R v Chai

[2002] HCATrans 8

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S180 of 2001

B e t w e e n -

THE QUEEN

Appellant

and

CHONG MUN CHAI

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 FEBRUARY 2002, AT 10.19 AM

Copyright in the High Court of Australia

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales:   If the Court pleases, I appear with my learned friends, MR R.D. ELLIS and MS B.K. BAKER for the appellant.  (instructed by S.E. O’Connor, Director of Public Prosecutions)

MR G. NICHOLSON, QC:   May it please the Court, I appear with my friend, MR B.W. CROSS, for the respondent.  (instructed by Susan N. Goodsell)

GLEESON CJ:   Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, at the heart of this appeal are the directions which were given by the trial judge in relation to manslaughter, the offence with which Mr Chai was convicted, and in many ways the case really turns on one word in those directions, that word being “assault”.  But, before going to the directions themselves, it may be useful to look briefly at the evidentiary context in which the directions were given.

HAYNE J:   Yes, but it might be important for a trial judge to relate the issues of law to the issues of fact in the case, Mr Sexton.

MR SEXTON:   Well, we say the trial judge did that, your Honour.

HAYNE J:   Yes.  It might be important to identify what truly is the factual dispute in the case and tailor the directions accordingly rather than give a general disquisition on the criminal law.

MR SEXTON:   Your Honours, the facts had some complexity in that it was the Crown case that the two victims were attacked by five assailants and that the attacks took place over a period of time and at a number of locations in the sense that they were in and around the restaurant that was run in Kings Cross by Mr Chai.

It was a joint trial of Mr Chai and Mr Bae.  Mr Bae was convicted of the offence of maliciously inflicting grievous bodily harm in relation to each of the victims.  The trial lasted a little over three months.  The judge’s directions at the trial dealt with four possible scenarios:  murder arising out of a joint enterprise; murder arising out of an extended joint enterprise or common purpose - I will use the terms that were used by the trial judge and also by the Court of Criminal Appeal - manslaughter, which is the particular point of this appeal and, maliciously inflicting grievous bodily harm.

Now, your Honours, in terms of the evidence which proceeded and with the context for the directions, the setting was the restaurant in Kings Cross, the Ehwa Karaoke Bar.

KIRBY J:   Where is this, exactly?

MR SEXTON:   Where, precisely, in Kings Cross?

KIRBY J:   In Kings Cross.

MR SEXTON:   I do not know the answer to that, your Honour.

GLEESON CJ:   No.  I do not want to, either.

MR SEXTON:   I am sure we can find out, your Honour, but I do not know that it emerges from the materials.

KIRBY J:   You have not troubled yourself?

MR SEXTON:   The jury were taken for a view, your Honour.

GUMMOW J:   Earl Street.

MR SEXTON:   Earl Street.  I do not know Earl Street, your Honour.  As your Honours would be aware, the two victims died in hospital shortly after the events, one before the other.  The principal witness for the Crown was Mr Lee, Sang Hoon Lee, and he gave evidence that on 30 January 1997 he had gone to the gym with Mr Song and Mr Jong; that around 9.30 he received two urgent messages on his pager to attend the restaurant.

He telephoned Mr Chai, he said, who told him to come quickly because gangsters had arrived at the restaurant.  He said that while he was driving to the restaurant with Mr Song and Mr Jong he received two further telephone calls from Mr Chai who told him that on his arrival he was to bring two men, who would be pointed out, to the garage of the restaurant.

GLEESON CJ:   I suppose in the Crown case some importance attached to the fact that these were gangsters, not drunks.

MR SEXTON:   They were described as gangsters.

KIRBY J:   Alleged to be gangsters.

MR SEXTON:   Yes.

GLEESON CJ:   What was involved in moving them on?  It might have been of a different order than what would be involved in moving on somebody who had had too much to drink.

MR SEXTON:   That is right.  There was no suggestion, your Honour, that they were customers of the restaurant, if I could call it that.  Mr Lee’s evidence was that on their arrival at the restaurant he and Mr Jong and Mr Song, together with Mr Chai and Mr Bae, attacked the two men, with Mr Chai and Mr Bae using what seemed to be a dismembered hatstand from the restaurant; that the two men were dragged into the garage, during which time the assault continued. 

Mr Lee said that they heard police sirens and the victims were taken upstairs, where the assault continued by Mr Song and Mr Jong.  Mr Chai and Mr Bae were apparently coming and going from the room where the assault upstairs took place, according to Mr Lee.  There was additional evidence from a Mr Jang about the observation of blood on Mr Chai’s clothing, and that Mr Chai was present when the two victims were put in the car, preparatory to being taken to the hospital.

GUMMOW J:   What is the time scale of these events?

MR SEXTON:   I think over about half an hour, your Honour.  My friend might correct me if I am wrong, but I think over about half an hour.

Mr Lee’s girlfriend, Ms Kim, gave evidence that he had come home that night, said that he had been involved in a fight, and told her that Mr Chai had said to him that he must come to the restaurant, since there were some gangsters there, and to bash them.  Mr Chai himself gave evidence in which he denied being involved in any of those events, as they were described by Mr Lee in terms of fighting.  He said in examination‑in‑chief that he had called a pager number twice but that he was trying to find Mr Song who had borrowed the company car.  He said that he had, however, spoken to Mr Lee when Mr Lee returned the pager call.  In examination‑in‑chief he denied saying anything on the phone about gangsters or requesting anyone to beat anyone up.  In re‑examination he changed this accounts somewhat and said that he had told Lee that there were gangsters at the restaurant, but that Mr Jang had sent the gangsters away, and he adhered to this version in further re‑examination.

Your Honours, that is a selection of the evidence which, we say, is really sufficient to give the background to the trial judge’s directions, bearing in mind the length of the trial and the  ‑ ‑ ‑

GLEESON CJ:   But we are only concerned with a fairly narrow aspect of the case now, are we not, and that is the procuring case?  We are concerned, as I understand the decision of the Court of Criminal Appeal, with a suggestion that the way in which the case on procuring, as a basis of accessorial liability, was left to the jury was misleading and resulted in a miscarriage of justice.

MR SEXTON:   Yes, and that in turn, your Honour, depends really on the meaning attributed to the word “assault”.

GLEESON CJ:   Exactly, but perhaps you might let us know in a little more detail what the Crown case on procuring was.

MR SEXTON:   Well, that case, your Honour, which was, of course, one of a series, in a sense, alternatives came out of the telephone call to – in other words, it arises also out of Mr Lee’s evidence.

GLEESON CJ:   And Ms Kim’s evidence.

MR SEXTON:   Yes.

GLEESON CJ:   The only evidence of the accused on that point being an admission that there had been attempt to contact Mr Lee by pager, but a denial that it had anything to do with getting people to come to move the gangsters on.

MR SEXTON:   That is right, and the reference to gangsters, which was conceived ultimately by Mr Chai, but, as your Honour says, not that there was to be anything done to them.

GLEESON CJ:   Now just come back again to what the Crown case was on the procurement.  What did the Crown invite the jury to conclude Mr Chai had asked anybody to do?

MR SEXTON:   One of the alternatives in relation to participation in the agreement that was alleged was by procuring the acts that took place, the assaults, and to do it by summoning the three individuals and, essentially, through the telephone conversations with Mr Lee.

GLEESON CJ:   If you look at page 1872 in the critical part of the summing up, at line 35, that is the part of the direction we are concerned with, is it not, in this case, the direction in subparagraph (iii)?

MR SEXTON:   Yes, it was that alternative that was taken up by the Court of Criminal Appeal.

GLEESON CJ:   Right.  So the Crown case was that Mr Chai procured these other men to assault the victim.  What was the factual basis of that proposition?

MR SEXTON:   The telephone conversations with Mr Lee.

GLEESON CJ:   The conversations being what, “Come and bash the victims”?

MR SEXTON:   Yes.  Well, that was the evidence of Ms Kim of what he had said.

GLEESON CJ:   Yes.  I just want to know what the Crown case was on a factual basis about the procurement.

MR SEXTON:   Yes, your Honour.  In the case of Mr Lee, it was that he received the telephone call from Mr Chai, who told him to come quickly because gangsters had arrived at the restaurant.  That is at pages 423 to 424 of the appeal book, your Honour, in Mr Lee’s examination‑in‑chief.

GLEESON CJ:   Yes.

MR SEXTON:   Then Mr Lee said that he had received two further telephone calls from Mr Chai, who instructed him that on his arrival at the restaurant he was to bring two men, who would be pointed out by a waiter, to the garage.  That is at page 427 of the appeal book, again in examination‑in‑chief, your Honour.

GLEESON CJ:   Yes, “bring the guys . . . to the garage”.  Where do we find Ms Kim’s evidence?

MR SEXTON:   Ms Kim’s evidence is at 778 of the appeal book in her examination‑in‑chief. 

KIRBY J:   Which line?

GLEESON CJ:   Lines 38 and 39.  Did the Crown also rely, as the basis for an inference, upon what these men actually did when they arrived?  In other words, did the Crown invite the jury to infer from the conduct of the people who were summoned something about the content of the invitation that had been extended to them?

MR SEXTON:   I am assuming that that inference was invited.

HAYNE J:   We do not have in the appeal books, do we, any transcript of addresses to the jury, final addresses?

MR SEXTON:   No, your Honour.

HAYNE J:   Are they transcribed?

MR SEXTON:   Not usually, I think, in New South Wales, your Honour.

HAYNE J:   So we cannot know with precision what case the Crown went to the jury with?

MR SEXTON:   Only in so far as it comes out of the trial judge’s summing up, your Honour.

