Huynh v The Queen; Duong v The Queen; Sem v The Queen

[2012] HCATrans 335

[2012] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A30 of 2012

B e t w e e n -

TUAN KIET DAVID HUYNH

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A31 of 2012

B e t w e e n -

CHANSYNA DUONG

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A32 of 2012

B e t w e e n -

ROTHA SEM

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 DECEMBER 2012, AT 10.03 AM

(Continued from 5/12/12)

Copyright in the High Court of Australia

____________________

FRENCH CJ:   Yes, Ms Shaw.

MS SHAW:   May it please the Court, I propose to make two further short points in relation to ground 2 before moving to ground 1, and I propose to elaborate on one point in relation to ground 1 which arises out of ground 2.  Your Honours, can I take the Court to the parting direction by the trial judge in relation to what the jury must find proved in order to convict the appellant, that is, in the parting oral direction.  Your Honours, that is in appeal book 2 commencing at page 991, line 42, where his Honour commences by directing the jury that in the wake of what he has said, there is a:

very real possibility, and it remains a real very real possibility that Kimlong Rim or yet another unidentified person murdered Thea Kheav by stabbing him would not necessarily excuse the accused of murder.

In other words, his Honour acknowledges in the summing‑up that the principal might well be someone who is not one of the three accused.  His Honour then goes on to say –

It would not excuse them if the prosecution have proved that the accused or any one of them contemplated that someone might use a knife to cause grievous bodily harm, that is, it does not matter who that other person was, Kimlong Rim or someone else, as long as it was a person who had thrown in their lot in a criminal enterprise in the way that I’ve described it.

So let me just repeat, if the prosecution have proved beyond reasonable doubt that the accused or any one of them did contemplate the use of a knife to intentionally cause grievous bodily harm, the accused, or that particular accused, is guilty of murder. 

Now, your Honours, in our respectful submission, that does not include the element of participation and is clearly deficient in that respect.  His Honour proceeds to direct the jury as to the converse situation and, again, in his final question, reflects what he had said earlier at line 31:

If that much was contemplated, and if you are also satisfied beyond reasonable doubt that the enterprise that they had thrown their lot in with, that they had embarked on, was to commit an unlawful and dangerous act of attacking the person or persons at Vartue Street, then you can return a verdict of guilty of manslaughter.

Your Honours, the second point that I wish to make ‑ ‑ ‑

BELL J:   Can I just, before you move from that, Mrs Shaw, just while you are dealing with the oral directions, draw attention to appeal book 973, lines 30 to 42, where the judge asks in the concluding sentence of the passage to which I have directed attention:

Are you satisfied beyond reasonable doubt that the accused or any one of them who continued to participate in the events in the yard at Vartue Street, contemplated, by that time, that a knife might be used?

Going over to page 982, the central paragraph on that page of the summing‑up again directs attention to whether the jury is satisfied beyond reasonable doubt that:

the accused or any one of them remained participants in the attack –

with the requisite contemplation?  So there are passages in the oral directions in which his Honour referred to the concept of participating or continuing to participate.

MS SHAW:   Yes, and we acknowledge in our written submissions that there are passing references to participation in the sense of involvement, but our submission is that there is an important difference between participating in fact, which might precede participating in what the other 30 or 40 people were, namely an affray or bashing a car or getting in a fight and participation as a legal ingredient of joint enterprise liability, which relates to proving that you took a step in furtherance of the pursuit of the objective of the joint enterprise, namely an intention to kill or cause grievous bodily harm, or the lesser extended liability intention.

In other words, the flaw with not distilling out that it is a separate legal element that is as the law understands participation, as compared to the passing reference to participation by way of involvement, in our respectful submission, underscores the potential for the jury not to have understood that participation in this respect required proof of a step in furtherance of the agreement because liability, as this Court has said on more than one occasion, attaches to the continued participation in furtherance of the agreed criminal enterprise.

BELL J:   If one can draw the inference of an agreement or understanding to inflict grievous bodily harm on a person or persons at the Vartue Street premises, then presence alone in the context would have been sufficient, would it not, in terms of participation?

MS SHAW:   It is the part of your Honour’s question, namely, the “if” part, that we take issue with because, in our respectful submission, that is the very assumption that leads to the circularity of the reasoning.  In other words, contrast the High Court decisions where there is no issue that there – and I am referring to McAuliffe, Clayton and Gillard – was an agreement to commit an offence, whether it is a foundational offence or a charge of murder.  In this case what was in issue was whether you could draw an inference from conduct and the conduct that is – that is the first part of the question, so one needs to, in our respectful submission, identify what is the conduct upon which the inference is drawn.

BELL J:   Indeed.

MS SHAW:   The second point, though, of course, is that mere presence at the time that an event happens where there are 20 to 30 people there could never be enough to found an inference that presence connoted or demonstrated that the person was taking a step in furtherance of the joint enterprise.  In other words, unless you have the foundation and evidence that the person is there to further the joint enterprise with the relevant intention or foresight then the next step of the agreement, in our respectful submission, is putting the cart before the horse.

FRENCH CJ:   Well, you can have a situation in which the conduct of a number of people, apparently acting in concert, supports an inference of the existence of an agreement and that the conduct itself constitutes participation in that agreement but the point you have just made, I think, is that merely being present at the scene does not support the inference that you are part of the agreement.  In other words, the agreement is logically anterior to participation, even though it might that if you, for example, had three people all with knives coming together on one person, you can infer an agreement to stab the person to death on that basis and you can infer their participation. 

MS SHAW:   That is so.

FRENCH CJ:   But if one person – if there is a fourth person standing by watching it all, you cannot get that person into the agreement and, therefore, you do not get to any participation.

MS SHAW:   That is precisely the point, your Honour, and I do not wish to elaborate any further because, with respect, that is the point.  There are a number of scenarios, one of which is capable of allowing one to infer agreement from conduct, namely, as I have said earlier, the Clayton Case where they all arrived, there is no dispute there is an agreement, there is no dispute they act at the same time, the only question is who was the person who inflicted the fatal wound.  On the other hand, you can have the second situation that your Honour identified where yes, you might have a group that is plainly responsible for the death but there might be 20 or 30 others who are in the vicinity about whom you cannot draw that inference. 

The third example, which is one that was left in this case, is that the agreement might, in fact, have been formed at a different time to when it is alleged the act of participation occurred.  In this case, his Honour left to the jury the potential for the agreement to be formed at the house.  That is based on what had occurred on the previous visit to the Nguyen house when there was a party and the conduct of Mr Sem, in particular, and what he said when he came back that the agreement could, therefore, have been formed at that time.  If that was the basis upon which the jury acted, namely, in the light of this direction, as I said yesterday, then, of course, then one does not even need to get to Vartue Street.

KIEFEL J:   Is it an important fact from your point of view for the context that there were a large number of people present?

MS SHAW:   Yes, and the reason for that is that they had different purposes clearly on their face, that one interpretation of this arrival was essentially to cause a melee, and on the prosecution case people emerged – some witnesses described people emerging and smashing cars and carrying planks of wood and getting into fights generally.  In other words, none of those people necessarily had anything to do with Mr Kheav. 

KIEFEL J:   Do you say that in these circumstances the presence at the location gives rise only to an inference that they were there for the purpose of the melee?

MS SHAW:   That is so.  That is one purpose, but of course the evidence was even conflicting on whether or not it went so far as to suggest that some of them were interested in actually throwing pieces of wood or picking up bottles because Ms Francis and Ms Russo went and they say Mr Duong and his passengers, who were not the accused, did not have any weapons, and when they got out the car and they returned there were no weapons brought back.  So there is a third tier of people who were merely watchers and were going to see - curiosity, presumably, to see what was going to happen. 

So there was that raft of potential reasons for presence other than anything related to the deceased, Mr Kheav.  The evidence is conflicting and varied as to what all these other people did, but Mr Johnny Lam, for example, who is the person who was pivotal to or the only witness against my client in relation to what occurred at the gates, he said, for example, as I have said to the Court, there was no evidence that Mr Huynh ever carried any weapon from the car.

There was no evidence that he was seen carrying a weapon, and in fact Mr Lam’s evidence, although it was hotly contested, the highest it got was that Mr Huynh picked up a log that was thrown from the house just before he allegedly bashed Bao Lam, who I indicated yesterday disputes that.  So there was evidence that people from the house were throwing bottles out onto the roadway and throwing logs onto the roadway, so some of the people who were there were picking up bottles and throwing them back at the house and smashing bottles at the house.  So there were clearly other reasons than being engaged in a joint enterprise that was at least to assault Mr Kheav for the various people being there.

BELL J:   That was the critical issue.  What inference could one draw from, in your client’s case, his acknowledgement of having returned to the scene and perhaps thrown some bottles in the context of the findings that the jury made about what was going on at the time?  What, if any, inference could one draw beyond reasonable doubt as to any understanding or arrangement to which he was a party?  Is that not fair?

MS SHAW:   Your Honour, I do, with respect, disagree with that in this case because that outcome or reasoning, in our respectful submission, cannot apply when there were a number of potential acts which might found that inference.  Now, your Honour has referred to Mr Boucaut’s address, however, there was no evidence that Mr Huynh ever threw a bottle.  There was no evidence that Mr Huynh ever threw a plank.  What Mr Boucaut was referring to, if your Honour goes back two pages before in his address, is to the scenario that here are these witnesses who say that all of these people came, some with logs and some threw bottles, people were throwing planks and bottles back and forth to the house.  That might be participation in an affray and if you thought, even though there is no evidence that he did, but if you thought that witnesses who described all of these people, he might have been amongst them, that does not make him party to a murder.

BELL J:   Indeed.

MS SHAW:   So he was not conceding that there was – so the second point I make is this, your Honour, that the only basis upon which the jury could have reasoned and the way the Crown pitched its case, was either Ms Pavic, on the incident on the roadway, or Mr Lam.  Therefore, when you come to look at the outcome, and the trial judge at no stage directed the jury that it is this conduct upon which you are entitled to draw an inference, then this Court or the Appeal Court would have no idea whether or not the jury arrived at that outcome based on an agreement at the house, based on a misunderstanding of Mr Boucaut’s address, based on Ms Pavic’s evidence without considering its conflicts, or based on Mr Lam’s evidence without considering Ms Long’s evidence. 

In other words, it is critical, if one is going to infer the agreement from conduct, for the jury to make a finding as to whether or not they accept, firstly, that conduct and, secondly, an Appeal Court – so the accused can exercise a right of appeal – know what that conduct is because, as I said at the outset, liability is that conduct with that is essentially the participation in furtherance of the joint enterprise.

So, in our respectful submission, the point your Honour Justice Bell made about Mr Boucaut’s address highlights that in this case, one, the trial judge did not at any stage identify what was the conduct relied upon and, secondly, if his Honour did identify it, then this Court or the Appeal Court could examine whether or not his Honour misdirected the jury about the evidence in relation to that conduct, namely, either as to the law or as to the facts. 

Now, at this stage, if one reasons from outcome, then what the court essentially is endeavouring to do is to discern within all of the conduct of the accused that is alleged, whether it is a potential concession in the address, whether it is on the basis of a judge’s direction about what happened at the house, or whether it is on the basis of another witness that the jury may have misunderstood, have arrived at that outcome.

BELL J:   Mrs Shaw, a judge is expected to direct the jury in the course of the summing‑up on the issues in the trial, as it is run.  To the extent that it was not put in issue that Mr Huynh was present as one of the group who had returned to the scene of the melee, the judge was entitled, was he not, to assume that the issues in the trial did not include the question of whether the jury was satisfied that Mr Huynh had returned to the scene in company with others and was in some way involved in the melee.  What was at issue was what inference you could draw from his conduct, respecting any understanding or contemplation that he might have had.

MS SHAW:   Your Honour, with respect I disagree.  It is not an inference from presence that the understanding is based upon, it is an inference from conduct that the Crown rely on as capable of proving the agreement.  So, your Honour, if I can perhaps use this example.  As I said in those High Court decisions, participation was not an issue.  In the Victorian decision of Arafan (2010) 206 A Crim R 216 and, your Honours, I merely refer to it as an example of a case where the agreement to commit an offence was to be inferred from conduct, which as I have said was not the case in the various High Court decisions. In the various High Court decisions there was no issue that there was an agreement and so ‑ ‑ ‑

BELL J:   I am sorry, McAuliffe, what distinction do you draw between this case and McAuliffe in terms of no issue about the agreement?

MS SHAW:   In McAuliffe the three persons involved in the death of the deceased had agreed to go with weapons to bash, so there was no dispute about that.  The issue that arose for the court was whether or not the contemplation that the two McAuliffe brothers had was a possibility.  So it is the content of the agreement that was in issue, not the fact of the agreement.  Whereas in Arafan, which this Court may have some familiarity with because Mr Baini was a co‑accused to Mr Arafan, the question for the Court in that case was whether or not the conduct that was relied upon was capable of providing a basis to infer an agreement of blackmail.

The Court applied the approach of the Court of Appeal in Likiardopoulos, which was prior to the High Court confirming the correctness of that decision. If your Honours go first of all to the statement of principle which we adopt at paragraph 64 where the Court deals with the findings of the Court of Appeal in Likiardopoulos, and in particular about halfway through paragraph 64 on page 231:

However, it also supports our conclusion that, in a case of joint criminal enterprise, more must be proved than mere agreement reflecting a common purpose.  This was not a prosecution for conspiracy.  Having elected to present its case as one of joint criminal enterprise, the Crown was required to establish “participation” in the sense described in Likiardopoulos, that is, “taking a step or steps to further the enterprise”, if it was to sheet home criminal liability on the basis of that form of joint offending.

Their Honours then go to consider the conduct from which the inference was to be drawn.  That is, if, for example, the conduct was equivocal, as presence in this case was, then the question was, was it open to the jury to infer beyond reasonable doubt from equivocal conduct that there was an agreement reached which had as its element the intention to cause grievous bodily harm to Mr Kheav, or the extended liability intention.  In that particular case, there were four items, that is, four aspects of conduct that the Court of Appeal was able to examine to say whether or not this verdict based on joint enterprise principals was in fact a proper one.  At paragraph 67, the Crown considered – this is on page 232 – the various items that were left by the trial judge as:

potentially capable of establishing such “participation”.

In our respectful submission, “participation” means participation as a legal element of joint enterprise liability, as compared to participation by way of mere presence or ambiguous involvement.  So, in our respectful submission, if one does not address whether or not the evidence upon which you rely is capable of establishing participation as a legal element of joint enterprise, then there is the risk of circular reasoning, because if you commence from the point, as the Full Court did, of inferring the agreement from pure involvement, and you infer the intention, then there is a real issue as to whether or not it is bootstraps reasoning. 

I say that because if one looks at paragraph 67 and the various items that the Crown nominated as the basis for the conduct that was said to constitute the participation, the court was able to go through each of those items and say was it participation in the relevant sense, and I refer for example to paragraph 71 where the court said in relation to the reliance on a meeting with Mr Rifat at the Mobil Quix petrol station:

A meeting of that kind, though in one sense arguably linked to Baini –

who was the person with whom the appellant was alleged to have had the agreement –

and his role in providing Rifat with protection, could not properly be regarded as evidencing “participation” by the applicant in Baini’s offending.  As the Crown fairly conceded, “participation” in the relevant sense requires ‑ ‑ ‑

FRENCH CJ:   Well, this is getting us to a particular example of “participation”.

MS SHAW:   It is, your Honour.

KIEFEL J:   But in either event, whether or not one says the conduct of the accused was the basis for an inference in relation to participation or agreement, your essential point must be, must it not, that it is the conduct to which the trial judge ought to have expressly directed the jury.

MS SHAW:   That is so.

KIEFEL J:   For both points.

MS SHAW:   For both points.

KIEFEL J:   So is that not really what we should be focusing upon?

MS SHAW:   Yes, your Honour, and if I can, by way of example, refer to the conduct in relation to his Honour’s directions as to what occurred at the house.  If I could take your Honours to page 970 of appeal book 2 and I use this by way of example in relation to what his Honour left to the jury.  I commence by reminding the Court as to my submission yesterday that there was no evidence that Mr Huynh heard anything at the house or was involved in any events at the Nguyen house at the party.  At line 22, his Honour acknowledges that:

Kathleen Francis did not give any evidence about where Kiet Huynh was at the time.

He refers to them - and that neither of them saw any weapons or gave evidence that they saw any weapons.  Therefore, his Honour directs the jury that whether or not you can draw the inference:

it is possible from that evidence to draw an inference that the men who were at Chansyna Duong’s house before they all left for the party, including the accused –

which is all the accused, including Mr Huynh –

heard, like Kathleen Francis, someone mention getting a knife, however that inference is necessarily a weak one.  We do not know how far in front of Kathleen Francis Chansyna Duong was when Kathleen Francis heard a knife mentioned, nor do we know who was behind her.  Indeed she expressly said that she thought Rotha Sem had already left.  The inference that can be drawn from that conversation in itself is necessarily weak.

FRENCH CJ:   That is the inference as to an agreement.

MS SHAW:   As an agreement.  However, his Honour then goes on to encourage the jury to address that weakness by using their commonsense.  His Honour says:

However, there are other circumstances from which you can draw inferences using your commonsense.  If, for example, you were to find the men left the house with the aim of assaulting the persons at 8 Vartue Street and they had armed themselves at the very least with weapons like bottles and wood, the question arises whether you would expect as a matter of human behaviour there to be some discussion between them about what each of them had.  To put it another way, would this group of young men had gone about arming themselves without reference to what the other members of the group were bringing along.  Even though an inference might be drawn in a general sense that there may have been such discussions the evidence still falls short of showing specific discussion heard by the accused about the taking of a knife‑like object.  You can also ask the question:  well, even if the accused had seen no more than bottles or timber carried out of the house would they, or any one of them, have contemplated that someone or several of their number might also bring along a knife?

In our respectful submission, his Honour is clearly inviting the jury, or directing the jury, that the events at the house are capable of being acted upon by them to infer an agreement, that is to the accused as a group.  His Honour does not separate out the basis for the agreement against Mr Huynh which, of course, is part of our complaint in relation to ground 1.  His Honour then, in the same way, proceeds to direct the jury that it was open to them to infer an agreement by their conduct in travelling to Vartue Street on the basis of what witnesses describe as occurring when they arrived and this, of course, when his Honour says at the third last line:

Many of these witnesses also described the men -

which is all of the men of the number between 15 and 40 –

who came from those cars holding bottles and wood.  Samang Chan described some of them carrying lengths of wood and others picking up limbs from trees.

Again, none of those witnesses described Mr Huynh, or identified Mr Huynh as arriving carrying a length of wood or picking up a limb or throwing bottles or holding bottles although many of the persons who did attend who were not the accused clearly were.  His Honour then goes on to say at page 972, line 29:

If you find that a number of parked cars arrived, that the men came out at the Pearson Street junction, you could ask for what purpose did they move from that location.  What, if anything, are the accused likely to have seen or heard given the evidence you have heard from others who saw the advance of the men down Vartue Street?

That, of course, is the whole group -

Did the accused notice ‑

that is the three accused -

and/or talk about the weapons with which the young men they were with were armed?

The young men they were with were, of course, those who were involved in the overall melee that occurred.  His Honour then goes on to say -

As the group proceeded down Vartue Street clicking bottles and flicking cigarette lighters –

and that group is the entire group -

are you satisfied the accused or any one of them by that time knew that at least one of their group was armed with a bladed weapon?

