2. Set aside order of the Court of Criminal Appeal of New South Wales dated 25 August 2000.
3. Remit matter to the Court of Criminal Appeal of New South Wales for further hearing and determination of so much of the respondent's appeal to that Court as has not been determined.
On appeal from the Supreme Court of New South Wales
Representation:
M G Sexton SC, Solicitor-General for the State of New South Wales with R D Ellis and B K Baker for the appellant (instructed by S E O'Connor, Director of Public Prosecutions (New South Wales))
G Nicholson QC with B W Cross for the respondent (instructed by Susan N Goodsell)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Chai
Criminal law – Manslaughter – Unlawful and dangerous act – Accessorial liability – Requisite mental element – Procurement of assault – Adequacy of directions on nature of assault procured – Directions framed according to issues at trial.
Appeal – Criminal appeal – Criminal law – Grounds of appeal – Duty of court of criminal appeal to determine all matters raised by grounds of appeal.
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ. The issue in this appeal concerns the adequacy of a trial judge's directions to a jury on accessorial liability for manslaughter by procuring an unlawful and dangerous act which results in the unintended death of the victim.
The respondent, and a co-accused Shang Hyun Bae, were tried in the Supreme Court of New South Wales before James J and a jury on charges arising out of the deaths of Duck Hwan Kim and Dok Su Kim ("the victims"). Each accused was charged with two counts of murder and, in the alternative, two counts of maliciously inflicting grievous bodily harm. In addition, in relation to each charge of murder, the statutory alternative charge of manslaughter was left to the jury[1]. The respondent, in respect of each victim, was found not guilty of murder but guilty of manslaughter. He appealed against his convictions.
[1]Section 18(1) of the Crimes Act 1900 (NSW) provides:
"(a)Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
(b)Every other punishable homicide shall be taken to be manslaughter."
In…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Chai [2002] HCA 12
Case
[2002] HCA 12
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Criminal Appeal of New South Wales concerning the criminal liability of the respondent, Chai, for manslaughter. The dispute arose from the deaths of two victims who were subjected to a violent assault outside and within premises owned by Chai. The prosecution's case was that Chai procured an assault on the victims, and that he participated in or was present during the assault, which led to their deaths.
The legal issues before the High Court included the adequacy of directions given by the trial judge to the jury regarding the elements of manslaughter, particularly in relation to unlawful and dangerous acts and accessorial liability. Specifically, the court considered the mental element required for procurement of an assault and whether the directions adequately addressed the nature of the assault that was procured. The High Court also considered the duty of a Court of Criminal Appeal to determine all grounds of appeal raised by a party, especially where those grounds might affect a potential retrial.
The High Court found that the Court of Criminal Appeal had erred by failing to determine all grounds of the respondent's appeal. While the Court of Criminal Appeal had allowed the appeal and quashed the convictions on one ground, it had not addressed other grounds that could be relevant to a new trial. The High Court reasoned that it was important for all issues likely to arise on a retrial to be determined by the Court of Criminal Appeal. The court noted that if the jury had accepted that Chai merely summoned Lee for a "technical or trivial assault" or to remove the victims without fighting, and Chai had not participated, it would be difficult to establish the element of manslaughter, as the savage beating inflicted might not have occurred in the course of carrying out such an agreement.
Consequently, the High Court allowed the appeal, set aside the order of the Court of Criminal Appeal of New South Wales dated 25 August 2000, and remitted the matter to that Court for further hearing and determination of the remaining grounds of the respondent's appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside order of the Court of Criminal Appeal of New South Wales dated 25 August 2000.
