shooting, the applicant took steps to hide his involvement in the offending. This included his organising for at least one firearm to be destroyed.

4. Multiple witnesses provided evidence of admissions made by the applicant. Though this evidence was to be approached with much caution, the evidence of one witness had to be considered in the context of all others.

6. The Court was satisfied that the applicant was armed at the back door of the home in Guildford very shortly after the shooting. Reflecting on the establishment of that circumstantial fact, in the context of the evidence as a whole, the Court found it was well open for the jury to return guilty verdicts on each count: [1], [196]-[200], [202].

JUDGMENT

1. BELL CJ:   I agree with Button J’s analysis with regard to the first ground of appeal, and that it should be dismissed.  In relation to the second ground, having reviewed the record for myself and also having had the benefit of Button J’s careful analysis, I agree with both Button and McNaughton JJ that the verdict was well open to the jury and that this ground must also be dismissed.  I agree with the orders proposed by Button J.    

2. BUTTON J:

Introduction

Mr Ian Fan was convicted of two offences at the conclusion of a trial before Hamill J and a jury on 24 November 2020. The first was that, on 1 February 2017 at Guildford, a suburb of Sydney, he murdered Mr Qin Wu (count 4 on the indictment). The second was that, on the same date and at the same place, he shot at Mr Jun Jia with intent to murder Mr Jia (count 5 on the indictment).

3. Those were the only counts on the indictment on which Mr Fan himself was arraigned. Other persons stood trial with him, some of them arraigned jointly on the same counts along with him, others of them accused of separate (but factually related) offences. Some of those persons were acquitted, and others were convicted. It is not necessary to set out those outcomes in detail at this stage, although I shall do so later.

4. Subsequently, Mr Fan was sentenced to a substantial term of imprisonment, against which there is no application for leave to appeal.

5. Two grounds of appeal against conviction are notified:

Ground one: The directions on JCE [joint criminal enterprise] liability for the murder of WU (Count 4) involved error and occasioned a miscarriage of justice.

Ground two: The verdicts of guilty are unreasonable.

6. The first ground raises a question of law alone, but requires leave because the point was not taken at trial. The second raises a question of mixed law and fact, and does require leave, with the result that in the rest of this judgment I shall refer to Mr Fan as the applicant.

7. For the following reasons, I consider that the necessary leave should be granted, but the appeal against conviction should be dismissed.

Ground one: The directions on JCE liability for the murder of WU (Count 4) involved error and occasioned a miscarriage of justice.

8. In order to understand this ground, I need set out only a brief sketch of the alleged facts underpinning the Crown case, and the bases upon which that case was left to the jury. That is in contrast to ground two. Furthermore, because only count 4, the murder of Mr Wu, is impugned by this ground, it is the focus of the following.

9. In a nutshell, the Crown case was that, on the evening of 1 February 2017, the applicant travelled to an address in Guildford with two confederates, Mr Ying Chen Luo and Mr Jaiyu Liu. It was alleged that Mr Luo had accepted a contract to murder a Mr Jun Jia, who was inside. Mr Luo and Mr Liu entered, whilst the applicant remained outside the premises. Mr Liu fired a shot and killed Mr Wu (the foundation of count 4) in an effort to kill Mr Jia. Moments later, Mr Liu continued to fire multiple shots at Mr Jia, still trying to fulfil the contract (the foundation of count 5). Mr Jia survived the evening.

10. That aspect of the matter – that Mr Liu was trying to shoot Mr Jia, but in the event “unintentionally” shot and killed Mr Wu – is the centrepiece of this ground.

11. As written directions provided to the jury show (MFI 86), the Crown case for each count against the applicant was based upon the doctrine of joint criminal enterprise (hereafter for brevity, JCE). That was entirely orthodox, bearing in mind that it was never alleged that the applicant himself had fired the shot that missed Mr Jia, nor the further shot that killed Mr Wu: to repeat for clarity, the shooter regarding both projectiles was said to be Mr Liu.

12. The reliance by the Crown upon JCE had two aspects: basic JCE and extended JCE, as follows.

13. Regarding count 4, the jury was directed about the elements of murder in the following terms: the prosecution needed to prove beyond reasonable doubt: the death of Mr Wu; that it was caused by a voluntary act of the accused; that the act was done with an intention to kill or to inflict grievous bodily harm; and that it was not done in self-defence or defence of another (that issue had arisen on the evidence for the consideration of the jury).

14. Regarding all persons accused of murder except Mr Liu, the jury was then referred to a document setting out the elements of JCE.

15. As for basic JCE pertaining to the murder count, the jury was directed in writing that the prosecution needed to prove beyond reasonable doubt: the existence of a JCE on 1 February 2017 to kill Mr Jia; that the applicant was a participant in that JCE; that, between them, the accused persons had committed all of the elements of the offence of murder as separately explained; and that the fatal act was done in furtherance of the JCE to kill Mr Jia.

16. As for extended JCE pertaining to the murder count, the jury was directed in writing that the Crown needed to prove beyond reasonable doubt: that a JCE existed on 1 February 2017 “to intimidate Jun Jia with the use of a loaded firearm”; that the accused was a participant in that JCE; that Mr Liu committed all of the elements of the offence of murder as previously explained; that the accused “foresaw the real and not remote possibility that a co-participant would commit each and every one of the essential elements of murder, including the intention to kill or inflict grievous bodily harm and otherwise than in self-defence”; and that the accused continued to participate in that JCE “with that foresight or that realisation”.

17. For completeness, I record that manslaughter was left to the jury on the basis of a JCE to commit an unlawful and dangerous act, but because of the verdict returned and the way both grounds were argued, that need not be pursued further.

18. Bearing in mind that it is not a subject of this ground, I set out the following at this stage for completeness only. Regarding count 5, the allegation against the applicant about the firing of the earlier shot at Mr Jia, the jury was directed that the prosecution needed to prove beyond reasonable doubt that Mr Liu shot at Mr Jia; that he did so with intent to kill him; and that that act was not done in self-defence or in defence of another.

19. Regarding all persons (apart from the alleged shooter) accused of that offence, the jury was referred to the written directions about JCE. As with count 4, count 5 was also left to the jury in two ways: basic JCE and extended JCE.

20. Regarding basic JCE for count 5, it was explained that the prosecution needed to prove, beyond reasonable doubt: the existence of a JCE on the date in question to kill Mr Jia; that the accused was a participant in the JCE; and that between them, the accused persons committed all of the elements of attempted murder, as previously explained.

21. Finally, regarding extended JCE for count 5, the jury was directed that the prosecution needed to prove “the existence of a JCE on the date in question “to intimidate Jun Jia by use of a loaded firearm”; that the accused was a participant in the JCE; that Mr Liu committed all of the elements of the offence, as previously explained; that “the accused foresaw (or realised) that there was a real (not remote) possibility that one of the participants might shoot at [Mr Jia] with intent to kill him, and otherwise than in self-defence”; and that the accused continued to participate in that JCE with that foresight or that realisation.