GLEESON CJ:   Now, Mr Solicitor, am I right in thinking that the essence of the decision of the Court of Criminal Appeal was this:  consistently with the directions that were given, and with a possible version of the facts apparently emerging from what was suggested by counsel for the present respondent in opening and from something that was said in some evidence, the jury might have convicted the respondent on the basis that he contemplated an assault, but not one involving a dangerous act?

MR SEXTON:   Well, not one even involving anything but the – even an application of force.  I think the example suggested by the Court of Criminal Appeal was perhaps to move on the two individuals by some form of verbal confrontation.  It is not entirely clear, your Honour, but really seemingly without anything but the most trivial application of force.

GLEESON CJ:   Am I right in thinking that the principle of law that is relevant to the aspect of the case we are now looking at is this:  if I procure X to assault Y, and in the course of assaulting Y, X does a dangerous act which results in the death of Y, I will be liable for manslaughter if, within the scope of my agreement with X, it was contemplated that he might do an unlawful and dangerous act, might do an unlawful and dangerous act?  Here, the Court of Criminal Appeal said that the jury were given to understand that they could convict Mr Chai even though it was not within his contemplation that these two men might do a dangerous act.

MR SEXTON:   Your Honour, I think the Court of Criminal Appeal’s point was, perhaps, rather that the reference in the directions on manslaughter – which I will come to, your Honours – but the reference to assault may have, according to the Court of Criminal Appeal, led the jury to convict where the agreement was one that did not involve any application of force except of the most trivial kind.

GLEESON CJ:   So, all that Mr Chai might have procured was a non‑dangerous assault?

MR SEXTON:   Yes.

GLEESON CJ:   I imagine that as a proposition of law the way that argument is put is not controversial, but the controversy would relate to its relevance to the facts of the case.

MR SEXTON:   Yes.

KIRBY J:   Can one take into account or is it open to the jury to take into account Mr Chai’s actions during the perpetration of the assault?  One would think so.  That he, after hearing the siren, just walked in and out and was there whilst these things were happening and did not make any effort to stop the assailants from what turned out to be a homicidal assault.

MR SEXTON:   That was one of the alternative kinds of participation that was put to the jury in the trial judge’s directions but the scenario identified by the Chief Justice is the one referred to by the Court of Criminal Appeal to come to a conclusion that Mr Chai could have been convicted on a basis that was not available.  Our response to that is to say that in the context of this case the reference to assault by the trial judge in the manslaughter directions could not have resulted in the jury coming to that conclusion.  There is also another reason, which I will come to, why the jury could not have come to that conclusion by the route that the Court of Criminal Appeal suggests, but that is our response, that, in fact, there was no such danger in this case.

GLEESON CJ:   Just let me understand it.  Does that mean that you are conceding, for the purposes of the argument, that the Court of Criminal Appeal was correct in identifying a slip in the judge’s direction but that you say that the matter is not one where a reasonable jury would convict?

MR SEXTON:   No, no, no, we do not concede there was anything wrong with the directions, your Honour.

KIRBY J:   You say they misunderstood the directions and, in particular, they wrongly assumed that the jury could possibly have understood the word “assault” to mean a kind of clinical assault of the kind suggested was a realistic possibility?

MR SEXTON:   Exactly, your Honour, yes.  It is something of an irony, and I say this just by way of background, that the Court of Criminal Appeal used in coming to this conclusion a statement by Mr Chai’s counsel.  He opened twice to the jury, firstly, at the end of the prosecution opening and then later at the end of the prosecution evidence.  In that first opening he made a statement which the Court of Appeal relied on to say that a particular finding was open to the jury.  In the Court of Criminal Appeal much of the time was consumed by evidence in the course of a dispute as to whether that statement had been given on instructions with, at that stage, Mr Chai saying that it had not been, but that is not an issue that is before this Court.

KIRBY J:   Except to this extend, Mr Solicitor:  the foundation for the suggestion that there was a real possibility in the present case that all that had been procured was a non‑dangerous assault rested in part upon what had been said by counsel for the accused.  That was not supported, as I understand it, by anything the accused said in his evidence.

MR SEXTON:   That is right.

KIRBY J:   And indeed, it was contradicted by the accused.  When the case was finally put to the jury in final addresses, was it any part of the defence case to invite the jury to consider as a possible version of the facts that what had been procured was a non‑dangerous assault?

MR SEXTON:   As Justice Hayne says, we do not have the closing addresses but as far as revealed by the summing up the answer to that seems to be no, your Honour, because the point of Mr Chai’s – the version that he gave in evidence, although he gives two slightly different versions, of course, but his complaint about the opening statement by his counsel, the first opening statement, was that it did not accord with the evidence that he later gave and that he wanted to adhere to.

GLEESON CJ:   But it is the foundation or part of the foundation of the decision of the Court of Criminal Appeal, is it not, that there was a realistic possibility that the jury convicted on the basis of that version of the facts?

MR SEXTON:   Yes.  That is their basis, yes, your Honour.

HAYNE J:   Now, where in the judge’s charge do I find an identification of the factual issue that underlies what seems to be a statement of legal principle about procuring at 1591 of the appeal book?  At 1591 his Honour speaks of the third alternative way of establishing the charge if Mr Chai procured, in this case, really serious bodily injury.  Presumably, his Honour is there speaking of procuring murder rather than procuring manslaughter.  Where do I find his Honour drawing to the attention of the jury what the factual issue on procurement is?

MR SEXTON:   I will have to ask Mr Ellis to see if he can find it, although, your Honour, in my reading of the summing up I think that his Honour, in a sense, set out legal principles and set out the evidence but I do not think ‑ ‑ ‑

HAYNE J:   Yes, exactly, did not identify what the factual issues in the case are and relate so much of the law as is necessary for the jury to perform its function to those factual issues.  That is why we have days of summing up rather than an identification for the benefit of the jury, “The factual issues you have to resolve, ladies and gentlemen, are, one, was Mr Chai present when the beating was administered?  He says he was not, others say he was.  Two, if he was not present, what did he ask these men to do?”  That is a simple task to tell a jury that is what they have to decide and the legal consequences, much more often than not, will fall out inexorably.

Instead, we get this treatise on the criminal law, and the responsibility for that, Mr Solicitor, lest there be any doubt about that, is one which in part rests with the prosecution.  It is for the Crown, on the trial of a charge, to tell the judge what they say the issues of fact are.

MR SEXTON:   I am just looking for a passage, your Honour.  Your Honour, 1616 and 1617 probably deals with ‑ ‑ ‑

GUMMOW J:   I am sorry, what page, Mr Solicitor?

MR SEXTON:   Page 1616 and 1617 of the appeal book, your Honour.  I presume there was a reference to Ms Kim’s evidence at some stage.  We appreciate what your Honour Justice Hayne ‑ ‑ ‑

GLEESON CJ:   I am looking at page 1621:

on the Crown case it was Mr Chai who procured –

three named men:

and gave them instructions during the carrying out of the agreement.  Initially Mr Chai communicated principally with Sang Hoon Lee –

then he procured two others.

MR SEXTON:   Yes.

GLEESON CJ:   So, the Crown case went way beyond the possible basis of conviction with which we are now concerned.  The Crown case was that he not only got these people to come but he was standing there while they were doing it and telling them how to do it.

CALLINAN J:   What about at the foot of page 1621?  Is that an alternative basis, beginning at line 45, “In any event”.  “The Crown says alternatively”, at the foot of the page.

MR SEXTON:   I think, your Honour, that that may be a reference to the fact ‑ it seems to – one way in which the jury may have approached this given the results, is that the final fatal – the final blows that caused death in that sense took place upstairs and that, therefore, there was an issue about Mr Chai and Mr Bae, their participation in ‑ ‑ ‑

GLEESON CJ:   What Justice Callinan puts is right, is it not?  Subject to anything else that you can point to, I would have thought that what is put at the bottom of 1621, from line 45 over to 1622, line 15, is the factual basis on which the Crown case, on manslaughter by procuring of the kind we are now concerned, was put.

MR SEXTON:   Yes, your Honour.  As I say, your Honour, there was a question as to the events upstairs and one of the alternative kinds of participation that was put in the directions was that although Mr Chai did not administer – if he perhaps did not administer any blows upstairs, that he was present in the sense of being ready and able to assist.

GLEESON CJ:   I see.  Well, it may be significant for your purposes at least to point out that it was never put to the jury as part of the Crown case that Mr Chai would be guilty of manslaughter, if all he had done had been what was suggested by counsel for the accused in his opening.

MR SEXTON:   That is certainly true, your Honour.

GLEESON CJ:   That was never left to the jury in the summing up as a basis for convicting Mr Chai, as a factual basis for convicting Mr Chai of manslaughter.

MR SEXTON:   No.  Your Honour, in the context of this case, your Honour, it was simply never the Crown case and, of course, except for that statement by Mr Chai’s counsel, it was never his case either.

GLEESON CJ:   The Crown never said, “Well, if what he says is right he is still guilty of manslaughter”.

MR SEXTON:   No.  What the Crown did was to cross‑examine Mr Chai and to put it to him that he had changed his story.  That is the way in which that statement was used by the Crown.

CALLINAN J:   I see the Court of Criminal Appeal referred to it as evidence.

MR SEXTON:   Yes.

CALLINAN J:   Anyway, you need not trouble with it.  That might be a slight overstatement perhaps.

MR SEXTON:   It was something that did ‑ ‑ ‑

CALLINAN J:   It certainly could be used.

MR SEXTON:   It does raise a question, your Honour.

CALLINAN J:   It certainly could be used, but I do not know whether it quite goes so far as being evidence, but it does not matter.