So, his Honour is clearly inviting the jury as a path to proof of the agreement to bear in mind the conduct of – or the witnesses, the evidence of witnesses as to the conduct of the up to 40 people to see whether or not they – the jury, can infer that the accused who were amongst that 40 people must have seen that they were carrying items.  So, in our respectful submission, when one then comes to the passage that your Honour raised at 973, his Honour has already given two separate occasions upon which an agreement might have been formed separate from presence at the scene.

BELL J:   It may not have been possible to establish when an agreement was formed.  The point that was made clear to the jury in a way that, I think, it is acknowledged was favourable was that in order to reason to guilt on joint enterprise they had to be satisfied beyond reasonable doubt that each accused had come to an agreement with others to use a knife or similar bladed weapon to kill or cause really serious bodily harm to a person or persons at those premises.  So, the circumstance that one may not be able to reason from what point the agreement was formed may not be to the point, really. 

MS SHAW:   Your Honour, we would submit that no matter how favourable the legal direction, if the basis for the finding is not articulated or is misstated then the favourable legal direction does not ‑ ‑ ‑

BELL J:   I understand that, Mrs Shaw.  The matter I am directing your attention to at the moment is – I suppose I am raising with you what point you make out of the fact that the jury may not have been able to come to a conclusion about when the agreement was formed but, nonetheless, be satisfied beyond reasonable doubt as an inference drawn from conduct including presence in the company with a very large number of other people returning to the party, some of them picking up objects of a weapon‑like nature that such an agreement had been formed at the time of the stabbing?

MS SHAW:   I agree with your Honour that the agreement can be formed at different times, as his Honour said.  However, the critical issue that the appellant raises in this respect is that that agreement, that finding on the agreement merely reflects a rolled‑up case against three accused.  So if the jury was satisfied on this rolled‑up case that one of the accused was involved in an agreement, maybe with Kimlong Rim to stab the deceased, then all of the accused who are treated as if they were one in this summing‑up would necessarily also have the same outcome. 

So, in our respectful submission, that highlights the need to one, disallow the conduct as against Mr Huynh and two, the need to prove participation as against him, as compared to what might have been the conduct of others.  Your Honours, can I make this point which I alluded to yesterday, but just quickly that firstly at reference appeal book 1171 to 1172, I referred to paragraph 102 and his Honour’s reasoning at line 14 that:

Participation in any agreement or arrangement was not the issue in this case.

BELL J:   I am sorry where are you reading from at the moment?

MS SHAW:   I am reading from 1172, your Honour, line 14:

The real issue was what the jury made of the conduct of the accused, and whether that conduct established the relevant agreement or arrangement.

Your Honours, we say of course that participation was the issue in the case.  His Honour acknowledges that in a judgment at page 1185 when dealing with the first ground of appeal in this Court.  His Honour, as against Mr Huynh and the other two accused, identifies what was the issue in relation to Mr Huynh at paragraph 161:

The case for Huynh was that it was a reasonable possibility that he was not involved in any of the attacks on Thea Kheav.

His Honour had made it plain in his reasoning at page 1183, paragraph 153 that the prosecution case and the way it was presented was that the agreement could have been formed at different times and at line 48:

Different considerations applied in relation to each of the possible stages of agreement, and different evidence was relevant to each of the stages.

That, of course, is relevant to ground 1 of the appeal in this Court.

BELL J:   Is that also an observation directed to the differing bases upon which liability was left?

MS SHAW:   Not specifically in that paragraph, your Honour, as I read it, but his Honour does acknowledge at line 4:

Each of these bases involved proof of different elements to prove the offence, and it goes without saying that the mental element in each instance was different.

So certainly that is part of what he is saying, but his Honour then proceeds to deal with the different factual scenarios that were raised, namely, the two stages of the brawl, whether Mr Kheav was killed on the roadway, which was the evidence of Mr King and Mr Bao Lam effectively, or whether or not it occurred at the gates and the prosecution case, his Honour acknowledged, was that the arrangement could have been made at the Duong house – on the way to the Duong house, on arrival there or during the brawl.  So there were four stages at which the agreement could have been made.  Then at paragraph 154 his Honour said:

The evidence about what each accused did at each stage differed.

In other words, what occurred at the house was obviously relevantly different evidence and what occurred at the roadway was, in particular, relevantly different evidence.  So, your Honours, in our respectful submission, this was a case where there were quite different bases upon which the jury were entitled to find evidence of conduct that was capable of supporting proof of relevant participation and therefore, unless it was relevant participation, it was not capable of proving the relevant agreement which is the agreement to cause grievous bodily harm or kill.

BELL J:   That is a submission, is it not, directed to the sufficiency of the evidence to support the inference of the agreement or arrangement specified in paragraph 1 of the written directions?

MS SHAW:   Yes, and it also reflects on our submission that the passing reference to the word “participant” or “participation” is no cure for the failure to direct as to the legal element of participation, particularly where, as I said yesterday, in the aide‑mémoire his Honour referred to parties as “participants”.  Your Honours, can I make one final point in relation to the directions on participation and the aide‑mémoire – and I mean by that of course the absence of a direction in relation to participation – and to highlight that this absence in the recast written directions was fatal, in our respectful submission.

If your Honours go to appeal book 3, page 1103, your Honour Justice Bell referred to the introductory general statement at the commencement of the direction as to the steps, as his Honour called them, that the jury needed to step through in terms of finding guilt.  Your Honours, that general introduction where his Honour says, referring to the general principle as to what it is, that:

while that agreement or arrangement is still on foot and has not been called off, in accordance with that agreement or arrangement one of them does, or they do between them, all the things that are necessary to commit the crime they are both guilty of that crime regardless of what part each played in its commission.

Your Honours, that passage reflects what is said by this Court in McAuliffe (1995) 183 CLR 108, in particular the passage at page 114. Your Honours, what I want to take the Court to, for the purpose of this appeal, is the more important passage at 118. For that purpose, can I put in context, with respect, the way in which the Court articulated that statement of principle?

The issue before the Court related to the scope of the common purpose.  That is identified at page 113, and the contention, which is identified in the middle of the page was that the appellant submitted that in a case such as the present, where the accused had clearly agreed to engage in conduct in the nature of assaulting the deceased, what was the relevant intention required for proof of murder, bearing in mind that there was no issue of their conduct, although an issue of causation was raised, in effect, no practical issue about the death being linked to the conduct of these persons.  The submission was that:

in a case such as the present the doctrine of common purpose requires that the intentional infliction of grievous bodily harm be part of the common purpose – that is, that it be agreed expressly or tacitly between the parties as at least a possible incident – before one party can be liable for murder arising out of the act of another committed in the course of executing the common design.  In other words, the appellants contend that the realisation by one of the parties to a common design that the intentional infliction of grievous bodily harm by another party is a possible incident of the joint enterprise is not sufficient –

and the Court goes on to identify the argument.  It is in rebutting that argument that the Court identifies what is the correct scope, test or common purpose, and at page 114 and in particular the passage commencing at the top of the page:

But the complicity of a secondary party may also be established by reason of a common purpose –

This is apart from “aid and abet” –

shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances –

and this is the passage that really, we submit, is reflected in what his Honour said –

If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.

Now, as a general proposition in relation to the formation of the agreement and the outcome of that agreement, that is clearly correct but we say the issue of participation which was not an issue in that case is referred to as a requirement in the passage at page 118 when the Court was discussing the decision of Johns.  The Court said at the top of the page:

As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties.  That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.

Now, in our respectful submission, that is the critical element that arises in this case and it is that passage or that principle that, we say, has been adopted by or continually applied by this Court.  For example, in Gillard (2003) 219 CLR 1 where again, there was no issue that there was an agreement to go to the premises to rob. The issue concerned the failure of the trial judge to lead manslaughter and the Court held in due course that the trial judge was in error of law under section 353 of the Criminal Law Consolidation Act (SA) subject only to the proviso that his Honour failed to do so.

But in the judgment of former Chief Justice Gleeson and Justice Callinan at page 13 and paragraph 25, when their Honours are referring to the way in which manslaughter can arise in the context of a joint enterprise to rob, their Honours said in the second line in particular, that is as the possibility of manslaughter, which I need not read, but if I could take your Honour to line 6:

The essence of the reasoning in the above passage is that, when the secondary party continues to participate in the venture without having agreed to, but foreseeing as a possibility, the act causing death, that party is regarded as intentionally assisting in the commission of a crime.  In the present case, if a jury decided that the appellant foresaw as a possibility that Preston would fire the loaded gun at Knowles, and continued to participate with that foresight, then he would be intentionally assisting in the commission of culpable homicide.

This, your Honours, in our respectful ‑ ‑ ‑

BELL J:   This is a reference, is it not, to principles involving extended joint enterprise.  Your ground complains of the adequacy of the direction respecting proof of participation in the joint enterprise.

MS SHAW:   It relates to both, with respect, in that in both joint enterprise and extended joint enterprise both require the element of participation.

BELL J:   Yes, but your ground is to the sufficiency of the directions in law regarding joint enterprise, is it not?

MS SHAW:   In our submission, joint enterprise includes extended joint enterprise because both headings are related to the principles of joint enterprise.  The directions under extended joint enterprise reflect exactly the directions under joint enterprise, except in relation obviously to the nature of the plan and ‑ ‑ ‑

FRENCH CJ:   What is the legal proposition with respect to participation that you seek to extract from this passage?

MS SHAW:   Your Honours, as his Honour Justice Hayne put it perhaps at paragraph 112, relying on page 118 of McAuliffe that:

The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight.

So it is the participation that is where the real culpability lies ‑ ‑ ‑

FRENCH CJ:   You drop off with the necessary foresight for the purposes of a joint enterprise, rather than an extended joint enterprise?

MS SHAW:   That is so.  Your Honours, again as I referred to yesterday Clayton v The Queen was again another case where there was no dispute that the appellants had gone to the premises with weapons and the only issue in that case was, in fact, self‑defence.  But the relevant passage at paragraph 17 confirms the statement of principle that, in our respectful submission, applying page 118 of McAuliffe. 

So, your Honours, in relation to each of those cases the agreement was not in issue, participation was not in issue.  Arafan is an example of a case where the agreement was in issue and, therefore, the starting point is whether or not there is proof of the relevant conduct.  In that respect, your Honours, we say it is not possible to infer from the outcome or a finding by a jury that the relevant participation has necessarily been proven.

Your Honours, if I can then turn to the second issue that we raise and ground 1 of the notice of appeal.  In particular the point that I have already made that the reasoning of the Court of Appeal, which we make in our written outline, is that by way of example, and perhaps Clayton is another way of expressing this, is that if the only path to proof of the agreement was identifiable conduct that was relied upon by the prosecution, unless that is the case, that is that it is plainly the subject of the prosecution opening, and it is the same conduct that is the subject of the address, and the Court of Appeal can therefore examine for itself whether or not that conduct was sufficient to constitute participation in the relevant sense.

Unless the summing‑up includes the identification of participation as a separate legal element, and the identification of the conduct that is capable of satisfying that element, then the accused has not had a determination by a jury as opposed perhaps to a subsequent Court of Appeal, as to whether or not the evidence was sufficient to support a finding of an essential element of the offence.

FRENCH CJ:   The core of your complaint is paragraph 29, is it?

MS SHAW:   Yes, it is.  Your Honours, can I perhaps come to – just before I come to that, can I just make this by way of an example?  The Crown case at page 649, if I can take your Honours to that because, in our respectful submission, it is quite important in supporting the plank upon which the defence responded to the prosecution case, and the only basis upon which the jury should have been directed to find the accused guilty unless there was a shift which would result in an unfair process. 

At page 649 the prosecutor outlines, as he says he is going to do to the jury, the case against each of the accused, a summary of the case against each which commences at 648.  Your Honours, at line 6 where the Crown Prosecutor refers to the evidence of witnesses in that initial attack on the roadway, he says:

He too was identified by witnesses in that initial attack on the roadway.

That should be “witness”, Ms Pavic –

He was seen kicking, punching and striking Thea Kheav.

And then he says:

Mr Huynh was seen by seen by Johnny Lam to pull Mr Kheav off the gates as Mr Kheav was trying to get over the gates to escape the attack.  Johnny Lam saw Mr Huynh take swings at Mr Kheav with a log, a piece of wood.

And his argument was that this occurred at about the same time as Mr Hampton saw something.  So the prosecution identified Ms Pavic essentially and Mr Lam as the only two witnesses upon which their case implicating Mr Huynh as a participant in any conduct in relation to Mr Kheav depended.  In other words, there was no other witness who gave evidence that Mr Huynh did anything, as I have said, insofar as Mr Lam said that Mr Huynh took a swing at Mr Bao Lam before Mr Kheav.  Mr Bao Lam was in contest with that.

So then, your Honours, that is the basis upon which the Crown identified its case.  The Court of Appeal acknowledged that in its judgment – and your Honours, I will just go to that quickly because it further demonstrates how, bearing in mind the very limited evidence against Mr Huynh, it was not a difficult task, in our respectful submission, to have identified the case against the separate accused and their answer to it.  The court’s summary of the case against each of the accused in terms of the relevant witnesses is at page 1155 based on a summary provided by the Director of Public Prosecutions. 

At paragraph 20 is the case against Mr Duong, and your Honours will see that his Honour lists the number of witnesses that we have identified in our outline who give evidence implicating Mr Duong engaged in various behaviour.  That continues on to paragraph 21.  As your Honours can see, there is a large body of evidence that applied to Mr Duong.  Then the court – but it took two paragraphs to do.

At paragraph 22, the court summarised the evidence - the witnesses who gave evidence against Mr Sem, and at paragraph 23 in the space of seven lines the court summarises the totality of the evidence against implicating Mr Huynh.  I am leaving to one side general evidence about the conduct of the group of 40 and other conduct that does not necessarily implicate him.  Paragraph 23:

As to Huynh, Ms Pavic said she saw Huynh and Kimlong Rim hit Thea Kheav and throw bottles at him after Sem hit Thea Kheav on the head with a bottle.  When Thea Kheav was on the ground, Ms Pavic saw Huynh continue to hit him.  Johnny [Lam] said he saw Huynh pulling Thea Kheav off the gates as he was trying to climb over them.  He saw Huynh swing at Thea Kheav with a piece of wood.  Rithy Kheav said he saw Huynh stab Thea Kheav.

Now, your Honours, his Honour refers to Rithy Kheav as your Honour notes and it was plain from the Crown address they did not rely on Rithy Kheav against Mr Huynh because Rithy Kheav’s evidence was emerging two weeks before the trial, some three years’ later, that there was a second stabber immediately after Mr Duong stabbed the deceased, according to Mr Rithy Kheav, but there was only one stab wound and the prosecutor in his address accepted that the evidence of a second stabber was clearly mistaken.  So, your Honours, that is the totality of the evidence against Mr Huynh.

BELL J:   When you say that, Mrs Shaw, I think it is necessary to acknowledge that that is the totality of evidence from which an inference might be drawn about his participation in the agreement, but it does occur in context of other admissible evidence in the case against your client which included the presence of the large number of people who returned, amongst whom he was one, to the premises.

MS SHAW:   I accept that, your Honour, I accept that.

FRENCH CJ:   But really does it – I do not want to oversimplify the argument, but does it boil down to the proposition that there was, in relation to the joint enterprise head of liability, the trial judge gave, as it were, a rolled‑up direction to the jury in which he repeatedly referred to the accused as a collectivity – the three of them – without separating out the different roles which various witnesses said that they had taken in what occurred?

MS SHAW:   That is the first point.  The second point is that the effect of developing a summing‑up as if it was a narrative of unfolding events had the effect that whatever was alleged in relation to Mr Huynh was commingled with what was alleged as against the other accused.

FRENCH CJ:   I thought that sort of collapsed into the first proposition that I have just put to you.

MS SHAW:   It might well do, your Honour.

FRENCH CJ:   It is the same thing, is it not?

MS SHAW:   It might well be.  Your Honours, the second point then is that during the course of that narrative, the risk of such an approach is that the jury might wrongly therefore use against Mr Huynh evidence that was in fact applicable to another accused to shore up or assume that they were both implicated by the same evidence, when they were not.  The specific examples that I can give in this summing‑up, your Honours, that this is not just a theoretical potential for error by the jury but, indeed, an error that we say even the trial judge made ‑ ‑ ‑

FRENCH CJ:   What are you saying, the trial judge mixed up some of the evidence?

MS SHAW:   He mixed up the evidence himself.  If I can take your Honours to the relevant passages, firstly at page 968, his Honour had dealt with the evidence of Rithy Kheav at page 964 and in particular pointed out at 965 that this accusation about Mr Huynh was made in very dubious circumstances and wrong.  But his Honour then goes on to say at 968 at the top:

There are other witnesses who mentioned seeing Chansyna Duong and Kiet Huynh by the gates very close to the time when Thea Kheav must have been stabbed if and assuming he was stabbed in the gateway incident, if you so find.  David Lam and Bao Lam described Chansyna Duong being involved in confrontations with them.

That is correct.  There was an earlier confrontation with David and Bao Lam, but not at the time of the gateway incident. 

FRENCH CJ:   Is this not a separate line of argument?  This is not necessarily a product of a rolled‑up direction.  This is just, you say, a mistake the judge made about the evidence when he was directing the jury in a particular respect.

MS SHAW:   It is a product of the narrative approach.  By endeavouring to put events in sequence, his Honour has joined my client with Mr Duong ‑ ‑ ‑

FRENCH CJ:   Well, the error is not a narrative approach.  The error is a wrong direction on the matter of evidence, is it not?

MS SHAW:   My submission is that perhaps, your Honour, I am endeavouring to demonstrate that if the judge can get it wrong then how can one be certain that the jury would have been able to distil out the evidence against Mr Huynh and apply the legal directions to it?  Effectively by joining with Mr Duong, his Honour inadvertently would have left the jury with the impression that there were additional witnesses against him when they were not.

FRENCH CJ:   I just do not want you to elevate this into something which it is not.  I mean, on your logic, I think, the judge could have adopted the same narrative style and still got it right.

MS SHAW:   He could have, your Honour, but the point I am making is that this was the only direction given in relation to – this was the one pathway that his Honour directed the jury about.  He said the facts were for them but the one pathway he gave them was this pathway and so in response to the respondent’s contention that at various times – certainly he said at the beginning – they are required to consider the cases separately and at various times he mentioned the evidence. 

We say that in this particular case that there needed to be.  It was not sufficient, as our Full Court said, to link evidence to particular accused in order for the trial judge to discharge his duty, namely, we submit, the duty to ensure that the accused has a trial as if he was charged separately or charged alone.  So, your Honours, if I just quickly refer to this thread in the narrative that comes from 968 where his Honour, as I have said, at particularly line 15:

But apart from Rithy and Johnny Kheav, there is no evidence of the accused being in such proximity –

I point out to the court that Johnny Kheav did not give any evidence against Mr Huynh in relation to being in the proximity of the gates.  The next reference, your Honours, is at page 981 where his Honour deals with Mr King’s evidence.  Mr King was the witness who gave evidence that from his observation the deceased was stabbed on the roadway and taken from the roadway inside the house and his Honour says at line 10:

I have already dealt with John King’s account of the roadway incident and the difficulties in acting on his testimony of Chansyna Duong and Kiet Huynh at or on the roadway.