22. Focusing as this ground does on count 4, the murder, and reflecting upon the written directions, it can be seen immediately that they did not require any state of mind of the applicant pertaining to grievous bodily harm to, or the death of, Mr Wu, the man who was actually fatally shot. The written directions permitted the jury to return a verdict of guilty of murder of Mr Wu against the applicant, so long as the jury was satisfied of proof of the necessary basic JCE or extended JCE pertaining to offences agreed to be committed against Mr Jia.

23. The oral directions provided to the jury in the summing-up were in strict accordance with all of the above, and therefore do not require repetition here.

24. Having retired on 17 November 2020, the jury asked two written questions on 20 November:

(1)   In the joint criminal enterprise document can you please clarify in count 4, point 3C (page 3), who does the intention to kill need to be directed at, Jun Jia, Qin Wu, or anybody?

(2)   Can you please clarify when we can consider the verdict of manslaughter?

25. The second question and its answer are irrelevant to both grounds as argued, and will not be discussed further.

26. The jury’s mention of “point 3C (page 3)” referred to the written directions prepared by his Honour (MFI 87), namely those relating to the elements for count 4, the murder. Element, or “point”, 3C provided that the act causing the deceased’s death must have been done “with an intention to kill or an intention to inflict grievous bodily harm”.

27. It was proposed to counsel by his Honour that the jury be redirected in the following way:

In relation to the first question, the answer is that what needs to be proved beyond reasonable doubt is that there was an intention to kill a person or an intention to inflict grievous bodily harm on a person. It is not necessary that it be a particular person.

Applying that direction to the facts of this case, if the gun was discharged with an intention to kill Jun Jia, but Qin Wu was killed, that is sufficient to establish the specific intention required for the charge of murder. So that element (3)(c), as you have identified it in the joint criminal enterprise document, does not require proof of the intended target.

However, when you look to the next paragraph, that is paragraph 3(d), you will see that the act must be done in furtherance of the joint criminal enterprise to kill Jun Jia. That is because the joint criminal enterprise that the prosecution relies on is an alleged joint criminal enterprise to kill a particular person, Jun Jia. If you are not satisfied of that fact, the foundation of the prosecution’s case based on joint criminal enterprise falls down or falls away.

There may be cases where the identification of the target is not known or may not need to be proved, but that is not this case. The only case the prosecution puts is that the joint criminal enterprise it alleges was based on an alleged contract to kill Jun Jia and it was a joint criminal enterprise to kill Jun Jia.
(emphasis added)

28. All counsel agreed with the proposed answer to the first question. No objections or criticisms or suggestions for improvement were made, with the result that his Honour duly directed the jury as foreshadowed.

29. The submission made in this Court for the applicant is that that approach of the learned trial judge was fundamentally legally wrong, with the result that a miscarriage of justice has occurred.

30. To expand on that a little at this stage: it was fundamentally contended that the redirections failed to instruct that the killing, or infliction of serious bodily harm, to someone other than the intended target had to be foreseen by the applicant, in order for him to be liable for the murder on the basis of JCE. Nothing was said by the trial judge regarding the putative substantive requirement for the applicant’s liability, namely that the deceased’s killing or serious injury was either agreed to, or contemplated as a possible incident of the execution of their agreement. This, it was submitted, was an error; the jury were led to believe that the applicant could be liable for murder merely if there was an agreement to kill Mr Jia, coupled with the killing of the deceased.

Written submissions for the applicant

31. The submissions in writing made clear that the applicant does not deny the existence of the doctrine of transferred malice, or any other legal path, whereby the shooter, Mr Liu, could be convicted of the murder of Mr Wu, even though he was in fact allegedly attempting to kill Mr Jia.

32. The submission was more tightly focused than that. It was that ideas to do with transferred malice cannot be applied to a person who entered into a JCE but was not the person who committed the physical elements of the offence (hereafter, “the non-actor”). In other words, transferred malice and the like only go so far: in this case, it certainly attaches to the shooter (hereafter, “the actor”), but no one else within the JCE. The focus needs to be upon whether the offence actually committed (that is, the murder of Mr Wu) was part of the common design and agreement to it by the applicant (basic JCE), or foreseen as a possibility by the applicant (extended JCE). And even on the Crown case, there was no evidence that the death of Mr Wu was agreed to, or foreseen as possible, by the applicant: the whole alleged focus was upon offences to be committed against Mr Jia.

31. On that simple premise, it was said that there had been a miscarriage of justice, because the applicant had been convicted of murder on a wrongful legal basis.

32. The error was compounded, it was said, by the further directions in response to the jury note, which showed their obvious focus upon the issue.

33. What the jury should have been told, the submission ran, was that, in order to be guilty by way of basic JCE, the applicant would have needed to have agreed to killing or inflicting really serious harm upon Mr Wu; or that, in order to be guilty by way of extended JCE, the applicant would have needed to have foreseen the possibility of the death of the same person (or at least really serious physical injury to him) in the course of the agreed commission of the lesser offence of intimidation against Mr Jia.

34. The submission was that, at the least, the jury should have been told that, for extended JCE, it needed to be proven that the applicant had foreseen the possibility of that kind of harm to someone other than Mr Jia, without foresight perhaps of the specific identity of that other person.

Oral submissions of the applicant

37. Orally, it was said that whole prosecution case was that a murder had been committed, but the intended target of it was not the person who was killed. That was said to raise doctrinal questions about the liability of non-actors within a JCE.

38. It was explicitly accepted that no such question arises about the guilt of the shooter, Mr Liu.

39. Bearing in mind that there was no evidence of a basic JCE to kill or seriously harm Mr Wu, the only way that the applicant could be guilty of his murder would have been by way of extended JCE. But there was no evidence that the applicant contemplated (fatal or serious) harm to Mr Wu as a possible incident of the enactment of the agreement to kill Mr Jia.

40. It was said that no authority can be found whereby the doctrine of transferred malice can be applied by extension to a non-actor in a JCE.

41. It seemed to be accepted for the applicant that, on this thesis, if there existed a JCE to murder proven to the criminal standard against a number of persons, but the “wrong” individual was killed, and on the evidence the jury could not discern which of two or more persons was the person or persons who committed the physical elements, then all would need to be acquitted, because transferred malice could apply to none of them, there being a reasonable possibility that each was a non-actor.

42. To the extent that the Crown relied upon the bald terms of s 18 of the Crimes Act 1900 (NSW) for the proposition that, quite apart from transferred malice, the statutory form of murder requires no congruence between the person intended to be killed (or otherwise the focus of a necessary mental element for murder) and the person who actually was killed, the following submission was made by way of emphasis only. The applicant did not deny that the shooter was guilty of murder, whether by way of transferred malice, statutory interpretation of the offence-creating provision, or any other pathway to guilt that encompasses the situation here. But the issue here is whether a non-actor within a JCE is guilty of murder in the circumstances.

43. Senior counsel for the applicant was asked by the Bench to reflect on the following example. Two persons agree to break into a home in order to steal valuables. They are aware that an old woman lives there. The two perpetrators either agree that she is to be bashed (basic JCE), or each individually foresee the possibility of that occurring during the break, enter and steal (extended JCE). One perpetrator enters, the other is the lookout. In fact, the elderly brother of the homeowner is present, his sister having gone out for the evening. The brother is bashed by the offender who enters. Is the thesis for the applicant that the lookout – the non-actor – is not guilty of any offence of violence, because the “wrong person” was bashed?