MR SEXTON:   Given the use that was made of it, we did not take that particular approach, your Honour.  Your Honours, I would propose to go to the directions in the appeal book.  We have set out the written directions in our submissions, and they are in the judgment of the Court of Criminal Appeal.  There is no significant differences between the oral and the written directions, in our submission, but I was going to refer to some aspects of the written directions.

GLEESON CJ:   These directions were settled after several days of argument in the absence of the jury, as I understand it, and in the form in which they ultimately took they were without objection by counsel for the accused.

MR SEXTON:   Subject to this, your Honour, the jury came back with two questions and then there was some discussion of those questions and then it may be that in the course of those discussions it is possible to say that there was not complete agreement about every aspect of the directions.

GLEESON CJ:   But was it every suggested that having regard to the way the trial had been conducted by the time these directions were settled, the jury might have misunderstood them and, in particular, might have misunderstood the concept of assault as including a non-dangerous assault of the kind which the Court of Criminal Appeal said was a possible basis of their conviction?

MR SEXTON:   Well, not squarely in that way, your Honour, no.

GLEESON CJ:   Is that the issue we are concerned with, is it not?

MR SEXTON:   Yes.  If your Honour looks at the bottom of page 1848, but going over on to page 1849, which is after the jury had retired and after their questions had been answered, your Honour will see there that a question is raised, perhaps obliquely by Mr Chai’s counsel ‑ ‑ ‑

HAYNE J:   Just before you go on with this aspect of the argument, do we need to take account of the way in which the judge described Mr Chai’s case at 1628 to 1629, for from that we may perhaps better understand the factual contest as it was placed before the jury?  Now where 1628, 1629 takes us is something about which I express no view, of course, but do we not need to take that into account in deciding what the factual issues for the jury were?

MR SEXTON:   Well, your Honour, one would never get to the question of procurement if Mr Chai’s version was accepted or to anything else really.

HAYNE J:   Just so, and at 1629, line 10, the judge says:

if you are satisfied that Mr Chai did become a party to an agreement to assault the victims, you will still have to consider –

et cetera, and I take it that the way in which the appellant puts its argument is that “assault” in that context is to be understood as an assault occasioning harm or an assault involving dangerous act.  Is that the way in which you put it?

MR SEXTON:   Well, an application of force and not in a trivial way, so that, of course, a dangerous act can arise.

Now, your Honours, I was proposing to go the directions relatively briefly.  I wonder if I could start at page 1610, which is in volume 8, the second last of the volumes, which is where the trial judge begins the directions in relation to manslaughter and I will just – I will not need to go in so much detail to the other pages, your Honours, but if I can at least closely examine this one.  You will see that his Honour starts with “The first element” as he describes it, and he said it:

is the same as the first element in the extended joint criminal enterprise way of establishing guilt ‑

with which his Honour had dealt earlier.  So, if your Honours go back to page 1586, perhaps as a starting point, where the trial judge is dealing with joint criminal enterprise, murder by way of joint criminal enterprise only, and at the top of page 1586, lines 5 and 10, he speaks about an agreement:

to assault the victim; that is, to apply physical force to the victim’s body and, in the assault, to inflict grievous bodily harm on the victim ‑ that is, really serious bodily injury.

GLEESON CJ:   That is for the basis of murder.

MR SEXTON:   Yes, by joint enterprise.

GLEESON CJ:   Yes.

MR SEXTON:   Now, your Honours, on page 1593, at line 35, the trial judge is dealing with murder by way of “extended joint criminal enterprise” ‑ I will continue to use those terms ‑ and he says:

it is sufficient that the object of the agreement was simply to assault the victim.  That is to apply physical force to his body ‑

In our submission, that is a counterpoint from 1586 when he said simply “to assault”.  He is contrasting that with an assault where there is an intention to inflict grievous bodily harm. 

In the case of maliciously inflicting grievous bodily harm - no, I am sorry, your Honours - referring still to extended liability in the case of murder, his Honour the trial judge, on page 1596, at line 10, talks about “an agreement merely to assault the victim”.  Again, in the context of the early directions he had given contrasting it with an intention to inflict grievous bodily harm.  Now, your Honours, that takes one back to page 1610, the first of the elements, and the trial judge talks of:

an understanding or arrangement amounting to an agreement came into existence between the particular accused . . . and other persons to assault the victim.

Towards the bottom of the page at line 46, he says:

I direct you that an intentional application of force to the body of another person without that person’s consent and in the absence of any lawful excuse is unlawful.

In our submission, the notion of “an intentional application of force” in this case could never have suggested to the minds of the jury a trivial assault, a verbal confrontation, a threatening situation, to move these individuals along.  It is simply fanciful to suggest in the context of this case that the jury would have taken that meaning out of the term.  It is in that light that the trial judge went on to say:

It is sufficient that the object of the agreement was merely to assault the victim.  It is not necessary that the understanding or arrangement should have included the intentional infliction of grievous bodily harm.

So that is the first element that is dealt with. 

The second element:

in the course of carrying out the agreement to assault the victim and while the accused . . . continued to be a party to the agreement, a party or parties to the agreement did an act or acts which were unlawful and dangerous and which in fact caused the death of the particular victim.

That is at lines 32 to 40. The concept of dangerousness is picked up on the following page, 1611, at line 10, where he said:

I repeat that an act is dangerous if a reasonable person in the position of the person doing the act would have realised that doing the act would expose another person to an appreciable risk of serious injury.

His Honour then went on to look at the third element, the various forms of participation to which reference has already been made.  His Honour then gave directions on maliciously inflicting grievous bodily harm.  In the course of discussing the first element of that offence at the top of page 1613, at line 5, he refers to an arrangement or agreement:

to assault the victim; that is, to intentionally apply physical force to his body.

GLEESON CJ:   Well, I am looking at page 1876 paragraph 28, particularly at line 44 where the Court of Criminal Appeal said they saw “the seeds of ambiguity” and I am seeking to relate the ambiguity they there refer to to what was said at page 1610 line 49.

MR SEXTON:   Yes.  Well, your Honour, that is our submission in many ways.  Could I mention also, your Honours, at page 1616 where the trial judge is putting the Crown case but at line 31 he says that:

Mr Chai, on the Crown case, decided that the two victims were to be given a physical beating so as to teach them a lesson to stay away from the Ehwa.  This, the Crown says, was the motive for the assaults –

which, in our submission, indicates the context in which the word “assaults” was used in the directions and generally in this case that the notion of a physical beating is referred to there.

Now, your Honours, what the Court of Criminal Appeal said at paragraph 27 of their judgment, which is at 1875 of the appeal book, is that the jury may have been misled into thinking that Mr Chai was guilty of murder if he was a party to an agreement merely to assault the victims.  That is, of course, to pick out a phrase that the trial judge did use but, in our submission, to take it completely out of its context.

GLEESON CJ:   Well, for there to be accessorial liability on the basis with which we are now concerned there would have to be an agreement to commit an unlawful and dangerous act, would there not?  So the question was whether or not the assault of which the judge was speaking was an unlawful and dangerous act or whether there was a realistic possibility that the jury might have understood the judge to be talking about an assault that was unlawful but not dangerous.

MR SEXTON:   Yes.  As your Honours know, we say that in this case there was no possibility of the jury approaching the case in that way or taking that from the trial judge’s directions, and I have taken your Honour to those other passages in the directions and in the summing up.  As the trial judge himself said, it is, of course, not to the jury, but at 1846:

There is no suggestion in the Crown case of any arrangement or understanding to engage in slight or trivial acts of assault.

It was simply never the case that was put by the Crown, nor really was it the case put by Mr Chai either.

Now, your Honours, our short point is that in those circumstances there was no possibility of the jury drawing from the first element put forward by the trial judge in the manslaughter directions the proposition that the Court of Criminal Appeal thought might be left open.

Your Honours, there is a second reason why, in any event, the jury could not have convicted Mr Chai of manslaughter by the route which the Court of Criminal Appeal posited.  What the Court of Criminal Appeal concluded, which is at paragraph 36 of their judgment at page 1880 of the appeal book, is the jury might have found that the appellant’s involvement was limited to summoning Mr Lee and his companions and that the appellant took no further part in what happened.  If the jury had accepted this version, then the result, in our submission, would have simply been an acquittal on all counts, including extended liability in the case of the other offences.  If one looks at that second element set out by the trial judge on page 1610 at line 29, it was that:

in the course of carrying out the agreement to assault the victim and while the accused . . . continued to be a party to the agreement, a party or parties to the agreement did an act or acts which were unlawful and dangerous and which in fact caused the death –

On the scenario put forward by the Court of Criminal Appeal the jury could not have been satisfied that those acts took place, so far as Mr Chai was concerned, in the course of carrying out the agreement.

GLEESON CJ:   A suggestion somewhat supported by the fact that the origin of this scenario was counsel for the accused.

MR SEXTON:   Yes, your Honour.

GLEESON CJ:   Highly unlikely to have been putting as part of the defence case one, which if accepted, would have resulted in his client being guilty of manslaughter.

MR SEXTON:   In those circumstances, in our submission, what occurred would have been completely outside, quite contrary to the terms of any agreement, and that is why there would have been an acquittal on all counts.  The trial judge later, at page 1811 line 15, underlined this, in a sense, for the jury, where he said:

you could not find either accused guilty of the manslaughter of either of the alleged victims unless you were satisfied beyond reasonable doubt that the Crown had proved all of the elements of manslaughter including elements 2 and 3.