I point out that Mr King never identified Mr Huynh either correctly or incorrectly at the roadway.  Then at 984 his Honour comes to deal with – and his Honour has dealt with Ms Pavic earlier on, but separately in relation to all the accused, but the only time he deals specifically with Johnny Lam in any relevant sense is at 984 and his Honour addresses the evidence of Mr Lam – that included the involvement of Mr Bao Lam and although Mr Bao Lam and Mr David Lam both said that they were not at the gates when the deceased was stabbed Mr Bao Lam said his involvement was earlier and the deceased was taken in before the roller door came down, Mr David Lam said he was looking through a gap in a fence at the events at the roadway.  His Honour in the context of Johnny Lam’s evidence directs the jury at line 40:

there is some similarity between what David Lam and Bao Lam described and what Johnny Lam described from across the road.

The evidence of David Lam and Bao Lam was that they had a confrontation with Mr Duong not with Mr Huynh, so the only similarity that they might be referring to is in relation to the involvement of Mr Duong.  Then, at the bottom of page 985, his Honour says, as if it was a fairly strong inference:

At what must have been about the same time as the confrontation between David and Bao Lam, and Chansyna Duong and Kiet Huynh, that is shortly after the roller came down –

Your Honours, again that there was no confrontation involving David and Lam, according to even Johnny Lam, shortly after the roller door came down because Mr David Lam was behind a gate, a fence looking through, and as to whether or not there was that confrontation depended solely on Johnny Lam’s evidence and certainly not on Bao Lam’s evidence.  Bao Lam’s confrontation with Mr Duong was well before – or certainly before in relevant time – to the roller door coming down.  So his Honour has arrived at a position where he is putting to the jury that there is this confrontation between Chansyna Duong and Kiet Huynh, shortly after the roller door came down.  Then finally at ‑ ‑ ‑

FRENCH CJ:   You use the expression “directing”.  He is making at this point observations about the evidence to the jury, is he not?

MS SHAW:   Yes, but this is the only pathway that he is providing, your Honour.

FRENCH CJ:   Yes, I understand, but he is not telling them that is the only pathway.  He is just ‑ ‑ ‑

MS SHAW:   He is joining my client with Mr Huynh, in relation to a confrontation which he was not involved in, namely with this ‑ ‑ ‑

FRENCH CJ:   I understand, you are saying there is a factual error.

MS SHAW:   Yes.

BELL J:   Were these factual errors the subject of complaint by Mr Boucaut?

MS SHAW:   No, your Honour, they were not.  It is not the error, it is the combining of my client with Mr Duong that happens to be erroneous that is the nub of the complaint we make.  It demonstrates the importance of isolating out the case against him so that the jury do not fall into the kind of error that the trial judge has fallen into.  Your Honours, the parting direction on the facts in relation to joint enterprise is at page 989, and even putting aside the errors, once again Mr Sem is referred to separately.  But then his Honour at line 35:

What does the evidence of the presence of Kiet Huynh and Chansyna Duong at the gates confronting David and Bao Lam, damaging cars, allow you to find about their state of mind, their participation in the joint enterprise and their contemplation of the weapons which might be used and the level of harm which might intentionally be inflicted?  Did they by that conduct join or continue participation in a criminal enterprise, which by then, they must have realised might extend to one of the people who come with them using a bladed weapon intentionally to inflict grievous bodily harm?

In that way his Honour specifically invites the jury to consider the case against Mr Huynh and Mr Duong without dividing up the evidence that was relevant to each.  Therefore, nowhere in the summing‑up does the accused, Huynh, receive a direction which isolates as against him the evidence that was the basis for an inference of conduct that might prove the relevant participation.  We say the effect of a direction like this is to effectively leave the jury with the impression that the case against Mr Huynh is as strong as the case against Mr Duong, when in truth as the Full Court’s summary of it demonstrates it clearly was not.

In our respectful submission, in the face of a subsequent question by the jury to explain the components of – the legal components of the various joint enterprise and murder and manslaughter and aid and abet, and then recast legal directions in that aide‑mêmoire, omitting the essential element of participation. If the summing‑up were otherwise impeccable, then the failure to redirect the jury on the application of those recast legal directions may not have been significant. 

But in this case, in our respectful submission, it would have been nigh impossible for the jury to distil out from that narrative summing‑up, joining with Mr Duong the evidence that what the jury were entitled to rely upon, as against Mr Huynh, to step through the only elements that were left and, more importantly, to distil out that there was an element of participation – relevant participation – that was required to be proved, and what was the evidence as against Mr Huynh in relation to that evidence of participation.

Your Honours, if I can just finally and shortly refer to the way in which the Full Court dealt with the complaint relating to this ground of appeal, at page 1183 of the appeal book that I have already taken the Court to, it did acknowledge, as I indicated earlier, that the case against each accused at each stage, the evidence differed.  At paragraph 156 at page 1184 his Honour identified the complaint that we make in this Court.  At page 1185, as I have said, he identifies the different issues that related to the particular accused.  At the bottom of page 1185 at line 52 his Honour acknowledges that:

Although there were directions on matters of law, from time to time the Judge linked the directions to the facts of the case, but not differentiating between the three accused.

Nevertheless, his Honour found that the issue that was raised by this ground, at page 1188, paragraph 170, was whether or not what his Honour did was an acceptable way of discharging the judge’s obligation.  His Honour decided the summing‑up was adequate, and at paragraph 172 that the narrative approach or sequential approach was an appropriate one and at line 18:

The question is whether he should have done what counsel for the appellants complain he should have done, as well as what he did.

Now, your Honours, we of course submit that we do not suggest he should have distilled out the case against each accused as well as embarking upon a narrative sequential analysis as one pathway through the evidence, but the appellant’s submission is that the way in which the Full Court approached the identification of the case against each, and the issues, namely, dealing with the common facts, dealing with the elements of law and then distilling out those matters that were in issue as against each of the accused and applying – identifying the evidence relevant to those issues and the defence case is the correct way of ensuring that an accused receives the trial to which he is entitled.

There is no need for a narrative sequential pathway through the evidence.  It is of course open to the trial judge to do that but if he does choose to do that it does not mean therefore an accused is disentitled to have crystallised in one place for consideration by the jury the case against him, so that the Court of Appeal can be clear that his case has been correctly considered.

BELL J:   Was there any complaint at the time respecting the approach that the trial judge took?

MS SHAW:   There was not, your Honour.

BELL J:   On one view, an accused might prefer not to have the case against him or her crystallised in the way that you contend for. 

MS SHAW:   I must say, with respect, I cannot see a case where that might occur unless during the course of not distilling it out, the judge misses some evidence accidentally but, in our respectful submission, it is hard to envisage cases where the narrative approach as opposed to a distillation approach could ever work in favour of an accused and certainly ‑ ‑ ‑

BELL J:   Because a distillation approach does just that, Mrs Shaw, it distils the case against an accused.  I raise the matter simply because it seems to me not without significance that counsel made no complaint about the approach that the trial judge took. 

MS SHAW:   Your Honour, in this case it cannot be said that there was any forensic advantage to the accused by not raising it, bearing in mind as I have indicated to the Court, the directions in relation to Kiet Huynh were to effectively burden him with the evidence against Mr Duong.  If counsel was going to make a complaint in this case it might be one of those complaints, I will ask your Honour to start again.  That, in our respectful submission, is the nature of this summing‑up.

BELL J:   The summing‑up, I think, was handed out in advance, was it not?

MS SHAW:   It was, I think, your Honour, yes.  I think certainly parts of it were.  I am not sure that the totality of it was but as your Honour can appreciate when that process occurs counsel never anticipates that that is going to be the totality of what the trial judge says.  But I cannot – the prosecution might know as to how much was handed out.  So, your Honours, the court concludes at paragraph 173 that this was sufficient to discharge his duty and the case being made for and against each accused.  At paragraph 174, the court interpreted the submission by the appellants that it would have required a substantial addition and required revisiting and in relation to the court, his Honour concludes at line 50:

I consider that the response to that is that the Judge had in effect done all that, the only valid complaint being that he did not do it separately in relation to each accused.  And the answer in relation to that is that it was not essential to do that to discharge the Judge’s duty, to do it would have run the risk of being counterproductive by unduly burdening the jury in terms of length and complexity.

We say, with respect, that at the end, the critical question is whether or not the way in which the judge directed the jury did meet the test or the – as we refer to in our written outline and in our propositions the test of Chief Justice Street in R v Towle (1955) 72 WN(NSW) 338 at 340 as to the importance of directing the jury. The importance of the – if I might just perhaps take the Court to this one passage in conclusion, in particular at 340 where his Honour said in the first column of the Weekly Notes about halfway down the page:

Where more than one are being tried together, except in unusual cases, it is the clear duty of the trial judge to separate for the jury’s consideration the evidence properly relevant and material in the case of each, and to present the case made against each of the accused separately.  The jury should be specifically told of the evidence which they may consider against each individual accused, together with appropriate directions as to the legal principles involved.  In this connection it is insufficient to rest such a direction upon the formula that each case must be considered separately, without further explanation.  To this extent we are of opinion that the summing‑up was defective by reason of the omission to give the jury such directions as would enable them to consider only the evidence admissible against each of the accused as if they had been tried separately.

BELL J:   I think in Towle, there was relevantly different evidence against each accused which made those remarks rather more pointed than in a case such as this where I think the only evidence that was not admissible against your client was Mr Sem’s statement.

MS SHAW:   Your Honour, with respect, we disagree in that clearly the evidence, for example, that is identified against Mr Duong, implicating Mr Duong, is not admissible to implicate ‑ ‑ ‑

BELL J:   Not in the sense of evidence from which one could infer your client’s state of mind, save to the extent that evidence about what was happening at the scene was admissible as against each of the accused.

MS SHAW:   I agree with that, your Honour, but the critical issue of difference here is the very slim case against Mr Huynh as compared to the robust and strong case against Mr Duong.  Unless you isolate out only the evidence against Mr Huynh as down to two witnesses, and instead of telling the jury, as his Honour did about Johnny Lam, that there were some similarities between David and Bao Lam, you direct the jury, “You must consider Johnny Lam’s evidence, bearing in mind, as Mr Boko told you in his address, he was in conflict with Tegan Long”, because Tegan Long said she went out to Johnny Lam’s car to watch, wait for Johnny Lam, she watched from Johnny Lam’s car, he was inside cleaning up.

Unless the jury are directed as to the evidence for and against the Crown evidence, then a Court of Appeal cannot discern whether or not the jury turned their minds to consider that the Crown case at the gates depended on Johnny Lam.  What was the evidence that affected his reliability and his credibility, and can we be satisfied beyond reasonable doubt, based on those criticisms and that conflicting evidence, that it does support that Mr Huynh was indeed involved in the conduct that is alleged against him at the gates.

That did not happen, and so it is not a case where it was a circumstantial case and there were simply competing inferences.  This was a case where there was allegedly a direct evidence witness and a number of other features of the evidence that needed to be put on the defence case as against that particular witness, and similarly with Ms Pavic because according to Ms Pavic, my client was involved in, as I said earlier, the incident at the roadway.  Miss Farmer described a person who is referred to as…..Sem as being the bottler.  Mr Johnny Lam, who is relied on for the gateway incident, claims that Mr Kheav was felled by Duong. 

In other words, in relation to the case against Huynh, if the jury were directed – yes, the Crown rely on Ms Pavic’s evidence at the roadway, however, you must decide when you assess the arguments as to her reliability – even if you accept she is credible – there is this other conflicting evidence, and you may not therefore be prepared to act on her beyond reasonable doubt.

So insofar as Huynh is concerned, the evidence implicated against him was never distilled out in that way, and the jury were never directed as to the material facts in issue in relation to Mr Huynh.  We say, with respect, that that is an essential part of a summing-up, and that if his Honour for example had made an error in the way he had directed in relation to Mr Huynh on that point, the court could consider it, just as on the basis of what he did do, we are able to determine whether he has made factual errors.

So, if the Court pleases, in the absence of the written – recast written directions – referring at all to the evidence the absence of the legal element of participation when participation was the issue in the case and the failure to distil out the case in the way that we have submitted ought to have occurred the appellant contends that there has been an error of law and that the appeal should allowed.  If the Court pleases.

FRENCH CJ:   Thank you, Ms Shaw.

MR ABBOTT:   If the Court permits me, and with the consent of my learned friend, we propose that I go next ‑ ‑ ‑

FRENCH CJ:   Yes, thank Mr Abbott.  Yes.

MR ABBOTT:   I would like to start by answering your Honour Justice Bell’s question yesterday as to what were the issues in the trial so far as Mr Sem was concerned.  The brief outline of events is that Sem was at the Vartue Street premises by invitation.  He left there and went to the Duong house.  What happened there was not clear.  What is clear, from the only evidence that was given, is that Sem was not within earshot when there was any mention of a knife at the Duong house.  The learned trial judge at his summing‑up at page 970 noted that the evidence that Mr Sem “had already walked off”.

Sem came to the roadway, the first location.  Something happened at the roadway.  I say something.  There was an incident.  The extent of the incident of course was subject to varying evidence as to what happened on the roadway and Sem, himself, in his statement to the police claimed to have been attacked and to have acted in self‑defence.  On Sem’s evidence, insofar as his statement to the police was concerned, he retreated and left and ceased his participation in anything.

Thereafter, on Sem’s case, and we say on the basis of the only reliable evidence on which the DPP put forward as distinct from unreliable, Mr Sem was not involved at all in the incident at the gates or bins – that is the second location.  The case was presented to the jury on behalf of Sem by his counsel - the issue with which they had to grapple with was that Mr Sem did not participate in any way in what had happened at the second location at the bins/gates.

On that scenario which, in our submission, is a fair assessment of the issues participation was the biggest issue in Mr Sem’s case.  The issue was whether he continued to participate in anything or whether he did participate in an agreement at – wherever it was made – to use a bladed weapon.  I will come to the way in which the judge approached that in a minute.  As counsel for Sem put it, at volume 2 of the appeal book, page 839, lines 35 to 37:

The evidence in respect of events at locations, who was on the road and the bins, is very different as between each of the three men.

As we will see when I come to that part of the trial judge’s summing‑up, which is primarily at pages 989 in appeal book 2 and following, the evidence against Sem was much less than and different from the other two.

FRENCH CJ:   Can you just formulate for me again what were the key issues in relation to Sem?  You said, as I understood it, that if there were participation he absented himself before any agreement was implemented?  That is really it, is it not?

MR ABBOTT:   Yes, any relevant agreement was implemented.

FRENCH CJ:   Yes.

MR ABBOTT:   You see, your Honour, this whole narrative approach, the way in which the judge approached it, depended upon the issue that was put to the jury, and that is whether there was an agreement to use a bladed weapon and cause grievous bodily harm or kill someone at the house.  I will come to that in a minute, but his Honour made it quite clear that that agreement which was the essential agreement that was put to the jury and your Honour Justice Bell might say that was too favourable, putting it in that way, that agreement, on his Honour’s scenario, the various scenarios he put, could have been made at the house, could have been made in the cars on the way to the Vartue Street property, could have been made on the roadway, could have been made right at the bins/gates location number 2.

The jury were never invited by the judge to consider what bodies of evidence there were referable to what agreement it was that was selected by the jury and indeed he started off by telling the jury there are obviously two locations where this agreement could have been made so you, the jury, have to decide which location the relevant agreement might have been made at, and you will then consider the evidence referable to each location.

FRENCH CJ:   But you say that your client could not be, as it were, by inference, a party to the agreement to the extent the agreement is inferred from what happened at the gateway or on the roadway?

MR ABBOTT:   On the roadway.  First of all I say that, yes, there was evidence from which it might be inferred that he was party to an agreement at the house, an agreement to go back and ‑ ‑ ‑

FRENCH CJ:   Because of what was said at the house?

MR ABBOTT:   Well, but not an agreement to use a knife.

FRENCH CJ:   No, I understand.

MR ABBOTT:   But an agreement to go back to the house, the Vartue Street property, and cause a melee, cause a brawl, cause aggravation, if you like, to the people there as one of 40 people who were going back.

FRENCH CJ:   Well, he was unhappy because of reflections cast upon him by the deceased, is that right?

MR ABBOTT:   Yes, and one might go further and say that there was evidence of an agreement to at least have some form of contact with the deceased, whether it be by punch up or other event, but there was no evidence of my client being party to an agreement either at the roadway or at the bins to use a bladed weapon.

BELL J:   But the jury – just if one returns to the matters that are the subject of complaint in this Court, the direction that formed part of the aide‑mémoire required, if the jury were to convict on the basis of joint enterprise, satisfaction beyond reasonable doubt that your client was a party to an arrangement or understanding that a bladed weapon would be used to inflict grievous bodily harm on a person or persons at the premises.  Now, whether that agreement was formed at the house, in the car travelling in company with others to the premises, at the premises in the course of the first incident or subsequently, you would say, well, it had to be by the time of the first incident because no one made any particular reference to your client thereafter.

MR ABBOTT:   Yes.

BELL J:   But accepting that, if the jury were satisfied of the existence of the agreement, was not the principal issue whether they entertained a doubt in your client’s favour respecting his withdrawal from the agreement?

MR ABBOTT:   No, your Honour, with respect.  The principal issue is whether they entertained a doubt that he thereafter participated, whether he did anything.  Now, you do not get to withdrawal until you have covered the issue of participation.

BELL J:   But you have turned up with somewhere between 10 to 40 other people, some of them armed in order to have some disputation, and the jury accepts that your understanding is that reflected in the first aspect of the aide‑mêmoire direction.

MR ABBOTT:   But the case that went to the jury, favourable or otherwise for the accused, was an agreement to use a bladed weapon.  Now, the judge said that agreement could have been formed at the gates; it could have been formed on the roadway, could have been formed anywhere else.  It was not axiomatic that it had to have been formed at a time when Mr Sem was still involved.  It is not a question then a withdrawal.  It is a question of (a) when the agreement was formed, and if it was formed, say the time when he was there on the roadway, for example, whether thereafter he participated in that agreement, as distinct from another agreement merely to turn up with ‑ ‑ ‑

BELL J:   Mr Abbott, if we assume that the jury followed the judge’s directions, the only evidence that was available to them to infer the existence of the agreement to use a bladed weapon was the evidence contained in Mr Sem’s statement, and then the evidence of the witnesses about his presence at the scene and what it was they said he did, and the circumstance that that occurred in the context of a large number of other young men going back to the premises.  Now, if from that evidence the jury followed the judge’s directions and were satisfied beyond reasonable doubt that he was a party to an agreement to use a bladed weapon, we are back to the point of whether or not ‑ ‑ ‑

MR ABBOTT:   You need to say anything about participation thereafter?

BELL J:   Yes, surely.  Is that not the aspect that was dealt with in the Court of Criminal Appeal – this is at appeal book 1176 and following.  It was the seventh ground of complaint and it related to the directions concerning your client’s continued participation.  Then one goes to paragraph 126 of the reasons of the Chief Justice and he sets out the opening paragraph of the aide‑mêmoire on joint enterprise, with its reference to participation.

MR ABBOTT:   Which made no reference to withdrawal anywhere.

BELL J:   Am I right, Mr Abbott, your case was that your client had withdrawn?

