R v B, FG

[2012] SASC 157

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Permission to Appeal)

R v B, FG; R v S, BD

[2012] SASC 157

Judgment of The Honourable Chief Justice Kourakis

12 September 2012

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - ACCESSORY BEFORE THE FACT

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - AID, ABET, COUNSEL OR PROCURE - KNOWLEDGE

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - PROBABLE CONSEQUENCE

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - STATUTORY PROVISIONS - AIDING, ABETTING, COUNSELLING OR PROCURING

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE - WHERE RESULT OF TRIAL NOT AFFECTED

Application for permission to appeal against convictions – the applicants FB and BS were charged and tried together with three other co-accused and found guilty by a jury for the offences of murder and aggravated cause harm with intent to cause harm.

The applicants sought permission to appeal against their convictions on multiple grounds.

BS complained on 18 separate grounds: (1) whether the verdicts of guilty in relation to BS were unsafe and unsatisfactory; (2) whether the verdicts were unreasonable and could not be supported having regard to the evidence; (3) whether the trial Judge erred in directing the jury that if they were to find that WH was the stabber, it remained open for them to return verdicts of guilty on both counts; (4) whether the Judge erred in directing the jury that it was for them to determine whether a prosecution witness, NW, was an accomplice – whether it amounted to a miscarriage of justice; (5) whether the trial Judge erred in directing the jury that there was evidence capable of corroborating the evidence of a prosecution witness with that of one of the co-accused – whether it amounted to a miscarriage of justice; (6) and (7) whether the Judge erred in leaving to the jury a prosecution case based on the allegation that BS inflicted the fatal wound to the first victim; (8) and (9) whether the Judge erred in leaving it open to the jury to convict BS of murder on the basis that he aided and abetted the principal offender; (10) whether there was no evidence that BS aided and abetted the perpetrator of the attack on the first victim; (11) whether the prosecution failed to put the case against BS that he was an aider and abetter of the principal offenders against the second victim; (12) and (13) whether the trial Judge’s directions on aiding and abetting were inadequate; (14) whether the trial judge erred by failing to exclude the record of interview of BS; (15) whether the Judge falsely refused to receive a plan from BS that had been drawn by a co-accused; (16) whether the Judge failed to put BS’s defence of intoxication in a balanced way; (17) whether five subparagraphs of the trial Judge’s summing up reflected that the defence case was not adequately put to the jury; and (18) whether the prosecution argument wrongly invited the jury to engage in propensity reasoning.

FB complained on seven separate grounds: (1) whether the trial Judge failed to sufficiently differentiate the case against FB and the other co-accused – (a) whether the trial Judge’s failure to sufficiently differentiate between the mass of prosecution evidence against the other accused and the more limited evidence admissible against him – (b) whether the trial Judge failed to expressly direct the jury that the evidence of a prior incident involving BS with the Sudanese immigrants was inadmissible against him – (c) whether the trial Judge should have instructed the jury to scrutinise the evidence of the prosecution witness and a co-accused more closely in the case against FB –  (d) whether the trial Judge failed to emphasise that there was no evidence linking FB and the knives that were used in the attack; (2) whether the trial Judge’s directions on the question of FB’s complicity by way of aiding and abetting were sufficient – whether the trial Judge’s directions on the alternative verdict of guilty of manslaughter were adequate; (3) whether the trial Judge failed to direct the jury as to how it should treat FB’s evidence if they formed the view that he was lying; (4) whether the trial Judge failed to direct the jury on the corroboration required of a prosecution witness’ evidence with that of a co-accused; (5) whether the Judge erred in law in directing the jury that FB had to communicate his withdrawal from the enterprise to the other participants; (6) whether the trial Judge ought to have directed the jury that the prosecution witness was an accomplice; and (7) whether the cumulative effect of the preceding grounds establish that there has been a miscarriage of justice.

Held:

In relation to BS: (1) and (2) there was ample evidence to support a verdict of guilty on both counts; (3) there was no legal impediment to a conviction either as a principal or an accessory on the information as it was drawn; (4) the question whether a witness is an accomplice is a question of fact – there had not been a risk of a miscarriage of justice; (5) the question of whether or not there is evidence capable of corroboration is one of law – the trial Judge did not differentiate between the capacity of the evidence to corroborate the co-accused with the evidence of the prosecution witness that implicated BS as a participant in the joint enterprise on the one hand, and that part of their testimony that implicated BS as the stabber of the second victim on the other – this did not lead to a risk of a miscarriage of justice; (6) and (7) no such case was left to the jury; (8) and (9) BS participated in the attack with foresight of the possible intentional infliction of grievous bodily harm – BS’s false account that he had been attacked was the catalyst for the attack – the evidence supported an inference that BS gave assistance to the first victim’s murderer or murderers in the knowledge that they were intentionally inflicting grievous bodily harm against the first victim; (10) the same evidence that supports the inference that BS aided and abetted the first victim’s murderer or murderers supports an inference that he, by the same conduct, aided and abetted the perpetrator of the stabbing of the second victim; (11) the contention is manifestly wrong – the prosecution did put such a case; (12) and (13) the trial Judge’s directions were correct and appropriately adapted, and unduly favourable to the applicant BS; (14) BS had given the same false story to a number of other people – it was not a novelty that arose in the course of the police interview; (15) even if there was an error of law in rejecting BS’s tender of the plan, it would have provided no material assistance to BS – this ground was an abuse of process; (16) the Judge addressed the issue of BS’s intoxication in a variety of different contexts and it was something the jury were reminded of on more than one occasion; (17) none of the five paragraphs in isolation indicated that the summing up was inadequate, especially when considered as a whole; and (18) the prosecutor did no more than ask the jury to draw an inference that it was BS who wielded the knife that wounded the second victim.

In relation to FB: (1) the trial Judge sufficiently put the case against FB to the jury – (a) the trial Judge took great care to identify the evidence that was properly admissible against FB and clearly directed the jury that the evidence of conversations held in his absence were not admissible against him – complaint not arguable – (b) the evidence was admissible against FB to prove the circumstances of the offences he was accused of facilitating – (c) no such direction was required and is unnecessary and undesirable – (d) no such direction was necessary because the case against FB was that he was an accessory and not the perpetrator of the stabbings; (2) the Judge’s directions were sufficient – the prosecution case was a simple one; (3) the only basis upon which the jury could have rejected FB’s evidence was the same prosecution evidence that proved his knowing participation in the violent attack – there could not have been a miscarriage of justice; (4) the corroborative evidence against FB was overwhelming – it included FB’s own admission that he was in close proximity with a baseball bat and evidence from other witnesses at the oval; (5) a mere change of mind is not sufficient; (6) this ground was dealt with under ground (4) in relation to BS; (7) directions which in themselves have not adversely affected the trial of an accused cannot, by their accumulation, have any different effect.

Applications for permission to appeal against conviction refused.

Criminal Law Consolidation Act 1935 (SA) s 267, s 352, referred to.
R v O’Flaherty [2004] 2 Cr App R 20, not followed.
McAuliffe v The Queen (1995) 183 CLR 108; R v Howell (1864) 4 F and F 160; 176 ER 513; R v Rich (1997) 93 A Crim R 483; White v Ridley (1978) 140 CLR 342, discussed.
Attorney General v Able [1984] 1 QB 795; Attorney General v Carney [1955] Ir R 324; Attorney Generals Reference (No. 1 of 1975) [1975] QB 773; Clayton v R (2006) 81 ALJR 439; Howell v Doyle [1952] VLR 128; Lenzi v Miller [1965] SASR 1; Likiardopoulos v The Queen (2010) 208 A Crim R 84; Macklin’s Case (1838) 2 Lew CC 225; 168 ER 1136; Osland v The Queen (1988) 197 CLR 316; R v Bainbridge [1990] 1 QB 129; R v Clarkson [1971] 1 WLR 1042; R v Coney (1882) 8 QBD 534; R v Chrimes (1959) 43 Cr App R 149; R v Davis (1806) Russ and Ry 113; 168 ER 711; R v Else (1808) Russ and Ry; 168 ER 728; R v Giorgi (1982) 31 SASR 299; R v He (2001) 122 A Crim R 487; R v Jensen [1980] VR 194; R v Kelly (1820) Russ and Ry 421; 168 ER 876; R v Lowery (No 2) [1972] VR 560; R v Manners (1837) 7 Car and P 801; R v Morris (1839) 9 Car and P 89; 173 ER 753; R v Phan (2001) 53 NSWLR 480; R v Ready [1942] VLR 85; R v Russell [1933] VLR 59; R v Soares (1802) Russ and Ry 25; 168 ER 664; R v Stewart and Dickens (1818) Russ and Ry 363; 168 ER 846; R v Sully (2012) 112 SASR 157; R v Tangye (1997) 92 A Crim R 545; R v Tuckwell (1841) Car and M 215; 174 ER 477; R v Turnbull [1988] 1 Qd 266; Ward v The Queen (1997) 97 A Crim R 184, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"aids, abets, counsels or procures", "accessorial liability", "accessory before the fact"

R v B, FG; R v S, BD
[2012] SASC 157

Application for permission to appeal

1. KOURAKIS CJ:      The applicants, BS and FB, seek permission to appeal against their convictions for the offences of murder and aggravated cause harm with intent to cause harm.  The victim of the murder was Akol Akok, and of the offence of aggravated cause harm, Dor Achiek.  Both young men were Sudanese immigrants who, on the day they were attacked, were spending a leisurely afternoon with friends at the Wingfield Oval playing cards, talking and drinking.  They were stabbed in the course of an attack launched on them by a gang of men armed with knives and clubs.

2. As is not uncommon in offences of this kind, it was not clear which members of the gang physically perpetrated the offences.  The applicants were charged and tried together with BB, the brother of the applicant FB, JW, and HR.  All five accused were found guilty of both offences by unanimous verdicts of the jury.  I will refer to the five accused collectively as “the accused”.  Another member of the gang, JC, was charged but was given an immunity against prosecution close to the time of the trial and became a prosecution witness.  The evidence showed that the gang was driven to the oval and armed by WH.  WH has not been charged.

3. The prosecution case against the applicants and their co-accused was primarily based on their accessorial responsibility.  To understand the grounds upon which permission to appeal is sought it is necessary to summarise the evidence.  Before I do so, I will state the general principles of accessorial criminal liability that I will apply to the grounds of appeal. 

4. I have decided to refuse permission to appeal.  My reasons are necessarily long because of the sheer volume of the evidence adduced at trial and the very many grounds of appeal.  Permission to appeal is granted only in those cases in which an arguable case is demonstrated.  It should not be thought that permission will be given simply because the grounds are many and the case is factually complex.  Volume is not necessarily an indication of merit.  I have refused permission in both applications because the grounds advanced by the applicants patently lack merit. 