I have just referred your Honours to element 2.  But he went on to say:

Element 2, for example, of manslaughter requires in the course of the carrying out of the agreement to assault the victim and while the accused continued to be a party . . . unlawful and dangerous –

acts took place.  It underlines, in our submission, assuming, as one must, that the jury followed his Honour’s directions, that they could not have come to the conclusion suggested by the Court of Criminal Appeal, in our submission, if they followed direction element 1 in the manslaughter directions, nor if they followed the directions in element 2.

GLEESON CJ:   Where do we find, if we find it, the opening of counsel for the accused that raised this scenario?

MR SEXTON:   The page is – I will find it.  Page 4, your Honours.

GLEESON CJ:   Incidentally, it is not compulsory for counsel for an accused to open, is it?

MR SEXTON:   No.  As I said, there were two openings, your Honour.  One at the end of the prosecution’s opening and then one at the end of the prosecution’s evidence.

KIRBY J:   That is not an answer to the Chief Justice’s question.  We are told that in Victoria it is compulsory, but it is not in New South Wales.

MR SEXTON:   No, your Honour.  I am sorry, your Honour, yes.  That is at page 56 of volume 1 of the appeal book, at line 10 to 20, approximately, your Honour.

GLEESON CJ:   Giving accused people the right to open is a bit like giving them a right to give evidence.  Not an unmixed blessing.

MR SEXTON:   It turned out to occupy a lot of time in the Court of Criminal Appeal, your Honour.

CALLINAN J:   In New South Wales, anyway, the opening never tells you anything about the defence case, in my experience.

MR SEXTON:   Perhaps it did in this case, your Honour.

GLEESON CJ:   Full and frank in every respect.  Whereabouts on page 56?

MR SEXTON:   It is, really, lines 10 to 20, your Honour.

GLEESON CJ:   Yes, “was specifically told no fighting”, line 20.

MR SEXTON:   Yes.

GLEESON CJ:   So that was the defence case that was foreshadowed at that stage, that there was an actual conversation in which Mr Chai procured the attendance of Mr Lee but said to him, “no fighting”.  Peaceful persuasion only.  Now that, as I understand it, was not supported by any evidence from Mr Chai.  It either was contrary to the evidence ‑ ‑ ‑

MR SEXTON:   He gave two different versions but neither of them was that version.

GLEESON CJ:   Where do we find the opening after the end of the Crown case?

MR SEXTON:   I will find that for your Honours.  Your Honour, we will find that reference.  While that is being done – the conduct of the trial by Mr Chai’s counsel was, in essence, one of the grounds of appeal in the Court of Criminal Appeal.  There were six grounds in total but only one is dealt with in the judgment, as your Honours will see.

HAYNE J:   Just a matter of idle curiosity, Mr Solicitor:  was anything made of the difficulty of translation, to which counsel for the accused proffered at page 57, line 22 and following, that the expression sometimes translated into the English languages, “get rid of them” or “send them away” might bear different meanings according to context, or was that an issue that just dropped away?

MR SEXTON:   I think so, your Honour.  There was an issue in the Court of Criminal Appeal simply on the opening in evidence by an interpreter.

HAYNE J:   Yes.  As I say, idle curiosity, Mr Solicitor.

MR SEXTON:   Page 834 in volume 4 is the second opening, your Honour.

GLEESON CJ:   Yes.

MR SEXTON:   I think that takes a different tack from the first one, on this point.  Page 838, line 48, your Honour.

GLEESON CJ:   Was anyone at any stage so impolite as to remind the jury of what counsel had said originally in his opening?

MR SEXTON:   The Crown Prosecutor cross‑examined Mr Chai on the change, really, in a sense, from the first opening to his evidence‑in‑chief.

GLEESON CJ:   And that is why there was so much fuss in the Court of Criminal Appeal about what was said was said on instructions.

MR SEXTON:   Yes.

GLEESON CJ:   The Court of Criminal Appeal said that it might have been open to the jury to treat what counsel said at page 56 as an implied admission.  Mr Solicitor, if you were to succeed in this appeal we would have to remit it to the Court of Criminal Appeal to deal with the other grounds of appeal because Mr Nicholson’s clients never had a decision on those other grounds.

MR SEXTON:   That is so, your Honour, yes.  Yes, quite so, your Honour.

GLEESON CJ:   Yes.

MR SEXTON:   Your Honours, unless there is any other matters at the moment, those are our submissions.

GLEESON CJ:   Thank you.  Yes, Mr Nicholson.

MR NICHOLSON:   In essence, your Honours, the respondent says the Court of Criminal Appeal got it right.  There was, as has been mentioned, undoubtedly a distinction – a vast difference, a yawning difference between the first opening and the second opening and there was cross‑examination against the first opening and the case was allowed to go to the jury on the basis of the submission by the Crown that they could infer that the first opening was instructions from Mr Chai which have subsequently, it seems, have changed, so, a representation, a statement made by Mr Chai to that effect was put to the jury as an inference they may draw from the first opening.  In addition to that, there was the evidence of Mr Lee.  Mr Lee was a witness attracting the relevant warning.

GLEESON CJ:   Just before you pass on from the opening to Mr Lee, Mr Nicholson, did the trial judge ever tell the jury in his summing up to them that they could treat what was said in the opening by counsel as an admission of something?

MR NICHOLSON:   Yes, he reminded them of the Crown’s submission, to that effect, in his summing up.

GLEESON CJ:   Now, it would be an admission of exactly what?

MR NICHOLSON:   That the words opened by counsel for Mr Chai were said to counsel by Mr Chai before the trial started.

GLEESON CJ:   But in so far as what was said at page 56 constituted some kind of admission, it was only an admission that there had been a telephone call summoning these people.  The self‑serving or exculpatory part of the statement, that was, “there is to be no fighting” was not part of the admission, was it?

MR NICHOLSON:   I believe it was.  The statement opened was that which was allowed to go to the jury and from which they could draw the inference that Mr Chai had made that statement in a telephone call to Mr Lee that there were gangsters outside, move them on, but no fighting.  It was Mr Chai’s case, in his own evidence, that he denied having made such a statement.

GLEESON CJ:   Where do we see the judge telling the jury in the summing up that they could infer that such a statement had been made, or might have been made?

MR NICHOLSON:   At 1709, line 20, through to 26.  Actually, it goes through to the bottom of the page and over the page to line 9 at 1710.

GLEESON CJ:   But that is the jury being invited to draw inferences as to what Chai told his barrister.

MR NICHOLSON:   Yes, and obviously repeating a submission from the Crown that they will be satisfied that Chai had made this statement to his barrister about those events before the trial.  It is then tied into the evidence of Mr Chai at line 10 page 1710 ‑ ‑ ‑

GLEESON CJ:   And line 40:

The important point from the Crown’s submission is that it was not put to Sang Hoon Lee in cross-examination that he had not had a telephone conversation ‑ ‑ ‑

MR NICHOLSON:   Yes.

KIRBY J:   The judge does not actually say that the jury are entitled to draw these inferences, but the fact that he repeats the Crown Prosecutor’s address without correction would be, I think, a fair inference that he was endorsing that statement, or at least leaving it as open to the jury if he did not correct it.

MR NICHOLSON:   Yes, I do apologise, your Honour.  That is the way in which I would invite your Honours to consider it, that it was an inference left open to the jury taken from the opening along with the other evidence in the case and I suggest that is how it was put to the jury in the summing up and left open on that basis.

Could I also remind your Honours, in the same context, that the principal witness, Mr Lee, gave evidence that he was at the gym, he had a conversation with Mr Chai, as a result of that he brought the other two gentlemen with him to the Ehwa and so that the existence of the telephone conversation between the two men was not in dispute during the trial; the content obviously was to an extent.

GLEESON CJ:   Did anything that Mr Lee said in his evidence support the “no fighting” instruction?

MR NICHOLSON:   Yes.  At the point where Mr Lee came to the scene he was asked in cross‑examination whether he was told to either punch or strike the deceased by Mr Chai and he said he was not so told.

GLEESON CJ:   What page is that?

MR NICHOLSON:   At AB 598 line 4.

GLEESON CJ:   Thank you.

MR NICHOLSON:   There was a rejection of the proposition that Chai said “no fighting”; there was an assertion in the evidence that he was not told to punch or strike them by Chai.

GLEESON CJ:   So counsel for Mr Chai cross‑examining Lee put to him that he was instructed not to fight, that was rejected, and it was not supported by Mr Chai?

MR NICHOLSON:   Yes, that is correct.  The evidence of Mr Lee, however, relevant to the submission I am making at the moment, is that he was not told to punch or strike the deceased by Mr Chai.

GUMMOW J:   That is a different thing.

MR NICHOLSON:   Quite so.  However, dealing with Mr Lee, Mr Lee was a witness who warranted and attracted the appropriate warning due to the class of witness he was, an accomplice, and it was open to the jury to accept part and reject part of his evidence.

GLEESON CJ:   I just have not picked up where Mr Lee said that he was not told to punch or strike.

MR NICHOLSON:   Line 4 page 598.

GLEESON CJ:   Thank you, yes, I have it.

MR NICHOLSON:   There are a number of questions relevant to it just at the base of 597 before that question.  It was open to the jury to accept parts and reject parts of the evidence of Mr Lee.  It was not in dispute that phone calls had been made.  It was not in dispute that the men came to the Ehwa and the jury may find a sufficient support for accepting part of the evidence of Mr Lee as to his version of fact in coming to the Ehwa at the request of Chai, but in so doing they were entitled also to take into account the inference from the opening and the cross‑examination on the instructions of Mr Lee.

In other words, it was open to the jury to get it to accept part of the evidence of Mr Lee, that he attended, that he was not told to strike or punch, but to add to that the inference to be drawn from the opening and to draw from that a conclusion that, perhaps, what was involved here was an invitation to move gangsters on, if necessary by the use of physical force, but was never characterised or instructed to be that level of dangerous physical force.