MR ABBOTT:   Had done nothing more than been at the roadway in some altercation ‑ ‑ ‑

BELL J:   So you put in issue his participation in the agreement ‑ ‑ ‑

MR ABBOTT:   Ended, so it was not a question of withdrawal.  Participation in the agreement – if there had been an agreement, and let us assume that there had been at that time, his participation in that agreement had finished.  If the jury were told as they were told time and time again by the judge that the formation of the agreement to use the bladed weapon in all probability could have occurred at the bins and the gates, then the jury should have been told that the big issue in that is not whether my client desired it or wanted it, but the issue was whether or not he ever participated in such an agreement, and there was never any direction to that effect.

BELL J:   This is by way of developing the submission that the failure to isolate the evidence against each accused worked an injustice?

MR ABBOTT:   Yes.

BELL J:   All right.

MR ABBOTT:   We will see that when I come to the trial judge’s summing‑up at 989, which will be brief.  My learned friend the Director’s case is that participation directions served no useful purpose and he said because the evidence is the same.  That suggestion, that submission, of course depends on what agreement you select, where it is alleged the agreement was made and at what time.  As I have said, it might be applicable if you selected the Duong house and the brawl on the roadway but, as I have already said, the issue – and your Honour Justice Bell asked me to identify the issues – the real issue that was put to the jury was, was there an agreement probably made at the gates that a bladed weapon would be used to kill or cause really serious harm to someone at Vartue Street and that someone more likely than not was the deceased.

As I said, your Honour Justice Bell might say that direction was far more favourable than a general direction that might have been given about causing harm generally.  But on the case that went to the jury, as I have said, that agreement was put up for the jury’s consideration as having been made at numbers of places, for example, at volume 2 of the appeal book at page 955 his Honour started this part – said at 955, line 10:

I will now attempt to put the legal directions I have given you on criminal responsibility as an aider and abettor on the one hand, or as a participant in the joint enterprise on the other in the context presented by the evidence in this case . . . 

Because of the evidence, there are two locations at which Thea Kheav might have been stabbed, I will have to deal with the evidence as to both even though the most convenient first step for you I think will be to decide at which of the two locations Thea Kheav was stabbed.  That means I am going to spend time talking about the one you do not choose.  It is not then going to be of use to you but I must do it.

Then the aid and abet directions and the joint enterprise directions occur.  But it was not just a case of two locations where the deceased might have been stabbed.  It is four locations where the agreement might have been made.  Given the focus of the summing‑up as a whole, as a fair reading of the summing‑up as a whole, was that his Honour was putting to the jury, really the question for you is was there an agreement made shortly before the deceased was stabbed at the gates to use a bladed weapon then and there?  In other words, the dilemma of the incident was the stabbing at the gates and that his Honour, I think it is pretty clear from the summing‑up that he gave that he regarded that agreement as having been made very close to the final stabbing.

BELL J:   Is there some part of the summing-up that you are referring to there?

MR ABBOTT:   It is the general direction where he spent so much time on what happened at the gates – who saw what at the gates, was there any evidence of anyone seeing my client at the gates – and I put it in this context.  Because if the Court goes to 989, this gives the Court the flavour of how his Honour was focusing on an agreement made at the gates.  He says between lines 20 and 30:

I remind you that Rotha Sem was not seen by anyone independently of the Kheav brothers at the gateway incident.  However, irrespective of whether the accused or any one of them were, or were not, directly involved in the attack on Thea Kheav at the gates, the prosecution case on joint enterprise must be addressed.

He then goes on to read the passage that Mrs Shaw referred to, which has nothing to do with my client.  He is then talking about the other co-accused all the way down that page.  He returns to my client at the next page, page 990, line 10:

Ladies and gentlemen, I mentioned the absence of evidence, independently of the Kheav brothers, as to Rotha Sem’s presence.  Again I remind you that notwithstanding the caution I have urged taking in acting on the evidence of the Kheav brothers you are entitled to act on their testimony, particularly if you find it supported.

Then he mentioned Nguyen shouting out:

But you will also remember the caution I suggested you exercise in determining just what Rithy Kheav might have meant if he had indeed shouted out the words heard by Loc Nguyen.  But I want to make this point:  even if there is an absence of independent evidence or of evidence that you find reliable that Rotha Sem was by the gates, that does not bring an end to your consideration of Rotha Sem’s involvement by way of a joint enterprise.

In my respectful submission, the whole flavour of this is there is an agreement made shortly before the death of the deceased, on the Crown case, between the three accused at the gates.  That is why his Honour says:

If you are satisfied beyond reasonable doubt that from what he saw and heard, at or near the roadway incident, Rotha Sem contemplated by that time, or shortly after, that the attack might involve the infliction of grievous bodily harm intentionally and with a bladed weapon, then the Crown case of guilt by way of extended joint enterprise would have been proved.

That is a clear misdirection.  There is not a word there about he has got to participate.  It is not enough just to be satisfied from what he saw or heard that because he contemplated that there might be an attack involving an affliction ‑ ‑ ‑

BELL J:   This is something straying somewhat from the grounds of appeal with which this Court is concerned, is it not?  These are directions respecting liability on the basis of extended joint enterprise.

MR ABBOTT:   As Mrs Shaw said, I have understood that the directions on joint enterprise and extended joint enterprise all suffered from the same vice of the failure to refer to the element of participation in both.  Then his Honour went on after that misdirection, and the last three words are on page 990 –

Absence from the yard even if there was absence from the yard at 8 Vartue Street at the time of the gates incident, that is if Rotha Sem was not in the yard at the time of the gate incident, that absence in itself, or a possibility that he was absent, does not leave open the possibility that he had abandoned the joint enterprise.

The joint enterprise he has to be talking about is a joint enterprise which is at or shortly before the incident involving the death of the deceased.

BELL J:   Well, his Honour, I think characterises it at line 21 on page 991 as a joint enterprise involving the infliction of grievous bodily harm.

MR ABBOTT:   Yes, by the use of a bladed weapon, as he keeps telling them.  You will see that he says at line 10:

Indeed we know that people who are likely to have had close contact with Thea Kheav got into his car, and I am referring there, that is got into Rotha Sem’s car, and I am referring to the DNA profiling.  So ladies and gentlemen, if on the evidence you entertain the possibility that Rotha Sem was not even in the yard at the time of the gateway incident.  This question of whether he had thrown his lot in with a joint enterprise involving infliction of grievous bodily harm, whether it had already occurred at the time of the roadway incident.

That is presumably whether “it” being “thrown his lot in”:

And you must ask yourself, is the fact . . . sufficient to show an abandonment –

Well, that is putting the cart before the horse.  The first issue is if there is an agreement what had he done by taking a step in it, if anything?  The issue of what step he took in furtherance of the suggested joint enterprise is never put, never articulated and, indeed, just ignored by the learned trial judge.  As the Court will see, apart from saying that there was no withdrawal because he says there is no evidence he attempted to call off the attackers or to tell others that he was out of it, this was an issue that my understanding was never suggested that he should have to have told others he was out of it but anyway.  Then, the learned trial judge goes on to say about the very real possibility – this is at line 45:

and it remains a very real possibility that Kimlong Rim or yet another unidentified person murdered Thea Kheav by stabbing him would not necessarily excuse the accused of murder.

Well, just pausing there, you would have to then – if that is the scenario to which the jury are going to be addressing, you would have to identify the evidence that put Mr Sem in with an agreement with either the unidentified person or Mr Kimlong Rim and there was no separation out anywhere in this case of what evidence there was that might have associated Sem or any other of the accused with Kimlong Rim or any other identified person – unidentified person to stab the deceased.  His Honour says that all the accused would be implicated in someone else’s decision to use a knife and stab the deceased and cause him either grievous harm or kill him.  All the accused would be implicated, quote, last three lines:

if the prosecution have proved that the accused or any one of them contemplated that someone might use a knife to cause grievous bodily harm –

that is, it does not matter who that other person was, Kimlong Rim or someone else as long as it was a person who had thrown their lot in a criminal enterprise in the way I have described it.

Now, if his Honour meant joining a specific criminal agreement to kill or cause grievous bodily harm by use of a bladed weapon, then that is a correct use of the words “thrown in their lot”.  This is an unfortunate phrase which permeated his Honour’s entire summing‑up.  I will not go through the number of times he used it or the various places, but his Honour used the phrase “thrown in their lot” as a catch‑all phrase for joining in some form of some agreement.  The problem with the phrase “thrown in their lot” is that it was used to mean deciding to speak about going back to Vartue Street.  It was used in the context of deciding to get into a car; it was used in the context of picking up sticks and bottles.  It was used in the context of the melee and the brawls that occurred on the roadway.

BELL J:   Mr Abbott, I think the use of the expression, “thrown in his lot” was the subject of complaint before the Court of Criminal Appeal.

MR ABBOTT:   It was, indeed.

BELL J:   That ground was not made good in that court and is not before this Court, is it?

MR ABBOTT:   It is not before this Court as a specific ground.  I am using that to highlight the necessity for the participation direction which we say was absent.  Obviously it is not before this Court in the sense that this Court will say that phrase should not have been used, but I am merely saying the use of it highlights the need for a specific direction on participation, which was absent in the case of my client whose case at all times was “I did not participate in anything after I left the roadway”.  The Court will see that at page 992, line 10, the misdirections flow on:

So let me just repeat, if the prosecution have proved beyond reasonable doubt that the accused or any one of them did contemplate the use of a knife to intentionally cause grievous bodily harm, the accused, or that particular accused, is guilty of murder.

Mere contemplation, in my respectful submission, could never be enough.

BELL J:   Mr Abbott, these are directions going to extended joint enterprise and to the notion that if it was within the contemplation of an accused that as a possible incident of the carrying out of the agreed enterprise, that agreed enterprise being the infliction of grievous bodily harm, that a participant might intentionally use a knife to kill that would expose the person with the requisite contemplation to guilt of murder.  Now, if that is an incorrect principle it seems to me ‑ ‑ ‑

MR ABBOTT:   Of course it is not an incorrect principle but, your Honour, can I just say it was never put as succinctly as your Honour has put it by the trial judge in the course of his summing‑up.  Had that explanation that your Honour has given been said plumply and plainly I would not be making this criticism of what occurs at page 992.  Your Honour will see – I will not read it out – but the last six lines on page 992 are to the same effect.

Could I make a couple of points to follow up what my learned friend, Mrs Shaw, said about Clayton’s Case; perhaps aptly named in the context of this case because we say it has got nothing to do with – the facts in Clayton’s Case have got very little to do with this case.

I do not know for sure, but because it came from Victoria I would have no doubt that the written directions followed the Victorian Bench Book directions and included participation, whether relevant or germane or not germane, as an element that needed to be proved, as per Arafan’s Case, which was later in point of time.  So at least the jury in Clayton’s Case, for better or for worse, did receive a direction on participation, on that assumption.

In Clayton’s Case there does not appear to be any doubt that all the appellants armed themselves before leaving the house with weapons, including a large carving knife, and in Clayton’s Case it appears that after the arrival at the deceased’s home the deceased was assaulted for some 30 to 40 minutes and stabbed a large number of times in the presence of all those charge.  Against that backdrop, the comments by this Court in Clayton’s Case were apposite, appropriate.  But that case differs, in our submission, in many respects from our case.

Our case is that what was left to the jury was essentially who was party, as I have said, to a joint enterprise or an extended joint enterprise which involved the use of a bladed weapon.  The question of who had the knife, who knew about it, who contemplated it, at what point in time of the joint enterprise the knife was contemplated being used or there was contemplation of the consequences of its use or agreement about the consequences of its use or the way in which it would be used were all factual issues and resulted in there being a different factual case in relation to each of the accused.  If you just look at the way the learned trial judge approached the summing‑up, if I go to three passages at book 2, page 935.  He put it in a form of questions and the questions sort of morphed into one another:

The question becomes for you:  does the evidence show beyond reasonable doubt that the accused or any one of them agreed to join in the proposed assault on those persons present at 8 Vartue Street contemplating that in carrying out the assault one or other of his partners in the enterprise might use a knife to stab a person at 8 Vartue Street with the intention, that is to use the knife with the intention of causing really serious bodily harm.

That is the sort of first question that he formulated, agreement in an assault and the contemplation that one of the partners in the enterprise would use a knife.  The next question that is put to the jury is two pages on at 937, line 18:

Where the disparity between what was more or less expressly agreed and what was used is not as great, a question arises for you as to whether for example even though the knife was not seen, it has been proved that the accused contemplated that a knife might be used.  That gives you an idea of the nature of the questions, of the, evidentiary considerations you will have to consider.  Obviously if you accept that the accused or any one of them heard mention of a knife, or saw one, then the decision about what they contemplated will be differently considered.

And, at 938 at line 4:

However, whether the accused contemplated the infliction of grievous bodily harm or just some unlawful harm, you may not be persuaded beyond reasonable doubt that the accused, or any of them, contemplated anything more than the use of timber and bottles.  You ultimately may not be satisfied that they heard or saw anything of the knife.

And so on and so forth.  All I am saying is that these were appropriate scenarios, appropriate questions for the trial judge to raise but nowhere does he distil the evidence referable to each accused in relation to each of those scenarios.  All the jury are left with is, with respect, a mishmash of questions, suppositions and inquiries which concluded, as I have said at page 991, it is enough if anyone has contemplated the use of a knife, 992, if they just throw “their lot in” and his Honour, with the unfortunate use of that phrase which was, as I said, attributable to all these situations that he put.  If we go over to 939 he said in the second paragraph:

Ladies and gentlemen the same reasoning applies even if you were to find that the accused contemplated the infliction of grievous bodily harm by the use of timber and bottles.

KIEFEL J:   Mr Abbott, do we need to be taken through the directions of what his Honour did say if your point is what he did not say?

MR ABBOTT:   Yes, what he did not do, but what he did do by putting up all these ‑ ‑ ‑

KIEFEL J:   I think we all understand that your point is that he did not sum up or direct the jury in relation to the evidence applicable to each accused.

MR ABBOTT:   Thank you, your Honour.  May I mention that the evidence of any knife being involved with my client was tenuous and that, coupled with the claim that Mr Sem said he had had no further involvement on the roadway and was not placed at the gates by any reliable witness, in my respectful submission, showed that there should have been some direction somewhere about the extent or lack of extent of any participation by Mr Sem in whatever joint enterprise the jury decided, if they decided any at all, he was involved in.

I have dealt with what I say are the oral misdirections.  There is, however, one misdirection I would like to refer the Court to at page 992.  His parting words – the foot of 992 is the end of his directions on joint enterprise.  His Honour said, the last five lines  – this is putting the flipside of the coin, how they arrive at a verdict of not guilty:

If the prosecution have failed to prove beyond reasonable doubt that the accused or any one of them threw their lot in with this plan to attack people at Vartue Street, if the Crown has failed to prove that the accused or any one of them contemplated in any way the use of a knife, whether to cause grievous bodily harm or even just some harm, then the proper verdict is one of not guilty.

Again, no reference to the requirement of participation, and you will see over the page at page 993 he then starts on the addresses, particularly the address by the prosecutor, Mr Pearce.  Even then, in line 4 he says:

If you cannot be satisfied who inflicted the wound, you might nonetheless return verdicts of guilty of you are satisfied beyond reasonable doubt of the guilt of the accused or any one of them on the basis of their intention or participation in a criminal pact –

Now, that seems to be symptomatic of the way his Honour dealt with participation, as though it was an alter ego of intention, without actually telling them what might constitute participation in any way, shape or form. 

FRENCH CJ:   Are you saying anything specific to the applicant Sem here, or is this really the same point that has already been made by Mrs Shaw?

MR ABBOTT:   Part of the same point has already been made.  I will not delay the Court with that.  Could I just refer, this point was made by Mrs Shaw, but at the top of page 991, that direction I have already referred to at line 4, which concludes with the words:

does not leave open the possibility that he had abandoned the joint enterprise –

has to be wrong.  His absence obviously had to leave open the possibility that he had abandoned the joint enterprise.

BELL J:   Ordinarily, to abandon a joint enterprise, having joined that joint enterprise, one looks for some evidence of the communication of one’s abandonment to one’s joint venturers.  That, I think, was the point.

MR ABBOTT:   Yes, but it is not put in that way, your Honour.  It is put baldly by the judge as there is nothing that Mr Sem did or could have done leaves open the possibility of abandonment of the joint enterprise.  It is that vice that I complain of.  Could I go to the aide‑mémoire?  The point has already been made by Mrs Shaw.  Our complaint about the aide‑mémoire is the conflation of participants in the aide‑mémoire, which is to be found at book 3, 1103. 

1.That the accused came to an agreement or made an arrangement with others (the participants) –

is translated by his Honour at 1079 of his directions –

the accused came to an agreement or made an arrangement with other participants –

and again, we see that his Honour has regarded those persons who merely enter into an arrangement as being, and can only be, participants regardless of whether they have taken a step or otherwise.

So we say that the concept of participating in law, which Mrs Shaw has stressed – that is, taking a step in furtherance of the agreement with the appropriate intent – has throughout the context of this summing-up, whether one looks at the written directions, the oral directions or the combination of the two, conflated the concept of participation with the concept of joining in an agreement. 

As I have said in my outline of oral submissions, nowhere does the learned trial judge bluntly and plainly just tell the jury what participating in a joint enterprise consists of in law, and what the element of participation consists of, and perhaps just as relevantly and importantly, what evidence is there from which a jury might infer or conclude that the element of participation can be fulfilled in the context of this case.

Could I just briefly turn to the judgment of the court below?  The relevant part is at 1171 where his Honour, the Chief Justice, starts off in paragraph 98, with the words “there was no risk at all” and, as I have said in my summary of oral argument, having held that there was no risk at all that the jury would have convicted without finding that they had participated, his Honour, the Chief Justice, seems to have come to that conclusion by what he said at the end of paragraph 98:

There was evidence before the jury linking each of the accused closely with the stage of the attack at which [the deceased] was stabbed.

In the case of Mr Sem that, with respect, is not correct.  My client was not the subject of evidence which closely linked him – that is, reliable evidence.  I have set all this out in paragraphs 8 and 9 of my oral written submissions, so I will not read that out, but we are basically talking about the two brothers of the deceased who claimed to implicate my client and a man called Nguyen who claimed that one of the two brothers – although the brother did not say so – said something about Mr Sem doing something to the deceased.  That is the extent of the prosecution case and both brothers of the deceased were accepted as being unreliable witnesses.  The prosecutor said so during the trial that he did not seek to ‑ ‑ ‑

FRENCH CJ:   So how does this feed into this first issue about the direction as to participation?

MR ABBOTT:   Only that the justification by the Chief Justice of the failure to direct on the element of participation, namely, because there was evidence before the jury linking each of the accused closely with the stage of the attack when the deceased was stabbed, if I am correct in my analysis of paragraph 98, is not supported by the evidence.  His Honour, the Chief Justice goes on at 99, after saying again there was no risk, he says in the concluding lines of that paragraph:

It was sufficient if the jury was satisfied that the agreement or arrangement was on foot at the time of the fatal injury.

In one sense, that is correct, but in another sense, if there is no participation then mere agreement is not sufficient.  That then led to his conclusion – the Chief Justice’s conclusion – at paragraph 100:

The issue was whether, from what the accused did, the jury were prepared to find that the necessary arrangement or understanding was made.  Any such finding was necessarily based on evidence that amounted to proof of the making of the arrangement or understanding and participation in it.

Well, we have endeavoured to show, in the course of our written submissions and, today, in our oral submissions, that we disagree with that conclusion.  The next complaint that I make is on the next page – page 1172 – where his Honour, the Chief Justice, four lines from the end of paragraph 102 said:

Participation in any agreement or arrangement was not the issue in this case.