44. At first, the answer of senior counsel was in the affirmative: the lookout would be exculpated. Later, it was said to depend “on the way that the Crown puts its case”, in that the “other crime that occurs” could be defined “in a general enough way to pick up what occurred without necessarily having to identify the specific victim”. Applying that thinking to this trial: it could have been alleged by the Crown that the applicant and his confederates went to the home “with an intention to kill Jia and anyone else who got in the way”, or “with an intention to kill Jia and any of Jia’s associates who were present”. But the point was emphasised that nothing like that was placed before the jury at any stage.

45. The further direction in answer to the question from the jury simply compounded the error, it was said, because, despite the obvious focus on this issue by the jury, they were never told that they needed to be satisfied to the criminal standard that the applicant contemplated the killing of Mr Wu.

46. In short, regarding liability for murder of the applicant, the bar was erroneously lowered, especially regarding extended JCE. Because that was a possible basis upon which at least some of the jurors found the applicant guilty of the murder count, there is a distinct possibility that he was wrongly convicted.

47. As for Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), it was accepted that counsel at first instance was content with the legal formulation now impugned. But it was submitted that this legal error is so fundamental that that contentment could not stand in the way of its correction, by way of the conviction being quashed and a new trial being ordered.

48. In reply, it was accepted that, for a quarter of a century, it has been established that the liability of a non-actor in (at least a basic) JCE is primary. But the point was made that the elements of JCE require satisfaction to the criminal standard; here, there was no evidence whatsoever that the applicant agreed to, or foresaw the possibility of, the death of Mr Wu.

Determination of ground one

49. In my opinion, this ground must be rejected, for the following reasons, in general conformity with the submissions for the Crown.

50. First, as I have shown, the applicant did not deny the existence of transferred malice as a longstanding feature of Anglo-Australian criminal law. That was correct: its application was explained as long ago as in The Queen v Saunders & Archer at Warwick Assizes (1575) 75 ER 706; 2 Plowden 473 in England, and mentioned as recently as in R v Wilio [2022] VSC 86 in Australia.

51. Nor did he deny the availability of a reading of s 18 of the Crimes Act 1900 that does not require congruence between the person the object of the mental element for murder, and the person actually the object of the act causing death. In my opinion, that was also correct: see Royall v R (1991) 172 CLR 378 at 393, 401; [1991] HCA 27.

52. To repeat: the attack was not upon the liability of the actor by way of those pathways, but rather the liability of the non-actor, in the person of the applicant.

53. What was incorrect, with respect, was the proposition that there is no authority for the inculpation of the non-actor in a JCE in the circumstances here. Relatedly, the minimisation of the importance of the propositions that the liability of the non-actor is either primary (in the case of basic JCE) or derives from that of the actor (in the case of extended JCE) was also erroneous.

54. The most recent taxonomy provided by this Court pertaining to the two forms of JCE is to be found in Batak v R [2024] NSWCCA 66 at [88]-[93]. That analysis is in turn based upon that to be found in Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5 at [61], and of course I have applied it here.

55. Considering the first basis of the Crown case against the applicant, basic JCE, the liability of the applicant for the murder was primary. So much has been understood for a quarter of a century, since the judgment of McHugh J in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316. That meant that his inculpation did not stand or fall upon that of the shooter; indeed, the putative acquittal of the latter by the jury in this trial would have been irrelevant to whether the applicant could be found guilty by the same jury.

56. As I have shown above, there was no “frontal assault” on transferred malice and like ideas. In other words, there was no disputing the correctness of the conviction of the shooter, even though it was quite clear that, on the Crown case, the “wrong” man had been killed.

57. But if it be the case that transferred malice is applicable in the circumstances, and if it be the case that the applicant allegedly bore primary liability, whereby the criminal law imbued the applicant with (at the least) the physical acts of the shooter, it is very difficult to see how anything more was required to be proven against him, above and beyond the explanation of the elements of the offence of murder, and the explanation of basic joint criminal enterprise. Each of those was, with respect, impeccable.

58. In short: I do not consider that the argument of the applicant is available in the context of basic JCE.

59. Turning to the second leg of the Crown case, extended JCE, as I have said, the liability of the applicant pursuant to that doctrine has been clarified now to be derivative: see Batak v R at [92]; referring to Mitchell v The King at [61]. That meant that the jury in this trial needed to be satisfied beyond reasonable doubt of the guilt of the shooter, before it could return a verdict of guilty against the applicant.

60. The derivative nature of the liability of the applicant pursuant to this doctrine, it patently not being based upon agreement, meant that the applicant could “get the benefit” of any exculpatory matter pertaining to the shooter. So, for example (and leaving aside pathways to guilt based upon innocent agency and the like), if the shooter had been found to have been not criminally responsible due to a mental health impairment or cognitive impairment, or irrebuttably presumed to be incapable of committing an offence because he was under 10 years of age, then no liability could have been derived from that of the shooter and placed upon the shoulders of the applicant, and the latter would have been entitled to an acquittal as well.

61. So much may be accepted. But the analysis is nothing more than theoretical in this case: the objective reality is that the shooter was found guilty by the same jury, and it is conceded that transferred malice and the like was a valid basis for that to occur.

62. To express that another way: if transferred malice as a doctrine of liability uncontroversially applied to the shooter, and the liability of the confederate was derived from that of the shooter, I cannot understand how it is that the confederate is entitled to be exculpated, when the shooter was found guilty, thereby demonstrating that the jury was satisfied to the criminal standard of the guilt of the shooter of murder.

63. In short, my first basis for rejection of the thesis is that, whether one looks at things through the lens of primary liability in the context of basic JCE, or derivative liability in the context of extended JCE, I do not understand how it is that it is said that “something extra” needed to be proven against the applicant, above and beyond the orthodox elements of the offence of murder itself and the elements of those two forms of JCE.

64. Secondly, I respectfully think that the absence of authority in support of the proposition for the applicant argues against it, not for it. The situation of the “wrong” person being killed or harmed, or the “wrong” home being invaded, or the “wrong” valuables being taken, or the “wrong” property being damaged, arises not infrequently in criminal law. Nor is it surely infrequently combined with JCE, whether basic or extended. And yet senior counsel could find no authority from any common law jurisdiction that supported the “carveout” pertaining to the non-actor for which he contended.

65. Thirdly, in my opinion policy considerations argue powerfully against the thesis for the applicant. The two examples sketched above suggest that, in some circumstances, the thesis could work not only injustice, but almost absurdity. Speaking generally, the criminal law should strive for congruence between criminal liability and moral culpability, especially perhaps in the realm of complicity for murder and other grave offences: see Mitchell v The King at [30], [46].

66. Indeed, the assessment that the thesis for the applicant could give rise to (at the least) injustice could be arrived at in this very case: regarding basic JCE, a group of men agree to murder another man by shooting him; shots are fired; the target escapes with his life, but, in the murderous attempt, another man within the same premises is shot to death. Regarding extended JCE, the target is to be intimidated by use of a loaded firearm, intention to kill or cause really serious physically injury on the part of the actor is foreseen by the applicant, and, in the course of all of that, another human being is killed by the discharge of that very firearm, by the very person who was originally armed with it.