   Principles of Accessorial Liability

5. A person who physically performs the actus reus of an offence is the perpetrator and principal offender.[1]  It may be that in the early stages of the development of the criminal law liability as a principal was extended through the concept of agency but that view did not survive as a general rule.[2]  It continues only to a limited extent where an offender acts through an innocent agent.  There may be some, relatively few, cases in which two or more persons may be jointly liable as principals.  Thefts in which the offenders together and at the same time carry off the loot or homicides in which offenders simultaneously fire a volley of bullets may be examples.  It would serve no useful purpose in the former example to attempt to differentiate between the goods carried away and charge each offender as a principal offender with respect to the goods each actually carried away and as an accessory for the remaining goods.  In the latter example, it may not even be possible to identify who fired the bullet which resulted in death so that one can be charged as the principal and the other as an accessory.[3]

   [1]    W F Craies and G Stephenson (eds), Archbold’s Pleading, Evidence, and Practice in Criminal Cases (Sweet and Maxwell, 23^rd ed, 1905) 12; C S Greaves (ed), A Treatise on Crimes and Misdemeanors (Maxwell and Son, 4^th ed, 1865) Vol 1, 49.

   [2]    K J M Smith, A Modern Treatise on the Law of Criminal Complicity (Clarendon Press, 1991) 209; C S Greaves (ed), A Treatise on Crimes and Misdemeanors (Maxwell and Son, 4^th ed, 1865) Vol 1, 50–51; Cf Osland v The Queen (1988) 197 CLR 316 at 341–355 [69]–[95] per McHugh J.

   [3]    Likiardopoulos v The Queen (2010) 208 A Crim R 84 at 111 [116] per Buchanan, Ashley and Tate JJA (the Court).

6. Accessorial liability is now imposed, or at least regulated, by s 267 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The differing procedural and substantive rules attaching to the different forms of accessorial liability have long been abrogated by provisions like s 267 of the CLCA and the abolition of the felony and misdemeanour distinction. However, an imperfect residue of the old differences lingers on and sometimes misleads.

7. At common law a person who procured another to commit a felony is an accessory before the fact.  The very nature of procurement implies an intention that the substantive crime be committed.  No further elaboration of the mens rea for procurement is necessary here.

8. At common law a person who counselled and abetted an offence by encouraging it, or knowingly providing assistance for its commission, was also an accessory before the fact.[4]  Mere passiveness to being informed of another’s intention to commit the offence was not sufficient to find liability as an accessory before the fact.[5]  An accessory before the fact could be tried with the principal, or separately after the principal’s conviction, but not before without the principal’s consent.  On a charge of being an accessory before the fact proof of presence at the scene would result in an acquittal, because presence made the accessory a principal in the second degree, which was treated as a distinct and different offence.

   [4]    See the discussion and many examples of accessories before the fact, including those who were acting in accordance with a joint criminal exercise but were not principals in C S Greaves (ed), A Treatise on Crimes and Misdemeanors (Maxwell and Son, 4^th ed, 1865) Vol 1, 58–63.

   [5]    W F Craies and G Stephenson (eds), Archbold’s Pleading, Evidence, and Practice in Criminal Cases (Sweet and Maxwell, 23^rd ed, 1905) 16–17; H Stephen and H L Stephen (eds), A Digest of the Criminal Law (Indictable Offences) (Sweet and Maxwell, 7^th ed, 1926) 45–49.

9. A principal in the second degree is an accessory who aids and abets an offence at the scene of the crime by intentionally assisting or encouraging the principal to commit the offence.[6]  At common law a principal in the second degree was a person linked in purpose with the principal who by words or conduct renders the offence more likely.[7] The encouragement can take the form of intentional communication of assent by continued presence.[8]  The question of deliberate or accidental presence is relevant to the issue of intention, which can be inferred only from the former.[9]  The culpability of a principal in the second degree who, by silence at the scene, assents to the commission of the crime contrasts with the innocence of the person who on being informed, at an earlier time, of an intention to commit an offence at another place remains silent.  The difference can perhaps be explained because tacit assent as the offence is proceeding is, at a factual level, more likely to encourage its commission and is morally more culpable. 

   [6]    A principal in the second degree was formerly known as an accessory at the fact and could be tried until the principal had been convicted: W F Craies and G Stephenson (eds), Archbold’s Pleading, Evidence, and Practice in Criminal Cases (Sweet and Maxwell, 23^rd ed, 1905) 15.

   [7]    R v Russell [1933] VLR 59 at 67 per Cussen ACJ.

   [8]    R v Lowery (No 2) [1972] VR 560 at 561 per Smith J.

   [9]    R v Coney (1882) 8 QBD 534 at 557-558 per Hawkins J, at 539 per Cave J; R v Clarkson [1971] 1 WLR 1042 at 1405 per Megaw LJ; R v Phan (2001) 53 NSWLR 480 at 485–486 [70]–[76] per Wood CJ.

10. Even though liability as a principal in the second degree depends on presence at the crime, presence was widely defined.[10]  A person acting as a lookout, or even one who was some distance away ready to help with the get away, could be indicted as a principal in the second degree.  The rule was that an aider and abettor must be sufficiently near to assist the principal with the commission of the offence, should the need arise.[11]

    [10]   Likiardopoulos v The Queen (2010) 208 A Crim R 84 at 101 [73]–[74] per Buchanan, Ashley and Tate JJA.

    [11]   W F Craies and G Stephenson (eds), Archbold’s Pleading, Evidence, and Practice in Criminal Cases (Sweet and Maxwell, 23^rd ed, 1905) 12–15;  R v Stewart and Dickens (1818) Russ and Ry 363; 168 ER 846 per Garrow B; R v Kelly (1820) Russ and Ry 421; 168 ER 876 per Bayley J; R v Soares (1802) Russ and Ry 25; 168 ER 664 per Le Blanc J; R v Howell (1864) 4 F and F 160; 176 ER 513 per Bramwell B and Gurney R; R v Morris (1839) 9 Car and P 89; 173 ER 753 per Alderson B.

11. A principal in the second degree to a felony could be indicted as a principal in the first degree, unless a particular statutory provision imposed a different penalty for the principal in the second degree.  An indictment charging that A struck the fatal blow aided by B, C, and D could support the conviction of all of the accused even if the evidence showed that any one of B, C, or D struck the blow and was aided by the others, or even if the blow was struck by another who was not charged.[12]

    [12]   W F Craies and G Stephenson (eds), Archbold’s Pleading, Evidence, and Practice in Criminal Cases (Sweet and Maxwell, 23^rd ed, 1905) 15.

1. The requirement of proximity for the purposes of the common law distinction between an accessory before the fact and a principal in the second degree, should not be confused as an element of accessorial liability generally.  Intentional encouragement or assistance, at or away from the scene of the crime, has always been culpable but its indictment, prosecution and punishment was subject to different common law rules depending on whether the assistance was given at, or away, from the place of the crime.

2. Neither the procedural and penal differences between the prosecution of principals, accessories before the fact and principals in the second degree, nor the definitions on which they hinged, have any application to prosecutions brought pursuant to s 267 of the CLCA. It is trite, but important to emphasise, that s 267 of the CLCA does not limit the several touchstones of liability it recites by reference to presence at, or absence from, the place of the offence. Even at common law intentional encouragement of an offence away from the place of the crime amounted to counselling and abetting for which the offender was liable as an accessory before the fact, just as encouragement given at the scene made the accessory liable as a principal in the second degree. Similarly, assistance given by providing a weapon, subject to knowledge of its intended use, might incriminate a person either as an accessory before the fact or as a principal in the second degree, depending on where and when it was given to the principal.[13] Section 267 of the CLCA, and similar interstate provisions, have eliminated any significance of the location from which the assistance is given. The words “aids, abets, counsels or procures” encompass all means which are employed to bring about an offence.[14]

   [13]   R v Giorgi (1982) 31 SASR 299 at 311 per Zelling J.

   [14]   R v Ready [1942] VLR 85 at 88–89 per Mann CJ.

3. The extent of accessorial liability for additional crimes committed by the principal beyond the crimes that the accessory intentionally assists has long been problematic.  I will refer to the offence an accessory intentionally assists as the foundational offence and to any other offence committed by the principal as the parasitic offence.

4. By the end of the 19^th century it was accepted that an accessory who participated with others in the execution of a common criminal purpose was culpable “in respect of every crime committed by anyone of them in the execution of that purpose”.[15]  The test was an objective one which fixed the extended liability of the accessory for the parasitic offence by reference to the scope of the joint criminal enterprise in which he or she participated.  The increasing emphasis on subjective culpability in the 20^th century resulted in formulations of liability for the parasitic offence in terms of foresight by the accessory of its possible commission, but which retained the element of participation in a joint plan.  It is difficult to see why the element of a joint plan has been retained as an additional element to the requirement of foresight of possibility.  The existence of a plan is plainly necessary for the purposes of the former test which required an objective consideration of the scope of that plan.  However, it is unnecessary for a test based on subjective foresight, other than for evidential purposes.

   [15]   H Stephen and H L Stephen (eds), A Digest of the Criminal Law (Indictable Offences) (Sweet and Maxwell, 7^th ed, 1926) 45–49.

5. In McAuliffe v The Queen[16] Brennan CJ, Deane, Dawson, Toohey and Gummow JJ observed that the questions decided in Johns v The Queen[17] were, first, whether the doctrine of common purpose extended to an accessory before the fact and, secondly, whether the scope of the common purpose was confined to the probable consequences of the joint criminal enterprise or whether it extended to the possible consequences.[18]  The High Court in Johns answered these questions by stating that the doctrine extended to an accessory before the fact, and to the possible consequences of the common criminal enterprise.  In McAuliffe the High Court held further that the doctrine extended to the possible consequences contemplated by the participant charged and it was not necessary that all of the participants contemplated the same contingency or contingencies.[19] 

   [16]   McAuliffe v The Queen (1995) 183 CLR 108.

   [17]   Johns v The Queen (1980) 143 CLR 108.

   [18]   McAuliffe v The Queen (1995) 183 CLR 108 at 114 [14].

   [19]   McAuliffe v The Queen (1995) 183 CLR 108 at 114–115 [15].

6. The nature of the criminal enterprise which is sufficient for the purposes of the modern formulation of the rule is so widely expressed that it is difficult to imagine any realistic circumstances in which the intentional facilitation of the foundational offence would not also constitute assent to and participation in a criminal enterprise to commit it, at least when each participant continues in the knowledge of the part played by the other.  If that is so, then the rule of accessorial liability for the parasitic offence could simply be stated thus: a person who procures, counsels, aids or abets crime F, with foresight that any of the persons he so assists might commit crime P, is an accessory to the commission of crime P.  If the condition of participation in a joint enterprise was meant to limit accessorial liability, it is difficult to imagine cases in which intentional facilitation of crime F would ever fail to satisfy the condition of participation in a joint criminal enterprise.  Perhaps a possible case is one in which the accessory learns of the principal’s intention to commit crime F, say a burglary, and facilitates it by leaving the premises unsecured but never communicates that information to the principal.  There could be no doubt that the accessory in such a case is guilty of assisting the principal to commit the burglary, even in the absence of a joint plan.  If the accessory foresees that the principal might also intentionally harm the residents, crime P, it is difficult to see why he should escape liability for the parasitic offence because he acted unilaterally.  An accessory to the burglary who had informed the principal that the door was open would undoubtedly also be liable for the foreseen parasitic offence.