In the case of my client, Mr Sem, I say that participation was the issue.  It was the big issue in this case insofar as Mr Sem was concerned and that is borne out, in my respectful submission, by what follows at pages 1176 and following.  I will not go through that but you will see that the Chief Justice has spent some six pages dealing with the question of Sem’s continued participation recognising, as he does, at pages 1176 to 1179, that Mr Sem’s continuing participation was just the main issue insofar as Mr Sem was concerned.

The conclusion that he came to after posing the question – the question that was properly posed for his consideration is at 1177 in paragraph 123 where he sets out my learned Mrs Shaw’s submissions and he sets out her submissions in the last four lines of paragraph 123. 

The jury had to be directed to ask themselves whether, if Sem was party to an agreement, at what stage of the unfolding events was it made, with whom was it made, what did it embrace, what evidence was there to support each possibility.  In particular, did any agreement to which Sem was a party extend beyond the attack on the roadway? 

His Honour answers that at 1178 paragraph 125 by saying in the last four lines – he said:

In particular, I have considered whether the directions made it clear that the fatal injury had to be sustained while the joint enterprise was continuing, and that Sem was still acting within it, and had to be directed that they needed to be satisfied that the acts causing the death were within the scope of the joint enterprise.

In our respectful submission, that conclusion of his Honour is, with respect, not supported by a close analysis of the summing‑up and we made our criticisms and I will not repeat them.  That again, ignores – sorry, fails to mention the issue of participation, and his Honour then concluded with the written directions which he said:

I consider that the written directions met that requirement.

Then, of course, he does not acknowledge and does not say because he does not agree that the old directions met that requirement.  What he says at 128:

I have looked also at the Judge’s earlier directions.

He then goes on, I will not read it out, but at paragraph 133 at page 1179 he says:

Be that as it may, taking the Judge’s directions as a whole, I consider that they sufficiently brought home to the jury the need to find that Sem continued to participate in a joint enterprise –

Well, I made my submissions on why we do not agree with that.  Could I very briefly deal with the – make one final point to emphasise what my learned friend Mrs Shaw said about the failure of the summing‑up to fairly present the case against each of the accused.  In my respectful submission, there is no proper basis for saying that the usual approach should be

rejected.  The usual approach being the approach that we have put forward and which the learned Chief Justice described as the “usual approach” at the foot of 1188 where he started to deal with the issue of whether what the judge did was an acceptable way of discharging his obligation and he accepted it was not the usual approach, but at 1189 he says that the summing‑up was adequate, albeit not usual.

His Honour seems to be saying that it was adequate because of the reasons that he advances in 172.  I will not read that out.  But then he says in any event, and this is how I read the rest of his paragraphs of his judgment on page 1189, in any event it was quite wrong of him to – or would have been incorrect of him to adopt the usual approach because that would have added much length to the trial.  As Mrs Shaw has made clear we were not saying that you should do the narrative approach and put on top of that the usual approach.  His Honour’s finding in 174, line 3:

The other difficulty with the submission is that it would have necessitated a substantial addition to the summing up, one of some complexity and one that would have added substantially to the length of the summing up -.

entirely misconceives the submissions that were made.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Abbott.  Yes, Mr Edwardson.

MR EDWARDSON:   I can assure the Court I will be extremely brief.  We adopt the submissions that have been put forward by my learned friends in support of both of the grounds, with one exception.  To the extent that Mrs Shaw, at the tail end of her submissions, suggested that there was a robust and strong case against Mr Duong, we do not accept that.  Can I say it is all a matter of degree; it is a matter of how one views the evidence and now is not the time to look at the strength, or otherwise, of the case against any of the accused.  Indeed, I make no comment about the strength of the prosecution case, as against Mr Huynh or Mr Sem.

I do want to make some specific observations though about important matters that related specifically to Mr Duong in the context of why it was necessary, we say, for the learned trial judge to crystallise the case, and the evidence, that was relative to him specifically.  The same criticism is made in respect of the others, but I will confine my submission to that of Mr Duong. 

The starting point is this.  Mr Duong was only at the party at Vartue Street for a short time before going home to chill out with two important prosecution witnesses, namely Kathleen Francis and Sophie Russo.  Significantly, both young women were not well known to Mr Duong, indeed, they were recent acquaintances.  So they were not, in a sense, in his camp.  They were, as I have said, only recently known to him.

It is important to identify the evidence relevant to what transpired at the house before anyone leaves and returns back to the party and, in particular, can I suggest evidence that goes to generally all accused, but also in respect of Mr Duong and you will find the relevant evidence coming from Ms Francis in appeal book 1, commencing at pages 446 through to 448 and then finally at 450.  In a sense that evidence encapsulates what, we submit, is very important from the point of view of all the issues the court had to consider in the context of Mr Duong.  I will just simply dot point, if I may, the aspects of that evidence.

The first thing is the return of Mr Sem back to Mr Duong’s house and what is said to have been uttered by him in the context of what had occurred earlier at the party absent Mr Duong, and you will find that at the top of page 446.  She remembered:

briefly that somebody had got bottled or something and that’s why they wanted to go back.

She was asked to describe Tha’s demeanour, his mood, his behaviour, et cetera:

A.        He was angry and eager to get everyone to go back.

Q.       You talk about ‘everyone’, who are you talking about.
A.       Not sure specifically, but just everybody that was there.

So there is a group of men there and there was obviously a suggestion to the group assembled that there should be a return to the party, and that is the setting, if you like, for the 20 or 40 people that ultimately returned to the scene where this crime was committed.  Importantly, the witness was asked:

Q.       Did that include Syna.

That is, Mr Duong:

A.No, actually Syna was very reluctant to go back because we were obviously happily chilling by ourselves and he didn’t want to go back to the party –

I have referred in the outline to the evidence of Ms Russo who corroborates that aspect as well, that is, the reluctance of Mr Duong to return to the party:

A.Yeah, I think we were told to stay but we insisted we came along.

Sorry, the girls in the end agreed to go with him, and now again I will just simply dot point the other parts of the evidence that are important, bearing in mind the fact that the jury were left to determine when the agreement was formed and why it was significant in respect of the different timings and movements of individual accused.  So the first thing is we have got reluctance on the part of Mr Duong.  The next thing, he departs the house in the company of the two women and also with a man by the name of Yana Orm. 

In other words, they travelled together in the one car.  Importantly, both Francis and Russo confirm that Mr Duong was not armed, there were no weapons in the car, there was no evidence of any discussion of what might be contemplated or what might happen at the party once they got there, and then ultimately both of them give evidence about what happens once they arrive.  Ms Francis, as you will see, says, starting at page 449, that they drove past the party, there was about 15 or 20 people – I am looking at line 23 – maybe 15 or 20 people, there were people who started to scatter everywhere, and then at the bottom of the page:

Q.       What did Syna do.

That is, Mr Duong.  Then over the page:

A.        We just sat in the car together for a while.

Q.       Did he get out of the car.

A.Yes, eventually.  He just stood by the door.  Both people in front stood by the door.

And then has said:

Q.       What did Syna then do?

A.He stood outside the car for a while and then walked over for about maybe 40 seconds and then came straight back.

Q.       Did you see where he went.

A.I believe he just walked up near the driveway somewhere and then came back.

Q.       Did you see how far from the driveway he got.
A.       No.

Q.       Was he saying anything.
A.       No.

et cetera.  So he is away on that evidence for about 10 seconds or thereabouts.  Ms Russo sets out her version of the events in the relevant passages, slightly different timeframe, but nonetheless very short.  Significantly from the point of view of the case against Mr Duong, there was no evidence of any blood, DNA or anything at all consistent with the crime scene. 

So, in essence, the case for Mr Duong - and indeed that we say necessarily required the trial judge to appropriately direct the jury – was to identify the evidence which if accepted was capable of proving the agreement that he participated in – that is, Mr Duong – and also to identify the acts which if established were capable of proving that the accused participated in the agreement.

Now, one issue was the question of whether there was some evidence of whether Mr Duong was seen in possession of a piece of wood.  We deal with that in paragraph 7.4 on page 2 of the outline specifically referring to the evidence of Pavic.  Ms Pavic placed the applicant away and removed from the location where the deceased was stabbed, in other words, putting Mr Duong outside of the specific area where the stabbing occurred.  Importantly, Pavic gave positive evidence that there was wood being thrown from the occupants of the house and in relation to one exchange there was evidence that it was Mr Duong who picked up a piece of wood at that location.

BELL J:   I think his case was put by his counsel on the basis - this is at 765, lines 26 and 27:

He may well have picked up that piece of wood and used it to defend himself -

the point being made that there was no evidence that he had come to the venture armed.

MR EDWARDSON:   Precisely.  So my simple, small point without traversing everything that has been put to this Court before is that there was a very real case, whatever might have been said by witnesses that were, it seems to be acknowledged, discredited at trial.  There was a very real case that needed to be expressly put to give the jury the appropriate assistance on the two important aspects, firstly, the agreement and, secondly, the question of participation.  That was not done in the case of Mr Duong and, we say, therefore, there has been a miscarriage of justice and he has not received a fair trial.  May it please the Court.

FRENCH CJ:   Thank you, Mr Edwardson.  Yes, Mr Kimber.

MR KIMBER:   If the Court pleases, it will be necessary for me to touch on the facts but I will come to that after lunch but a convenient summary of the facts, of course, does appear in the judgment of the court below and particularly beginning at paragraph 3 right until paragraph 23 of the judgment in the court below.  That is appeal book 3, 1153 to 1156.  I will come back to this after lunch, but it is not appropriate to approach this case on the basis that the only evidence, for example, that implicated Huynh has been part of the agreement and could lead to what his state of mind might have been for extended joint enterprise was two witnesses that had him personally involved in the attack upon the deceased. 

All of the evidence, other than the statement of Sem out of court, was admissible against all.  So, for example, with respect to Huynh, it was plainly relevant that he had left the premises in the first place against the background of someone coming back and being outraged about what had happened at the party earlier.  It was plainly relevant that he - no one disputed this - went to the driveway of the premises and that if he was not armed at that point, others were seen to be armed by the neighbours.

One cannot restrict the evidence that implicates an accused to just what they are seen to do themselves physically.  It is the whole context of the evidence that could lead to proper conclusions being drawn about whether they were part of an agreement and what the extent of that agreement was.

Can I come to ground 1 and in essence, as I understand it, the appellant’s point is this, that there is some obligation to give a two‑stage direction:  one, that you must be a party to the agreement and, two, that you must participate in that agreement.  The respondent very much challenges that submission.  The starting point for what direction should be given and must be given about joint enterprise must be the principle of joint enterprise itself. 

Can I take the Court then to this Court’s judgment in McAuliffe (1995) 183 CLR 108 and can I take the Court, in particular, to page 114? It will be important to remember that at 114 the Court is talking about simple joint enterprise, an agreement, in this case, to inflict GBH with the bladed weapon.

It is only later that the court talks about extended joint enterprise.  But can I ask the Court to focus on the passage four lines from the top beginning “Such a common purpose arises” through to the end of that paragraph.  In my submission, that is the clear statement of principle of joint enterprise, and what it requires is three things: one, an agreement that they will commit the crime; two, that one or other of the people will do everything that is necessary to carry out the crime.  That alone tells us that an accused does not have to participate in the actual assault of the deceased to be guilty, because it is enough if he enters into an agreement and then either he or any other member of that agreement commit the actus reus.

BELL J:   I do not think there is an issue but that it is not necessary that all participants commit the actus reus, but I think there is a question that participants to a joint criminal enterprise, as distinct from conspirators, participate in some degree in furtherance of the enterprise.  It may be that they do so in an enterprise of this character by being one of the group who returns as the subject to the agreement.

MR KIMBER:   At the very least, it is not a real issue in this case, because there was no dispute that they all went back.  There was clear evidence that each was involved in different ways in the actual attack upon the deceased, and on the subject of presence there was a very clear direction given about the issue of presence, and that it had to be – and I will take the Court to it – more than just mere presence.

BELL J:   If I can just take you to that last sentence in the passage in McAuliffe at 114 to which you direct attention:

they are all equally guilty of the crime regardless of the part played by each in its commission.

I just raise that because it seems to me that is a point of distinction between liability as a party to a joint enterprise as distinct from liability on the basis of a conspiracy.

MR KIMBER:   Yes, except for this, that whenever one enters into an agreement to commit a crime there is, of course, a meeting of the minds between, let us say, the two people involved, and by the mere entry into that agreement you are encouraging the other to commit the crime.  So merely by entering into the agreement, in whatever way you do that, whether it is by way of discussion or whether it is by way of actually doing something that is then known to the other party and so there can be this meeting of the minds, so merely entering into the agreement is enough for a joint enterprise.  Now, you can do it in so many different ways, of course.

GAGELER J:       Are you resiling from paragraph 11 of your written submissions?

MR KIMBER:   In part I am because ‑ ‑ ‑

GAGELER J:   You had better be quite clear about it.

MR KIMBER:   I am, and I say so for this reason; that when we look at the judgments of this Court there is not this additional requirement that is identified.  What has happened is that in the intermediate courts and, in particular, in the Victorian courts, there has been this separate direction identified, and we have seen it in Arafan and we have seen it in Likiardopoulos in that court.  It is part of the Victorian Bench Book that there are these two different limbs.  But when we go back to the principle of joint enterprise, we do not see this Court setting out clearly that there has to be entry into the agreement and also then some further act of participation in that agreement.

BELL J:   Mr Kimber, my own recollection of the issue in Likiardopoulos and the distinctive Victorian practice concerned the view that presence was requisite throughout the occurrence of the events.  In Likiardopoulos the various events that together constituted the actus reus and some suggestion that one could not be liable on principles of complicity if one was not present throughout and that stems from Justice Smith’s celebrated direction to the jury in Lowery and King [No 2].

MR KIMBER:   I agree.

BELL J:   That is a very different point.  I wonder if I could ask you this?  Do you take issue with the circumstance that the direction that was given in the aide‑mémoire accurately contained in the opening paragraph the relevant principles from McAuliffe?

MR KIMBER:   I have made the point in the written submissions that that statement of general principle by the trial judge is accurate and reflects the principle as set out in McAuliffe.  McAuliffe says nothing about an additional requirement of being a member of the agreement, but then having to do something more.  When one thinks about it as a matter of principle you become liable under joint enterprise for the actions of another because you join in the agreement and I say again, if you join in the agreement you have to be encouraging the other members of the agreement to go forward and do whatever is agreed.

GAGELER J:   Can I just understand, you also say that Chief Justice Doyle is incorrect at paragraph 97 of the judgment, page 1170.

MR KIMBER:   Yes, because, if I can take the Court to the judgment, with respect to the Chief Justice he makes this error potentially.  At paragraph 95 at page 1170 of the appeal book 3 his Honour sets out the principle of what I will call simple joint enterprise that I have just taken the Court to.  Then his Honour goes on at about line 28 to talk about a different thing, liability by the way of extended joint enterprise.

It is only when we get to extended joint enterprise that there is any discussion of foresight and really any relevance of foresight because as I have set out in the written submissions for simple joint enterprise the state of mind already exists as part of the agreement.  You are agreeing to go and assault someone with the intent to inflict grievous bodily harm.  For extended joint enterprise it is different.  There is an agreement, in this case, to commit an assault and if you foresee the possibility of someone acting with a different and greater intent, then you share responsibility for that.

BELL J:   I do not think there is any issue about that.  The question that you are being directed to is Chief Justice Doyle’s observation which, for my own part, I would have thought uncontroversial that there must be some participation in the joint venture by the accused.

MR KIMBER:   Yes, if what his Honour is saying that there has to be an agreement of which he is a party and for simple joint enterprise that is the type of participation, being a party to the agreement.  If his Honour is saying - and I have not examined extended joint enterprise – there has to be some further foresight, I do not agree with what his Honour says, but if his Honour is merely saying that you have to be a participant and by that I mean you have to show that you are a party to the agreement, an agreement that already involves a particular state of mind, then his Honour is right.  But, in my submission, it is better not to talk about foresight in simple joint enterprise.

BELL J:   We are not talking about foresight at the moment, Mr Kimber.  We are talking about participation in a simple joint enterprise case and, as I understand his Honour, he is accepting that the law requires participation in the sense explained in McAuliffe and the other authorities which does not require that all the participants physically carry out any act that constitutes the actus reus, but it does nonetheless require that each play a part.  That may be, in this instance, by their presence.

MR KIMBER:   Indeed, and one plays a part by becoming, at its most simple – it can be done in lots of other ways as well – but one plays a part at its most simple by joining into the agreement, an agreement that involves acting with a particular state of mind.

That is why I say foresight is, with respect, a better term to use when one talks about extended joint enterprise, because we are talking there about foreseeing the possibility of something.  We are not talking with foresight.  It is better to talk about just being part of an agreement to act with a particular intent.

The third aspect of McAuliffe that I was going to take the Court to is of course that the third requirement is that what is done has to fall within the scope of what is agreed.  So they are the three things; an agreement to which you are a party, the second, that one or more of the members of the agreement then carry out the crime, and third, whatever crime is carried out is within the scope of the agreement.  They are the three things that the directions have to bring home, and it is only when we get to the discussion, as I will perhaps come to after lunch, about extended joint enterprise that we see this Court referred a participation, and as I will come to after lunch, what the Court is referring to there is participation in what has been agreed. 

So, you are part of the agreement to assault, and while that agreement is still on foot, if you foresee the possibility of someone acting with GBH, but you stay a part of the agreed venture, then liability attaches.  The doctrine of extended joint enterprise does not require that once you foresee the possibility of another member of the group acting with intent to inflict GBH that you physically do any more.  All you have to do “is remain part of what is agreed between you and your fellow members of the joint enterprise”.

FRENCH CJ:   That might be a convenient moment, Mr Kimber.  We will adjourn until 2 o’clock.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

FRENCH CJ:   Yes, Mr Kimber. 

MR KIMBER:   If the Court pleases, I will just go back quickly to the question your Honour Justice Gageler asked me about paragraph 11 of the written submissions of the respondent and whether I was resiling from it.  I misspoke in the rush of trying to find it.  The first part of that first sentence, I do not resile from.  It is the case that liability on the basis of joint enterprise requires an accused to be a participant in the relevant agreement, and by participant I mean a member of the relevant agreement.

I do submit that it has been held in a couple of the intermediate courts – well, in particular in Victoria – that that has required that a person be a party to the agreement and then they participate in that agreement.  That is the two‑stage direction that we have seen given in Likiardopoulos and Arafan, for example.  So I do not resile from what is set out there.  When I refer to what has been held I am referring to those cases in particular. 

But even if the respondent is wrong about that, then there is the fall‑back position in the following paragraphs which is there must be many, many cases, and it is difficult to think of cases where this does not apply, where evidence that shows a person is a member of the agreement is exactly the same as evidence that shows that they have participated in that agreement if there is a difference.  Because in the normal course of events in a case such as this – like this, there is only one way to prove that a person is a member of the agreement.  It is from the circumstantial evidence of what they do and the context in what they do it.  It is very rare to have evidence of an agreement that is an overheard conversation between the two members, or indeed, an admission that we were part of an agreement.

GAGELER J:   So, you have moved on to paragraph 12?

MR KIMBER:   Well, I am setting out in paragraph 12 that if the respondent is wrong about the fact that there is not this requirement for the two‑stage direction, it must be the case in that many instances, the giving of the second part of the direction will be unnecessary because it is exactly the same evidence that you are relying upon for participation – if there is a difference – that you are relying upon to show being a party to the agreement.