67. On either formulation, it is difficult to see how it is appropriate for the applicant to be acquitted entirely, based on the simple caprice that the “wrong man” was “accidentally” shot to death.

68. Indeed, the admittedly appropriate conviction of the shooter in those circumstances arguably adds to the caprice, rather than detracting from it, bearing in mind that the whole idea of JCE in either of its forms is that the non-actor ends up being just as criminally liable as the actor for the wrongful acts of the latter.

69. Fourthly and finally, the seemingly lesser point made about how the Crown chose to put its case is also unpersuasive. The Crown case from start to finish was that there was a plan to commit an offence against Mr Jia (that offence being murder for basic JCE, and intimidation with a firearm for extended JCE), and, as it happened, the result of the execution of that plan was that the life of Mr Wu was brought to an end. Because ideas about transferred malice applied just as much to the applicant as they did to the shooter, nothing more needed to be said by the Crown about the bases for his inculpation, including anything to the effect that the applicant foresaw harm to another person, named or not. In other words, in my opinion this was more of a procedural complaint ancillary to the substantive thesis, rather than a separate argument.

70. In short, in my opinion, the position adopted by counsel for the applicant at trial of contentment with the written and oral directions, and the answer to the jury question, was correct. Because of the importance of the point, I would grant leave to argue the ground, but dismiss it.

Ground two: The verdicts of guilty are unreasonable.

71. In contrast to ground one, this ground requires a detailed consideration of the evidence regarding both counts 4 and 5: the murder of Mr Wu, and the shooting at Mr Jia with intent to murder him.

Evidence in the trial

72. Almost every civilian who gave evidence in the trial was involved with prohibited drugs, either as a user, a dealer, or both. Many Crown witnesses were persons whose credibility could be readily impugned, either because of their indirect involvement in the murder, or their criminality generally; or the fact that charges and sentences had been reduced in return for them giving evidence; or their giving evidence with the protection of a certificate against self-incrimination, or their giving evidence after having refreshed their memories from a previous statement, or after a successful application to cross-examine them by the Crown; or their intoxication with drugs during and after the events of which they gave evidence; or their delay or reluctance in speaking to the police; or their many changes in position about what had actually happened.

73. The Crown case in a nutshell was as follows.

74. Mr Chen and Mr Chau were significant drug dealers. Mr Jia “ripped them off” in the sum of many tens of thousands of dollars. The two aggrieved parties sought redress by taking out a contract on the life of Mr Jia.

75. The applicant and Mr Luo were flatmates, and the applicant and Mr Liu and Mr Luo were friends. Mr Rivers was the boyfriend of Mr Luo.

76. In October 2016, the applicant spoke to his then-girlfriend, Ms Hsu, about Mr Jia in derogatory terms. He said words to the effect that Mr Jia owed many people money and that he “grabbed other people’s drugs, tricked other people to get some money”.

77. Mr Luo accepted the contract to murder Mr Jia. Mr Luo “subcontracted” the murder to Mr Al Batat, who was to carry it out on behalf of Mr Luo.

78. Separately, Mr Weng was the occupant of the premises at Guildford, which were a home but also a makeshift Buddhist Temple, and often referred to in the trial as “the Temple”. He was a drug dealer, suffered from schizophrenia, and was a person not to be trifled with.

79. Mr Luo had been an employee of Mr Weng in drug dealing. The carer of Mr Weng was Mr Nguyen, who had his own physical health problem in the form of type 1 diabetes.

80. Mr Weng was incarcerated up until 31 January 2017. During that time, Mr Luo had access to the home. He did not look after it, and indeed stole some items from it. On his release, Mr Weng was very angry with Mr Luo.

81. On 23 January 2017, Mr Al Batat and Mr Luo attempted to murder Mr Jia by shooting him whilst he was in a car with his friend Mr Sun at Kingsgrove. They missed, as confirmed by a text message later received by Mr Chen that read simply “ha ha ha ha”.

82. About six weeks later, on the evening of 1 February 2017 between 7.22 PM and 8.41 PM, Mr Bayliss supplied two firearms to Mr Luo, Mr Liu, and the applicant. The girlfriend of Mr Bayliss, Ms Sellers (a pseudonym), was present for part of that event. CCTV product from an elevator was said to be powerfully supportive of it.

83. On the same evening, Mr Jia was present at the Temple, along with his friend Mr Wu, Mr Weng, and Mr Nguyen. Mr Al Batat was also present.

84. To expand on that a little: a pizza delivery was ordered at 9:08 PM, and dispatched to the Temple at 9:35 PM, although its time of arrival could not be established with certainty. The delivery of the pizza occurred before the arrival of Mr Jia.

85. A data session on the mobile phone of Mr Jia began at 8:49 PM and ended at 9.43 PM. His phone was not used after that time. That corroborated the evidence of Mr Jia that he had been using an online map at that time in order to find the Temple, and supported the Crown proposition that he had arrived sometime around 9:43 PM.

86. Mr Al Batat telephoned Mr Luo at 10.01 PM for 28 seconds to inform him of the presence of Mr Jia (a prior Crown thesis that Mr Al Batat had provided information at an earlier time about the expected presence of Mr Jia later was disallowed by his Honour as speculative).

87. Soon after that phone call, there was a great deal of telephone and text contact between the applicant, Mr Luo, and Mr Liu.

88. At 10:04 PM, the motor vehicle of Mr Rivers, containing him and Mr Luo, departed Burwood on its way to Guildford.

89. At 10:07 PM, the mobile telephone of Mr Jia, without it being used at that time, “pinged” from a tower that suggested that it was in Guildford or its vicinity.

90. At 10:18 PM, Mr Liu left his apartment. The applicant subsequently collected him in his motor vehicle.

91. The applicant, Mr Luo, and Mr Liu drove in the two separate vehicles to the Temple, all of them intending to murder Mr Jia (basic JCE), or at the least intending to intimidate him with a loaded firearm, with the applicant possessing the necessary foresight of possibilities (as discussed in my analysis of ground one) for murder (extended JCE).

92. The applicant drove his own vehicle there, a gold Toyota Prado. He was dressed in white or light-coloured clothes. Mr Liu, who was to become the shooter, travelled to the location with the applicant. He possessed a handgun throughout the journey.

72. Mr Luo and Mr Liu entered the Temple, with the applicant remaining outside. A melee developed, during which Mr Liu fired a number of shots in an effort to kill Mr Jia. As discussed regarding ground one, one of them fatally wounded Mr Wu. At some stage, Mr Luo suffered an accidental gunshot wound to the leg.

73. Thereafter, all three men – that is, including the applicant – either entered the Temple or were at its perimeter. All were armed. That was in an effort to complete the contract by shooting Mr Jia. Specifically, the applicant stood at the back door, armed with a handgun.

74. Mr Weng and Mr Nguyen each telephoned 000 at the time of the second attempt, and the recordings of those telephone calls were tendered in the trial. They each contemporaneously described the third man as being armed.