The problem with the term “assault”, as picked up by the Court of Criminal Appeal, is that it left open that scenario.  There is a scenario open to be drawn from the opening of counsel, whether it should or should not have been left to the jury.  That is how the Crown went to the jury on it and it is how the judge summed up to the jury.

GLEESON CJ:   Just remind us:  was it Mr Chai’s evidence that he never arranged for the attendance of Mr Lee and the other two men?

MR NICHOLSON:   I have to be slightly off point in answering the question.  His evidence was that he telephoned, in fact, the page number looking for Mr Song.  Mr Song was one of the other two men.  Mr Lee answered - effectively had the conversation with Mr Chai after two pager calls, and in the absence of Mr Song who was somewhere nearby, and Chai asked them ‑ he was after the return of his silver Commodore.  In that context, he did ask for the return of the car and invited them to come.

GLEESON CJ:   So Chai admitted procuring their attendance for a purpose totally unrelated to the gangsters?

MR NICHOLSON:    Yes.

GLEESON CJ:   Was Chai able to explain how it was that they then fell upon the gangsters when they arrived?

MR NICHOLSON:    No, he said he had no knowledge of that event.  I appreciate it is not in this case which is on a question of procurement ‑ not necessary to go to the wider evidence ‑ the context of the trial was the absence of forensic linking of blood, like, inside the Ehwa where events were said to have occurred, no blood was detected in room number 5 despite the men dying from a loss of blood from massive head injuries.

GLEESON CJ:   So, on Mr Chai’s story, he asked them to come there to return some silver that belonged to him and upon their arrival, they went off on a frolic of their own and beat these two men up.

MR NICHOLSON:    That is not Mr Chai’s story.  Mr Chai’s position was one of not knowing.  Other evidence in the case related another person inside the karaoke bar, a Mr Jang, to the people outside as being known to him.

GLEESON CJ:   What I am getting at is this, Mr Nicholson:  it is really a little difficult to imagine that the jury could have been under any doubt that Mr Chai procured the attendance of these men for a matter in some way related to the gangsters and if they had considered it a realistic possibility that he had instructed them that there was to be no fighting, then why would he have been guilty of anything?

MR NICHOLSON:    Because of the flawed directions to which I wish to take your Honours.  I agree with your Honour and my submission is that because of these flawed directions on the question of procurement, he has lost an opportunity of acquittal which should have been open to him.

HAYNE J:   Why?  Was it any part of the defence case that the Crown had failed to prove this element?  The defence case was the factual defence, was it not?  We have to have regard to lost chance of acquittal fairly open, et cetera, according to the issues as they were conducted at trial.

MR NICHOLSON:    Yes, and I hope to address ‑ ‑ ‑

HAYNE J:   Well, what issue was there about the matter that the Chief Justice was directing your attention to?

MR NICHOLSON:   The matter is best encapsulated by reminding your Honours of the questions from the jury.  In the context after the elements were given, the jury inquired, “Was it necessary for Mr Chai to be present during the assaults, the carrying of the fatal acts?” and the answer was no, a simple no.  There was also questioning from the jury to the effect, “Did he need to know the fatal acts would take place?” and the answer was no.  He did not need to be there.  He did not need to know and there was much debate between counsel and his Honour, to which I will take your Honours about this subject matter and in the end result the charge to the jury was, in the first element, an agreement to simply assault and his participation in that agreement itself went to the jury on the basis that they could be satisfied and need know no more ‑ to be satisfied, no more on the third element than that he procured persons to assault.

Those first and third elements together are simply consistent with the opening and which were open to the jury to take on board as an inference from the case and accept part of the evidence of Mr Lee where it overlapped with the phone calls but not otherwise.  Frankly, had they accepted the other evidence of Mr Lee he would have been convicted of murder.  It was hard to see how it could be otherwise.

Now, in relation to the subject matter of those questions from the jury, it is quite important to note that originally his Honour had in mind to instruct the jury that the agreement in question was one of beating.  Had he instructed the jury, as he had originally intended, that the agreement they would have to find Mr Chai was a party to was one to beat the deceased, it would be very difficult to have this argument.  Technically, perhaps, one could argue it was not precise enough, but it would be a lawyer’s point because in the context of the case it would be pretty clear what it meant.  However, it was not put that way.

GLEESON CJ:   That would have been a wrong way to put it, would it not?

MR NICHOLSON:   I do not disagree with that.

GLEESON CJ:   The agreement only had to be an agreement to do what was necessary to move them on, for example.  If it was a risk, if it was contemplated that that might include, if necessary, giving them a thump ‑ ‑ ‑

MR NICHOLSON:   Your Honour, at the moment I am not seeking to advocate that as a model direction.  I am simply referring to the history of how this unfortunate episode of assault came about.  His Honour initially raised with counsel that he intended to use the term “agreement to give a beating” and started to outline and develop the directions that he wished to give.  There was objection from counsel for Mr Bae and from counsel for the Crown to that course and they urged his Honour to use the term “assault” in all charges and nothing more than “assault”.  That is how the word “assault” found its way into elements 1 and 3.

During the progress of the summing up, which I do not think it is unfair to say is somewhat technical and difficult, perhaps, for a layperson to understand, dealing with this issue of assault the one simple thing that was regularly said was the repetition of the mere application of physical force by one to the body of another.

GLEESON CJ:   As distinct from grievous bodily harm?

MR NICHOLSON:   Yes.

GLEESON CJ:   That was what he was repeatedly distinguishing when he used the word “mere”, as I understand it.

MR NICHOLSON:   I do not accept that, with respect, your Honour.  I think that to refer to grievous bodily harm is to look at the third count, not the first.  The murder was an intent, was an assault with an intent of some sort.  In the second category it was just an assault and in the third category rather a higher level ironically was put in terms of the GBH charge.  But, for the purpose of the first and third elements of that second count, from first to last, it remained assault.  There was debate between counsel appearing for Mr Chai and his Honour an invitation to change the word “assault” effectively to bring into play the nature of some mental element ‑ ‑ ‑

GLEESON CJ:   There was no suggestion that anybody was talking about the kind of assault that was inflicted on Mr Egan when he was removed from the New South Wales Parliament by the speaker.

MR NICHOLSON:   No.  What had to be dealt with – it would have been extremely difficult for trial counsel to have addressed the jury contrary to his own opening, or either of them, which were different vastly from each other, but to deal with the matter before the jury and the matters before the jury included the consequences of those openings and particularly the first one, and he had to deal with the question of what inferences the jury might draw, what is the minimum they would need to find had they accepted partly the evidence of Lee and stopped where it was not corroborated, it overlapped substantially with that first opening.

In those circumstances the question arose – and it caused his Honour considerable concern as he made clear, and I will take your Honours to that presently – whether or not in the case of a secondary party to manslaughter there needed to be rather more than an open intent to assault.  He specifically debated with counsel whether or not it was required to be an agreement to do an act of a kind which might be objectively characterised as dangerous, in the sense usually used, an appreciable risk of serious injury. 

In the end result, having debated the issue with counsel who urged him, in the case of counsel for Mr Chai, to vary that term “assault” and to require more to bring into play that element.  His Honour, having acknowledged the difficulty, elected to leave it as it was.  I do not profess to understand why this is so, but the issue was certainly raised that simple assault without more is not sufficient.  You need to intend or agree an act or at least contemplate an act on another basis of a crime, which itself, could be objectively characterised in the way I have mentioned.  That is what is absent from these directions.  Unfortunately it is so. 

The material before the jury included the inferences and included the capacity to accept part of the evidence of Mr Lee where it was corroborated and not in dispute and, indeed, to infer that little bit more with the evidence of Mr Lee as to why he would be there to move them on with no fighting, as counsel opened.

When those things are brought from a juxtaposition it was a conclusion open to the jury, and it is the conclusion, the possible inference open which has troubled the Court of Criminal Appeal.  The basis of the problem is in counts 1 and 3 on the alternate count of procurement as put by the Crown it is simply inadequate; it was too wide.  On one of the alternative cases open to the jury on all of the evidence, not simply the preferred view of the Crown but on all of the evidence, and the inference before it, was that scenario and it was not excluded.

Had his Honour, after the matter was raised with him about the problem of the nature of the acts needing to be – at least need to be known to be a kind which could be objectively described as being dangerous in the sense I have mentioned, elected to leave it as it was.

GLEESON CJ:   Would it?

MR NICHOLSON:   He got very close to changing, it would seem, in his verbal reasoning.

GLEESON CJ:   Would it have corrected the summing up on page 1872, subparagraph 3 if he had said, “In the case of Mr Chai he had procured the party or parties to the agreement who did the fatal act or acts to assault the victim, contemplating as a possibility that the assault might involve a dangerous act”?

MR NICHOLSON:   If the term “dangerous” was also qualified in the way that I have mentioned, yes.  That would satisfy 3, but not 1.  That introduces, I think, the Giorgianni‑type proposition which was clearly debated during the trial.  It would bring home to the jury that the procurement referred to there is a procurement with a contemplation of an appreciable risk – I do apologise – of the kind of act which could be so described.

A difficult question arises, your Honours, as to that mental state of the secondary party in manslaughter on the procurement basis as to whether he should have contemplated the appreciable risk or simply contemplated that a kind of act could take place, which itself, objectively viewed, would be so classified.  I tender the latter as the preferable view.  The view expressed by the Chief Justice would accord, I think, with the application of Giorgianni to the issue, and if that were the case, it would solve the problem.  My preference for the kind of act, as contemplated by his Honour in his reasoning process, is simply that it sits more easily with the objective test so far being utilised in the common enterprise cases of dangerousness.  