7. The questions before the Court in Johns were framed in terms of the extent to which a joint enterprise extended the scope of the accessory’s liability.  The joint enterprise was not treated in itself as an independent basis for liability of an accessory.  There is some academic support for the proposition that liability for crime by participation in a joint enterprise is a distinct basis for culpability which exists independently of aiding, abetting, counselling, or procuring[20] but there is also strong opinion against it.[21]  Those who advocate a joint enterprise as a distinct and separate basis for liability do so for the purpose of defining it in a way that requires foresight of the probable, not just the possible, consequences of the enterprise.[22]  That more limited condition of liability was of course rejected in McAuliffe.  The historical references relied on by the academic proponents of the different rule do not support their position.  They merely illustrate the application of the joint enterprise principle to extend the liability of principals in the second degree to the parasitic offence.[23] 

   [20]   A P Simester, ‘The Mental Element in Complicity’ (2006) 122 Law Quarterly Review 578, 587–599.

   [21]   D Ormerod, Smith and Hogan Criminal Law (Oxford University Press, 11^th ed, 2005) 190–191; J C Smith, ‘Criminal Liability of Accessories: Law and Law Reform’ (1997) 113 Law Quarterly Review 453, 461–462.

   [22]   A P Simester, ‘The Mental Element in Complicity’ (2006) 122 Law Quarterly Review 578, 587–599.

   [23]   H Stephen and H L Stephen deal with common purpose immediately after the basis for liability as a principal in the second degree and the examples given all involve assistance at the scene of the crime: H Stephen and H L Stephen (eds), A Digest of the Criminal Law (Indictable Offences) (Sweet and Maxwell, 7^th ed, 1926) 44–45. Macklin’s Case (1838) 2 Lew CC 225; 168 ER 1136 was also a prosecution based on evidence of assistance given at the scene by beating the victim. The discussion called in aid in Hale’s History Pleas of the Crown suggests that an indictment for murder by being present aiding and abetting, in which it was held that a variance between the indictment and the evidence as to who struck the fatal blow was immaterial because “in law it was the stroke of all the party” that those in a house “five rod” from the scene were still “present” if they abetted or counselled the crime guilty of aiding and assisting the principals: M Hale, Emlyn, G Wilson, and T Dogherty, Hale’s History of the Pleas of the Crown (E Rider, A New Edition, 1800) Vol 1, 462. Foster’s Crown Law also describes the doctrine as an extension of the liability of aiders and abettors of the original unlawful purpose: M Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry; And of Other Crown Cases: to which are Added Discourses Upon a Few Branches of the Crown Law (Professional Books, 1762) 351.

8. Examples of the application of the concept of joint enterprise as an ancillary principle, which extends the scope of the crimes for which a principal in the second degree is liable, abound.  There are no authorities that I am aware of that regard it as an independent basis for liability.  The following two references demonstrate that the principle was an ancillary, and not independent, basis for liability.  In the 23^rd edition of Archbold’s Pleading, Evidence, and Practice in Criminal Cases it is reported that an offender who helped thieves carry away stolen goods from a position thirty yards away from the warehouse from where they were taken, was an accessory and not a principal.[24]  Importantly, the editors go on to make the point that a participant in a joint enterprise who is not present, or so near as to be able to afford aid and assistance at the time when the offence is committed, is not a principal in the second degree but is an accessory before the fact.[25]

   [24]   W F Craies and G Stephenson (eds), Archbold’s Pleading, Evidence, and Practice in Criminal Cases (Sweet and Maxwell, 23^rd ed, 1905) 13.

   [25]   W F Craies and G Stephenson (eds), Archbold’s Pleading, Evidence, and Practice in Criminal Cases (Sweet and Maxwell, 23^rd ed, 1905) 13. R v Soars (1802) Russ & Ry 25; 168 ER 664 per Le Blanc J; R v Davis (1806) Russ & Ry 113; 168 ER 711 per Graham B; R v Else (1808) Russ & Ry 142; 168 ER 728 per Grose J; R v Manners (1837) 7 Car & P 801 per Ludlow, Serjt; 173 ER 349; R v Howell (1839) 9 Car & P 437; 173 ER 901 per Littledale J; R v Tuckwell (1841) Car & M 215; 174 ER 477 per Coleridge J.

9. In R v Howell[26] the accused, W, was indicted as a principal in the second degree for feloniously demolishing a house.  W was alleged to have incited a crowd with violent language but was not present when the house was attacked and set alight.  Littledale J, in summing up, directed the jury that:

   Where persons combine to stand by one another in a breach of the peace, with a general resolution to resist all opposers, and in the execution of their design a murder is committed, all of the company are equally principals in the murder [meaning in the second degree], though at the time of the fact some of them were at such a distance as to be out of view.[27]

   [26]   R v Howell (1839) Car & P 437; 173 ER 901 per Littledale J.

   [27]   R v Howell (1839) Car & P 437 at 437; 173 ER 901 at 901 per Littledale J.

10. Littledale J also referred the jury to Sir William Russell’s text on the criminal law to the effect that the presence of a principal in the second degree need not be so close as to be an “eye or ear witness of what passes”, and that those who in accordance with a “common design” position themselves to “prevent a surprise” or assist with an escape are sufficiently present to be indicted as principals in the second degree.[28]

    [28]   R v Howell (1839) Car & P 437 at 449–451; 173 ER 901 at 907 per Littledale J citing W Russell, A Treatise on Crimes and Misdemeanors (J Butterworth, 1819) Vol 1.

11. It is, with respect, clear that a joint enterprise did not render a participant vicariously liable for the crimes of others by reason of any implied or express agency alone. It has always operated as an ancillary rule extending the liability of the participant, beyond the foundational offence he or she has facilitated, to the parasitic offence. In any event, whatever the historical position may have been it is difficult to see any basis on which a person who is not a principal offender can be prosecuted other than pursuant to s 267 of the CLCA as a person who aids, abets, counsels, or procures the commission of an offence. Liability for the parasitic offences can only be achieved by a doctrine which inheres in the several forms of accessorial conduct proscribed by s 267 of the CLCA. Only a rule that was ancillary to the common law rules for accessorial liability could have been incorporated by that section.

12. The reference to the distinction between liability as an aider and abettor, counsellor and procurer, and liability by participation in a joint enterprise in the reasons of the plurality in Clayton v R,[29] should be understood in the context of the concern often expressed by the Court of Criminal Appeal of New South Wales of unnecessary reliance on extended joint criminal enterprise.[30]  In particular, it should be observed that the statement of the elements of joint enterprise liability explained by Hunt CJ in R v Tangye[31] include, as the third element, intentionally encouraging or assisting the commission of the offence.

    [29]   Clatyton v R (2006) 81 ALJR 439 at 443–444 [19] per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ.

    [30]   R v Tangye (1997) 92 A Crim R 545 at 556 per Hunt CJ.

    [31]   R v Tangye (1997) 92 A Crim R 545 at 556 – 587 per Hunt CJ.

13. In summary, the doctrine of joint enterprise, in cases in which the accessory is charged with the foundational offence which is the object of the enterprise, treats participation in the common design as an act which satisfies one or more of the elements of procuring, counselling, aiding or abetting the offence.  For accessories who are not present at the crime, joining and participating in the criminal enterprise may be, in the absence of more tangible assistance, the further step beyond silence which gives encouragement to the principal and establishes criminal liability.  For accessories who are present at the scene of the crime, joining and participation in a joint enterprise is more than is required for culpability because conduct as little as intentional encouragement, even if unilaterally given, amounts to aiding and abetting the offence.

14. The doctrine of extended joint enterprise, in cases in which the accessory is charged with a parasitic offence, beyond the foundational offence of the enterprise, treats offences which the accessory contemplated might be committed in furtherance of its objects as if they were the objects of the design.  The doctrine of extended joint enterprise, therefore, significantly extends the culpability both of accessories present at, and away from, the crime.  However, for the reasons given in [17] above it is difficult to see why, in a case in which a person intentionally assists the foundational offence with foresight of the possibility of the parasitic offence, anything is gained by reference to a joint enterprise other than for evidential reasons.

15. There is a problematic aspect of the fault element of foresight of possibility in a case of parasitic accessorial liability for the additional offence.  There is some tension between the element so expressed and the requirement to prove, for accessorial liability generally, that the accessory had knowledge of all of the essential circumstances which make the principal’s conduct culpable.[32]  Knowledge of the essential circumstances is, as the plurality judgment in Giorgianni v The Queen[33] explains, necessary because without it an intention to assist or encourage the conduct which will constitute an offence is absent.  In Giorgianni the principal of a transport company was charged as an accessory with a dangerous driving offence at strict liability.  Absent knowledge of the defective condition of the truck, there was nothing criminal in the proposed journey of the driver.  However, knowledge of the precise offence intended by the principal is not necessary to prove intentional assistance.  So, in R v Bainbridge[34] it was held that suppliers of house breaking implements to a burglar are accessories if they know that the burglar intends to break into and steal from a building, even if they do not know which particular building is the target. 

    [32]   Giorgianni v The Queen (1985) 156 CLR 473 at 487–488 [16]–[17] per Gibbs CJ, at 493–495 per Mason J [15]–[18], at 506–507 [21] per Wilson, Deane and Dawson JJ.

    [33]   Giorgianni v The Queen (1985) 156 CLR 473 at 504–505 [18] and 506–507 [21] per Wilson, Deane and Dawson JJ. The sufficiency of wilful blindness can be put to one side for present purposes.

    [34]   R v Bainbridge [1990] 1 QB 129.

16. It would appear that knowingly assisting a principal to engage in criminal conduct relaxes the degree of knowledge and foresight of the particular foundational or parasitic offence which is sufficient to render the accessory liable for the parasitic offence.  Moreover, there is authority that, even with respect to the foundational offence, something less than certain knowledge that the principal will commit the offence is sufficient.  In R v Rich[35] Cox J pointed out that a person who facilitates an offence could never know in ‘an absolute sense’ that the principal will commit the offence.[36]  The question in such a case may be whether the alleged accessory intends to facilitate conduct that in the known circumstances constitutes, or if engaged in the future will constitute, an offence.[37]

    [35]   R v Rich (1997) 93 A Crim R 483.

    [36]   R v Rich (1997) 93 A Crim R 483 at 496–497 per Cox J.

    [37]   R v Rich (1997) 93 A Crim R 483 at 497 per Cox J.

17. It is the state of mind of the alleged accessory at the time that the assistance is given that determines his or her liability.  The degree of knowledge or belief of what the principal is doing or might do that is necessary for liability will depend on the facts of each case.  For example, a garden and hardware salesperson who merely suspects that a customer intends to use the purchased items for an unlawful purpose is unlikely to be culpable.  On the other hand, a salesperson who believes that the purpose is unlawful, perhaps on the basis of an overheard conversation, may be culpable even if his belief is not sufficiently certain to be characterised as knowledge.  Much will depend on the degree of certainty, the existence of a lawful excuse or reason for providing the assistance and whether or not the alleged accessory desires the commission of the offence. 