75. To provide more detail about that: the first call was made by Mr Nguyen, at approximately 11:07 PM. He spoke of a man having been shot at his place, and asked for an ambulance and other assistance. At about 2 minutes 40 seconds into the call, a man could be heard in the background speaking in Mandarin, asking for calm, saying that the police had already been called, and that “You guys should leave immediately”. A little later, Mr Nguyen said “Coming in the back, coming in the back”, and “They back now, come on hurry up, three cunts, hurry up”, and “I fear for our lives” (AB 287). He spoke of three men that “came back”, “With all guns, they all came with them”. Seconds later, he indicated that the men had left.

76. Mr Nguyen rang 000 back at about 11.15 PM. He repeated that “the gunmen left and then came back with more people and more guns”. A little later, Mr Weng came on the line and said to the operator that “Three gunmen come in” (AB 303), which Mr Nguyen repeated.

77. By that stage, the three men had departed. Quite soon after the shooting, the applicant made a number of telephone calls to his friend Mr Yang, the first of them being at 11:40 PM. In the early hours of the following morning, they met at Ashfield, and the applicant asked Mr Yang to hide a bag containing at least one firearm at the premises of Mr Yang.

78. On the same day, 2 February, the Applicant also had contact with another female friend, Ms Lei, in that they ensured that some mobile phones were thrown in a river in the suburbs of Sydney, and the motor vehicle of the applicant was professionally cleaned inside and out to remove “gunpowder”. He had originally texted her at about 2 AM on 2 February, asking her to come to Ashfield urgently.

79. The applicant made an admission at some stage to his then girlfriend, Ms Hsu, to the effect that he had stayed outside in a car when the other two men entered the premises. Having heard a gunshot, he walked towards the house, but did not enter, and stayed on the doorstep.

80. He had also said inculpatory things to Ms Lei, commencing with her arrival at the home of Ms Hsu at about 4 PM on 2 February 2017. At that stage he had said “We are go there to looking for Jun [Jia]”. Furthermore, on the same day, he had made the laconic comment that “the one should die didn’t die. The one shouldn’t die end up dying.”

81. There was evidence derived from surveillance devices and telephone intercepts that showed that the applicant was conscious of his guilt regarding the shooting, and that he was seeking to conceal it.

82. Finally, after the shootings, Mr Luo and Mr Rivers stayed for a time with a Ms Lia at her premises in Sans Souci.

83. No evidence was called in the trial by the applicant, and indeed by any other accused person.

Indictment and outcomes

105. I now turn to set out the counts faced by each accused person, and the verdicts on those counts, not only to provide an overview, but also because at least one of the verdicts of acquittal was relied upon by the applicant in this Court as relevant to the correct approach to ground two.

106. Count 1 alleged that, on 23 January 2017, Mr Al Batat and Mr Luo shot at Mr Jia with intent to murder him. That was the allegation pertaining to the failed attempt at Kingsgrove. Both of them were found not guilty of this count.

107. Counts 2 and 3 each alleged that, on 1 February 2017, Mr Bayliss supplied a firearm to Mr Liu, the applicant and Mr Luo. He was found guilty of count 2, but not guilty of count 3.

108. Count 4 alleged that, on 1 February 2017, the murder of Mr Wu had been committed by the applicant, Mr Luo, Mr Liu, and Mr Al Batat, the latter on the basis that, pursuant to his assistance to Mr Luo in the performance of the contract, he had made the telephone call alerting the others to the presence of Mr Jia at the Temple with murderous intent. All three first-mentioned accused were found guilty; Mr Al Batat, however, was acquitted.

109. Count 5 alleged that on 1 February 2017, the same four men had shot at Mr Jia with intent to murder him. That was based, as discussed, on a shot fired by Mr Liu that missed its target and was otherwise harmless. Again, the first three accused were found guilty of this count, but Mr Al Batat was acquitted.

110. Finally, count 6 alleged that, between 1 February and 5 February 2017, Ms Li had been an accessory after the fact to the murder of Mr Wu. She was found not guilty of that count.

Position of applicant at trial

111. In order to make a proper assessment of the ground, it is necessary to understand the real issues in the trial. I consider that the most accessible way to set out the position of the applicant at trial, and the particular portions of the Crown case that were conceded on the one hand and firmly disputed on the other, is by summarising the final address of his counsel.

112. It was conceded that the applicant drove to the Temple on the crucial evening. But the point was made that the vehicle in which he did so was registered in his own name. And it was said that what happened at the Temple was “a chaotic and unexpected experience”.

113. It was said that there was no direct evidence of the applicant having accepted any contract to murder Mr Jia.

114. It was emphasised that, even on the Crown case, the applicant was not inside the Temple when the two shootings occurred.

115. The jury was asked to examine the state of mind of the applicant at that crucial time.

116. It was said that there was no dispute that Mr Luo had indeed stolen a lot of items from Mr Weng, while the latter was incarcerated. Mr Nguyen had told Mr Weng about what Mr Luo had been doing, but matters only came to a head upon the release of Mr Weng, on 31 January 2017.

117. In cross-examination of Mr Weng by other counsel, the witness had accepted that it could have been at about 5.30 PM on 1 February 2017 that Mr Al Batat had come to the Temple. Mr Weng had shown Mr Al Batat the state of the home of the former. Mr Weng had said at the time that Mr Luo was responsible, and had to “answer for it”.

118. The point was made that phone calls between Mr Al Batat and Mr Luo at 6.16 and 6.21 PM that evening could very well have been about the displeasure of Mr Weng with Mr Luo, not least because the Temple was known as a dangerous place.

119. It was accepted that, thereafter, Mr Luo and the applicant had attended the apartment of Mr Liu. It was submitted in effect that the jury would not find that a “gun transaction” involving Mr Bayliss had occurred on that occasion. It was accepted in contrast on behalf of the applicant that there had been a drug transaction, whereby Mr Bayliss received some drugs in return for cash.

120. At 7:59 PM, Mr Weng sent a text message to Mr Luo. The submission was that Mr Luo would have been well aware of its author, and that would have been confirmed by a further message at 8:49 PM. The point was made that there was contact from Mr Luo to Mr Al Batat after that, and the jury was asked to infer that that was because of Mr Luo being concerned about the state of mind of Mr Weng.

121. The point was made that Ms Sellers had spoken in her statement to police of a dinner plan between Mr Bayliss and one of the other three men as having been cancelled, shortly before she and Mr Bayliss left Mr Liu’s apartment at 9:08 PM. If the jury were to accept what she had said in her statement, the point was made that whatever it was that led to the cancellation of dinner occurred before the phone call at 10:01 PM from Mr Al Batat to Mr Luo, which the Crown prosecutor had asked the jury to infer was made in order to alert the three men to the presence of Mr Jia at the Temple.

122. The jury was asked to infer on the basis of digital evidence that Mr Jia was certainly not at the Temple at 9:33 PM. And yet Mr Luo had digitally expressed an intention to attend the Temple well before then, at 9:08 PM. And there was no evidence that Mr Al Batat had any knowledge that Mr Jia would be coming to the Temple later. In other words, that early statement of intention by Mr Luo suggested that the subsequent attendance of the three men had nothing to do with the presence of Mr Jia.

123. It was accepted that Mr Al Batat had indeed telephoned Mr Luo at 10:01 PM, but the content and purpose of the call was firmly disputed.