3. Remit matter to the Court of Criminal Appeal of New South Wales for further hearing and determination of so much of the respondent's appeal to that Court as has not been determined.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
In the Court of Criminal Appeal of New South Wales the respondent relied upon six grounds. Ground 2 was that the trial judge's directions as to the elements of manslaughter, including joint enterprise, were erroneous and misleading. In support of that ground two arguments were advanced, but the Court of Criminal Appeal (Mason P, Sperling and Bergin JJ) found it necessary to decide only one of them, which it resolved in the respondent's favour[2]. The Court did not deal with the other argument or the other grounds. It allowed the appeal, quashed the convictions, and ordered a new trial. If that order were to stand, the trial judge at the new trial would not have the benefit of a decision upon the other issues raised by the respondent before the Court of Appeal. At least some of those issues would be likely to arise at a new trial[3]. The Court of Criminal Appeal should have dealt with all grounds likely to affect a new trial. The prosecution appeals to this Court, accepting that, if the appeal is allowed, it will be necessary to remit the matter to the Court of Criminal Appeal to deal with the rest of the respondent's arguments.[2]R v Chai [2000] NSWCCA 320.[3]Jones v The Queen (1989) 166 CLR 409 at 411, 415.The evidence The deaths of the victims occurred in the following circumstances. The respondent was the owner of the Ehwa Karaoke Bar at Kings Cross. The co-accused Bae was a friend. On the evening of 30 January 1997, the two victims, who were referred to in the evidence as "gangsters", were seated in a car parked outside the Karaoke Bar. Sang Hoon Lee, who was called as a witness for the prosecution, and two other men, Jung Suk Song and Myoung Il Jong, were at a gymnasium. According to his evidence, Lee received a message from the respondent. Following that message, and a telephone call, he and his two companions left the gymnasium and drove to the Karaoke Bar. Upon arrival, Lee, Song and Jong set upon the "gangsters". According to Lee, the respondent and Bae, armed with timber batons, also participated in the attack. The attackers dragged the driver out of the car and into a nearby garage, and did the same with the passenger. The victims were beaten and kicked while being dragged along the ground. They were taken upstairs to a room attached to the Karaoke Bar and subjected to further beating, kicking, and stomping. On the prosecution case, the respondent participated in part of the attack and was present during the remainder. There was evidence that the respondent had blood on his clothing. After about half an hour, Jin Hun Jang, an acquaintance of the respondent, delivered the victims by car to St Vincent's Hospital, where they later died. That Lee and his two companions drove to the Karaoke Bar and attacked the two victims, dragging them from the car in which they were seated, beating and kicking them on the footpath, at the garage, and later upstairs, was established beyond doubt. It is likely that the jury inferred that the extent of the violence displayed towards the two victims was related to the fact that they, in turn, were said to be gangsters. This was not an attempt to induce two innocent people to move an inconveniently parked car. The jury would probably also have reasoned that the behaviour of Lee and the other men, upon their arrival at the scene, was itself compelling evidence of the nature of the request which procured their attendance. In any event, there was evidence, both from Lee, and from another witness, of that request. It is highly improbable that Lee, Song and Jong would have interrupted their visit to the gymnasium, driven to the Karaoke Bar, and violently attacked two men in a parked car, without somebody having asked them to do so. And it was no part of the respondent's account of events that the attack was an unfortunate over-reaction to a request to exercise peaceful persuasion as a means of encouraging the gangsters to move away.
Decision
Reasons for decision
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
It should also be noted that, if the jury had accepted as a fact, or a reasonable possibility, that the respondent had merely summoned Lee to engage in a technical or trivial assault, or to remove the victims without any fighting, and the respondent had not participated in the attack on the victims, it is difficult to understand how the element of manslaughter set out in par 2 of the directions could have been found to be satisfied. The jury were told that they had to be satisfied that the unlawful and dangerous acts that occurred were done in the course of carrying out the agreement. If the respondent told Lee there was to be no fighting, then the savage beating that was inflicted on the victims would not have occurred in the course of carrying out the agreement. This consideration also underlines the hypothetical nature of the matter which concerned the Court of Criminal Appeal.Conclusion The appeal should be allowed. The orders of the Court of Criminal Appeal should be set aside and the matter should be remitted to that Court for consideration of the remaining arguments of the respondent.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