18. Finally, it appears to me there can be no distinction in principle between the several forms of accessorial conduct proscribed by s 267 of the CLCA on this issue. In particular, the degree of foresight that a principal might engage in conduct which is criminal, necessary for the purposes of accessorial liability, should not be dependent on whether the accessorial conduct might formerly have been characterised as that of an accessory before the fact or a principal in the second degree.[38]

    [38]   Cf Ward v The Queen (1997) 97 A Crim R 184 at 191–192. Where the commission of the crime, as in Ward, depends on the consent of the victim, I doubt that the accessory must know that the victim does not, or will not, consent to the conduct of the principal which has been facilitated. It is enough to foresee the possibility that the principal is acting or will act against the wishes of the victim if it is necessary to do so to achieve his purpose.

1. There is inconsistent authority on the casual relationship between the accomplice’s conduct and the commission of the offence that is necessary to establish accessorial liability.[39]  Leaving aside cases in which procurement is alleged, it appears to be sufficient to show that the conduct was calculated, in an objective sense, to promote the commission of the offence.  It is unnecessary to enquire into the extent, if any, that the principal was subjectively influenced by the conduct.[40]

   [39]   See generally K J M Smith, ‘Complicity and Causation’ (1986) Criminal Law Review 663; White v Ridley (1978) 140 CLR 342 at 351 [10]–[12] per Gibbs J, at 353–354 [4]–[6] per Stephen J; Lenzi v Miller [1965] SASR 1 at 14 per Bright J; Attorney Generals reference (No. 1 of 1975) [1975] QB 773 at 780 per Widgery CJ; Attorney General v Able [1984] 1 QB 795 at 812 per Woolf J; Howell v Doyle [1952] VLR 128 at 134 per Herring CJ. K J M Smith, A Modern Treatise on the Law of Criminal Complicity (Clarendon Press, 1991) 78–93.

   [40]   R v Ready [1942] VLR 85 at 88–89 per Mann CJ on behalf of The Court.

2. The legal significance of an accessory’s withdrawal of support is connected to the issue of causation.  The common law has long accepted that a withdrawal of support may exculpate an accessory but has insisted that a mere change of mind is not sufficient. 

3. In Stephen’s Digest of the Criminal Law, it is stated that an accessory before the fact who countermands the execution of the crime before it is committed “ceases to be an accessory before the fact”.[41]  The limitation of the principle to accessories before the fact is telling because it discounts the possibility that someone who actually aids the commission of the offence at the scene can do enough to countermand the offence, short of successfully stopping the principal from committing it at all. 

   [41]   H Stephen and H L Stephen (eds), A Digest of the Criminal Law (Indictable Offences) (Sweet and Maxwell, 7^th ed, 1926) 47–48.

4. The principle laid down in Stephen’s Digest of the Criminal Law is rooted in much older authority.  It is stated in Hale’s Pleas of the Crown that if the accessory “actually countermands his order, and the principal notwithstanding commits the felony, the original contriver will not be an accessory”.[42]

   [42]   M Hale, Emlyn, G Wilson, and T Dogherty, Hale’s History of the Pleas of the Crown (E Rider, A New Edition, 1800) Vol 1, 618.

5. In the fourth edition of Russell on Crime, the discussion of the liability of accessories before the fact includes the following:[43]

   A. commands B. to kill C., but before the execution thereof repents and countermands B., yet B. proceeds in the execution thereof; A. is not accessory, for his consent continues not, and he gave timely countermand to B. but though A. had repented, yet if B. had not been actually countermanded before the fact committed, A. had been accessory.

   [43]   C S Greaves (ed), A Treatise on Crimes and Misdemeanors (Maxwell and Son, 4^th ed, 1865) Vol 1, 63 citing M Hale, Emlyn, G Wilson, and T Dogherty, Hale’s History of the Pleas of the Crown (E Rider, A New Edition, 1800) Vol 1, 617.

6. In more recent times the question of the exoneration of an accomplice by countermand was considered by the High Court in White v Ridley.[44]  Gibbs J held that to be effective the countermand must satisfy two conditions.  First, it must be sufficiently clear to indicate to the principal offender that the accused no longer intends the offence to be committed.[45]  Secondly, the accused must do or say whatever is reasonably possible to counteract the effect of the earlier conduct.[46]  Stephen and Aiken JJ held that the withdrawal must effectively nullify the previous assistance or encouragement.[47]  Murphy J held that the accused must do what he can to prevent the commission of the offence.[48]

   [44]   White v Ridley (1978) 140 CLR 342.

   [45]   White v Ridley (1978) 140 CLR 342 at 351 [10] per Gibbs J.

   [46]   White v Ridley (1978) 140 CLR 342 at 351 [10] per Gibbs J.

   [47]   White v Ridley (1978) 140 CLR 342 at 358 [20] per Stephen J with Aiken J concurring at 363 [1].

   [48]   White v Ridley (1978) 140 CLR 342 at 363 [4] per Murphy J.

7. In R v Jensen[49] the Supreme Court of Victoria held that to escape liability “a party must communicate his withdrawal to the other parties, or at all events take some other positive step, such as informing the police”.[50]

   [49]   R v Jensen [1980] VR 194.

   [50]   R v Jensen [1980] VR 194 at 201 per Young CJ, McInerney and Newton JJ (The Court).

8. Very recently Vanstone J gave close consideration to this issue in R v Sully.[51]After a survey of the authorities, Vanstone J concluded: [52]

   What will suffice in terms of withdrawal from a joint enterprise or from a situation which a defendant has counselled and procured or aided and abetted a crime will vary markedly from case to case.  It will involve an assessment of what was reasonable and practical in the circumstances.  The more the defendant has done by way of planning or providing information or items to enable completion of the crime, the more is likely to be required of him by way of withdrawal or countermand, if he is to avoid criminal responsibility.  In some cases, particularly where the participation or aiding and abetting is spontaneous, withdrawal by leaving the scene, especially when coupled with advice or other indication to those who remain of the abandonment, or with the effluxion of time, might be sufficient.  However, with respect to those who have expressed a contrary view, I do not agree that there is any distinction in point of principle between cases where there is a pre-existing agreement to commit the crime and cases of spontaneous participation, such as by aiding and abetting.  It is a matter of fact and degree.  Therefore I do not consider that Mitchell & King and O’Flaherty should be followed in this Court.  Also, while there might seem to be a degree of incongruence in introducing questions of causation to an aiding and abetting situation, it seems clear that withdrawal could be demonstrated where the secondary party’s encouragement has been “spent”, even where there was no communication.

   [51]   R v Sully (2012) 112 SASR 157.

   [52]   R v Sully (2012) 112 SASR 157 at 178 [75] per Vanstone J.

9. I respectfully adopt the views expressed in that passage.  I need make only the following brief observations.  First, in my view the principle stated in O’Flaherty[53] is a limited one and only indirectly touches the question of withdrawal from a criminal enterprise after engaging, facilitating or encouraging it.  The factual circumstances considered in O’Flaherty involved two separate and discrete enterprises.  Even though the applicant had participated in the first attack, he had then disengaged and did not take part in the attack in which the fatal injury or injuries were inflicted.  He therefore “did not participate in any unlawful violence which caused the fatal injury or injuries”.[54] 

   [53]   R v O'Flaherty [2004] 2 Cr App R 20.

   [54]   R v O'Flaherty [2004] 2 Cr App R 20 at 332–333 [63] per Mantell LJ on behalf of The Court.

10. Secondly, I do not see any incongruity in applying a causation test when considering the sufficiency of a countermand by the accessory because, as I earlier observed, an effective countermand operates to exonerate conduct which would otherwise be culpable.  The countermand must nullify the effect of the facilitation if it is to exonerate the accused.  There is therefore no incongruity between the rule that it is not necessary to prove that the accessory’s conduct actually facilitated the commission of the offence, and the rule that an accessory must do everything he or she can to nullify the effect of the assistance previously given.

11. The legal significance of a countermand is not in its effect on the mens rea of the accessory.  Rather, the common law regards subsequent conduct that sufficiently nullifies the actus reus, the previously given assistance, as a supervening exculpatory event.  Nonetheless, it is for the prosecution to prove, if an accused satisfies the evidential onus, that the accessory’s previous assistance was not nullified.

    The Evidence

12. During the afternoon of 26 October 2009, Akol Akok and Dor Achiek were at the Wingfield Oval with about 20 fellow Sudanese immigrants including the witnesses Bol Deng and Luka Deng, Nuar Ruy, Fuel Agoud, Daniel Kuac, and Joseph Makur (the oval witnesses).  Some members of the group left during the afternoon to travel into the city centre.

13. The Wingfield Oval has a north to south orientation.  It runs roughly parallel with Eastern Parade to its west and is bounded by St Johns Road to the north and Rosewater Terrace to the south.  The oval is enclosed by a low fence.  A little to the west of the oval, a grandstand overlooks its western wing.  The Sudanese men occupied an area between the grandstand and that western wing.

14. It is common ground that at about 3.00 pm, BS went to the oval and approached the Sudanese men.  He asked for and received a cigarette from Achiek.  At that time, BS was not wearing a t-shirt and was bleeding from several incised wounds to his torso.  The evidence does not reveal when, how, and by whom the wounds were inflicted, but they were not inflicted by any of the Sudanese men at the Wingfield Oval.  Several of the oval witnesses testified that when BS was given the cigarette he was carrying a long, yellow handled knife which resembled a meat worker’s knife.  The testimony of the oval witnesses differed as to whether BS was accompanied by one or two other persons, and how close his companions were to him at the time. 

15. Evidence of BS’s movements shortly before and after he was given the cigarette by Dor Achiek was adduced from several independent witnesses who drove past the oval at about the time.  They saw a man without a top and with cuts to his torso walking along nearby streets.  One passing motorist testified that she saw two men who had been walking close to the oval loitering in the nearby Foodland supermarket car park on Grand Junction Road. 

16. Prosecution witness NW testified that she and WH picked up BS from the Foodland Shopping Centre.  BS was with his cousin, JW

17. NW and WH took BS to the home of the co-accused BB, where NW treated BS’s wounds.  Prosecution witness JC was at BB’s house at the time.  NW testified that at the house BS told the others that he had been “cut by black dogs at the Wingfield Oval”.  A little later the group left the house in WH’s car.  WH was driving and NW was in the front passenger seat.  BS, BB, JW and JC were in the rear seat. 

18. JC testified that at first he thought that they were conveying BS to hospital.  NW testified that she believed that they were taking him home.  Both of them denied any knowledge of a plan to travel to the Wingfield Oval and both claimed to be surprised when the car was driven there.  On the way they stopped at the home of HR, who joined them in the car.  JC and NW gave inconsistent evidence about how the stopover at HR’s house was arranged but both agreed that they travelled from there to the Wingfield Oval.   

19. JW and HR were jointly charged and tried with BS.  JC was also charged jointly with them but was given an immunity from prosecution shortly before the trial.  WH had not been charged with any offence relating to the death of Akok or the injury to Achiek at the time of the trial probably because details of his alleged involvement only became known to police close to the time of the trial from witness statements given by JC.

20. Both NW and JC testified that WH’s car was driven onto Eastern Parade before turning east into Rosewater Terrace.  JC claimed, but NW denied, that the car stopped momentarily on Rosewater Terrace whilst NW counted the number of Sudanese men on the oval.  The car was then driven north along Agnes Street and turned west into St Johns Road before stopping near its junction with Eastern Parade.  JC testified that at that location WH gave knives, which he produced from under his car seat, to BB and BS.  JC’s evidence was that other members of the group were also armed, JW with a pool cue, and WH with a tent peg.