124. Emphasis was placed upon cross-examination by other counsel of Mr Weng to the effect that he was indeed impatiently awaiting the arrival of Mr Luo that evening.

125. It was accepted that, soon after the phone call from Mr Al Batat to Mr Luo, there had been a number of attempts by the latter to contact the applicant, and Mr Liu.

126. It was also accepted that a Kia motor vehicle occupied by Mr Luo and his romantic partner, Mr Rivers, left Burwood after that phone call.

127. The alternative hypothesis was placed before the jury: the three men were in contact and gathering not in order to murder Mr Jia at the Temple, but rather so that Mr Luo could confront the ire of Mr Weng, backed up by his two friends.

128. It was said that the Toyota Prado, driven by the applicant, did not leave Burwood hurriedly; rather, he did not depart until 10:35 PM. The point was emphasised that the applicant drove his own motor vehicle, retained it after the shooting, took with him two mobile phones, and indeed was wearing light-coloured clothes, as opposed to something less noticeable.

129. The point was also made that Mr Luo was an expected, indeed eagerly awaited, visitor; that was said to be hardly the best circumstance in which to commit a shooting murder, and survive it. Furthermore, Mr Luo and Mr Liu were heard speaking outside before they entered.

130. It was conceded that Mr Liu had possessed a concealed handgun when he entered, but the jury would readily find that Mr Luo – the alleged contracting party – was, oddly, unarmed.

131. It was said that there was evidence that, at the very time of the entry of the two men, Mr Weng and Mr Jia had been expressing their negative opinions of Mr Luo. That gave weight to the thesis that things had unfolded emotionally and chaotically, not as a result of a plan.

132. The point was made that Mr Al Batat did not absent himself from the premises. That was said to destroy the thesis that he expected gunfire to break out, upon the arrival of the persons whom he had alerted to the presence of Mr Jia.

133. To the extent that the Crown case was that, at one stage, Mr Liu pointed a pistol at the head of Mr Jia, the submission was made that that would have been the perfect time at which to fulfil the asserted contract by pulling the trigger.

134. The jury was reminded that Ms Hsu, the girlfriend of the applicant, had agreed in cross-examination that, when she had contact with the applicant after the shooting, he had said something to the effect of “how could I know they were carrying guns”.

135. Counsel addressed the Crown proposition that, shortly after the shooting, the applicant went to the back door of the Temple. He referred to things that the applicant had said to others after the shooting, along with the contents of the 000 calls made by Mr Nguyen and Mr Weng.

136. It was accepted that the applicant had indeed gone to the back door of the Temple, after the shots have been fired, he having previously been not only outside but also further away from the premises.

137. It was accepted that Mr Nguyen, in the 000 call, had spoken of a return by three men, all armed. He clarified that “they looked in and they left”.

138. It was confirmed that there was no dispute that, after the shooting, the applicant did indeed “come somewhere to the back door area and had somewhat of a look inside and… has then left”.

139. What was firmly disputed was the evidence of Mr Nguyen that the third man, not seen at the earlier stages, possessed a firearm at that stage. The following points were made: at the time of the 000 call, Mr Nguyen was distracted by being in mortal danger; his focus was on getting help, not the details of what he saw; although Mr Nguyen had “insisted” in the witness box that the man at the back door did indeed have a firearm, his view of the applicant may have been impeded; the (presumably glass) door was hardly sparkling clean; the lighting was poor; the observation was brief; Mr Nguyen was suffering from low blood sugar levels at the time; and, finally, a screenshot of the applicant from earlier that evening showed him holding a wallet in his hand, and Mr Nguyen could perhaps have mistaken that item for a firearm.

140. As for what Mr Weng said about the topic of what he had said on the 000 call, his evidence was equivocal as to whether or not there was indeed a third person with a firearm, he having explained in the witness box that he had been very unwell at that time, and that the relevant lighting was very poor. He was not sure of the number of men who returned, and could not say with certainty that all three possessed firearms at that stage.

141. In short, the point was made that the jury simply could not accept that, when he came to the back door after the shootings, the applicant was seen to be in possession of a firearm.

142. As for the aftermath of the shootings, it was accepted that there was phone contact between the applicant and his friend Mr Yang before and after midnight that evening. The jury would be entitled to accept that the applicant turned up at the home of Mr Yang “about midnight”. The point was made that he was an unexpected visitor, in support of the proposition that the shooting was unplanned. As for Mr Yang giving evidence that the applicant had said “[W]e hit someone today”, he had also said that “something went wrong”, which could well mean that a death was neither intended nor foreseen.

143. The whole flavour of the interaction between the applicant and Mr Yang was said to be as a result of an unexpected occurrence, not a plan to murder.

144. Emphasis was also placed on the evidence of Mr Yang that the applicant had said words to the effect that he was waiting in the car when the other two men went inside, and that if he had been present “this event” would not have happened.

145. As for the bag left by the applicant with Mr Yang, counsel submitted that the evidence as to precisely how many firearms it contained was very unclear.

146. It was conceded that the applicant had left a bag with Mr Yang for a time, but the submission was that one could not be satisfied that the bag contained more than two guns, perhaps not even that.

147. Counsel then turned to the departure of the applicant from the home of Mr Yang, and his arrival at the apartment of his girlfriend in Ashfield. It was conceded that, later, at 2:27 AM, the applicant sent a text message to Ms Lei, a friend of Mr Jia and Mr Wu. That was said to be an act of panic on his part, not anything arising from a plan to murder. The next day, when she attended, the applicant told her that both Mr Wu and Mr Jia were deceased, which simply showed that he himself was not aware what had taken place at the Temple. Indeed, if he did believe the next day that Mr Jia had died, the Crown thesis that the three men had returned to the premises in order to fulfil the contract on the life of Mr Jia was destroyed.

148. Various simplistic steps taken to hide the shooting by the applicant were said to be just as consistent with a chaotic, unexpected event as with something that had been planned. All of the Crown evidence about the conduct and statements of the applicant after the shooting was just as consistent with the defence thesis, as with the prosecution thesis, it was submitted.

149. As for admissions allegedly made to various witnesses after the event, to the extent that Ms Hsu gave evidence that the applicant had said that he had gone inside looking for Mr Jia at the beginning of the incident, that simply could not be correct. In any event, she agreed in cross-examination that the applicant had never told her that he had gone to the Temple looking for Mr Jia.

150. As for alleged admissions to Ms Lei – that the three men had gone there looking for Mr Jia, and that “the one should die, didn’t die, the one shouldn’t die end up dying”- it was accepted that she did not resile from her evidence as Ms Hsu had done. But she did not make a statement about the events in question until October 2017; she had no written record or other material to assist her memory; she was a user of crystal methylamphetamine; she had spoken to others and read things about the event; the conversations in question were short; and she was speaking to the applicant in Mandarin, when her first language is Cantonese.

151. In the last part of his final address to the jury, counsel attacked the credibility of Mr Rivers on many bases, not least the fact that he was originally charged with the serious offence of being an accessory after the fact to murder, but after agreeing to give evidence and the application of various discounts, ended up being sentenced to a community corrections order, and not serving a day in gaol. But because of the approach that I take to the evidence of Mr Rivers in determining ground two, I shall not pause to summarise those submissions.

