Kim Sean Mann v The Queen

[2016] NSWCCA 10

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kim Sean Mann v R [2016] NSWCCA 10
Hearing dates:	19 October 2015
Date of orders:	12 February 2016
Decision date:	12 February 2016
Before:	Bathurst CJ at [1] Hidden J at [3] Davies J at [31]
Decision:	Appeal allowed, conviction quashed, verdict and judgment of acquittal entered
Catchwords:	CRIMINAL LAW – appeal against conviction – affray – whether verdict unreasonable – evidence that appellant present during a fight between two other men - whether evidence sufficient to establish appellant’s involvement by encouragement or willingness to assist
Legislation Cited:	Criminal Appeal Act 1912 Evidence Act 1995
Cases Cited:	Colosimo v Director of Public Prosecutions [2005] NSWSC 854, (2005) 64 NSWLR 645 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Osland v The Queen (1998) 197 CLR 316 R v Allan & Ors [1965] 1 QB 130 R v Chishimba & Ors [2010] NSWCCA 228 R v Coney (1882) 8 QBD 534 R v Donnelly [2001] NSWCCA 394 R v Phan [2001] NSWCCA 29, 53 NSWLR 480 R v Tangye (1997) 92 A Crim R 545 SKA v The Queen [2011] HCA 13, 243 CLR 400 Youkhana v R [2015] NSWCCA 41
Category:	Principal judgment
Parties:	Kim Sean Mann (appellant) Regina (respondent /Crown)
Representation:	Counsel: I McLachlan (appellant) E Balodis (respondent/Crown)     Solicitors: Blair Criminal Lawyers (appellant) Solicitor for Public Prosecutions (respondent/Crown)
File Number(s):	2013/185171
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 29 August 2014 Before: English DCJ File Number(s): 2013/185171

Judgment

1. BATHURST CJ: I have had the advantage of reading in draft the judgments of Hidden J and Davies J. I have also read the material which they relied upon in reaching their conclusion.

2. I agree with the orders proposed by their Honours and with their Honours’ reasons.

3. HIDDEN J: The appellant was tried in the District Court on an indictment containing three counts: affray, firing a firearm in a public place, and wounding with intent to do grievous bodily harm. He was found guilty of affray but acquitted of the other two counts. He was sentenced to a short term of imprisonment, which has since expired. He appeals against conviction only.

The Crown case

4. The charges arose from an incident at a park in Canley Vale in the night of 15 June 2013, during which Caine Little, to whom I shall refer as the victim, sustained a gunshot wound to his right wrist. The victim had been involved in a fight with another man, Sogeat (“Jet”) Ouch, and a third man approached them and fired a gun at the victim, causing his injury. It was the Crown case that this man was the appellant.

5. The victim, Mr Ouch and a number of men who were present at the park gave evidence. It would be an understatement to say that, for the most part, that evidence was unsatisfactory. Their evidence was significantly in conflict, and there were internal inconsistencies in the evidence of most of them. Further, all of them were cross-examined by the Crown prosecutor pursuant to leave under s 38 of the Evidence Act 1995, in some cases because of evidence inconsistent with what they had told police during the investigation. All in all, the inference was available that they were reluctant to tell the truth about the incident.

6. That said, there are a number of matters in the evidence which were not in dispute or where findings were clearly available to the jury. The victim owed Mr Ouch a long standing drug debt, and at some time on 15 June 2013 there was an arrangement to settle that debt by a fight between the two of them at the park. The victim went to the park accompanied by two friends, Bill Nguyen and Jimmy Chovnlamontry. Two cars arrived and stopped opposite the park. From them emerged a number of people, including Mr Ouch and a witness, Tristan Khannara. Mr Ouch and some, at least, of the other men went to the park. The fight began, the shot was fired, and Mr Ouch and the men who came with him ran back to the cars and departed.

7. As one might expect, the principal focus of the evidence was upon the firing of the gun and the identity of the person responsible. The victim’s evidence was that he did not see the person who shot him, and during the investigation he was shown a photographic array which included the appellant but did not identify him. Both Mr Nguyen and Mr Chovnlamontry knew the appellant and gave evidence that he was present at the park. Both of them had told police that it was the appellant who shot the victim, but both resiled from that position in evidence. Mr Ouch and Mr Khannara also knew the appellant, but neither implicated him in the shooting. Indeed, their evidence was that they did not see him at the park at all.

8. Nothing further need be said about the evidence pointing to the appellant as the shooter. In this Court the Crown prosecutor accepted that, given his acquittal of the two counts arising from the shooting, the Crown could no longer assert that he had done so. The question for this Court is the adequacy of the other evidence to establish his complicity in the offence of which he was convicted, affray. This involves examination of the evidence concerning his attendance at the park. That evidence was also unsatisfactory, particularly as a result of prevarication on the part of Mr Nguyen and Mr Chovnlamontry.