GAGELER J:   So, if defence has two elements and the Crown relies on the same evidence to establish both elements, it is sufficient for a trial judge to direct as to one of those elements, is it?

MR KIMBER:   No.  No, it is not, but one has to identify the difference between an element of the offence and the legal principle of joint enterprise.  The elements of the offence are that someone acted with the intent to inflict GBH and it was unlawful and it was conscious and deliberate, and that someone was either the principal or they share accessorial liability for that act.  But one needs to be careful in not transposing what are the different aspects of joint enterprise you have to direct a jury upon into what are the elements of an offence.

FRENCH CJ:   It is a question of whether the necessary conditions of the accessorial liability in this case and you accept that agreement and participation are necessary conditions.

MR KIMBER:   It depends what is meant by participation.  I go back to what I said before the break.  If the only way – if someone joins an agreement, by joining the agreement, because they have had a meeting of the minds with the one other person, they are lending support to that person to commit the crime.  Now, of course, it has to be an agreement, as McAuliffe tells us, that together they will commit a crime, but do they have to do any more from that point in time?  No.  What is required from that point in time is that one or both of them do the acts that make up the crime and that whatever is done, if it is only done by one, falls within the scope of the agreement.

FRENCH CJ:   Logically there is a distinction.  I mean, take the simple case, two people make an agreement to jointly rob a store.  In the end, one goes and does it and the other stays home.  So you have an agreement but you do not have participation.

MR KIMBER:   Or, depends what the agreement was. 

FRENCH CJ:   I put the agreement; it was a very simple one.  We will go and rob a store, but then it turns out only one goes and robs a store and the other stays home and watches television.

MR KIMBER:   I would submit that it falls foul on the third limb discussed in McAuliffe that what the one person went and did falls outside of the agreement.  Because the agreement was that we will go and we will rob the store, but only one went and robbed the store.

BELL J:   Can I just inquire, Mr Kimber, you keep referring to the two‑stage test in the context of the decision of this Court in Likiardopoulos 291 ALR 1. Could you just direct me to what passage in the reasons in the plurality judgment in Likiardopoulos you have in mind?

MR KIMBER:   The Likiardopoulos that I have been referring to is the Victorian judgment in Likiardopoulos, where there were two aspects of the direction.  You have got to find there is an agreement, and separately you have to find there is participation.  I say, and I have said in the written submissions, that in paragraph 19 of this Court’s judgment in Likiardopoulos there is the use of the word “participation”.  But in my submission, with respect, what the Court is talking about participation in that context is simply being a member of the agreement.

BELL J:   Well, relevantly, do you submit that this Court in Likiardopoulos departed in any degree from what it had said in McAuliffe?

MR KIMBER:   No.

BELL J:   Yes, all right.

MR KIMBER:   Can I go then back to McAuliffe and to the principle of extended joint enterprise, because it is only in the expression of “principle for extended joint enterprise” that we see this Court refer explicitly to the concept of participation.  In my respectful submission, the appellants are making an error by looking at the principle of extended joint enterprise and then trying to convert back from that principle what must be said in a simple joint enterprise.  Can I begin by taking the Court to page 116?

KIEFEL J:   Of?

MR KIMBER:   Of McAuliffe.

BELL J: (1995) 183 CLR 108.

MR KIMBER:   Thank you, your Honour.  At page 116 of that judgment, at the top of the page, the Court is referring to the judgment of Sir Robin Cooke in Chan Wing‑Siu, and in the first quote there at about point 2, beginning “That there is such a principle”, the Court is referring there to what Sir Robin Cooke said about the principle of extended joint enterprise.  We see there in the very last sentence:

criminal culpability lies in participating in the venture with that foresight –

and it is the foresight of a different crime than that agreed.  What is important to identify is what is the venture that is being discussed that there is the participation in.  It is just the underlying agreement, in this case, an agreement to assault and then foreseeing the possibility of GBH.  It is not being suggested that one must participate further after the foresight has arisen.

All one must do is remain a member of what has been agreed and, in my submission, in the absence of any suggestion that someone might have withdrawn from the joint enterprise, the assault, or the possibility that what happened fell outside the joint enterprise then they will be liable if they remain part of that original venture.  What is not being suggested is that once you have foresight, of GBH in this case, you then must actually physically do something to show that you remain part of the plan still.

Then we go to the very bottom of the page where there is reference to R v Hyde and the judgment of Lord Chief Justice Lane and again we see, “nevertheless continues to participate with A in the venture”.  Now, the only venture is what has been agreed between them.  The principle does not set up any requirement that anything more needs to be done and if that is so there cannot be the need, even under extended joint enterprise, for a direction, you have to be part of the agreement to assault, you have to foresee the possibility of GBH and then you have to do something more from that point in time, but what the appellants have done is they have tried to translate back into simple joint enterprise that principle but misunderstood what participation means.

If there is this additional requirement of participation beyond becoming a member of the agreement, it must be relevant to ask what does participation actually mean and does it mean anything different or will it be established by evidence that is any different to evidence that shows you are part of the relevant agreement?  In my submission, when one looks at what has been said in the intermediate courts about participation - and I will come to it in a moment in judgments like Tangye and Likiardopoulos in the Victorian court and Chief Justice Kourakis’ judgment in R v B, it is plainly, simply evidence that is equally capable of showing membership of the agreement and participation even if there is this difference. 

So, even if there is a difference, why is it that in every case you will have to give a direction separately about both because if the jury find that you are part of an agreement from one’s own conduct, what is the point of telling them, but then you have to find that they participated in that agreement if the facts of the case do not give rise to any necessity for such a direction. 

If there was this need in every case for the two‑stage direction, one would have to identify at least two things:  first, for the jury, what is the evidence that shows they joined the agreement and then separately direct them as to what the evidence is that showed participation in that agreement.  But will the evidence ever be any different, and secondly, if there is a requirement for this two‑stage direction, perhaps more importantly, the jury would have to be directed to identify when the agreement was formed because otherwise they would not be able to distinguish between evidence that showed membership of the agreement and evidence that showed participation in the agreement with foresight. 

When has it ever been a requirement, I say rhetorically, for the jury to identify the precise moment that the agreement was reached?  In a case such as this, whenever could a jury identify precisely when the agreement was reached?  But that is the extension of the requirement that the appellants say exists.

KIEFEL J:   But critically, they have to be able to find that an agreement was reached by reference to the conduct.  You are going to take us to the evidence, are you?

MR KIMBER:   Yes, and I will do that.  Of course, they have to find an agreement.  It is the only way that they could find an agreement was from the conduct of the individual appellant.

KIEFEL J:   If one assumes that the method that the trial judge employed – a slightly discursive narrative of events chronologically was an appropriate thing to do given the circumstances, would it, nevertheless, also – would the very fact of doing a summing‑up in that way establish a need to identify with some precision the particular evidence pertaining to each accused, that is, to tease out of the narrative the evidence relating to each accused and the agreement or arrangement that could be said to be inferred from their conduct for this reason that the narrative style has the potential to sweep up one accused with the other?

MR KIMBER:   But I submit with response to that, does it in a case like this where everything that happened was relevant in considering whether or not an individual was part of a relevant agreement and what the agreement was.

KIEFEL J:   Relevant to their participation, but was the conduct of all of the other persons relevant to determine whether or not each individual accused was party to an agreement or arrangement.  I mean, just their mere presence there cannot establish the arrangement, can it?

MR KIMBER:   No, and as the learned trial judge directed the jury at page 65 of the summing‑up which is at appeal book 2, 931 at about line 35, “By way of contrast”.  The trial judge directed, quite plainly, that “mere presence” was not enough.

KIEFEL J:   How do you say the jury could have approached their task in relation to the arrangement or agreement of each of the accused by reference to the trial judge’s direction?

MR KIMBER:   The trial judge directed the jury as to what they had to find with respect to an individual accused, with respect to whether they were part of an agreement and what their state of mind was.  He then directed the jury at page 66 of the summing‑up, so the very next page, as to how a person would be established to be part of an agreement – that was, by their conduct – and gave examples of how someone could, as he described it, “throw their lot in” with the agreement.

Then, when he came to apply that law to the facts he then divided it up into different aspects of the evidence with respect to the different bases for liability and the different locations, arguably, and then he ran through the evidence and the criticisms of the evidence to assist the jury in coming to a view of whether or not an accused or any one of them was for joint enterprise a party to a relevant agreement.

KIEFEL J:   But critically here, one can accept that the evidence may have been such that there was an arrangement or implicit agreement that they return to, amongst other things, assault other people, to take part in an assault.

MR KIMBER:   Yes.

KIEFEL J:   But, the jury has to get to the point where the common purpose was to inflict grievous bodily harm.  How does the jury suppose from general directions about throwing “their lot in” and being part of a group that returned to assault, how does the jury understand their task from his Honour’s directions to get to that point?

MR KIMBER:   At least in part by answering the different questions that the learned trial judge posed for the jury when asking or raising that specific issue with them, that is, is there proof here of an agreement to inflict GBH.  Can I take the Court to appeal book 2, 933 and at the very top of that page he reminds them of what is required is “an agreement to inflict grievous bodily harm” and then he poses throughout that page a number of questions for them to ask as to whether or not that agreement existed and whether they were part of it.

FRENCH CJ:   The problem arises in a circumstance where the agreement is being inferred, the jury gets to a position where the only basis upon which they are prepared to infer an agreement is from conduct at the scene, putting to one side anterior conversations in the house and so forth.  It is conduct at the scene, and you have got a number of people doing things at the scene, and on one scenario, one of the accused was not actually doing anything.  He was there.  If there had been a prior agreement at the house and he was there with a group of people that had come to the scene, your argument would say he is a party and a participant in the relevant sense.  But if the agreement is inferred from conduct at the scene, and there is no positive conduct on his part, then you get into a difficulty, do you not?

MR KIMBER:   You might if you had a case where there was no positive conduct by any appellant ‑ ‑ ‑

FRENCH CJ:   I am looking at a scenario that might be open to the jury.  That the jury might be left in doubt as to whether he had actually done anything pursuant to an agreement that was to be inferred from conduct at the scene.

MR KIMBER:   But there was no appellant who was not sought to be implicated by something they had done at the scene.  There was evidence with respect to each of them relied upon by the prosecution that they had in different ways actually personally assaulted the appellant, and the only person who raised the issue of not being present in the area of the gates, there were clear directions given about the issue of withdrawal from a joint enterprise.

FRENCH CJ:   Your submission then is, is it, that if the agreement was established beyond reasonable doubt by inference from the conduct at the scene, that it follows that the participation of each appellant in that agreement in the relevant sense was established beyond reasonable doubt, which is really the position the Court of Criminal Appeal took in the end, was it not?

MR KIMBER:   Yes.  His Honour the Chief Justice from paragraphs 98 to 100, in my submission, found there is not the requirement in every case to give the two-stage direction.  The issue in this case was whether or not a person was a party to the relevant agreement.  The only way that the relevant agreement could be established was by their own actions, by their participation. 

That was really the only issue in the trial and the directions were directed towards that issue.  There was no other way for the jury to conclude that there was partnership or membership of a relevant agreement, and that the conduct extended right up until the very end, subject to the issue of withdrawal, with respect to which there was a clear direction on more than one occasion.

Can I go back to what I commenced to make submissions about and that is this issue of is there any difference between evidence that shows membership of an agreement and evidence that shows participation in the agreement because if you, at the very least, have a case where there is no difference between the evidence and what it shows, it cannot be necessary, in my submission, to give this two‑stage direction to which there has been reference. 

Can I take the Court then to Tangye 92 A Crim R 545, to which there has been reference already, and at 557 of that judgment in the paragraph numbered (3) his Honour refers to what is required or how “A person participates”. Now, the issue of presence has to be looked at in light of this Court’s judgment in Johns v The Queen where Johns was not even present when the crime was committed, but he refers to:

intentionally assisting or encouraging another participant in the joint criminal enterprise –

If one has evidence that someone has intentionally assisted or encouraged another that will also be evidence to show that they are part of the agreement.  In the Victorian Court of Appeal in Likiardopoulos one of the judgments in which there was the two‑faceted direction - and this is at (2010) 30 VR 654 ‑ ‑ ‑

BELL J:   Just before you go to it, Mr Kimber, it might be noted that the passage that you have just referred us to in Tangye was discussed by Justice McHugh in his analysis of complicity in Osland (1998) 197 CLR 316 at 343 as an accurate statement of the law.

MR KIMBER:   Thank you, your Honour.  Now, in the Victorian Court of Appeal judgement of Likiardopoulos can I take the Court to paragraph 59, which is at page 668 and it is the last sentence of that paragraph:

By participation is meant the taking of a step or steps to further that enterprise.

Again, if there is evidence that someone has done that that will be evidence that is capable of showing that they are part of the relevant agreement.

So, there does not appear to be any relevant distinction between evidence that shows membership of the agreement and evidence that shows participation in that agreement.  I will not take the Court to it but in Chief Justice Kourakis’s judgment in R v B to which I have referred in the written submissions in paragraph 24 of that judgment, his Honour described “participation” as an act that:

satisfies one or more of the elements of procuring, counselling, aiding or abetting that offence. 

So, if that is right that evidence of “participation” is equally capable of showing membership of the agreement, how can there be a rigid obligation to give the direction for which the appellants’ contend?  I raise again that if there is this requirement, it brings with it a requirement to identify when the agreement was formed, because otherwise you cannot know which evidence we should apply to proving the agreement and which evidence we should apply to participating in the agreement. 

A jury would have to be directed explicitly, only this evidence is evidence of one and only this evidence is evidence of the other.  But to use this case as an example, what would be the evidence of the conduct of an individual appellant that would be identified that was evidence that showed membership of the agreement but could not show participation in the agreement or vice versa. 

KIEFEL J:   Much of the point of the evidence might lie in relation to establishing an agreement, the timing of each of their conduct in relation to the deceased, or in relation to the affray. 

MR KIMBER:   Of course, one way to identify it would be from what they actually did to the deceased.

KIEFEL J:   And where they were positioned in relation to each other, all of those matters. 

MR KIMBER:   Quite right.

KIEFEL J:   Does that not tend to suggest that there needed to be identified these factors in relation to each accused for the jury?

MR KIMBER:   Well, the difficulty is, at least this in my submission, that everything that they did and the context in which they did it could show that.  So I perhaps go back to the example I used at the start.  It is said in part about Huynh, there is only two pieces of evidence that implicate him and they are evidence of his actual – two people talking about his actual alleged involvement in a physical assault upon the deceased.  But what about the fact that he returned to the premises at all?  What about the fact that he did that against the background of ‑ ‑ ‑

KIEFEL J:   That gets us to common purpose to assault.  How do you get from that to the common purpose to inflict grievous bodily harm?

MR KIMBER:   Well, if Huynh leaves the house with a number of others and there is uncontradicted evidence from neighbours in the street that there is a group of people that march upon this house who are armed with weapons, let us not worry for the moment about whether or not any of the appellants were harmed at that point in time, but there is no dispute that they are among the group that advances on the house and among that group are people with weapons. 

That evidence cannot be ignored in assessing whether or not Huynh was part of a joint enterprise to inflict GBH.  Now, the Crown case, of course, gets stronger when you have evidence that he is actually present in the driveway against that background, and the Crown case gets stronger again if he actually physically participates in an assault upon the deceased. 

But one cannot ignore all of this background.  There is no dispute that he was one of a large number of people who advanced on the house.  It may not be as many as 40.  There was only one witness, and I do not submit that this really makes any difference, but there was only one witness who says it was between 25 and 40.  The estimates of numbers from others were underneath that.  But it hardly helps an appellant if he is one of 40 people returning to the house.  The fact that you are one of a mob of 40, what does that tell the jury potentially about the intention of this group overall?

All of that evidence cannot be ignored, and that is the task that confronted the judge.  There was no evidence other than Sem’s out‑of‑court statement that could be quarantined from the case against Huynh, for example.  The fact that people around him were using weapons, throwing bottles, picking up pieces of wood, given that that was being done by people that advanced on the house with him, how is that evidence not relevant in the case against him? 

So the task facing the judge is that all of this evidence is admissible against all of them, and so what I will do is arguably favourably divide it up into where did the incident take place and then give directions about here is the evidence to consider in considering whether or not it shows joint enterprise with respect to death on the roadway, if that occurred, or joint enterprise with respect to a stabbing at the gates if that is what occurred, and he did the same with aid and abet.

He discussed the evidence of the events there, and where particular witnesses implicated people, he raised questions for them about what does this show about what a person had in mind?  What are the criticisms of the evidence of Pavic, for example, Pavic being one witness who implicated more than one appellant, and went through all of that?  The judge had a particularly difficult task – that is not to say, of course, that he did not need to comply with his obligations as set out by this Court in judgments such as RPS. 

But it is a mistake, in my submission, to approach this case on the basis that it was possible to simply identify in one paragraph, “Here is the evidence that implicates Huynh”.  It is only that Pavic says that he threw bottles at the deceased and then delivered blows while he was on the ground, because that is not right.  That was not the only evidence against Huynh, and no one suggested at trial that it was the only evidence against Huynh, and no one suggested at trial after the summing-up, “You have not encapsulated the case against my client.  You have misled the jury with respect to the evidence that is admissible against my client.  You have not laid out the issues in the trial and explained them to the jury nearly well enough”.  No complaint about any aspect of the direction on joint enterprise, nor any complaint as to how the judge linked the law to the facts.

BELL J:   May I just inquire, I think it is the case that the judge handed to counsel a copy of at least parts of his summing‑up, is that right?  What is the position in that respect?

MR KIMBER:   Ms Wildman was at trial, and she tells me that her recollection is that that was legal aspects of the summing‑up.  I cannot put to this Court that it was the entirety, nor that it was those aspects that were said to link the law to the facts.

FRENCH CJ:   At one stage, I think, the judge expressed his disappointment that one of the counsel had not read the summing‑up.  Counsel said he was following it orally, I think.

MR KIMBER:   I recall that being said, yes.  I have referred in the written submissions then, remaining with ground 1 as much as I can for the moment, to what are the obligations of a trial judge with respect to directing on the law?  The principle set out by this Court in Alford v Magee is as good today as it was on the day the judgment was written.  There only have to be directions on the law such as are necessary to guide them to the real issue and that is really what the judgment of the Court says in Clayton as well.  In my submission, it deals with this issue that your Honour Justice Gageler raised about failure to direct on an element.  But when you are talking about a path to liability that is a different thing and you only have to tell the jury as much about the law as they need to know to answer the factual issues that are relevant for them in the trial. 

GAGELER J:   You need to tell them that they have to find a particular fact to find guilt.  Is that the point?

MR KIMBER:   It depends on what that fact is but, for example, a fact here would be they have to be part of an agreement to inflict GBH, to be guilty on that basis. 

GAGELER J:   But not participate, is that your point?

MR KIMBER:   My submission is there is no obligation to give the second part of the direction contended for by the appellants, at least in every case.  You do not have to tell the jury you have to find that there is an agreement to inflict GBH to which that appellant is a party, but you also have to find that they then participated in that agreement, because how do you prove that an appellant is a party to the agreement?  You only prove it in this case by their conduct.  That is what the judge told them.  He told them in the directions how an agreement would be proved.  Can I perhaps take the Court to that at appeal book 2 at 932?  At line 10 he directed them as to how an agreement would be proved.  He told them it could only be proved by their own conduct.