21. NW, on the other hand, testified that she had seen BS holding a knife in the backseat before the car stopped on St Johns Road, but she had made prior inconsistent statements about that.  NW also gave evidence that JW was armed with the end of a pool cue which he pulled out from a leg of his trousers.  Some of the deceased’s blood was later detected on a pool cue seized from JW’s home. 

22. NW testified that WH only left his car to help BS, who was unsteady on his feet.  According to NW, BS appeared to be intoxicated. NW testified that WH was not armed. 

23. JC gave evidence that he was reluctant to join the others and only got out of the car when NW offensively belittled him for not having the courage to fight with his friends.  JC insisted that even though he got out of the car he did not join in the attack on the Sudanese men.

24. FB was the only accused who gave evidence.  I set out his evidence in greater detail in [91] below but it is necessary to briefly summarise it now to understand how it fits with the evidence of NW and JC about events at the oval.  He admitted in his testimony that he was at the oval and that he took his baseball bat with him to protect himself from the Sudanese men whom he had seen on the oval.  Nonetheless, he claimed that he did not see any of the other accused carrying weapons and that he did not participate in, or even see, the attack on the Sudanese men.

25. NW and JC testified that they saw FB after they arrived at the oval.  His white ute was parked on St Johns Road.  He walked over to WH’s car carrying a baseball bat.  On JC’s evidence the men from WH’s car were carrying their weapons openly and they were necessarily within FB’s view.  JC testified that FB asked what was going on and was told by JW that BS had been stabbed by someone at the oval and that they were going to “get him back”.

26. NW gave evidence of what she saw of the attack from her position in the front of WH’s car.  She described BS chasing two African men in a northerly direction towards the goals at the St Johns Road end of the oval.  NW did not claim to have seen BS stab any of the men.  It was put to her in cross‑examination that her view would have been obscured by a toilet block between the car and the goals but she maintained her account.  NW testified that she knew it was BS who was chasing the men because he was not wearing a t‑shirt and she saw his bandages.  However, NW was the only witness to testify that BS was not wearing a t-shirt at the time.  No one else testified that a bare‑chested man was involved in the attack on the Sudanese men.

27. NW testified that the two African men whom BS chased ran from the oval across the car park towards WH’s car.  She started the car and locked the doors as a precaution.  FB testified that he saw two men approaching WH’s car after hearing NW scream but he said that the men had approached from Eastern Parade and not the St Johns Road end of the oval.  NW denied that she screamed at any time whilst waiting in WH’s car.

28. NW’s credibility and reliability were strongly attacked in cross‑examination and in the course of closing addresses because of what was said to be her bias, the improbability of her account, her prior inconsistent statements, and on the ground that she was, herself, an accomplice.

29. JC testified that he walked into the oval car park with the men who had assembled on St John’s Road.  He heard HR say “let’s get these cunts”.  JC claimed that he went no further than the corner of the grandstand and watched the others continue on towards the Sudanese men.  His account of the attack was as follows.  One of the Sudanese men stood, gesticulating, in the way of the group from WH’s car.  FB struck him with his baseball bat.  The other Sudanese men then scattered with all five co-accused and WH giving chase.  BS chased two men towards the St Johns Road goal end of the oval.  WH struck a man who had been sleeping near the gate to the oval.  That man, on the evidence of the oval witnesses, was Achiek.  BS returned to where WH was and stabbed Achiek in his left flank so hard that he jumped up.  The wound in fact inflicted on Achiek was, contrary to JC’s evidence, on his right side.

30. According to JC, Achiek ran from where he was stabbed to St Johns Road and then onto Eastern Parade, but Achiek testified that he ran from the oval grounds directly onto Eastern Parade.  JC also testified that BB chased a Sudanese man who had thrown a stick at him onto and along Eastern Parade until he was called back to the oval grounds by FB.  When FB gave evidence, he confirmed JC’s account of BB’s movement along Eastern Parade. 

31. According to JC, when the group reassembled alongside WH’s car on St John’s Road, BB was holding a knife that was slightly blood stained.  NW also testified that BB was holding a knife when he returned to the car.  JC gave evidence that, on their return, JW declared to an unidentified member of the group “you got him”.

32. The oval witnesses testified that they, with other young Sudanese men, had gathered at the Wingfield Oval early in the afternoon on 26 October.  They were 20 in number until about 2.00 pm when some left to travel to the city.  Some of the oval witnesses gave evidence that some of their number were drinking beer and wine.  Others denied that any alcohol was drunk at the oval.  An analysis of the blood of the victim Akok, taken at the autopsy, revealed a blood alcohol concentration of 0.2 per cent.

33. The evidence of the attack from the perspective of the Sudanese men was as follows.  The oval witnesses testified that none of their number were armed.  They testified that the deceased Achiek fell asleep some time after giving BS the cigarette and was lying on the ground near the coach’s bench.  Some time later they were attacked by a group of men.

34. Bol Deng, Luka Deng and Fuel Agoud testified that they were attacked by five to seven men carrying knives and bats.  Daniel Kuac gave evidence that there were two waves of assailants with about six to seven men in each group carrying knives and bats.  Joseph Makur described an attack by ten to twelve men.  These differences are not significant having regard to the nature of the events they described and the likelihood that some of their attackers moved away from and, a little later, returned to the scene of the initial confrontation.

35. As will be seen, the oval witnesses were not able to describe the individual members of the group with sufficient particularity to be certain which of the individuals who attacked them physically perpetrated the assaults they described.

36. Achiek’s evidence was that he was awoken by two men.  One of the men accused him of having stabbed his brother.  He was stabbed by one of the men at a position near the coach’s box.  Achiek testified that he ran from his position near the coach’s box onto Eastern Parade, eventually running all the way to a house in Martin Court where a resident came to his aid.  On one view of some of Achiek’s testimony, he asserted that he was stabbed by the man to whom he had given the cigarette.  However, his evidence was difficult to understand and was inconsistent on that issue.  It could not be safely concluded from his evidence alone that he was stabbed by BS.

37. Bol Deng testified that Akok tried to escape the attackers but did not get very far because he was hit with a baseball bat.  He saw Akok kicked, stabbed and hit with a bat.  His evidence was to the effect that it was BB who stabbed Akok but that evidence was uncertain and beset with inconsistencies.  Bol Deng also testified that Fuel Agoud, Duot, Wol, and Makur all ran towards the Rosewater Street end of the oval. 

38. Bol Deng gave evidence that Achiek was stabbed when he was lying down and that the stabber then chased him, Deng, towards the St Johns Road end of the oval.  Bol Deng slipped and fell as he ran.  Deng said of the assailant who had chased him that he “wanted to stab me as well and then he fall down by himself”.  Bol Deng’s evidence linking the man who stabbed Achiek with the man who chased him across the oval is capable of corroborating both JC’s testimony that BS stabbed Achiek and NW’s evidence that BS chased two Sudanese men across the oval.  Bol Deng testified that he picked himself up and continued running towards the St Johns Road end of the oval.  He stopped to look back at the clubrooms and saw that Akok was still being attacked.  Bol Deng testified that when the attackers eventually left Akok and returned to St Johns Road, he ran back to Akok.  He found Akok bleeding from his neck and back.  Bol Deng’s description suggests that Akok was then close to death.

1. Luka Deng gave evidence that one of the assailants chased him towards the northern end of the oval.  That person stumbled and returned to the grandstand.  Luka Deng’s evidence, together with Bol Deng’s account, further corroborates NW’s evidence that BS chased two Sudanese men across the oval.  According to Luka Deng his pursuer then joined the other men who were around Akok.  After the attackers left Akok alone, Luka Deng returned to the grandstand area and found Akok bleeding badly.

2. Daniel Kuac testified that Akok was stabbed in the neck at about the same time that he was hit with the baseball bat.  He testified that after Akok was struck he staggered a short distance along the oval towards Grand Junction Road but then fell down and was stabbed.  The Sudanese men then ran away in different directions.  According to Kuac, Achiek was lying down close to Akok but on the oval side of the fence.  Kuac called out to him to warn him of the attack.  He saw Achiek get up and run.  On Kuac’s evidence Akok was trying to work his way past his attackers at about the time that Achiek woke up. 

3. Kuac testified that he was chased towards and onto Eastern Parade by the assailants who had stabbed Akok.  His pursuers then gave up the chase and returned to where Akok was.  In the context of the prosecution evidence that BB was chasing men along Eastern Parade before he was called back by his brother, the applicant FB, Kuac’s testimony supports Bol Deng’s evidence that it was BB who stabbed Akok. 

4. Fuel Agoud testified that Akok confronted the assailants when they first appeared.  He saw Akok get hit with a bat and then stabbed, after which he fell to the ground.  Agoud’s evidence was that he and Achiek ran off together through the southern car park of the oval and onto the Eastern Parade.  Agoud testified that he was carrying a stick as he ran.  Agoud followed Achiek to Mr Syke’s house in Martin Court.

5. The attack took place in a matter of minutes.  On the basis of the timing of a triple zero call and the evidence of the witness Selleck, it was over by about 4.30 pm.

6. The prosecution case also relied on implied admissions, made by some of the accused after they left the oval, of the existence of a common purpose to cause very serious harm to the Sudanese men. 

7. NW testified that WH drove them away from the oval.  In the car she heard BB ask “did we get the right guy?” to which BS replied “pretty sure that was the same one that stabbed me”.  The credibility of that evidence was attacked because of inconsistent statements made by NW on the topic.  Nonetheless, that exchange is evidence from which it could be inferred that BS acted in concert with the person or persons who stabbed Akok in accordance with a preconceived plan to cause grievous bodily harm to at least one of the Sudanese men.  That evidence is substantially corroborated by the description of the co‑ordinated attack by armed men given by the oval witnesses.  NW’s testimony of the exchange between BB and BS is, of course, not evidence against FB, who was not in the car at the time.

8. NW and JC testified that the group travelled back to the home of WH’s grandmother, CW.  The backyard of her home abutted the backyard of WH’s residence.  A shopping bag containing the weapons used in the attack was taken from the boot and the weapons were washed under a tap.  NW testified that later that afternoon they viewed a television news bulletin.  They heard it reported that one of the Sudanese men from the oval was in hospital.  From a later bulletin, probably in an evening news broadcast of one of the television networks, the group learnt that the victim had died.  BS was present at the time.  NW testified that members of the group, including BS, appeared to be pleased by the reports.

9. Mrs CW confirmed that WH, NW and the accused came back to her house.  Mrs CW testified that BS told her that he was stabbed by Sudanese men at the Rosewater Foodland.  Mrs CW and her daughter, KW, tended to BS’s wounds before he was taken to a medical clinic on Hanson Road about 5.30 pm.  A doctor at the clinic closed the incised wound to his chest with 14 stitches.  BS presented at the clinic bare-chested and intoxicated. 