9. The victim had told police that he heard a couple of cars pull up, saw a black car and saw Mr Ouch and four or five people standing with him. He also told police that he, Mr Nguyen and Mr Chovnlamontry walked into the park and then Mr Ouch’s “friends” were standing on the edge of the park, watching on. He resiled from both those propositions in evidence, saying that Mr Ouch was by himself and there were other people some distance from him. He also said in evidence that he was not sure that those other people were Mr Ouch’s friends. There were people standing on the edge of the park but he did not think that they were associated with Mr Ouch.

10. Mr Nguyen said that he saw about ten men near the two cars. At the time of the fight these men were in the park, but “everywhere, not all in one position.” He could not see whether they seemed to be watching the fight. He told police that the appellant was at the park, that he assumed that everyone there was “against” the victim, and that he said to the appellant, “Don’t get involved.” In evidence he prevaricated about this, but at one stage he acknowledged that it was a truthful account.

11. Mr Chovnlamontry said that there were two cars parked in the street and there were ten men, including the appellant, in that area. He saw the appellant get out of one of the cars. When he, Mr Nguyen and the victim walked to the park those men were “scattered around everywhere”, some near the cars and others around the park area. He had told police that he, the victim, Mr Nguyen, Mr Ouch, Mr Khannara and the appellant walked into the park, but in evidence he said that he could not remember the appellant walking close to him at that stage. He said that the other men approached the area of the fight when it started.

12. As I have said, both Mr Ouch and Mr Khannara denied having seen the appellant at the park. Both also denied that he had travelled to the park with them. It was their evidence that they travelled to the park in a car driven by Mr Khannara. Mr Ouch could not recall whether there were others in the car with them. Mr Khannara said that there were two other men in the car, but he did not know them. Mr Ouch agreed in cross-examination by the Crown prosecutor that there were about ten people at the park, including the victim, Mr Nguyen and Mr Chovnlamontry. He was unsure whether there were about seven other men, arriving in two cars, who were part of his group. He said that during the fight with the victim there were two or three people about six metres away, watching, and other people scattered around everywhere. Mr Khannara said that when they arrived at the park, Mr Ouch got out but he remained in the car. He denied having entered the park with the appellant and others.

13. Mr Nguyen, Mr Chovnlamontry and Mr Ouch gave evidence of their memory being affected because they had taken drugs and, in the case of Mr Ouch and Mr Chovnlamontry, also alcohol on the day of the incident.

14. The Crown’s primary case against the appellant on the affray count was that he shot the victim. However, if it were not established beyond reasonable doubt that he did so, the alternative case put was that he was a participant in a joint criminal enterprise with Mr Ouch to engage in an affray. That case, as it was explained to the jury by the trial judge in summing up, was that he travelled with Mr Ouch to the park for a fight that had been pre-arranged, that he entered the park with Mr Ouch, and that he was there, “willing and able or encouraging and enabling, the fight to occur.” The appellant did not give evidence, but the conduct of his case put all those matters in issue.

The appeal

15. Two grounds of appeal were argued: firstly, that the jury’s verdict is unreasonable and, secondly, that the trial judge failed adequately to put the defence case to the jury. As I am satisfied that the first ground is made out, I do not find it necessary to determine the second.

Unreasonable verdict

16. The familiar principles governing this Court’s consideration of a ground that a verdict is unreasonable were re-stated in the plurality judgment in SKA v The Queen [2011] HCA 13, 243 CLR 400, at [11] – [14] (405-6):

“11.   It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’

12. This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to ‘unsafe or unsatisfactory’ in M is to be taken as ‘equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence.'

13. The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’

…

14. In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’.  In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”

(footnotes omitted).

The cases referred to in that passage are M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606.

17. From the shifting sands of the evidence I have attempted to extract those aspects which present the Crown case at its highest. Counsel for the appellant, Mr McLachlan, argued that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant travelled to the park and was present at the relevant time. In my view, there is considerable force in that submission. The only witnesses who identified him as being present at the park were Mr Nguyen and Mr Chovnlamontry, whose evidence was anything but compelling.

18. However, the main focus of the argument on appeal was whether, assuming the appellant was present, it was open to the jury to be satisfied that he was complicit in the offence. Mr McLachlan’s submission was that, absent the evidence that it was the appellant who shot the victim, it could not be established that he was a party to the joint criminal enterprise alleged. On this issue the Crown prosecutor in this Court referred to authority.