BELL J:   That follows the direction on the preceding page:

To implicate that person his presence must be by agreement with the other for the purpose of furthering and achieving the commission of the crime.

MR KIMBER:   That is right.  Being there is not enough you have to be there for a particular purpose, for the agreement.  Then at line 40 on page 932 of appeal book 2:

this determination will involve inferences being drawn from proven conduct.  You will look at the proven acts of each of the accused –

and ask whether they show the relevant agreement.  So even if the respondent is wrong and the position is that there is the requirement to give the two‑stage direction to which I have referred, here the judge is making plain that the only way that membership of the agreement can be proved is by conduct.  No one suggested at trial in any address, or at any other point, that it could be proven in any other way.  This is the only way that membership of an agreement can be proven, in a case such as this, a case of violence.

Can I take the Court then to other aspects of the directions still within ground 1 and can I take the Court back a couple of pages to appeal book 2930 and at about line 15 on that page the paragraph beginning, “If two or more persons”.  His Honour talked about combined actions.  He talked about “combined actions” in actually “implementing an arrangement previously agreed”.  So he is requiring not just an agreement but the implementation of that agreement by the combined actions of people and then, in the last sentence, “acting in a team to achieve a mutually agreed result”.

That direction requires more than just an agreement, it requires the implementation of it by the members of it.  Then from that point on and over onto the next page until the direction with respect to presence he gives an example of the principle of joint enterprise and it is plainly an example that involves actions by all members of the agreement, which was the allegation in this case, that their actions showed that they were part of this agreement.  Then – I will not take the Court to it again, but he describes at page 66 of the summing‑up, appeal book 932, as to how an agreement will be proved.

So it cannot be thought from those directions, in my respectful submission, that mere knowledge or not doing anything by an appellant was enough to prove membership or participation in the relevant agreement.  A complaint is made by at least one of the appellants about the use of the term “the accused or any one of them” but at summing‑up 59, point 6 at appeal book 2, 925 his Honour clearly set out at about line 35 that he would use that term to reflect the need to give separate consideration to “the case against each accused”.

Can I turn then to another aspect of the directions and this time an aspect which has been the subject of criticism by more than one appellant, and it is the direction that begins at 991 and at about line 42 the direction beginning in the paragraph, “Ladies and gentlemen” is criticised by more than one appellant as, I understand it, a misstatement of the principle, but what needs to happen is that the whole of the paragraph over on to page 126 needs to be read. 

What the judge is saying is that the stabbing needs to be done by someone with whom the appellant has thrown in his lot, that is, it has to be done by someone who is part of the relevant plan that he has earlier described in the directions.  In the paragraph beginning at about line 10, he is simply directing them with respect to the issue of what state of mind has to be established under extended joint enterprise at that point. 

In the final paragraph on that same page at about line 45, his Honour is saying if the Crown have failed to prove membership of an agreement, then you will acquit or, if they have failed to prove the contemplation of a knife, whether to cause GBH for murder by joint enterprise or even just some harm, manslaughter, then you will convict – you will acquit immediately.  There is no misdirection there.  He is telling them in the first part of that sentence that they have to be part of a plan to attack at Vartue Street and he is telling them in the second part that they have to be satisfied as well as to the state of mind, the relevant state of mind that is required under the principle that he is discussing. 

Can I turn then to the written directions that were given but can I place them briefly in context?  We see the relevant context in appeal book 3 at page 1007.  At line 30 on that page his Honour reads out the question that he has had from the jury.  So, particularly under ground 2 when it is said that the written directions were not linked to the facts, one has to ask whether or not the jury asked for that to occur and, of course, they did not.  They asked for a written description of the components of the matters set out at line 32.  That, then, of course, was exactly what the learned trial judge gave them.  He gave it to them having provided it to counsel and taken input about it and there was no complaint about what he provided to them by the time that he read it out.

Can I take the Court then to page 207 of the summing‑up which is in the same appeal book but at 1073 or 1072 where his Honour handed the aide‑mémoire to the jury and told them what it was.  It was a summary of the elements.  So, plainly it had to be read against the background of the oral directions.  It was no substitution for them.  It was an aide‑mémoire, properly described, in the course of submissions during the trial. 

Then at line 50 beginning at line 50, he told them that they should consider these directions, in effect, against the background of a number of questions consistent with the approach that he had taken during the trial of posing factual questions for the jury that they would need to answer in applying the directions and coming to a verdict.  For example, at line 2 on page 1073:

what was the conduct which the accused agreed –

what was the intention, what was the state of mind?  What did an accused do, and so on?  Now, can I turn then to the written directions themselves at page 1103, further on into the same appeal book?  My submission is that when we look at McAuliffe what we see on that page is an accurate statement of the law and an accurate statement of the issues that the jury would have to decide before they could convict on the basis of joint enterprise. 

I have already made the point in response to a question from her Honour Justice Bell that that paragraph beginning “The general principle” is really taken immediately from McAuliffe.  Then in paragraph 1 he addressed and, I agree, in a favourable way, what the agreement had to be.  Now, the agreement was we see set out above in the second line on that page.  The agreement that was mentioned was:

an arrangement that together they will commit a crime –

That was the agreement that he was telling them in writing that they had to find beyond a reasonable doubt for an individual appellant.  The second direction or No 2 on the page, what was done had to be pursuant to that agreement.  So as McAuliffe tells us what happens has to be within the scope of what is agreed.  If it is not pursuant to the agreement or arrangement and if it is not done by a participant, that is a fellow member of the joint enterprise, that element will not be proven and there will not be guilt.

The relevant participant member of the agreement had to do it with the necessary intention and it had to be done unlawfully.  There is no error, in my submission, in that written direction and again that has to be read against the background of what his Honour said as to how an agreement would be established way back at page 66 of the summing‑up. to which I have taken the Court, by conduct, not just general conduct, but from an appellant’s own conduct. 

If the respondent is wrong that those four elements, read against the background of what is above as to what the agreement had to be, are insufficient because they do not refer to the need (1)(a) you must find he participated in the agreement, it must be relevant to pose the question, well what was different about the evidence that showed the agreement and the evidence that showed participation in this particular case? 

It is indeed interesting to look at Arafan and the passage that Mrs Shaw took the Court to before lunch where in Arafan at about paragraph 64 I think it is the Court sets out here is the evidence of participation.  It is relevant to ask about the four or five pieces of evidence identified there, the receipt of money and so on.  How was that evidence any different to evidence that showed that the person was a party to the agreement. 

Why should you direct a jury with respect to a path to liability that has them answer a question they do not need to answer, in the way that the trial is being fought?  With respect to extended joint enterprise, while we are with the written directions, there on the very next page and, in my submission, subject to the respondent’s submission being accepted about this issue of participation, there is no error in those directions and, indeed, the directions within the main body of the summing‑up, the oral directions, which are at appeal book 2, page 936 - it is really the previous page at 935 where it begins, where at the top of that page, 935, his Honour is discussing extended joint enterprise, posing again as part of his approach, these questions that the jury would have to answer to lead them to a proper result.  Then at about line 28, the question comes for you. 

Now, that was the question for the jury.  It was posed in a way that required them to join in the assault.  The direction then goes on to the following page, appeal book 936.  In the written submissions, I do not concede and I do not concede today that there is an error in the directions on joint enterprise or extended joint enterprise, but if the respondent is wrong about that I have raised the issue of the proviso. 

FRENCH CJ:   You have not put a notice of contention on about that.

MR KIMBER:   No, I have not, I apologise.  What I have raised in paragraph 68 is that assume for the moment the written directions are incorrect on joint enterprise but assume that the jury convicted of that, of following those directions, how would they have not convicted of aid and abet because ‑ ‑ ‑

FRENCH CJ:   What is the conclusion that that leads to?

MR KIMBER:   There cannot be a risk of a miscarriage, in my submission.

FRENCH CJ:   Well, are you asking us to apply the proviso?

MR KIMBER:   Yes.

FRENCH CJ:   But you do not have a notice of contention and it was not debated before the Court of Criminal Appeal.

MR KIMBER:   No, your Honour is right.  I will leave it.

GAGELER J:   Then you withdraw it?

MR KIMBER:   Yes.  Can I go then to ground 2?  I have already made the submission with respect to the appeal grounds generally that all evidence other than the statement of Sem was admissible and I have already made the submission that that must have informed the learned trial judge’s task with respect to summing‑up to the jury because it was not possible to identify individual pieces of evidence that only implicated an appellant because the context in which he did the physical acts against the deceased had to be borne in mind as well. 

In my submission, that would appear to be the reason that the learned trial judge dealt with the evidence in the fashion that he did.  Can I give an example which has already been used by Mrs Shaw in appeal book 2 at page 970?  I point out the very top of the page where his Honour referred to the fact, for example, that Duong had been “reluctant to leave his place”.  So it is not the case when one considers whether Duong’s case was set out properly, that that was not the subject of reference. 

But in some way that direction at 104 and through until about 105 or 106 is criticised, but what the learned trial judge is doing there, he is saying, let us look at this evidence of the departure from the house and then going to Vartue Street and the arrival at Vartue Street.  He is asking the jury, “What inferences are you prepared to draw from that?”  Now, that was evidence that related to all appellants, the departure, and then the exiting the cars, and so on.  There was no way to draw a distinction in there as to the case of Huynh, the case of Duong, the case of Sem. 

When we go to page 106 at page 972, he poses questions for them, raises issues in the differences of the evidence.  At line 30, “for what purpose did they move out from” the location where the cars had been parked.  What are all these questions?  It might help you to answer the question that you have to answer in this trial against the background of the evidence as the directions on joint enterprise.  What did they know?  What did they notice?  They were all relevant questions and they illustrate how the movement from the cars to the driveway was something that could not be ignored in the case against any appellant.

FRENCH CJ:   Can it be said that in that direction he is, in effect, directing the jury to treat the accused as a kind of collective, attributing a sort of single mind to them?

MR KIMBER:   I make these submissions.  The first is that he gave them a clear direction early on in the summing‑up that they had to give separate consideration to every accused and they would not necessarily convict of one and therefore convict of the others.  But with respect to this aspect of the evidence, how could he say to the jury this does not implicate Huynh as much as Sem or it implicates Duong much less?  How could he say that this evidence was less relevant in one appellant’s case than it was in another because it was equally relevant because they had all agreed that they had moved from the cars and had made their way to the driveway.  So there was not anything relevant that he could say to say you will not weigh this evidence in the same way that you weigh it for one appellant as you will for the other. 

All the judge could do, because it potentially implicated them all in the same way depending upon the jury’s factual findings, was say, look, what do you find about this evidence and here are some of the questions that you need to direct your attention to.  So it is not a body of evidence that lends itself in any meaningful way to a distinction between the appellants.

What is important as well to remember when one looks at the summing‑up and asks whether the judge fulfilled his task adequately in linking the law to the facts is that there is no single approach to how it is to be done.  In my submission, some respect has to be paid to the trial judge who heard the evidence in the trial, who heard the addresses, who heard the way the trial was run in assessing “How do I gather all of this evidence and how do I assist the jury in applying the law to the facts?”

That is the approach of Justice Pidgeon in the case of Nicoletti to which I have referred in the written submissions at paragraph 75.  When you have people charged with the one offence – and it is an unreported case but I am particularly referring to page 3 - he says that there is no one way to do this and he says the method of doing it is a matter to be determined on the facts of each case.  The approach might be, he says, that where you have evidence which is admissible against all but you have pockets of evidence that are inadmissible are to make that plain for the jury.  It cannot be said that did not happen because clear direction was given as to Sem’s out‑of‑court statement.

He makes the point, in my submission, on that same page that your Honour Justice Bell has made that it could be counterproductive to then separately identify outside of that the evidence that is said to implicate in one place because that would just layer on top of the approach that the learned trial judge has taken of running through the events in this sequential order and depending upon the different bases of liability.

I say again that it should not be ignored that there was no complaint at trial about what is now the subject of this ground of appeal.  One would expect that counsel would be alive to, “Is my case being brought home?  Is the evidence against me being misrepresented?”  No complaint from anyone.  Perhaps that is because there was an appreciation that this whole body of evidence was admissible against everyone and large slabs of it implicated them even though they may not have been responsible for the act that was actually the subject of the evidence.

In my submission, it is difficult for the respondent to add very much at all to the approach of the Chief Justice in the court below with respect to this issue.  Beginning at appeal book 3, page 1183 and beginning at paragraph 153 on that page and then all the way through to paragraphs 174, 175 Chief Justice Doyle examined in considerable detail this issue of whether or not the law had been linked to the facts adequately and there is no substitute for what his Honour did which is to go through the directions in detail and to look at them and look at the questions the judge asked, look at the way he identified at different times criticisms of the evidence which were obviously relevant on the appellants’ cases.

You cannot rely upon this witness and here are the reasons why and here are the inconsistent statements and a number of other things.  One has to read the whole of the summing‑up to get a feel for whether or not the issues were identified and whether or not the evidence was brought home with respect to those issues.  But I have set out in the written submissions in paragraphs – or footnotes 88 and 89 in particular, on page 18 of that document where the learned trial judge dealt with a number of relevant aspects, some of which have been mentioned today in the evidence.  Mr Edwardson complains, for example, about the lack of forensic evidence against his client.  Well, as one sees in footnote 88 that was dealt with in considerable detail, and a number of other topics. 

Can I give references to and make submissions about some of the particular matters that have been raised by each of the appellants, and I will do it as briefly as I can.  With respect to Huynh, it was submitted that there was no evidence that he threw any bottles.  That is not right.  Pavic gave evidence of that, and one will see it referred to in the summary of the evidence in the judgment of the court below.  I have already referred to this issue of whether it was 40 people, that was just one estimate by one person.  But, particularly, it is said, well, the only evidence that implicated me was Pavic and Johnny Lam.  Pavic was the subject of directions and reminders about the evidence and issues to consider in her evidence in considerable detail, at appeal book 2, 958, 974 to 976.  The issues to consider in the evidence of Johnny Lam who implicated Huynh as being involved in the attack on the deceased, appeal book 2, 984 to 985 and at 876 with respect to an inconsistent statement by him, the latter reference.

With respect to Sem, it should be borne in mind that there was considerable evidence of his involvement or participation in the attack itself.  Can I take the Court in appeal book 3 to the judgment in the court below which is the most convenient reference to what that evidence was.  It is at page 1156 paragraph 22.  There was, just looking – and that is just a summary of what he did allegedly on the evidence in the driveway, not the fact that he returned and so on.  But he was armed, he was heard to make the comment set out in the second sentence.  He pushed someone out of the way.  A different witness saw him attack the deceased.  She struck him on the evidence – or he struck him with a bottle, struck him on the ground.  Then, there was this telling evidence of res gestae from Loc Nguyen which was a comment made by him at the point of the attack on the deceased at the gates when really the fatal wound must have been inflicted, given all of the evidence.  He heard someone, that is Loc Nguyen, say:

Syna with Rotha, they are stabbing my brother.

Another witness said he saw Sem at the gates holding onto the deceased while he was punched.  So that is the evidence that implicated him against the background of everything else that happened.  Now, with respect to the issues that are raised that it is said should have been brought home to the jury with respect to his liability, first of all that he was not part of any relevant joint enterprise and only the Kheav brothers saw him by the gates, there was a direction about that at appeal book 2, 989. 

That his answer to the events was in part that the unlawfulness – that he had only acted in self‑defence was a reasonable possibility, was dealt with in considerable detail at appeal book 2, 944 to 946; at appeal book 2, 959 to 961; and at appeal book 2, 962.  Just by way of example, can I take the Court to one of those references to give an idea of how the judge brought home the different issues with respect to different people, and in this instance, Sem? 

It is appeal book 2 and page 959, and it is what he said in this context about this issue of self‑defence and Sem in particular that I want to take the Court to, but because I have opened the appeal book to that page, can I give an example on the facing page of 958, at the very bottom of the page at about line 50.  The judge is posing questions, “I have told you about the evidence, now you have to ask yourself different questions”.  So he deals with Huynh there, and Sem.  Were they sufficiently close to be aware of the existence of a knife?  So he says to them here is the evidence, now here are the questions you have to ask yourself.

BELL J:   Just before you move on, can I inquire about one factual matter?  At 982, his Honour summed up that the deceased’s face was badly cut by the time he attempted to get over the fence before the final attack.  Was there medical evidence of cuts to the face?

MR KIMBER:   Yes, there was.

BELL J:   That is said to have occurred in what might be described as the first incident?

MR KIMBER:   Well, could have occurred in the first incident.

BELL J:   But might have occurred at the gateway?

MR KIMBER:   I do not think anyone really could have known exactly when a particular injury was caused, even the stabbing, that is why the judge – it was possible that the stabbing had occurred on the roadway although it seemed highly unlikely.

BELL J:   I understand that.  What I am asking is was there evidence that there was a cut to the face that was bleeding by the time the deceased moved to the gateway from the roadway?

MR KIMBER:   There was evidence from which that inference could be drawn because there was the deceased’s blood on the roadway and that had to have come from somewhere and so one possibility was an injury to the head.

BELL J:   I am sorry, I have taken you from your course.

MR KIMBER:   At 959 at about line 48 just as an example of the way the trial judge dealt with different issues to be dealt with in the cases against each appellant he specifically referred to:

The question about Rotha Sem arises here.

Then he goes on to discuss whether he was acting in self‑defence if he was involved in the attack at a particular point in time.  There were considerable directions with respect to Sem, whether or not if he had been part of a relevant joint enterprise it was a reasonable possibility that he had withdrawn and whether he had left, after the attack on the roadway and was, therefore, no longer in the vicinity at the time of the gates.

That is in appeal book 2 at 989 to 991 and also at appeal book 2 at 930 to 931.  So these issues, certainly for him, were clearly addressed.  Can I take the Court to, within appeal book 2 at 989 at line 25 he specifically reminded the jury that he had not been:

seen by anyone independently of the Kheav brothers at the gateway –

Then that leads into the directions onto the next page and the directions are the possibility that he had abandoned the joint enterprise, not that there was any evidence that he actually said anything to anyone and there was a direction about that earlier in the summing‑up at 930 to 931.  He had given a statement that was partly exculpatory and that was the subject of a specific direction at 878 to 879.

With respect to Duong, much is made today of some of the aspects of Francis and Russo.  Not every aspect of what is put forward by Mr Edwardson was the subject of a summing‑up, but there was no complaint about the summing‑up.  But their evidence was the subject of submissions at appeal book 2, 969 to 970 and I have already made the point earlier about his reluctance to return to the party on the face of at least one of the evidence of those young women.  Their evidence was of course open to question and the prosecutor made quite detailed submissions about them at appeal book 2, 652 to 656. 

Can I just give an example?  One of those women, Russo, had given evidence that she could not see anything when they went past the house, in part because it was foggy.  So it was a December night in Adelaide not a July night in Canberra or somewhere else.  She had travelled with Duong.  She had been at his house and so on.  It was not necessarily the case that simply she was a prosecution witness, of course, that every aspect of her or Francis’ evidence had to be accepted. 

The lack of blood and forensic evidence that is mentioned by Mr Edwardson this afternoon as having to be brought home to the jury was the subject of directions at appeal book 2 at 957 to 959 and Pavic and the fact that she implicated Duong in ways that I have referred to within the paragraph in the judgment of the court below, again, she was the subject of detailed directions at appeal book 2, 958 and 974 to 976.