10. CB is one of BS’s friends.  They played football together.  CB’s father, DB, testified that he picked up CB, BS and JW from the Angle Park dog racing track at about 7.30 pm.  He saw that JW was carrying a pool cue.  After driving to some other locations DB returned home with his son and BS about 10.00 pm.  BS spent much of his time at CB’s home and regarded CB’s mother, KB, as a maternal figure. 

11. Detectives were waiting at the B’s house for BS to arrive.  BS was then aged 16 years. 

12. The interaction between the detectives and BS at CB’s house was video taped.  The video tape was in evidence only for the purpose of the voir dire into the admissibility of the evidence of BS’s later interview by detectives at the Port Adelaide police station.  It was not received into evidence in the trial proper.

13. I have viewed the video tape of the detectives’ attendance at CB’s house.  Detective Walker announced in BS’s presence that they were investigating a murder at the Wingfield Oval.  BS was told by Detective Walker that the police had received varying accounts but that Detective Walker had not himself decided where the truth lay.  BS was informed that he was not obliged to answer their questions, that his interview would be recorded, and that any answers he gave could be used against him.

14. Despite his injuries, BS appeared to be alert and responsive.  He was quick to express concern when Detective Walker suggested that his grandparents should be contacted.  BS did not want them contacted because he feared that it would unduly upset them. 

15. Detective Walker informed BS and CB that they were entitled to have a lawyer present.  KB suggested to her son and BS that that was not necessary.  They did not request a lawyer.  Whilst at the house, CB volunteered that BS had been assaulted with a knife by Sudanese men at the oval.  BS did not say anything about that at the house.

16. Detective Walker appeared to be anxious not to elicit any information from BS about the incident when they were in CB’s house.

17. A yellow handled knife was found in BS’s Nike brand bag when police spoke to him later that night.  However, having regard to the descriptions of the knives used in the attack given by the oval witnesses, that knife was unlikely to have been one of the knives used in the attack on the Sudanese men.

18. BS and CB were taken to the Port Adelaide police station.  CB was accompanied by his parents.  Despite BS’s objection to police contacting his grandparents, the detectives notified his grandparents that he was being interviewed.

19. The videotaping of BS’s attendance at the Port Adelaide police station commenced at 10.34 pm.  KB waited in the interview room with BS until his grandparents arrived.  On my viewing of the videotape, BS showed no sign of being intimidated or overawed by his circumstances.  He engaged in light conversation with KB and appeared to be comfortable.  BS’s grandparents arrived about 10.59 pm.

20. Detective Walker repeated, in the presence of BS’s grandparents, that BS was not under arrest and that he was there to assist police and “get the story straight on what … happened”.  Detective Walker informed BS’s grandparents that he had already offered BS an opportunity to speak to a lawyer.  Detective Walker explained to them that BS could “walk away … at any given time” and that they were “not holding him …”.  He continued “we have so many stories, we’re just trying to work out exactly what happened …”.  Detective Walker asked BS’s grandparents if they were happy with BS being there for that purpose.  BS’s grandfather replied that he was “still dumbstruck”.  Detective Walker then turned to BS and told him that he was giving him a “chance … time to explain … exactly what happened …”.  He again reminded BS that the interview was being recorded, that BS was not obliged to say anything, and that anything he did say would be recorded and might later be given in evidence. 

21. BS told the detectives that at 10.30 am that day, he left Seaton High School and went to CB’s house where he watched television.  He went on to say that he and CB walked towards the Wingfield Foodland but that CB stopped at the top of the oval and turned back.  BS told the detectives that he and JW continued across the oval where he saw a group of African men.  He said “two of them walked up to me and then all of a sudden I had pulled two shanks down my chest”.  Shanks are short bladed improvised knives.  BS claimed that JW left but later returned with CB.  BS told the detectives that he then went to JW’s home and from there to the Hanson Road Medical Centre.  The prosecution put to the jury that BS’s account in the police interview was not only falsified by the evidence but that it was also told out of a consciousness of guilt.

22. KB testified that she saw BS about midday on the next day, 27 October.  She claimed that BS confided to her that he had seen BB stab a man at the oval.  BS’s admission is evidence of his proximity to the scene of the stabbing of both Akok and Achiek, who were close together.

23. Another witness Sarah Hawkins said that BS had told her that it was a “good thing” that they had killed “that black cunt”.  However, Sarah Hawkins had a history of psychiatric illness and the Judge warned the jury to treat her evidence with great care. 

24. The applicant FB testified in his defence that he drove his Holden ute to the Wingfield Oval after receiving a phone call from an unknown woman who told him that his brother had been injured there.  FB gave the following evidence of the events that ensued.  He drove onto Eastern Parade, turned into Rosewater Terrace, travelled up Agnes Street and then into St Johns Road before stopping just after an unsealed dirt patch on St Johns Road.  He saw African men on the oval.  Another car pulled up on St Johns Road closer to Eastern Parade.  He left his ute holding a baseball bat and met the other men who had come out of the car.  Amongst them he saw his brother.  He lifted up his brother’s shirt and realised that he had not been wounded after all.  He assumed that the person who had sent him the text must have confused the christian name of his brother with BS’s Christian name.  Someone in the group then told him that a man on the oval had injured BS.  He heard one of the group say that the “blacks” on the oval had “done it”, and that that statement was like “ammunition to go to the clubrooms”.  He watched the group run towards the oval and followed to see what might happen.  FB insisted that he did not see any men carrying weapons and that they went only as far as the corner of the clubrooms. FB claimed that, from that point, his view of the ensuing confrontation was blocked by the clubrooms.  Later he saw his brother chasing a Sudanese man carrying a stick along Eastern Parade.  He called his brother back to the oval.  He did not see any men with blood on them.  His only involvement in the confrontation was to chase some African men, who had approached from Eastern Parade, away from WH’s car.  FB testified that his attention was drawn to the men when he heard NW scream. 

    The Summing Up

25. The Judge gave the standard directions often given in the Courts of this State on accessorial liability, in circumstances similar to those here.  I set out below the more salient passages of those directions.

26. The Judge directed the jury on the principle of joint enterprise in these terms:

    If two or more people enter into an agreement or understanding to commit a crime, and while that agreement or understanding is still on foot a crime is committed every act done in order to implement the agreement or understanding is done by them all. In other words, the combined actions of two or more persons with a common criminal intent which was previously agreed upon between them will make them all guilty of the planned crime regardless of the part each played in its commission.

    …

    In this case to prove the crime of murder by reason of this principle of joint enterprise the prosecution must prove the following matters …

    (1)That the particular accused whose case you are considering was a party to an agreement or understanding with another or others to kill or cause grievous bodily harm to one or more of the Sudanese men. The prosecution must prove that the agreement or understanding included the commission of the crime charged, which in this case is the crime of murder …

    (2)That pursuant to the agreement or understanding and while it was still on foot one of the parties to the agreement or understanding killed Mr Akok. (To use a neutral phrase I will call that person ‘the stabber’ or ‘a stabber’).

    (3)That the person who stabbed Mr Akok did so with the intention to kill Mr Akok or cause him really serious bodily harm.

    (4)That the killing was unlawful, that is not in lawful self-defence.

    (5)That at the time that the act was perpetrated the accused was present at or in the vicinity of the crime, either playing his part in the carrying out of the agreement or the understanding or being ready to do so if required.

    I must make it clear to you that it is not enough for the prosecution simply to prove that an accused person was a party to an agreement or understanding to commit the crime. The prosecution must prove that the accused played some part in implementing the understanding or agreement between the parties.

27. I observe here that the direction that an accused who was a party to a joint enterprise must participate in that agreement at, or near, the scene of the crime is unduly favourable to the accused. An accused who would once have been liable as an accessory before the fact for assistance given away from the scene is also liable as an accessory pursuant to s 267 of the CLCA for assistance given away from the scene.

28. The Judge then explained the concept of extended joint enterprise, and concluded by articulating the elements of liability as follows:

    (1)The accused came to an agreement or understanding with another person or persons to assault one or more of the Sudanese men; that is, to apply force unlawfully to one or more of them.

    (2)At the time the particular accused whose case you are considering reached the understanding or agreement with the other person or persons to assault one or more of the Sudanese men, the accused foresaw the possibility that in the process of that assault one of the others who was a party to the understanding or agreement might murder one or more of the Sudanese men. This requires proof that the particular accused foresaw the possibility that a person who was a party to the understanding or agreement with him would kill or cause grievous bodily harm to one or more of the Sudanese men and would do so with an intention to kill or to cause him really serious bodily harm and the accused continued to participate in the joint venture despite that degree of foresight. Ladies and gentlemen, that will be so even if he did not wish or intend the death of any of the Sudanese men.

    (3)It must be proved that pursuant to that understanding or agreement a person who was a party to it assaulted Mr Akok.   I will continue to call that person ‘a stabber’.

    (4)That while the understanding or agreement was still on foot the stabber killed Mr Akok with murderous intent. This requires proof against the stabber of the elements of murder which I have earlier explained to you.

29. I make two observations about that passage.  First, foresight either at the time that the agreement was made, or whilst participating in the plan, of the possibility that one of the other participants might murder one of the Sudanese men, would have been sufficient.  Secondly, the passage exemplifies the observation I made in paragraph [17] that the concepts of joint enterprise and extended joint enterprise do not seem to add anything to the liability for the foundational offence which would attach in any event to a person who intentionally encourages, or facilitates the commission of that offence nor to liability for a parasitic offence that the accessory foresees the principal might commit.

30. The Judge then explained to the jury the concept of accessorial liability as an aider and abettor, and told them that guilt on that basis was not dependent on participation in a joint enterprise. The Judge directed the jury that the prosecution must prove:

    (1)First, that a person murdered Mr Akok. I will continue to call the person who killed Mr Akok “the stabber”…

    (2)That the accused was present when the murder was in the process of being committed and that the accused knew that the stabber was consciously, voluntarily and deliberately acting unlawfully and with an intention to kill Mr Akok or to cause him grievous bodily harm.

    (3)That with the knowledge set out in para.2 the accused knew what the stabber was doing and realised that the stabber was acting unlawfully and with intent to kill or cause grievous bodily harm, the accused did any one or more of the following three things:

    (i)    That he intentionally helped the stabber commit the murder or;

    (ii)     Intentionally encouraged the stabber to commit the murder by his presence and behaviour or;

    (iii)    Intentionally conveyed to the stabber by his presence and behaviour an assent to and concurrence in the commission of the murder.

    …

    However, ladies and gentlemen, I need to make it clear, that the mere presence of a person at the scene of a crime is not sufficient to make that person an aider and abetter. Standing by and doing nothing, for example, does not make a person culpable. You must be satisfied that the accused intentionally assisted, or he did or said something to encourage a stabber to commit the crime, or by his behaviour conveyed to the stabber an assent or concurrence in the crime.

    I should also make it clear - and this is very important - that when you consider this matter, you must be satisfied that the person who is charged with aiding and abetting knew all of the essential facts and circumstances which must be proved by the prosecution to make the stabber guilty of the crime of murder. I will repeat this because it is so very important.

    A person who is aiding and abetting would have to know that a stabber was acting consciously, voluntarily and deliberately as well as unlawfully, and that he had the intention necessary for murder, that is the intention to kill or inflict really serious bodily harm.