Now, it is not necessary for the first party to know that it is dangerous but he must know the kind of act involved – and it is for a third person, a reasonable person to assess it as dangerous in the sense we have discussed.

KIRBY J:   Justice Callinan has just raised with me that there is nothing in the Crimes Act, is there – I mean, there is the definition of “murder” and the provision for manslaughter but there is nothing in the Crimes Act of New South Wales which is relevant here?

MR NICHOLSON:   No.

CALLINAN J:   The Act defines the crime.

KIRBY J:   It defines “murder” and it provides for the return of the verdict of manslaughter.

MR NICHOLSON:   It has that machinery provision from memory ‑ ‑ ‑

GLEESON CJ:   It is common law.  We are in the area of the common law here, are we not?

MR NICHOLSON:   Yes, we are.  We are in common law.  It is embraced by the statute which repeats the common law and there is the machinery provisions echoing old distinctions between accessories before the fact and the like.

GLEESON CJ:   And the particular kind of accessorial liability that we are concerned with here is procuring an unlawful and dangerous act which unintendedly results in the death of somebody.

MR NICHOLSON:   Yes.  A reference to section 24 of the Crimes Act New South Wales dealing with manslaughter does not take the matter any further.  Yes, that is so, your Honour.

If I could just go back to the point raised by the Chief Justice.  I think if actual contemplation of danger were introduced, it would be introducing a clear statement of what is required but it is somewhat different from my understanding of what is presently required.  It would address the mischief.  It would seem that two ways in which to overcome the problem would be to have actual contemplation of danger in the secondary party to manslaughter ‑ ‑ ‑

GLEESON CJ:   But your proposition is that the relevant contemplation is contemplation of the act which is objectively dangerous?

MR NICHOLSON:   The kind of act, yes, which itself would be viewed as objectively dangerous in the relevant sense.  That is what is absent from elements 1 and 3.

GLEESON CJ:   Which is the alternative way of saying that the judge left it to the jury that they could convict on the basis that all that he procured or intended to procure was a non‑dangerous assault.

MR NICHOLSON:   That is a positive way of expressing it.  I would prefer to express it slightly differently.  It was open to the jury in accordance with these directions to convict without needing to go to the further step of deciding whether or not he procured to them for the class of act, to do the class of act or type of act, it was not necessary to go that next step.  It was not necessary to go the further step, envisaged by your Honour’s question, of finding positively that he did not so intend ‑ ‑ ‑

GLEESON CJ:   It is an open possibility.

MR NICHOLSON:   Yes.

GLEESON CJ:   But what I wanted to ask you is this:  on what version of the facts put by any witness – bearing in mind, as you say, that the jury were entitled to select amongst the evidence – could the jury have considered it a possibility that your client procured an assault of a kind that would not involve as a possibility at least an act that was dangerous?

MR NICHOLSON:   I have to go back to the earlier references I made to the early part of the evidence of Lee, coupled with the way in which the Crown went to the jury on the opening address of the trial counsel, the first address, where he overlapped with Lee but added the words, “no fighting, no fighting” which Lee said were not said, but he agreed he was not told to punch or strike. 

Now, coupled from the fact that Lee was invited with the others to attend at the Ehwa, together with the inference available of a previous statement by Chai to his counsel, consistent with the first opening, the jury would then be in a position, without needing to know more, to say, “We don’t need to go further because it’s too hard.  We’ve been told he didn’t need to know the type of act, the dangerous act.  He didn’t need to be present.  He only needed to procure someone to assault.”  Assault can embrace moving on by minor force.  It need not only be minor force.  I am at odds with my friend, Mr Solicitor, over this.  It is not the case, I submit, that the choice is between assault of a trivial inconsequential type or dangerous assault.  There are many assaults which may not satisfy the real meaning of “dangerous” in the sense of being an appreciable risk of serious injury.

GLEESON CJ:   Can you give us an example related to the facts of this case?  You have got two gangsters outside the restaurant; you have got three men who have been invited to turn up and get the gangsters to move on and they have been invited to assault them on the assumption that we are making now.  What kind of assault might not involve an appreciable risk of serious injury?

MR NICHOLSON:   One of pushing, because one has to remember that the inference involved is “no fighting”, “no fighting”.  That is also part of it.  A walking towards together with continue - allowed assertion but a coming into contact, a pushing if necessary, but a retreat if a fight was to threaten, because there words “no fighting” “no fighting” are not restricted to an attack by assailants, but can also refer to a retreat rather than fight.

GLEESON CJ:   A retreat by Mr Lee and the other two men?

MR NICHOLSON:   Yes.  So that apart from that broad outline, it is limited only by the human imagination of what can happen on a street.  Certainly, the qualification “no fighting, “no fighting”, together with the basis for the inferences which I have taken your Honours, are within the first and third elements so directed to the jury and if the jury in this complicated case had to do no more than consider whether he procured persons, knowing there could be an application of some degree of physical force from one person to another, without the need to know that fatal acts would occur, not being present when they occurred, that would be sufficient without going further.

KIRBY J:   You say it is a complicated case, and I see it ran for astonishingly three months, but why is it so complicated?

MR NICHOLSON:   I do not think the case was complicated; I think it became complicated towards the finish.  The actual evidence itself is not complicated.

CALLINAN J:   Mr Nicholson, if you can assist me, I come from a Code State and I am unfamiliar with some of the matters you are talking about.  Section 18(1)(b) of the New South Wales Crimes Act appears to define manslaughter as:

Every other –

that is every punishable homicide that is not murder.  The scheme seems to in subsection (1)(a) to define murder and then the Act provides that:

Every other punishable homicide shall be taken to be manslaughter.

Now there does not appear, I cannot find anyway, a definition of “punishable homicide”.

GLEESON CJ:   No, it is not a Code.

MR NICHOLSON:   I think that the answer is it is not there, it is a common law situation, and section 24 applies to manslaughter as well, your Honour, but we have the situation historically in the common law where all homicides of any type, any killing, resulted in punishment, and before we got to specific crimes we have gradual exemptions from the punishment of all homicide, all deaths, as there came to be a connection over the years from about, I think, of Henry II on, and I think this has been canvassed in one of the judgments in this area – it might have been through Justice McHugh.

GLEESON CJ:   There is an article by Sir Owen Dixon in the Australian Law Journal about the history of homicide that covers this also.

MR NICHOLSON:    Yes.

GLEESON CJ:   There was no mental element involved in homicide originally.

MR NICHOLSON:    No, if there was a death, there was a punishment and there was no question of moral turpitude, no question of personal responsibility.  If you did it, you died, in any circumstances, and it progressively developed down from the time of Henry II, a gradual exemption from that strict position by restriction of other circumstances.

CALLINAN J:   In any event, I will not find anything in the Crimes Act in relation to common purpose or grievous bodily harm, bearing upon the issue of manslaughter or not, is that right?

MR NICHOLSON:    That is correct.

CALLINAN J:   Thank you.

MR NICHOLSON:    Your Honours, we were dealing, I think, with the basis and the problem as submitted by me, and was found by the Court of Criminal Appeal, in the procurement case, that is, the question of procurement that is before the Court.  I do not wish to travel into the evidence of the trial or other issues.  The problem has been correctly identified by the Court of Criminal Appeal.  It is not in dispute that one of the Crown cases had to be, in the substantial Crown case, as my friend has said, that these directions have to apply to the whole body of material before the jury, not just the Crown case.

It was open to the jury not to have to go very far on these directions and it is in that sense that the prospect of an acquittal may have been lost.  Or, alternatively, the jury may not have had to proceed to consider in the detail necessary to finally come to a proper verdict, that vast body of difficult material before it in the directions because of the simple directions on assault in elements 1 and 3.  It is, I think it is clear to say that, as was said in Tangye and repeated in McAuliffe and various other cases - McAuliffe, incidentally your Honours, came, I think - it was either McAuliffe or Osland came after the trial of Chai I should indicate.

The problems associated with common purpose joint criminal enterprise in any of its manifestations or the old concert, seem to regularly visit the courts.  Justice Hunt in Tangye made that observation and it has been repeated in this Court since by reference to those passages in Tangye.  What we have here is, with respect to all concerned, a manifest preoccupation with legal jurisprudence and complication which did not, with respect to all concerned, do justice to the issues before the jury.  It could have had the effect of misleading them or setting a lower hurdle for satisfaction, or wrongly posing the question in an element of the offence.

Earlier, your Honour asked, I think in Court to my friend, why did it need to be so complicated?  The answer is, I do not believe it did.  But one of the reasons is because of the use of the term “assault” at the very beginning where his Honour indicated he had in mind to say “agreement to beat” and that might have been wrong, it might have needed further ‑ ‑ ‑

GLEESON CJ:   It would have been unduly favourable to the accused.

MR NICHOLSON:    It may be so, but it required further refinement.  But what came was not refinement and assistance, what came was his Honour being led into error.

GLEESON CJ:   Mr Nicholson, do you happen to remember the name of the case, and I forget, now, whether you were involved in it.  It arose out of an occasion at Bondi when a number of young men set upon another young man above the cliffs and he retreated over the cliffs and got killed?  It is McAuliffe, is it?

MR NICHOLSON:   It was McAuliffe, yes.  There were three young brothers, two brothers McAuliffe and one other.

GLEESON CJ:   That came to this Court?

MR NICHOLSON: Yes, it has been reported. It is (1995) 183 CLR 108.

GLEESON CJ:   I am not sure I had realised that it had come here.  Thank you.

MR NICHOLSON:   There is a reference to it in the appeal book at 1864 and the most relevant pages are to be found at 113 and 114 of the report.