152. Counsel concluded that the presence of the three men at the Temple that evening was not to do with any planned execution of Mr Jia. Rather, it was in response to the undoubted anger of Mr Weng, and his insistence that Mr Luo attend in order to answer for his wrongdoings, topics about which Mr Weng himself had given reliable evidence.

Submissions in this Court

153. The following submissions were made in writing in support of ground two.

154. It was said that the acquittals of Mr Luo and Mr Al Batat on count one, the alleged attempt to shoot Mr Jia on 23 January 2017, call into question the credibility of Mr Jia and Mr Rivers, because their evidence was the main component of the Crown case for that count.

155. As for Mr Rivers, it was said that the only evidence about a contract to murder Mr Jia came from him. It was noted that the trial judge on sentence found that the evidence of Mr Rivers was effectively worthless.

156. It was also said that the evidence of Mr Rivers of the crucial evening was not consistent with CCTV evidence regarding the movement of the three men.

157. The evidence of Ms Hsu regarding statements of the applicant about the behaviour of Mr Jia well before the shooting was also impugned: she did not make a statement until months later, in September 2017; by that stage she had read numerous newspaper and online articles, and had also spoken to Ms Lei; her evidence was internally inconsistent; and it was possible that she had conflated her memory of what the applicant had told her with what other persons had said. It was also noted that the trial judge had given the jury a warning about the potential unreliability of that witness.

158. As for the evidence of Ms Lei, a statement to police was made eight months after the shooting; she was a regular user of ice; there were no contemporaneous notes that could be provided to police, or used to refresh her memory; there were language problems, as placed before the jury by counsel at first instance; and she could have been mistaken in her recollection, or misunderstanding what the applicant was saying. Again, the trial judge had warned the jury about her evidence.

153. As for Mr Yang’s evidence, again there were some inconsistencies and he was a regular user of ice.

154. Regarding the 10:01 PM call from Mr Al Batat to Mr Luo, it was said that the evidence did not support the Crown thesis that the call was made to alert him to the presence of Mr Jia, so that he could be murdered, or at least intimidated with a loaded firearm. The alternative hypothesis regarding Mr Luo enduring a confrontation with Mr Weng was emphasised.

155. In fact, there was no reliable evidence to establish precisely when it was that Mr Jia arrived at the Temple. It was the evidence of Mr Jia, Mr Weng, and Mr Rivers that was relied upon by the Crown to establish that Mr Jia was at the location when the phone call was made.

156. Counsel for the applicant also argued that the VLR data record for the mobile phone of Mr Jia suggested that he had arrived at the location after 10:07 PM. In a nutshell, the submission was that Mr Jia likely used his mobile to access the internet at 10:07 PM, before entering the Temple. There was no evidence from Mr Jia, or any other witness, that he had accessed the internet on his mobile once he was inside.

157. The final submission in writing for the applicant was that it was significant that, even on the Crown case, the applicant never entered the Temple that evening, at any stage.

158. In oral submissions, it was submitted that the alternative reasonable hypothesis consistent with innocence could not be excluded on the evidence.

159. In addressing a query from the Bench as to why the applicant would have stayed outside if the reason for his attendance was to “back up” his friend and flatmate Mr Luo in the difficult personal meeting with Mr Weng inside the premises, senior counsel simply submitted that his absence from the interior weighs in his favour, in that the applicant was undoubtedly not the shooter, and indeed knew nothing of the presence of Mr Wu. The spontaneity of the heated confrontation, again on the Crown case, was also emphasised.

160. Even on the Crown case, Mr Rivers was mistaken about the timing of the crucial phone call: in truth it occurred at 10 PM, whereas the witness thought it was at 8 PM. But the submission was that that central mistake cast significant doubt upon all of the evidence of Mr Rivers about the evening in question. The point was made that his first statement to police (at least) was completely dishonest.

161. The point was made that, in truth, the 10:01 PM phone call was simply to inform Mr Luo that the aggrieved Mr Weng was impatiently waiting his arrival.

162. It was accepted that it could not be said that it was impossible for Mr Jia to have been at the Temple at the time of that phone call; having said that, the “window of opportunity was exceedingly narrow”, and the evidence for it was said to be very unclear and unsatisfactory.

163. The contingent position was that, even if that call was to do with the presence of Mr Jia, that by no means meant that the applicant was part of a joint criminal enterprise to commit an offence against him.

164. As for the laconic summary of the whole matter allegedly provided by the applicant to Ms Lei, the points were repeated about its unreliability: the late timing of its reporting to police; all of the media reporting about the matter; what other persons may have been saying to the witness; and so forth.

165. Finally, the point was made that the behaviour of the applicant after the shooting suggestive of a consciousness of guilt on his part could just as easily be explained by an appreciation that he had driven simultaneously with two friends to a suburban home; one of them had fatally shot an occupant of that home; and the whole situation was suffused with the supply of prohibited drugs, in which the applicant was implicated. In other words, the point was that the admitted behaviour of the applicant after the shooting was not particularly probative towards proving the precise state of mind on his part that needed to be established, at the moment when the two shots were discharged that underpinned the two counts of which he was convicted.

Determination of ground two

172. The following is the approach that I took to the legal aspects of answering this ground in the decision of Russell v R [2023] NSWCCA 196, with the agreement of Wilson and Sweeney JJ. I continue to apply those principles, and consider that the most recent discussion by this Court of them in Dawson v R [2024] NSWCCA 98 is not inconsistent with my established approach: Russell v R at [82]-[90].

The legal principles to be applied in resolving this ground of appeal arising from a verdict of a jury were not the subject of controversy between the parties. They have been discussed many times by this Court, most recently in the decision of Hanna v R [2023] NSWCCA 182 at [18] to [26] of the judgment of Leeming JA, with which Yehia and Weinstein JJ agreed. I respectfully adopt that very recent analysis, and provide the following summary of the principles that I have applied in accordance with it, not as any sort of gloss on what his Honour has said, but merely for the convenience of the reader.

First, the verdict of a jury has “a special authority and legitimacy” within our system of criminal justice: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [48], Hanna v R at [18].

Secondly, this Court must “determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence”: Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [7], Hanna v R at [19].

Thirdly, even if the appellate court experiences a doubt, that is not the end of the matter, because if it were no deference would be paid to “the role of the jury and the advantages it enjoyed in seeing the trial unfold”: Hanna v R at [20]. Having said that, “it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494, Hanna v R at [20].

The position remains that “the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen at 495, Hanna v R at [21].

Furthermore, the advantage enjoyed by the tribunal of fact at trial will vary depending upon the form of the evidence adduced, and the nature of the issues at trial: Dansie v The Queen at [17], Hanna v R at [23].

To express my own understanding of that, by providing two extremes: at one end of the spectrum, a verdict founded upon a trial that consists entirely of undisputed circumstantial facts, about which little or no oral evidence was given, may be more liable to interference on this ground by a court of criminal appeal than, at the other extreme, a verdict founded upon a trial that called for the assessment of the credibility of very many witnesses about sharply disputed facts, including the accused. That is because, in the former case, the tribunal of fact has little advantage over the appellate court in having the trial unfold in the courtroom.