31. A number of matters must again be observed. First, the summing up omits to deal with liability as an accessory by facilitating the offences away from the scene of the crime. The direction that to be guilty an accused had to be present unduly limits liability, pursuant to s 267 of the CLCA, to that liability that formerly attached to a principal in the second degree, precluding any liability like that of an accessory before the fact. Secondly, it is doubtful that a participant in events like those charged here must be providing the assistance at the very time the principal is offending. I also doubt that it is necessary to prove, in circumstances like these, that an aider and abettor had knowledge of the principal’s actual state of mind. It is, I think, sufficient that the accessory foresaw the possibility that the principal might inflict grievous bodily harm with an intention to kill or cause grievous bodily harm, if the accused was aiding and abetting an assault that served as the foundational offence. It will be remembered that the doctrine of joint criminal purpose applies to both accessories before, and at, the fact. Accordingly, an accessory to an assault who is present at the scene need only foresee the possibility that the perpetrator has a murderous intent to be culpable if death ensues. Be that as it may, the directions were favourable to the accused.

1. BS complains by his fifteenth ground that the Judge wrongly refused to receive a plan drawn by the witness JC.  JC had drawn the plan for police when he made a witness statement.  On it he made some markings showing the movement of BS on and around the oval during incident.  JC was cross‑examined at length about the plan.  In particular, it was suggested to him that the plan and the written notations he made on it were to the effect that BS had moved all the way to, or close to, the St Johns Road end of the oval before the attack on Achiek.  JC’s notations were read out to him.  He attempted some explanation of them.  BS’s counsel’s tender of the plan was opposed by the prosecutor and counsel for the other accused. 

2. I accept that a proper basis for the receipt of the plan as an exhibit had been established.  First, questions had been asked of JC without objection about the markings on the plan.  The plan was admissible so that that evidence could more easily be understood.  It should have been received on that basis.  Secondly, the notations in JC’s handwriting made on the plan appeared on their face to be inconsistent with his evidence.  It was accepted that JC could properly be cross‑examined about the notations on the basis that they were prior inconsistent statements.  JC did not distinctly admit that the representations on the plan carried the implications put by BS’s counsel. 

3. However, even accepting that there was an error of law in rejecting BS’s tender of the plan, the receipt of the plan, as an exhibit, would have provided no material assistance whatsoever to BS over and above the answers given by JC in cross-examination.  The proviso must inevitably be applied.  It is, in my view, an abuse of process to prosecute this very technical ground, which is foredoomed to fail.

4. Under the cover of the sixteenth ground BS complains that the Judge did not put the defence case on the issue of BS’s intoxication in a fair, full and balanced way.  The Judge referred to the CCTV footage which had been put into evidence by the prosecution of BS’s presence at the medical clinic within an hour or so of the incident.  The complaint appears to be that the Judge’s reference to BS’s appearance on the CCTV footage did not properly put BS’s case on the effect of his intoxication on the question of his intention to commit the offence.  The Judge addressed the jury extensively on the evidence of NW, JC, KW and CW, which touched on BS’s apparent intoxication and shock.  There is no arguable basis for any criticism of those directions.  Moreover, the issue of intoxication arises in a very unrealistic way in this case.  If BS participated in the attack, in the way described by NW and JC, there could be no real question that he was not aware of the nature and purpose of the attack or even of his foresight of the possible intentional infliction of grievous bodily harm by participants in it.  I refuse permission on this ground.

5. The seventeenth ground includes five particular subparagraphs that complain that particular aspects of the defence case were not adequately put.  However, the particulars actually comprise complaints that the Judge did not sufficiently emphasise the defence criticisms of the prosecution case. 

6. BS’s first particular is that the Judge undermined the defence arguments about the deficiencies in the prosecution case by drawing the jury’s attention to both the defence’s arguments and the prosecution’s response.  One only has to state the ground to expose its lack of merit.  It in effect describes a balanced summing up.  BS’s counsel did not rely on any particular passage in which the approach of the Judge created an identifiable risk of miscarriage of justice by impinging on the jury’s function.

7. The second particular complains that the Judge did not adequately warn the jury that JC and NW were unreliable because of the significant inconsistencies in their account.  The Judge referred extensively to the significant inconsistencies in their accounts and repeatedly reminded the jury of the defence attack on their reliability.  Their reliability was for the jury to assess and there was no reason for the Judge to say anything more than was said.

8. The third particular alleges a failure to adequately direct the jury on the possible affects of intoxication on the reliability of the accounts of the oval witnesses.  The Judge reminded the jury of the evidence of those of the witnesses who conceded that some of their number had been drinking.  Some witnesses had testified that Achiek had been drinking.  Achiek himself conceded he was tipsy.  The effects of alcohol intoxication generally are well within the jury’s experience.  The assessment of the degree of intoxication in a very general way, of a particular person, is also well within the jury’s experience.  The jury were well placed to assess whether the testimony of Achiek, or any other witness, might be affected by his or her intoxication, having regard to the content of their evidence and to evidence of other witnesses about their state and condition.  The Judge told the jury that they should bear in mind the possible intoxication of the oval witnesses when assessing their reliability.  It is not arguable that more was needed in the circumstances of this case.

9. By the fourth particular the applicant complains about the way that the Judge dealt with the evidence of Achiek on whether the person who stabbed him was the person to whom he had given a cigarette to earlier in the afternoon.  The defence case was that Achiek’s testimony positively excluded the person who had earlier asked for a cigarette from being the stabber.  The Judge read extensively from Achiek’s evidence on the identity of the person who stabbed him.  Later in summarising the closing address of BS’s counsel, the Judge told the jury that counsel had “reminded you that Dor Achiek, who was the victim of the assault, was confused about the identity of the stabber”.  BS complains that in so summarising his case, the Judge understated his submissions on the effect of Achiek’s testimony.  However, the Judge had earlier told the jury that in cross‑examination Achiek appeared to agree that he had not been stabbed by the person who had asked him for a cigarette.  The Judge’s summary could not have misled the jury, who had, after all, heard counsel’s address.  Moreover, Achiek’s evidence, as confusing as it was, was read to the jury and it was for them to ascertain its meaning.

10. The fifth particular is that the Judge failed to adequately direct the jury on the possibility that WH had stabbed Achiek acting alone and in the absence of any joint plan.  That possibility is completely fanciful and against the weight of the evidence.  Contrary to the written submissions of BS’s counsel, the Judge was not required to direct the jury that, as a matter of law, BS must be acquitted if they thought it reasonably possible that WH had stabbed Achiek.  I explained in [103] the way in which the prosecution put its case and the consequences of doing so.

11. BS makes a related complaint in support of this final particular.  BS complains that the Judge mentioned several possibilities as to the number of persons who physically stabbed Akok or Achiek in the course of her summing up.  Those possibilities plainly arose on the evidence.  There was an abundance of evidence on which the jury might think that more than one person stabbed Akok and Achiek.  According to JC, two knives were distributed by WH.  Both Achiek and Akok were stabbed about the same time and Akok was wounded many times in the neck, back and chest.  A number of men were seen standing around him at the time.  No miscarriage of justice could have been caused by the Judge’s observations.  The Judge did not remove the question from the jury and made no direction that could have unduly influenced the jury in its consideration of that question.  It is necessary to repeat again that the primary, and overwhelmingly strong, case put by the prosecution did not depend on the identity of the stabber or stabbers and could not possibly be affected by whether there was one, or several, principal offenders.

12. The seventeenth ground in its various guises is unarguable.  I refuse permission.

13. BS added a further ground of appeal during the hearing of his application.  It was to the effect that the prosecution argument that BS’s possession of a knife before and after the confrontation at the oval wrongly invited the jury to engage in propensity reasoning to conclude that BS was in possession of a knife during the attack on the Sudanese men.  JC and NW described the knife wielded by BS during the confrontation as an oriental ornamental type of knife.  The knife described by the oval witnesses at the time that BS asked for a cigarette was a yellow handled meat knife or big kitchen knife.  Dor Achiek described his stabber has having a yellow handled knife,[63] as did Bol Deng, at least in his evidence-in-chief.[64]  Luka Deng testified that the knife held by the person who chased him had a curved blade.[65]  The knife in the bag BS had with him when he was found by police at CB’s home had a yellow handle but did not otherwise bear a resemblance to those descriptions.  The applicant complains that if the knives were not the same, it follows that the argument invited the jury to engage in propensity reasoning, and that the Judge’s failure to warn the jury against that reasoning has resulted in a miscarriage of justice.

    [63]   Transcript  200-201.

    [64]   Transcript 241.

    [65]   Transcript 491.

14. In my view, this ground too is not arguable.  The prosecutor did no more than ask the jury to draw an inference that it was BS who wielded the yellow handled knife that wounded Achiek. 

15. The prosecution case as to the applicant’s possession of a knife was not limited to the evidence of NW[66] and JC.[67]  The prosecutor’s argument was not based on propensity reasoning.  The prosecutor did not argue that BS was, by reason of his later possession of the knife, the type of person who is likely to participate in an armed assault on others.

    [66]   Transcript 795-799.

    [67]   Transcript 1547, 1619, 1623.  See also prosecutor’s address at transcript 2713.  See also transcript at 2714-5, 2914-2916.

16. If the oval witnesses had described one of their assailants as a person holding a blue mobile telephone, possession by an accused of a blue mobile telephone before and after the incident is circumstantial evidence upon which, together with other evidence, it might be inferred that the accused was one of the assailants.  The strength of the inference will plainly enough vary with the degree of consistency between the descriptions of the telephones and might be contradicted by other evidence.  The evidence on which the prosecutor relied was undoubtedly weak but his address did not invite the jury to engage in propensity reasoning.  In any event, in the context of the direct evidence of BS’s involvement in an attack in which at the very least other members of his gang were wielding knives and other weapons, the prejudicial effect of the evidence that he was later found carrying a knife was trivial.  It is not arguable that the prosecutor’s argument and the Judge’s treatment of it resulted in a miscarriage of justice.

    FB’s Grounds of Appeal

17. The recurring theme in FB’s grounds of appeal is that there has been a miscarriage of justice by reason of the failure of the Judge to sufficiently differentiate between the case against him and the other accused.  In particular FB complains that the Judge failed to direct the jury that much of the evidence against the other accused was not evidence against him.  Before turning to the particulars of FB’s grounds of appeal, it is convenient to say something generally about the Judge’s approach. 

18. First, in the course of the trial, as evidence was given, the Judge explained to the jury the evidential principle that evidence of an out of court statement could only be used in the case of an accused who was present at the time the statement was made.

19. Secondly, in the course of her summing up when dealing with the evidence of NW and JC of discussions between the accused, both before and after the attack, the Judge made it clear to the jury that that evidence was only evidence in the case against the accused who were involved in the discussion.[68]

    [68]   Transcript 172, 172-173, 184, 282-283, 288, 366-367, 382, 404, 297.