GLEESON CJ:   They were convicted of murder.  Yes, thank you.

MR NICHOLSON:   It substantially took forward Johns in the application to the facts of that case, your Honour.  I do not think, other than taking your Honours, if you wish me to, to the questions that passed before his Honour and counsel about the issue of whether Mr Chai needed to contemplate the kind of act which could be so characterised or not were specifically raised.  I can take your Honours to that if it would assist your Honours, but I think you can accept that it was raised and his Honour ultimately came to the position that he would not change the assault although he confessed to being quite troubled by the issue.

Perhaps I should take your Honours to that issue.  Yes, we pick it up at 1808, your Honours.  Perhaps I will start at 1805, the reason being this exchange followed a question form the jury on the issue.  If I could take your Honours first to 1805.  The first jury question is there at line 6.  Presently, I will take your Honours to what passed between counsel and his Honour before answering that question, but before I do so may I take you to 1817 where the jury asked a further question on this question in relation to manslaughter.  If I go back to what followed at 1805 and pick it up at 1808, line 30, and, in particular, between line 40 and 45.

The pages that follow deal with the issue of whether it be knowledge in Giorgianni or contemplation or of actual agreement.  It may not matter for the sake of the discussion other than to indicate that there was concern within the jury and concern on the part of his Honour.  His Honour commencing at 1810 deals with the elements of manslaughter and at 1812 deals with the nature of assault really by simple repetition at line 30 in terms which, in this case, may have been mutually put unhelpful.

HAYNE J:   How would the jury have understood the expression “to apply physical force to the victim’s body”?

MR NICHOLSON:   Well, I think any degree of physical force, whether it be the extreme version offered by the Crown or the opposite version open on the words.  Beyond that we are not in the jury room, your Honour, and I really cannot help but I would think it is certainly open to them to apply these words to the alternate procurement scenario identified by the Court of Criminal Appeal.  This occurred to his Honour as well.  If we go to 1813, and his Honour having been troubled by his own answer to the term “assault”, picks it up at about line 30 and at lines 40 through to 45 engages with counsel about whether further directions are necessary on the issue.  It is opposed by Mr Crown at line 45.

GLEESON CJ:   Well, we know what he was thinking of when he was talking about assaulting:

punching or kicking or hitting or stamping or hitting with a stick –

all of them dangerous acts.

MR NICHOLSON:   I am not disputing that and if these things had been said in some properly developed way, then we may not have the problem identified by the Court of Criminal Appeal because the hurdle would have been set higher.

HAYNE J:   Now, was not this the chance for then counsel for your client, if there was, in the way in which the trial had been conducted, any real difficulty about this expression, to speak up, and what are we, what is any appellate court, to make of the silence?

MR NICHOLSON:   With respect, what follows is not silence and I intend to take your Honours to that.

HAYNE J:   Yes.  Well, at 1813/14 is there any submission by Mr Martin?

MR NICHOLSON:   Would your Honour pardon me while I go to my note?

HAYNE J:   I am looking at the appeal book.  There does not seem to be.  Counsel for co‑accused says, in effect, “Thanks very much, your Honour, but no thanks”.

MR NICHOLSON:   The matter continues in debate between counsel and his Honour through into the 1830s ‑ ‑ ‑

HAYNE J:   What, after the weekend?  I mean, 1815, we have the weekend intervening, Mr Nicholson.  My question to you is much more pointed.  Why did the then trial counsel for your client not complain of the point you now make if the point was, at trial, seen as a live and real possibility for the jury to consider?

MR NICHOLSON:   My answer has to be that I can simply take your Honour, on the papers available to me, to 1831 and following where he did, particularly starting at the top of 1832 where the words occur:

In order to deal with both it is necessary to refer to acts which are objectively dangerous in those terms.

At line 20:

And the point being he had the knowledge at the time that he, the secondary offender, continued to be a party.

25 and 35, activated the absence of the mental element in the secondary offender, the necessary mental element.  At line 44 his Honour responds by posing a question at 1833, top of the page, line 3:

does the Crown have to prove that the secondary offender knew that the principal offender intended to do the act which is objectively dangerous?

My answer to that question is simply, yes, or at least contemplated.  His Honour had correctly identified the problem.  There followed debate in opposition to change on the issue of assault from the Crown, continued complaint by trial counsel at 1834, line 40, and at 1835 his Honour, having heard that the ‑ ‑ ‑

HAYNE J:   Just before you get to 1845, 1837, line 18, his Honour gives an example, an example he describes as “remote from the fact” of this case, an example of an assault involving a jostling on the street.  Is that not redolent of the fact that the whole basis for what the Court of Appeal considers to be a misdirection is a basis remote from any issue that was tried in this trial?

MR NICHOLSON:   I think your Honour is reading far too much in the term “remote”.  His Honour was being careful to construct a factual scenario where you should read remote as totally different and unassociated and considering it.  He is not saying you cannot draw from this something of assistance.  He is simply dealing with a factual creation for the sake of argument.  If your Honour goes back to 1835, a few pages earlier, his Honour was aware of the problem at line 3 when he said:

I suppose the real nub of this is whether it’s necessary to tell the jury that they should be satisfied that an accused knew that in the assault a party would do an act of assaulting of such a kind as to be objectively dangerous.

This goes right to the issue I hoped to communicate clearly with the Chief Justice earlier today, that something further is required than simply assault.  There is something following in the nature of joint criminal enterprise or common purpose and the Giorgianni consideration, about needing to know, or at least contemplate, the possibility that an act of a kind which could occur ‑ ‑ ‑

GLEESON CJ:   Should have said “might”, not “could”.

MR NICHOLSON:   Yes, might occur, and here his Honour has got close to that issue in the sake of this debate with counsel.  His Honour was met with the response from the Crown at line 35:

That instruction would be wrong.

He met with opposition.

GLEESON CJ:   If he had said “would”, it was wrong, was it not?

MR NICHOLSON:   If he had said it in precisely those terms, it would have to be so.  One could take points here and if one was literal and without endeavouring to assist to develop a correct direction one would take that view.  One would say his Honour was seeking assistance and going to the nub of the matter as he saw it, which required candid discussion, but met with opposition.  That is picked up again, again before 1837, at 1836.  His Honour dealt with the question, for instance, at line 26:

I have been constantly of the view that just as it’s not necessary for the Crown to prove that the principal offender knew that the act was objectively dangerous it’s not necessary for the Crown to prove that the secondary offender knew that the act was objectively dangerous.

Now I have not put the proposition that the secondary offender had to know that it was dangerous, but rather that the kind or class of thing to be done might occur, which itself could be so classified objectively.  At the bottom of the page at line 45 his Honour, having clearly communicated his desire for assistance in something that is troubling him, sought again to communicate the nature of that trouble:

What I am trying to convey in the document – and I am very ready to accept criticisms of the document – what I am – what is causing me concern is:  Is it enough to prove knowledge on the part of the secondary party that other parties intended to assault the victim, however slight and however trivial the assault, or is it necessary for the Crown to prove that the secondary party knew that, not merely slight or trivial acts of assault were going to be committed, but acts which were such as to be objectively dangerous?

His Honour there has come to espouse the view for which I contend, that he should have known or contemplated that acts of the kind, which could be so categorised as objectively dangerous, might occur.  His Honour has raised it.  In the three locations I have taken your Honours to, he sought the assistance on the issue which is troubling him about assault, and it is in this way that he is seeking to invite criticism to develop something about the problem he is concerned about.

GLEESON CJ:   Could I direct your attention to the question his Honour asks on page 1839, line 35, which is the question that has been asked on a number of occasions in the course of this appeal:

Is there any evidence of any assault by anybody on either victim which a reasonable person would not say was dangerous? . . . We have got punching, kicking, hitting with a golf club . . . stamping on the head.

MR NICHOLSON:    Your Honour, that is dealing with the Crown case and his Honour went further in the - this is an exchange between - he is exploring the Crown case.  The directions apply beyond the Crown case to the totality of the material.  The response from, however, the Crown was ‑ ‑ ‑

GLEESON CJ:   If you look at 1840, he takes it further at line 40.  Whether he was right or wrong, it looks as though he ultimately decided to do nothing because he did not think this was a case about assaults of any kind that were other than dangerous.  He might have been wrong about that, but anywhere during this discussion do we find the “no beating” scenario made?

MR NICHOLSON:    No, it is clear that what is being discussed here is the exchange between his Honour and the Crown about the Crown case.  What is the problem is that his Honour, in discussing those issues, has not been directed to the other problem which your Honour has referred to.  That is, that there is more material there than that issue and that material comes from the commencing evidence of Lee and together with the inference to be drawn from the Crown opening which was put to the jury.  They have heard that.

The question is whether the jury, having been directed about simple assault, in light of the material before them, could have been misled in the way that the Court of Criminal Appeal has identified on the procurement scenario.  It is procurement with which we are dealing here today, not beating.  The procurement scenario is to get people to come to the club and the participation in the agreement is the procurement of the assailants.  What they are procured to do does not matter, as long as it was a simple assault.  That is what we are dealing with today on the procurement scenario, the subject of the Court of Criminal Appeal’s decision.

GLEESON CJ:   On page 1841, in what looks like a kind of mini judgment, from line 20, the judge talks about the state of mind that he is ultimately left in and then he says he is going to “go off the Bench and make a decision”.  Where do we find him making the decision?

MR NICHOLSON:    Just before we do that, may I take your Honour back to the previous pages ‑ ‑ ‑

HAYNE J:   The reasons are 1844, are they not?