19. In R v Coney (1882) 8 QBD 534, the appellants were spectators at a prize fight. They had not taken any active part in the management of the fight, nor had they said or done anything during it. They were convicted of assault as principals in the second degree. Their appeals were allowed by majority on the basis that the jury had been misdirected to the effect that those who were present at the prize fight are guilty because, by their presence, they encouraged it. Cave J recorded (at 539) that the direction was that “if the prisoners were not merely casually passing by, but stayed at the place, they encouraged it by their presence, although they did not say or do anything.” As to that Cave J said:

“Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon.”

20. Later in his judgment Cave J said (at 540, 543):

“Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury.

                                                                                                                …

This summing-up unfortunately appears to me capable of being understood in two different ways. It may mean either that mere presence unexplained is evidence of encouragement, and so of guilt, or that mere presence unexplained is conclusive proof of encouragement, and so of guilt. If the former is the correct meaning, I concur in the law so laid down, if the latter, I am unable to do so.”

21. Lopes J said (at 552):

“I cannot hold, as a proposition of law, that the mere looking on is ipso facto a participation in or encouragement of a prize-fight. I think there must be more than that to justify a conviction for an assault. If, for instance, it was proved that a person went to a prize-fight, knowing it was to take place, and remained there for some time looking on, I think that would be evidence from which a jury might infer that such person encouraged, and intended to encourage, the fight by his presence.”

22. Hawkins J said (at 557- 8):

“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not.”

23. In R v Allan & Ors [1965] 1 QB 130, a case concerning a charge of affray, Coney was described by Edmund Davies J as the “locus classicus on this branch of the law” (at 135). The case raised a specific issue concerning directions to the jury which does not arise here. However, his Lordship, delivering the judgment of the Court, said (at 138):

“In our judgment, before a jury can properly convict an accused person of being a principal in the second degree to an affray, they must be convinced by the evidence that, at the very least, he by some means or other encouraged the participants. …

                                                                                                           …

Indeed, in our judgment, encouragement in one form or another is a minimal requirement before an accused person may properly be regarded as a principal in the second degree to any crime.”

24. These passages from the judgments in Coney and Allan have been cited with approval, albeit in different contexts, by this Court: R v Phan [2001] NSWCCA 29, 53 NSWLR 480, per Wood CJ at CL at [70] – [72] (485 – 6); R v Chishimba & Ors [2010] NSWCCA 228, per Macfarlan JA at [137] – [139].

25. The Crown prosecutor also referred to R v Donnelly [2001] NSWCCA 394, a case concerned with complicity in an offence of robbery with wounding. Giles JA (with whom Wood CJ at CL agreed) referred to the liability of principals in the first and second degree by reference to the judgment of McHugh J in Osland v The Queen (1998) 197 CLR 316 at 341 – 2, and Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545, and said at [77] – [79]:

“77   The material distinction is between liability as principal in the second degree, being a derivative liability where the person was present but not acting in concert with the person who committed the acts alleged to constitute the crime, and liability as principal in the first degree, being a primary liability where the person was not only present but also acting in concert with the person who committed the acts alleged to constitute the crime.

78   In the former category is a person who was “merely present, encouraging but not participating physically”. By “merely” is meant that the person was not present by reason of a pre-concert or agreement with the person committing the acts alleged to constitute the crime. …

79   But the acting in concert may in the circumstances be established by presence and participation, without direct evidence of reaching an understanding or arrangement at an earlier time, and the ‘unspoken understanding or arrangement’ established may be one formed between the persons at the time the crime is committed as distinct from at some earlier time. Encouragement may in the circumstances be part of establishing acting in concert, the critical constituent of liability as principal in the first degree. … presence and encouragement by readiness to give aid if required, described as encouragement, may be sufficient to found a joint criminal enterprise to commit the crime. The presence of the accused as a party acting in concert may be shown by encouragement or assistance at the time the crime is committed, and readiness to give aid short of overt assistance may be sufficient.”

26. In the present case the trial judge, having explained the Crown’s alternative case in the passage which I have quoted above, directed the jury about joint criminal enterprise and concluded:

“The Crown argument is that the accused arrived with Sogeat Ouch to attend a pre-arranged fight, that he walked with Sogeat Ouch and others into the park and was there in the vicinity ready, willing and able to encourage and/or to assist Sogeat Ouch in that fight. You must be satisfied beyond reasonable doubt that he was more than just a spectator.”