20. Thirdly, the Judge summed up the prosecution case against FB separately and towards the end of her summing up.  She made it clear to the jury that the prosecution did not allege that FB stabbed either Akok or Achiek.  She explained that the prosecution case was that FB took part in the events at the oval by being armed with a baseball bat and that his liability was founded on his participation in a joint enterprise or as an aider and abettor.  She expressly directed the jury, by reference back to her general directions, that with respect to FB the jury were to “once again consider whether he was a party to an agreement or understanding with another or others to kill or cause grievous bodily harm to one or more of the Sudanese men” or whether he foresaw “the possibility that in the process of that unlawful assault, one of the others might kill or cause grievous bodily harm to one or more of the Sudanese men and he continued to participate in that assault despite that degree of foresight”.  The Judge identified the evidence on which the prosecution case against FB rested to be:

    ·The evidence of FB’s arrival at the oval.

    ·The circumstantial evidence that his arrival was arranged with the knowledge of BB.

    ·Evidence of FB’s possession of the baseball bat.

    ·FB’s testimonial admission that he heard one of the accused say “one of the lads there, it’s the bloke on the oval who done that”.

    ·FB’s presence at a time when weapons were openly being carried by the members of the group.

    ·The evidence of the oval witnesses that the first blow struck in the attack was on Akok who was hit by a man carrying a baseball bat.

21. The Judge pointed out to the jury that on JC’s evidence FB stood back after striking the first blow, but that the witness Fuel Agoud said that the man with the baseball bat chased Akok along the oval.

22. The Judge then directed the jury on the concept of withdrawal from a joint criminal enterprise in these terms:

    If there is a reasonable possibility that after the initial blow, FB did in fact stand back and watch, that of itself would not mean that he has ceased to participate in the events that were taking place or that he had withdrawn from any plan that had earlier been formed.  To disengage from an incident a person must do enough to demonstrate that he is in fact withdrawing.  This requires more than a mental change of intention and the physical change of location.  Where practicable and reasonable, there must be timely communication of the intention to abandon the common purpose from a person who wishes to disassociate himself from the contemplated crime to those who desire to continue it.  What amounts to a timely communication is a question to be determined on the facts of the case, but where practicable and reasonable, there should be some sort of communication, verbal or otherwise, that would serve unequivocal notice upon the other party or parties that if they proceed with the common unlawful course, then they do so without his further assistance.

23. The Judge then correctly observed that there was no evidence that FB did anything to indicate that he intended to withdraw from the agreement.  The Judge referred in this context to FB’s testimony that he had called his brother back from the road.  Having directed the jury on the question of withdrawal, the Judge nonetheless reminded the jury that the defence expressly put by FB was not that he initially participated and later withdrew, but that he was never a party to any agreement or understanding to attack the Sudanese men at the oval.  The Judge reminded the jury of FB’s evidence that he did not see any weapons before the men from WH’s car walked off towards the grandstand or after they returned. 

24. The Judge told the jury that contrary to FB’s evidence that he stayed back, the prosecution case was that he instigated the violence by striking the first blow with the baseball bat.  The Judge correctly directed the jury that that factual question was entirely a matter for them.  She directed the jury that FB could only be convicted if they were satisfied beyond reasonable doubt that he reached an agreement with others to cause grievous bodily harm or that he participated in the unlawful assault with foresight of the intentional infliction, of at least, grievous bodily harm as a possible incident thereof. 

25. The Judge directed the jury that if they were not so satisfied then they were required to turn their mind to the question of aiding and abetting by first considering the location where the fatal stabbing occurred.  On that issue she directed the jury that:

    This will require you once again to turn you mind to the location that which the fatal stabbing occurred and consider whether FB was present when the murder was in the process of being committed and whether he was aware that the stabber was consciously, voluntarily and deliberately assaulting Alex Akok with an intention to kill or cause grievous bodily harm and not in lawful self defence and with that knowledge he aided and abetted the stabber to commit the crime in any of the ways that I have explained.

26. I now turn to FB’s grounds of appeal.

    Ground 1 – Failure to Direct on Matters Peculiar to FB

27. FB’s first complaint on this ground of appeal is that the Judge failed to adequately differentiate between the mass of prosecution evidence against the other accused and the more limited evidence admissible against him.  It is plain even from the short summary of the summing up which I have just given, and a close reading of it confirms, that the Judge took great care to identify the evidence that was properly admissible against FB and clearly directed the jury that the evidence of conversations held in his absence was not evidence against him.  This complaint is not arguable.

28. FB’s related complaint, that the Judge did not expressly direct the jury that the evidence of the prior incident when BS was given a cigarette was not admissible against FB, is also without any merit.  Evidence of the incident was admissible in the case against FB to prove the circumstances of the offences he was accused of facilitating.  True it is that that evidence did not prove anything about his own involvement in the attack, or his state of mind, but I cannot conceive of any way the jury might have impermissibly used that evidence adversely to FB on those issues.  This complaint also lacks any merit.

29. The next complaint made under this ground is that the Judge should have instructed the jury to scrutinise the evidence of NW and JC more closely in the case against FB than in the cases against the other accused.  I doubt that any person is truly capable of such mental gymnastics.  Such a direction would have introduced an undesirable and unnecessary level of complexity into the summing up.  Moreover, it would have disadvantaged the other accused for no good reason. 

30. The Judge did direct the jury that only independent evidence that implicated a particular accused could corroborate the testimony of NW or JC against that accused.  By so directing the jury, the Judge ensured that the jury would separately scrutinise the weight of their evidence in the case against each accused.  No more was required. 

31. In any event, the testimony of NW and JC against FB was strongly corroborated by FB’s own testimonial admission that he carried his baseball bat onto the oval car park.  It was also corroborated by the evidence of the Sudanese witnesses who described the blow struck on Akok by a man with a baseball bat.  I have earlier observed that the Judge adequately directed the jury about the inconsistencies between JC’s and NW’s testimony and the inconsistencies between their testimonial accounts, and their prior out of court statements.  This complaint is not arguable.

1. Finally, FB complains that the Judge did not emphasise that there was no evidence linking FB and the knives that were allegedly used in the attack.  No such direction was necessary because the case against FB was that he was an accessory and not the perpetrator of the stabbings. It was never part of the prosecution case that FB used, or was in possession of, a knife. The prosecution case was that he took part in the assault with his baseball bat knowing that others were armed with knives. 

2. The first ground is not arguable.  I refuse permission to appeal.

   Ground 2 – Aid and Abet and Alternative Verdicts

3. In my view, the Judge’s directions on the question of FB’s complicity by way of aiding and abetting by reference to the different locations at which Akok was stabbed, were sufficient and unnecessarily favourable in the particular circumstances of this case.  The case against FB was a simple one.  If the jury were satisfied beyond reasonable doubt that he saw some of the men from WH’s car armed with knives shortly before the attack and that he struck Akok with the baseball bat with foresight of the possible commission of the offences against Achiek and Akok, his precise location at the time of their stabbings was immaterial.  If the jury was not so satisfied, there was no other factual basis on which the prosecution relied to prove his guilt.

4. The complaints made under this ground about the Judge’s directions on the alternative verdict of manslaughter that was left to the jury have no foundation.  The jury convicted FB of murder.  The alleged deficiencies in the directions as to the elements of manslaughter could not have influenced the jury to return a verdict of murder in the circumstances of this case. 

   Ground 3 – Directions on Rejection of Applicant’s Evidence

5. Ground three complains that the Judge failed to direct the jury as to how it should treat FB’s testimony if they formed the view that he was lying.  The Judge did not give any directions on this topic.  No direction is required as a matter of law but it can be accepted that a failure to do so may in some cases result in a miscarriage of justice. 

6. FB complains that there was a miscarriage of justice in this case because of the failure of the Judge to warn the jury against accepting the argument put by the prosecutor in his closing address based on the rejection of FB’s evidence.  The prosecutor made a strong submission to the jury that FB had falsely denied seeing the weapons carried by his co‑accused.  The prosecutor argued that FB made the false denial because the truth, that is that he had seen the others armed, was inconvenient in the sense of being inconsistent with his defence. 

7. I accept that there are many cases in which it is important that the Judge remind the jury that the rejection of an accused’s evidence cannot constitute a makeweight and that even if an accused’s evidence is rejected, it is necessary for the jury to be satisfied beyond reasonable doubt, on the prosecution evidence, that the offence was committed.  However, in the circumstances of this case no miscarriage of justice could possibly have occurred.  This is not a case in which FB’s evidence might have been rejected because of the contradiction of his testimony on a collateral issue.  The jury could only have found FB to have lied about what he saw of the arms carried by the other men, if they accepted JC and NW’s evidence.  Having regard to the evidence of the Sudanese witnesses that they were confronted by an armed group that came around the corner of the grandstand, the evidence that FB must have seen the weapons was overwhelming.  The evidence that he was the person who struck Akok with the baseball bat was also very strong.  In the circumstances of this case the only basis upon which the jury could have rejected FB’s evidence was the very prosecution evidence that proved his knowing participation in the violent attack on the Sudanese men.  In those circumstances, no miscarriage of justice arose from the failure to give the direction contended for.  This ground is not arguable.  I refuse permission to appeal.

   Ground 4 – Directions or Corroboration

8. FB complains that the Judge failed to direct the jury on the corroboration required of JC and NW’s evidence when considering their testimonial accounts of FB’s involvement.  I accept that the corroborative evidence of their account of FB’s involvement necessarily differed from that of the other accused.  However, as I have earlier observed, the corroborative evidence of that part of their evidence that implicated FB was overwhelming.  It included FB’s own evidence that he was on St Johns Road with a baseball bat.  The evidence of the oval witnesses was further strong corroboration of their accounts.  This ground is not arguable.  I refuse permission.

   Ground 5 – Directions on Withdrawal

9. On this ground the applicant complains that the Judge erred in law in directing the jury that FB had to communicate his withdrawal from the enterprise to the other participants.  It is true that participation in a joint enterprise requires a subjective intention to participate in it and, insofar as extended joint enterprise is concerned, contemplation of the possibility of the commission of the parasitic offence.  However, it does not follow that a mere change of mind is sufficient for exculpation by withdrawal after intentional participation.  Indeed, the authorities to which I earlier referred show that that is plainly not so.  It is an abuse of process to put such a hopeless proposition of law.

10. The direction that was given was unduly favourable to FB.  First, JC’s evidence that FB stood back did not discharge the evidential burden carried by the applicant to raise the issue of withdrawal.  There was no evidence of any attempt on his part to communicate his change of mind.  Standing back was not, in the circumstances of this case, communication of a decision to withdraw.  Secondly, having struck the blows that substantially incapacitated Akok, much more than a communication of his change of mind was required to effectively nullify his facilitation of the offences by striking Akok with his baseball bat.  This ground is not arguable.  I refuse permission.

    Ground 6 – Direction that NW was an Accomplice

11. FB also complains that the Judge ought to have directed the jury that NW was an accomplice.  I have dealt with that complaint in BS’s equivalent ground of appeal.  I refuse permission.

    Ground 7 – Cumulative Effect

12. Finally, the applicant complains that the cumulative effect of the preceding grounds is that there has been a miscarriage of justice.  I have found that no miscarriage of justice was caused by any of the individual matters complained of.  Directions which in themselves have not adversely affected the trial of an accused cannot, by their accumulation, have any different effect.

    Conclusion

13. I refuse the applicants BS and FB permission to appeal.