Separately, it is not to be forgotten that what needs to be established by way of this ground to the satisfaction of an appellate court is “that a miscarriage of justice has occurred authorising and requiring its intervention”: MFA v The Queen at [96], Hanna v R at [24].

Finally, the appeal proceeds upon the assumption that the central Crown evidence “was assessed by the jury to be credible and reliable”. Still and all, this Court “examines the record” to see whether, nevertheless, it is “satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39], Hanna v R at [25].

173. Turning to my assessment of the evidence for the purposes of the ground, I accept the proposition that the inculpatory evidence of most if not all of the civilian witnesses must be approached with care.

174. Secondly, although it was not said for the applicant that any legal prohibition arose against making any factual finding (for or against the applicant) that is contradicted by an acquittal of another person, as a matter of practicality I exercise significant caution in doing so.

175. Thirdly, because of the history of the proceedings pertaining to Mr Rivers that I have set out above, combined with the significant error on his part – even on the Crown case – about the timing of the important phone call from Mr Al Batat to Mr Luo, I give his evidence minimal weight.

176. Finally, I did not understand it to be said for the applicant that any circumstantial fact relied upon by the Crown was an indispensable intermediate one, which required proof beyond reasonable doubt, as first discussed in Shepherd v R (1990) 170 CLR 573; [1990] HCA 56, and recently in a conviction appeal in this Court in Carbone v R (No 2) [2024] NSWCCA 7.

177. Having said all that, the ground is to be determined within the framework of the following undisputed matters.

178. The three men in question were close to each other.

179. On the evening of 1 February 2017, the three men engaged in a transaction with Mr Bayliss.

180. Mr Jia was at the Temple some time before or after 10 PM. He was certainly present when the three men arrived there.

181. Mr Luo received a telephone call from a person present at the Temple at 10:01 PM.

182. Thereafter, there was significant contact between the three men.

183. The applicant and the subsequent shooter drove the distance to the Temple together. Mr Luo drove there simultaneously, and they met up outside.

184. Mr Luo and Mr Liu entered the premises, the latter carrying a concealed handgun, which must have travelled there in the vehicle of the applicant or Mr Luo.

185. The applicant remained outside at that stage. I interpolate that that conceded fact, in my opinion, is contrary to the thesis that the applicant attended to “back up” his friend emotionally or physically in a difficult meeting with Mr Weng. If the applicant was there for moral support, he provided none by being well away from the interior of the Temple.

186. A number of shots were fired inside the premises.

187. Thereafter, the applicant attended at the back door of the premises. I interpolate again that, in my opinion, that conceded act of his is inconsistent with the thesis that, entirely unexpectedly, shots had been fired by at least one of his companions. If that were the case, and the applicant had no knowledge or belief that his companions were armed, one would have expected him to flee; at the least, to remain outside, away from the house.

188. Two persons contemporaneously told a 000 operator that three men returned to the home, and all of them were armed. Mr Nguyen did so on a number of occasions, and Mr Weng did so once.

189. Expressing my opinion again, and appreciating all of the criticisms that can be made of the evidence of those persons, including the subsequent prevarication in the witness box by Mr Weng (although not Mr Nguyen), that is very probative evidence that the applicant was indeed armed when he came to the back door. It would be a remarkable coincidence if both Mr Nguyen and Mr Weng were mistaken in their contemporaneous statements about what they could see. Mr Nguyen made the claim more than once, and expressed no uncertainty about it. And any theory that the two men were lying, by agreement or spontaneously, at that stage of mortal danger can be put to one side.

190. That observation of the applicant at that stage very powerfully suggests that he had indeed been part of one or other joint criminal enterprise, and had not merely innocently attended this dangerous residence at around 11 o’clock in the evening.

191. Quite soon after the shooting, the applicant contacted Mr Yang in order to secrete at least one firearm. That is far more consistent with the proposition that the applicant had been part of one or other necessary JCE, as opposed to the shooting having occurred completely unexpectedly from his perspective. If that were the case, one might have expected him to have left the two men who had placed him in this intolerable position to fend for themselves, including, most crucially, disposing of the firearm or firearms – one of them discharged fatally – of which he had known nothing.

192. The same can be said about the steps subsequently taken by the applicant to conceal his involvement in the events of the evening: although they are open to a number of interpretations, the far more obvious one is that the applicant was trying to hide something in which he had indeed been criminally involved.

193. Separately, one must inevitably approach the many admissions that the applicant was alleged to have made to other persons after the event with significant caution. But in a circumstantial case such as this, none of the evidential components of the case (as opposed to the elements of the offences, of course) requires proof beyond reasonable doubt, and the evidence of each witness must be seen in the context of the evidence of all of the others.

194. In my opinion, seen in the context of the undisputed evidence, combined with the “000 evidence” that I believe was powerfully probative, and reflecting upon all of the alleged admissions individually and as a whole, I believe that the latter can play some inculpatory role. And it is to be recalled that although Ms Hsu prevaricated and resiled largely from her evidence incriminating the applicant, Ms Lei did not.

195. Finally on this question of assessment of evidence, it is to be recalled that proof of guilt of either offence did not depend upon proof that the applicant had entered into a basic JCE to kill or really seriously physically harm Mr Jia. As I have discussed, the Crown case on both counts could succeed on the basis of something less: an extended JCE merely to intimidate him with a firearm, along with necessary foresight of possibilities.

196. In short: I consider that it is established (to the indeterminate standard of proof that applies to circumstantial facts) that, when he attended at the back door of the Temple very shortly after the shooting, the applicant was armed with a handgun.

197. The establishment of that fact, when seen in the context of the undisputed facts that I have summarised, rules out the posited alternative rational hypothesis consistent with innocence.

198. Reflecting on that circumstantial factor established to my satisfaction, the evidence as a whole, and the criticisms of it made for the applicant at first instance and in this Court, I do not experience a reasonable doubt about the guilt of the applicant of either count. On the contrary, I think it was well open to the jury to find the applicant guilty of each of these counts.

199. Contingently, if I am wrong in that assessment, and I should experience such a doubt, then I believe that any such doubt can be readily resolved by the unquestionable advantage of the jury in assessing the credibility of very many of the witnesses in the trial (most importantly Mr Nguyen, but including Mr Rivers, Mr Jia, Mr Weng, Mr Yang, Ms Hsu, and Ms Lei), bearing in mind the impossibility of trying to reconstruct the atmosphere of a trial during the evidence of many witnesses from a large number of pieces of paper filed in an appeal.

200. For those reasons, I would dismiss this ground.

Proposed orders

201. Because of the significance of both grounds, I think that leave to appeal should be granted to argue them. In accordance with my opinion that both grounds should be dismissed, I propose the following orders:

1. Leave to appeal against conviction granted.

2. Appeal dismissed.

202. McNAUGHTON J:   I have had the benefit of reading the draft judgment of Button J.  Having reviewed for myself the record of the trial, I agree for the reasons provided by his Honour that the first ground should be rejected.  I also agree that it was well open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, and ground 2 must fail. I agree with the orders proposed by Button J.

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Amendments

12 July 2024 - Appeal book references deleted from paragraphs 11, 24, 26, 27, 30, 31, 37, 96, 97, 111, 126, 138, 142, 150 and 168.

Decision last updated: 12 July 2024