I have made much of the fact that the judge undertook his task of linking the law to the facts by continually posing questions and the point made in the judgment of Chief Justice Doyle.  I will not take the Court to them but can I just give some examples and they are just a small number of examples that he gives.  We have already seen the one at page 66 of the summing‑up about what they have to decide against the background of the directions.

FRENCH CJ:   The point you are making is not based on the proposition that they are questions but rather that they are directed to the involvement of individual accused, is that it?

MR KIMBER:   They are variously directed towards ‑ ‑ ‑

FRENCH CJ:   Why are you taking us to these questions?

MR KIMBER:   Because the task of the learned trial judge was to link the law as he directed them to the facts of the case and when he directed them on the law and as he discussed the different bases of liability, his approach was under the heading of the different bases of liability to say, “Here is the evidence that you have heard.  Here are some of the criticisms of the evidence, for example, of Pavic” or of another witness, and then say, “These are the questions you have to ask”.

FRENCH CJ:   The complaint, though, is directed to the alleged failure of the judge to adequately direct the jury in relation to the evidence of each accused or in relation to each accused, not to the form in which it was done by question or otherwise.

MR KIMBER:   Because of the approach the learned trial judge took, the only way to answer the question of whether it was done adequately was to look at the narrative style, as it has been described, and the description of the evidence that was given and then to ask – well, if all the trial judge had done is given a narrative explanation of the evidence, well, it would be a very high hurdle for the respondent to get over and say, “Well, he linked the law to the facts”.  The point I am seeking to make, for better or worse, is that it is not just a narrative approach, it is a narrative approach intermingled with, “Now, having reminded you of these aspects of the evidence ‑ ‑ ‑

FRENCH CJ:   Just a minute.  The complaint, as I understand it, is not that he failed to link the law to the facts but that he failed to adequately deal with the position of each accused.

MR KIMBER:   The answer of the respondent remains the same.  It is that in describing the evidence in the narrative way he identified for the jury what the evidence was that potentially implicated people.  He identified for them what criticisms could be made of that evidence and then he went the step further and said, “Against that background here are the different questions that you can answer”.

FRENCH CJ:   That is a separate issue.  The question is did he direct them to evidence relating to particular accused and you have taken us already to some examples where you say he did that, but the fact that he cast things into an interrogatory style I think is, in a sense, beside the point, is it not?

MR KIMBER:   Is the further question, perhaps, yes, your Honour.  I accept that.  I will not dwell on it, but of course he did remind them in detail of the addresses of counsel and I make the final submission which I have really touched upon already, insofar as there remains a complaint about the failure to link the written directions to the facts, there was no request to do that by the jury and there was certainly no request as well for that to be done by any of the counsel at trial.  If the Court pleases, they are my submissions.

FRENCH CJ:   Thank you, Mr Kimber.  Yes, Ms Shaw.

MS SHAW:   If the Court pleases.  Just in relation to a small point.  My friend indicated that it was not right that Ms Pavic – there were no bottles thrown.  I refer to her cross‑examination at 429, line 26, where she said that she was “not sure if he used a bottle . . . but he was involved”.  So there was a retraction in cross‑examination.  If I have misled the Court on that, I apologise.  That is how I interpreted her evidence.

Your Honours, in relation to the question of the failure of defence counsel to ask for directions, I refer the Court simply by way of reference to authority as we have referred to it in our outline at paragraph 67, footnote 57, the judgment of this Court in Fingleton v The Queen (2005) 227 CLR 166, at in particular the judgment of his Honour Justice McHugh commencing at page 196, paragraph 77. I do not intend to read from it. I merely refer the Court to, in particular, the passages in his Honour’s judgment from 197 to 198 where his Honour addressed specifically the question of counsel who might think it is in his best interests to not seek a clearer clarification to the jury of the interpretation of various sections. His Honour said at paragraph 82:

if he held these views, he was mistaken because it led to the appellant’s true case not being put before the jury.

His Honour went on to say:

Whatever the offence and however the accused’s case is conducted, the law requires that a judge’s summing‑up comply with the principles to which I have referred.

There are, no doubt, numerous examples like that in judgments of this Court.

Your Honours, in relation to the submission, which I do not intend to revisit, about a difference between joint enterprise and extended joint enterprise on the question of the requirement of the element of participation, there are two judgments of this Court where the cases were based on joint enterprise or traditional joint enterprise it is sometimes called.  The first, of course, is the one your Honour Justice Bell referred to and that is Osland v The Queen (1998) 197 CLR 16.

In that case, the appellant was arguing that the liability of Mrs Osland was derivative, bearing in mind the subsequent event that her son was acquitted and by arguing that it was derivative, it was hoped to persuade the Court that therefore there was an inconsistency in the verdicts.  The High Court held that the case against her on joint enterprise – first of all, there was no inconsistency but as your Honour Justice Bell remarked his Honour Justice McHugh in that judgment at page 341 commenced a discussion about criminal complicity, in particular, at paragraph 70 dealing with the principal in the first degree. 

But, importantly, at paragraph 72, in my respectful submission, his Honour is referring to the third category, as he calls it, and which is described in England by some authors as joint principalship, that is where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a preconcert or agreement with that person to commit the crime.            In that category, the liability of each person present as a result of the concert is not derivative but primary.

That, in my respectful submission, is joint enterprise in the way in which this Court has applied it.  In my respectful submission, his Honour at page 343 – as your Honour Justice Bell indicated - says at paragraph 73:

So far as is presently relevant, these principles were accurately and more fully stated by the New South Wales Court of Criminal Appeal in R v  Tangye. 

His Honour sets out the passage from the New South Wales Court of Appeal so it is clearly not peculiar to Victoria but paragraph (3), which might perhaps be put against us in that his Honour does not refer to the totality of what the Court said in Tangye, if I can take the Court to Tangye (1997) 92 A Crim R 545 which is on the respondent’s list of authorities at No 5. The particular passage where the elements of straightforward joint criminal enterprise is set out, so it is called, commences at page 536 where his Honour Chief Justice Hunt sets out the elements of straightforward joint criminal enterprise and his Honour ‑ ‑ ‑

FRENCH CJ:   What page was that?

MS SHAW:   This is at page 556.  At page 557 his Honour addresses the element of participation and his Honour says in relation to participation that it is:

either by committing the agreed crime itself or simply by being present at the time when the crime is committed –

That is where his Honour Justice McHugh stopped.  But his Honour Chief Justice Hunt goes on to say:

and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime.  The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.

Now, the submission we make is that there is content in the presence and it must be, in furtherance of the joint enterprise, in the way that we have submitted.  Your Honours, by way of perhaps further discussion of the content of the element of participation, I refer the Court to Arafan vThe Queen (2010) 206 A Crim R 216 and what is said to be or is, indeed, the directions in the Victorian Criminal Charge Book at page 222 of the report.

At paragraph 24, the elements are set out that are the subject of directions, pursuant to the charge book and your Honours will see that like Tangye there are four elements not three, as the respondent’s argument suggests.  But by way of assistance, in our respectful submission, is the content – the model charge in relation to the content of the second element at paragraph 28 on page 223.  Again we submit that the emphasis in that element is that the joint participant – or the participant in the joint enterprise must have done something, performed some conduct that in some way contributed to the commission of the crime, and it does not matter how important or unimportant it was.

In our respectful submission, that notion of contribution, we submit, is consistent with what his Honour Justice Callinan said in Osland’s Case at page 402 of the judgment in Osland v The Queen. In particular, at paragraph 217, where his Honour commences his discussion – using the expression “acting in concert” – on the premise that Osland was a case of joint enterprise liability.  His Honour said:

This is because –

why his Honour was critical of Demirian: 

This is because those who act in concert are to be treated as being causatively jointly responsible for the commission of the crime.

His Honour, then – and I appreciate this is not reflected in other judgment, but his Honour’s approach was to address this question of causative responsibility.  At paragraph 225 on page 404, his Honour follows, in our respectful submission, through to effectively a practical test that, in this case:

But there was abundant evidence, some of which I have summarised or quoted, which entitled the jury to convict the appellant as a principal, or as one of two persons who together directly caused or at least, significantly contributed to the deceased’s death.

BELL J:   Mrs Shaw, the discussion in this context is far removed from the issues raised by the present appeal, is it not?

MS SHAW:   I agree that the present appeal does not raise causation.  I am really drawing upon it in relation to the act of participation, to the part of the conduct of someone who is ‑ ‑ ‑

BELL J:   This was in the context of his Honour’s view that the time might have arrived to sweep away certain antiquated notions respecting the liability of accessories.

MS SHAW:   I agree that is so, your Honour.  Your Honours, the second judgment which the Court has already been taken to, and I will not address it again in detail, of course, is the more recent decision of this Court in Likiardopoulos v The Queen (2012) 86 ALJR 1168, and in particular that was a case where the Crown at paragraph [7] at page 1172 – it has identified:

It was the Crown case that the appellant was a party to a joint criminal enterprise to inflict really serious injury –

and so on and, therefore, the statement at paragraph [19] at page 1173, column 2, in our respectful submission, is a correct statement of what is required to prove where the charge is a joint enterprise, that is, the:

participation in the enterprise while possessed of the requisite intention –

That is what fixes him with liability.  Your Honours, the second point that we respond to is this, that the question posed by the – and in addition, your Honours, we refer to the authorities that interpret participation as a separate element, in the respondent’s submission at footnote 16, paragraph 19, and in the appellant’s reply at 4.2, footnote 3. 

Your Honours, the respondent posed the question why would you need to give a separate direction about participation where effectively the evidence that the prosecution rely upon might well be the same, putting aside in this case whether indeed it could be gleaned that the evidence was indeed the same?  In our respectful submission, the response we make to that is this, that joint enterprise liability means that you are liable as a principal for your role as a principal and that your act is committed with the relevant intention pursuant to that joint enterprise. 

There may be different evidence to prove the agreement as compared to the evidence than prove the agreement, it may be the same evidence, but whether it is the same or whether it is different, the proof of your liability depends on the jury finding that indeed it is the same and that the evidence that the prosecution rely on does indeed prove both elements.  That applies whether or not the prosecution was pitching its case as we have evidence of an agreement but we do not have evidence of participation.  We ask you to infer from the agreement that there is participation.  It would not mean there was no need to direct as to the other element, and we say that is the case in relation to proof of every criminal offence.

If the proof of an element depends on a finding by the jury, then that element needs to be the subject of an instruction.  The jury need to be told whether or not the evidence to be led support proof that that element is the same or different as the evidence led to prove another element, and in this case the prosecution has put to the Court, or the respondent has put to the Court that effectively there was only one basis for proof of participation.

We say, with respect, that that is contrary to the position of the prosecutor at trial – refer to appeal book 2, pages 970 to 972 where the prosecutor relied upon the conduct before the accused arrived at the Vartue Street premises, and I have already referred the Court to the way in which the trial judge left it to the jury.  In particular, we refer back to our outline of submissions at paragraphs 57 and 58 and the Full Court judgment would recognise that this matter was not left to the jury on the basis that there was only one route to conviction, there was only one identifiable conduct by all the accused or one of the accused that was capable of proving the charge – quite the contrary.

So we say it is not correct to say that this was a case where a Court of Appeal could look at it and say, clearly there was only one identifiable conduct by one particular accused or all of the accused upon which this conviction rests.  The effect of the summing‑up is that it is impossible to glean what was the conduct that was relied upon against any single accused or whether in fact it was, as appears to be the respondent’s case, they were actually being asked to look at all the conduct without any division as against the separate accused.

That was not the direction.  The prosecution position in their address, as I have said, at appeal book 2 page 649, and I have taken the Court to that, they identified the basis upon which they pitched their case.  That is the case that the accused, Huynh, was called upon to meet, based on Ms Pavic and Mr Lam, but also all of the other evidence that provided context.  But the evidence that implicated him specifically in conduct that supported the Crown case that he was a participant in a joint enterprise to murder, fundamentally hung on the evidence of Ms Pavic and Mr Lam except ‑ ‑ ‑

FRENCH CJ:   Except that logically conduct evidencing an agreement may be conduct of participation.

MS SHAW:   Logically it may.

FRENCH CJ:   But you say this case is not confined to that logical category because there were a number of scenarios being advanced?

MS SHAW:   That is so, and that might be more of a proviso question.  In another case, if the element was not the subject of a direction, but there was no dispute about that element, then that might be a reason to apply the proviso but it still constitutes an error of law not to direct about an essential element for an offence.

BELL J:   You directed attention to your paragraph 57 of your submissions.  This is in the context of the different scenarios.  There you point to the fact:

that the prosecution case on joint enterprise contemplated an agreement or arrangement that might have been made (a) at the Duong house, (b) on the way to the Nguyen house, (c) on arrival at the Nguyen house, or (d) during the brawl as it unfolded –

Can you explain how on any of those scenarios the distinction that you say is important on the facts of this case arose?  That is, if you accept, for example, that the jury might have been satisfied beyond reasonable doubt that the agreement was formed at the Duong house, how does that relevantly bear on the question of whether or not the accused, Mr Huynh, participated, if one accepts that the finding was that he had formed an agreement with others to go to the house in Vartue Street and there, with a bladed weapon, to inflict really serious injury on a person or persons? 

Then one looks to the evidence that might have established that agreement, and that is presumably the evidence of his presence at the house, and then what happened thereafter?  That he went to the Vartue Street house, in company with the others.

MS SHAW:   Your Honour, it is very difficult, with respect, to respond to what, in our respectful submission, was an abstract summing up.  That is, the abstract summing up meant that there was an assumption that the evidence was capable of proving the agreement at various times, and true it was, as against Sem and Duong, there was evidence of conduct at the Nguyen house that could have proved the agreement by the time they came to leave the house, but not as against Huynh.  But the jury were not ever directed in that respect that is that the position of Huynh was different as to what occurred at the house.

So if, in fact, the summing up overall presented as if this was a rolled‑up prosecution case, a single defence case, then Huynh inevitably could have been convicted on the basis he was party to an agreement at the house because he was rolled up with Duong and Sem, and it did not matter whether he did or did anything, pursuant to that agreement or participated.

BELL J:   So this really goes to your second ground.

MS SHAW:   It probably does, your Honour, because ‑ ‑ ‑

BELL J:   Yes, I understand.

MS SHAW:   Yes.  But, in my respectful submission, cases such as what is the traditional joint enterprise, namely where the participants are all essentially part of the conduct that is causatively responsible for the deceased’s death, or contributed to it, or were a step taken in furtherance of it, and they have the relevant intention, are all liable as joint principals, but our submission as we have said is that it is a separate element.  We refer the Court to paragraph 58 of our outline of submissions in relation – it might more helpfully provide a response to your Honour’s question. 

Your Honours, it was submitted that it was only Sem’s evidence that was inadmissible against Mr Huynh.  In our respectful submission, that is not the defence complaint.  Your Honour the Chief Justice articulated what the real gravamen of the complaint is.  Finally, your Honours, we make this submission.  The Court was taken to a number of directions at pages 930,

931, 932 and 933 of appeal book 2 relating to the question of the elements and whether or not this was a satisfactory discussion of what was required to be proved.

Your Honours, we point out that those directions are the general directions unrelated to the facts of this case which his Honour does not reach until appeal book 969 when he says that he is now going to turn to the evidence on which the prosecution relies to prove that the accused are guilty.  In other words, the directions in the abstract were completely unhelpful if when his Honour turned to the evidence he did not link those directions to the case against a particular accused.  If the Court pleases.

FRENCH CJ:   Thank you, Ms Shaw.  Yes, Mr Abbott.

MR ABBOTT:   If the Court pleases.  The respondent through the Director has submitted that participation means nothing more than joining in an agreement to commit a crime because he says that by joining the agreement, the person who joins the agreement lends support, and that in turn constitutes participation.  We strongly disagree, of course, with that proposition and the fallacy of it was amply demonstrated by your Honour the Chief Justice’s example of the two people who agree to rob a store and one stays at home. 

His answer to that, as we heard, was well, there was participation in the first agreement but what happened thereafter was a different agreement, to use his words, although he did not explain how one person could have an agreement with himself.  In our submission, the correct answer to your Honour the Chief Justice’s question that if two people agree to rob a store and one stays at home then the person staying at home has not participated.

I want to take the Court back to McAuliffe which was referred to by my learned friend the Director.  McAuliffe (1995) 183 CLR 108 at page 104 this paragraph that has been referred to so many times, because it seems to me that at page 114, this Court, although differently constituted, was saying that there were three elements that constitute a joint enterprise.

Firstly, and this is at the top of page 114, the parties reach an agreement or an understanding amounting to an agreement that they will commit a crime.  Secondly, one of the parties does, or they all do, in accordance with that understanding, the actus reus of the crime and, thirdly, the conclusion is that they are all “equally guilty” and the words in the judgment at the top of 114 are “regardless of the of the part played by each in its commission”.  The words “regardless of the part played”, in my submission, give us the clue that what participation means is playing a part, not just joining an agreement. 

“Participation”, in our submission, means that you play a part in the sense of taking part, not merely by being a party.  The conflation of the words “playing a part” with “being a party” which is what bedevilled, in my respectful submission, the Director’s submissions ignores the plain words that are set out in McAuliffe. 

In Likiardopoulos this Court - and I am referring to the decision of this Court at (2012) 86 ALJR 1168 at 1173 - said 10 lines down, near letter B in column 2:

The appellant’s participation in the enterprise while possessed of the requisite intention (here, to inflict really serious injury) operates to fix him with liability –

and these are the important words:

for the acts of the other parties carried out in pursuance of it.

In our submission, the flipside of this is a clear statement that a participant is one who does acts in pursuance of an agreement, not one who merely agrees to become part of an agreement.  I suggest that, with respect, in saying that this Court was acknowledging that what was said by the Full Court of the Victorian Supreme Court in Likiardopoulos about their definition of – or the definition of the court in that case in (2010) 208 A Crim R 84 at page 98 in paragraph 59 - the definition of “participation” they said was:

By participation is meant the taking of a step or steps to further that enterprise.

They said that and, in my submission, this Court said no more than that in Likiardopoulos v The Queen in this Court because it is those acts which constitute the steps which are fixed by virtue of the doctrine of joint enterprise on all of those who take any step in furtherance of the joint enterprise, in other words, all those who participate in the joint enterprise.

Finally, I make two final points.  Insofar as the respondent’s submissions inferentially invite a reconsideration of McAuliffe, Gillard and Likiardopoulos insofar as those cases were decided in this Court, such an invitation should be rejected as it was in Clayton’s Case (2006) 81 ALJR 439. The last comment I make by way of reply is that the aide‑mémoire in volume 3 of the appeal book, page 103, the direction insofar as it consists of the four numbered paragraphs referred to by my learned friend, the Director, is on one view, in fact, nothing more than a conspiracy direction, not a joint enterprise direction.

BELL J:   That divorces it from the paragraph which quotes the passage from McAuliffe ‑ ‑ ‑

MR ABBOTT:   That is so.

BELL J:   ‑ ‑ ‑ to which you directed our attention as the accurate statement of the law, Mr Abbott.

MR ABBOTT:   That is so, but the issue was the failure to mention that what acts constituted taking a part in it.  If your Honour pleases.

FRENCH CJ:   Thank you, Mr Abbott.  Yes, Mr Edwardson.  Yes, all right, thank you.  The Court will reserve its decision.

AT 3.46 PM THE MATTER WAS ADJOURNED