27. Applying the analysis of Giles JA in Donnelly, it appears that the Crown case was put as one of pre-concert rather than principal in the second degree. The Crown prosecutor in this Court submitted that it was open to the jury to find that the appellant was one of a group of men who went to the park with Mr Ouch, that he entered the park, and was present when the fight occurred. From this, the Crown prosecutor argued, it was open to the jury to infer his complicity in the affray on the basis for which the Crown contended.

28. I do not agree. Let it be accepted for present purposes that the appellant attended the park with Mr Ouch and others, that he entered the park with Mr Ouch, that he was counselled by Mr Nguyen not to get involved, and that other men who had travelled to the vicinity with him also entered the park and approached the area where the fight took place. Absent the evidence that the appellant shot the victim, the evidence is silent as to where he was or what, if anything, he did at the time of the fight. The evidence falls well short of proving the encouragement of the participants in the fight, or the readiness to assist in it, necessary to establish the appellant’s involvement in the offence, whether through pre-concert or as principal in the second degree. It could establish no more than that he was a spectator. When the assertion that he shot the victim fades away, the offence of affray fades away with it.

29. Accordingly, I am satisfied, to use the words of s 6(1) of the Criminal Appeal Act1912, that the verdict cannot be supported, having regard to the evidence. The verdict should be set aside and the appellant acquitted. I would allow the appeal, quash the conviction, and would direct that a verdict and judgment of acquittal be entered.

30. Since drafting this judgment I have had the benefit of reading in draft the judgment of Davies J. I agree with his Honour’s additional observations.

31. DAVIES J:   I have read the judgment of Hidden J. I agree with his Honour’s reasons and the orders he proposes. Since, however, ground 1 asserts that the verdict on count 1 was unreasonable I wish to add a few remarks of my own.

32. The acquittal on counts 2 and 3 necessarily mean that the jury was not satisfied beyond reasonable doubt that the shooter was the Appellant. The only evidence that the Appellant was the shooter came from Nguyen and Chovnlamontry, and indirectly from the victim Little who told the police that it was Kim (the Appellant) because Bill (Nguyen) and Jimmy (Chovnlamontry) told him to say that.   

33. Having read all of the evidence it was not surprising that the jury could not have been satisfied beyond reasonable doubt that the Appellant was the shooter.

34. None of the witnesses gave any other evidence concerning the Appellant’s involvement in the fight apart from evidence from some but not all of them that he was present at the park that night and some evidence that he arrived at the park with other people who were present. There was, for example, no evidence where the Appellant was situated relative to the fight nor was there any evidence of his saying or doing anything whilst there that night. It could not be said that the Crown showed him to be present at the fight and ready to assist Ouch.

35. The Crown opened the case principally dealing with counts 2 and 3. The Crown said this:

The Crown case is that the accused is identified by two people who knew him as the shooter, and he was – other people say he was there as well, was there. And the question is – the issue will be, had the Crown proven beyond reasonable doubt that the accused was present and that he was the shooter and did he do the things that were alleged in the indictment.

36. Counsel for the Appellant then briefly conferred with the Crown Prosecutor and the Prosecutor then said this:

Your Honour – reasonable request for just a little clarification on the way the Crown puts its case in relation to count 1 which I am happy to cooperate with. Count 1 ladies and gentlemen you see “Used unlawful violence to Caine Little by conduct that would cause a person of reasonable firmness present” etc etc. The conduct is of course alleged to be the shooting, but it’s also, and the Crown says that would be enough, but it’s also that he was present with a group of people who were intent on having a brawl in a public place and participated in that activity. It’s those two things but obviously the more significant aspect of that is the shooting.

37. Counsel for the Appellant correctly submitted that there was no evidence at all to suggest that what was arranged was other than a one on one fist fight between Little and Ouch. There was no evidence that the Appellant was a person who was intent on having a brawl in a public place.

38. Putting aside the act of shooting Little, the only way the Appellant could have been guilty of affray was if he or he and others had used or threatened unlawful violence, in which case the conduct of those persons may be taken together and considered for the purposes of determining whether an offence of affray has been committed (Colosimo v Director of Public Prosecutions [2005] NSWSC 854; (2005) 64 NSWLR 645 at [19]) or if a joint criminal enterprise in relation to the arranged fight could be demonstrated even if he did nothing at the scene: Youkhana v R [2015] NSWCCA 41 at [15] and [22].

39. In relation to the former there was, as I have said, no evidence concerning the Appellant other than that he was present and may have arrived with Mr Ouch or others at the park. As to the latter, the evidence all pointed to a one on one fight having been arranged by Mr Ouch (although he denied it) in an endeavour to extract the money that Little owed him.

40. Particularly in the light of the acquittals on counts 2 and 3, the verdict on count 1 was unreasonable and should be quashed.

**********

Decision last updated: 19 February 2016