MR NICHOLSON:    Yes, at 1844 in the appeal book.  Your Honours, before you go to that, may I take you to what was said by trial counsel at 1840, line 45, where again he addresses the issue, which is repeated at 1841, line 15.  Your Honours will find at 1845 in the judgment his Honour’s observations that:

The giving of any further direction has been strongly opposed by the Crown but . . . both accused -

sought further directions.

GLEESON CJ:   The bottom of 1845 and the top of 1846, particularly 1846, lines 15 to 20.  Now, that may or may not be a sufficient reason, but that was the reason why he did not add to it.  As I understand it, he said, “That just doesn’t arise on the facts of the present case”.

MR NICHOLSON:   That is, as his Honour has stated it in there, and I cannot dispute that.  What I can do is contrast that with the appropriate response, I think, that that is a fair appraisal of the primary way in which the Crown case was put, but does not deal with all the material before the jury.  The jury had it open to them to take a different direction, should they so wish, on the instructions given to them.  Your Honours will note that at 348 there is further discourse about the further directions and further requests, over to 1849, by trial counsel that the nature, the objective nature of these dangerous acts needs to be incorporated into the offence and the directions and that they are deficient in not doing so.

Your Honours, I think that fairly takes the Court through the exchanges that took place.  May I say this.  I think that there is a clear overlapping, as I indicated earlier today, between the first element and the third element on a procurement basis.  Whether what is to be found as a matter of fact in an agreement to be contemplated or known, whichever it may be, whether that is the unlawful dangerous – sorry, the kind of act which could be unlawful and dangerous and the requirement of knowledge which might be thought to flow from Giorgianni, in the case of secondary party.

Now, the problems arise, as the written submissions have made, and I will not be repeating them, that these difficult ‑ and they are difficult to read and understand, with respect, to all concerned ‑ directions on the question of the procurement scenario, the alternate procurement scenario, run the risk of failing to communicate that the actual agreement that the jury have to be satisfied about, is one to do a class of act which could be so objectively characterised as likely to give rise to serious injury, and the procurement had to be accompanied, in the third element, by a mental element of knowledge of some type.  Simple assault is not sufficient, and simple procurement is not sufficient.

The risk is not simply that these are very extended and complex directions, difficult to understand and follow through, but that they create an easy path to conviction by simply accepting the alternative procurement scenario, accepting the first evidence of Lee that there were phone calls and he and the friends did go to the Ehwa, putting that together with the “no fighting, no fighting” but a fight broke out, and let it go at that, without addressing the real issues which are elements of the charge of manslaughter, that is, they did not have to form a view, they did not even have to consider whether the nature of the agreement, into which he entered, was of the kind required.  Further, they did not need to consider whether the procurement was accompanied by an appropriate mental state.  Your Honours, I do not think I can take it further without being repetitive of the written material.

GUMMOW J:   Now, just before you leave that, can you just go to your written submissions, Mr Nicholson.  4.24 sets out the grounds of the appeal to the Court of Criminal Appeal.  Am I right in thinking that what they did was just decide ground 2?

MR NICHOLSON:   Yes, and not even ground 2.

GUMMOW J:   It cannot be ground 6?

MR NICHOLSON:   No.

GUMMOW J:   Just 2?

MR NICHOLSON:   Not even all of 2.

GUMMOW J:   That is right.

MR NICHOLSON:   Only part of ground 2 has been determined.  I do not wish to take the Court further, but the question of Giorgianni, the mental element of secondary parties which was agitated before the criminal appeal has not been the subject of pronouncement.

GUMMOW J:   But it is discussed in your submissions at 5.31, is it not?

MR NICHOLSON:   Yes.  Because I think it is very difficult to look at these ‑ ‑ ‑

GUMMOW J:   What I am worried about, you have not been straying into that in what you have been saying this morning, have you?

MR NICHOLSON:   I think I have to say that I have overlapped into there because of the unfortunate juxtaposition to the word “procurement” in the first and third element, together with assault, and much of what took place between counsel and his Honour, with respect – all counsel and his Honour – did, I think, convey the same level of confusion, but there was overlap there between knowledge and objective state of agreement and, yes, I have had to refer to that but the Court of Criminal Appeal decision on the alternate procurement scenario is on the objective basis not on the mental basis of Giorgianni.  So, yes, to that extent I have to plead guilty, and with apologies.  Your Honours, I cannot assist further.

GLEESON CJ:   Thank you, Mr Nicholson.  Yes, Mr Solicitor.

MR SEXTON:   There is just one matter, your Honours.  My learned friend was asked to what evidence he could point to to support the scenario posited by the Court of Criminal Appeal and he made two responses.  One, in the evidence of Mr Lee at page 598, lines 1 to 5 that he was not told to punch or strike the so‑called gangsters.  That might be contrasted with Mr Lee’s evidence at 573, lines 1 to 10 where he was asked:

Why did you strike the driver –

He said:

At the time I thought I had to strike that person.

Q. Why did you think that?
A. Older Brother Chong Mun –

which is Mr Chai –

told me to bring that person.

Q. To where?
A. To garage – to drag that person.

HAYNE J:   I am sorry, what line at 573?

MR SEXTON:   Lines 1 to 10.

HAYNE J:   Thank you.

MR SEXTON:   I should say that so far as the jostling scenario is concerned, it would not have been easy to jostle the two individuals in question because they were sitting in a car in this case.  The other item that was pointed to by my learned friend was, of course, the ‑ ‑ ‑

GUMMOW J:   Yes, had they entered the premises?

MR SEXTON:   No, they were sitting outside in a car, your Honour.

KIRBY J:   They were dragged out of the car.

MR SEXTON:   Yes, first.  That passage from the first opening of Mr Chai’s counsel – it is important to remember, however, in our submission, that that was only used by the Crown as a question of Mr Chai’s credit, the notion of changing his story.  It was not put by the trial judge as either the Crown case or, of course, as Mr Chai’s case, because he resiled from it and said that that was not the version on which he wished to rely and he gave a different version in his evidence‑in‑chief and then in re‑examination.

So, it would be a remarkably thin evidentiary basis, in our submission, but as the Court appreciates and I will not go through it again, we say that, in any event, it would not have been possible for the jury following the trial judge’s directions to have made a finding of manslaughter in relation to Mr Chai because it would have been inconsistent with both elements 1 and 2 of the trial judge’s directions and his Honour makes that point at page 1846, a passage in a sense to which your Honours have already been taken but at line 30 his Honour says:

I do not consider that the jury could be satisfied beyond reasonable doubt of the first element of manslaughter as stated in the document unless they were satisfied beyond reasonable doubt that a serious assault of the kind I have outlined had been proved to their satisfaction.

Then he goes on to say that the second element could not be satisfied either because the acts would not have occurred “in the course of the carrying out of the agreement to assault the victim”.

GLEESON CJ:   As a matter of principle, Mr Solicitor, were the jury entitled to draw inferences from the evidence as to the way in which these people behaved after their arrival on the scene as to what they had been asked to do?

MR SEXTON:   In combination with Mr Lee’s evidence about the phone calls, yes, your Honour.

GUMMOW J:   McAuliffe would suggest that.

MR SEXTON:   Yes.

GLEESON CJ:   Yes, they certainly engaged in a spectacular act of disobedience if the original scenario was correct.

MR SEXTON:   And a very lengthy one as well.  Unless there are any other matters, your Honours – I am sorry.

GUMMOW J:   Did you agree with Mr Nicholson that all the Court of Criminal Appeal did was determine part of ground two?  We have got to be clear what they would be getting back.

MR SEXTON:   Yes, that is quite so, your Honour.  Your Honour, my learned friend certainly made submissions in relation to those matters before the Court of Criminal Appeal.  If one looks at the ground itself ‑ ‑ ‑

GLEESON CJ:   What, the direction for misleading and confusing?  But Mr Nicholson’s client has not had a decision on a number of arguments that he advanced in support of that proposition.

MR SEXTON:   It would be unsafe, I think, to assume, your Honours, that there were not some other aspects of that ground as well as the ones that are before this Court.  I think that is so, your Honour.

KIRBY J:   There is a measure of inconsistent verdicts, is there?

MR SEXTON:   There was such a ground, yes, your Honour, and of course the ground that occupied a degree of evidence about the conduct of the trial and additional grounds as well, but ‑ ‑ ‑

KIRBY J:   Did the Court of Criminal Appeal hear full argument and then only determine the matter, or did it, as it were, identify a particular matter and hear argument only on that?

MR SEXTON:   I think all us assumed that the first of those things happened, your Honour, that there was full argument, although because of the time taken on evidentiary matters the legal argument, perhaps, did not

have as much time as it would normally have in a Court of Criminal Appeal.

GLEESON CJ:   To what ground of appeal did that evidence go?

MR SEXTON:   To ground 6.  It is not really spelt out there, your Honour, but when it says “involved a miscarriage”, it was really put on the basis of the first opening and the use that was then made about the question of whether the first opening was given on instructions.

GLEESON CJ:   Was this a Birks’ point?

MR SEXTON:   In a sense it was, your Honour, yes.  I suppose it was put on a competence point, yes.

GUMMOW J:   It could be unfortunate if this goes back to a court differently constituted because it means the earlier effort will have been wasted.

MR SEXTON:   The one thing is that, at least on paper, the court can be reconstituted, your Honour, in this case.

KIRBY J:   There is not before us any point on the proviso, that is to say that if there was a misdirection it was immaterial and conviction was inevitable?

MR SEXTON:   No, we do not put that argument, your Honour.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Solicitor.  We will reserve our decision in this matter and we will adjourn until 10.15 on Wednesday morning.

AT 12.33 PM THE MATTER WAS ADJOURNED