R v Chai

[2000] NSWCCA 320

CITATION:	Regina v Chai [2000] NSWCCA 320 revised - 29/08/2000
FILE NUMBER(S):	CCA 60550/98
HEARING DATE(S):	13 July 2000
JUDGMENT DATE:	25 August 2000
PARTIES :	Regina v Chong Mun CHAI
JUDGMENT OF:	Mason P at 1; Sperling J at 1; Bergin J at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70208/97
LOWER COURT JUDICIAL OFFICER :	James J

COUNSEL :	G Nicholson QC/B W Cross (Applicant) M G Sexton SC (Crown)
SOLICITORS:	Susan N Goodsell (Applicant) S E O'Connor (Crown)
CATCHWORDS:	Manslaughter - agreement to assault - unlawful and dangerous act - Crown could not prove which blows caused deaths of two deceased - whether accused procured beating - common purpose - joint criminal enterprise - directions as to elements of manslaughter erroneous and misleading - judge’s written directions to jury - summing up - directions as to meaning of assault - D
CASES CITED:	Osland v The Queen (1998) 197 CLR 361; McAuliffe v The Queen (1995) 183 CLR 108; R v Tangye (1997) 92 ACrimR 545; Giorgianni v The Queen (1985) 156 CLR 473; R v Anderson & Morris [1966] 2 QB 110; Varley v The Queen (1977) 51 ALJR 243; Markby v The Queen (1978) 140 CLR 108; R v Duong (1992) 61 ACrimR 140.
DECISION:	Appeal allowed; conviction quashed; a new trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

CCA60550/98

MASON P
SPERLING J

BERGIN J

Friday, 25 August 2000
REGINA v Chong Mun CHAI
JUDGMENT

1    THE COURT : The appellant, Chong Mun Chai, was indicted on 15 April 1998 in the Supreme Court of New South Wales on four counts: (1) that he murdered Duck Huan Kim, (2) that (in the alternative) he maliciously inflicted grievous bodily harm on that deceased, (3) that he murdered Doh Su Kim, and (4) that (in the alternative) he maliciously inflicted grievous bodily harm on that deceased. The statutory alternative charge of manslaughter by an unlawful and dangerous act went to the jury in relation to each charge of murder.

2    The appellant was found not guilty of murder under counts (1) and (3) but guilty of manslaughter on each count. Accordingly, no verdict was taken on counts (2) and (4).

3    The appellant’s co-accused, Shang Hyan Bae, who was tried with him on identical charges, was found not guilty of both murder and manslaughter but guilty of maliciously inflicting grievous bodily harm on each of the deceased.

4    The crown case was that both deceased were beaten up by a group of several men at the Ehwa Karaoke Bar at Kings Cross (which was owned and managed by the appellant), and that they died as a result of the beating. The crown’s case was conducted on the basis that it could not prove which blow or blows caused the deaths of the respective deceased or (necessarily) who in the group had delivered the fatal blows.

5    There was no room for serious doubt on the evidence that the deceased were in fact savagely beaten in the confrontation which ensued and received the injuries from which they died.

6    The primary crown case was that the appellant and Mr Bae were active participants in the assault. However, there was an alternative basis, peculiar to the appellant, which did not require proof that the appellant was present and assisting in the beating. This basis asserted that the appellant procured the beating when he telephoned Sang Hoon Lee. The challenge to the directions relates to this aspect of the crown case.

7    Sang Hoon Lee gave evidence that the appellant summoned him and two companions to the bar in the course of a telephone conversation, saying, “The gangsters are here so come here quick”. He went on to say in his evidence that, once there, he with others, including the appellant and his co-accused, proceeded to give the deceased a severe beating. This was evidence on which (taken with the other material) it was open to the jury to find that the appellant had procured Mr Lee and his companions to beat up the deceased. On the other hand, it was also open to the jury to find that Mr Lee and his companions were summoned by the appellant to persuade the deceased to leave, if necessary by use of some unspecified degree of force but not involving a beating.

8    In his evidence, the appellant denied summoning Mr Lee and his companions to beat up the deceased or indeed summoning them at all. He also denied any personal involvement in the beatings. There was, however, a scenario which the jury could find - and might have found as the fact - partly by reference to the opening statement by counsel for the appellant which followed the crown prosecutor’s opening address. Counsel told the jury that the appellant’s case was that the deceased were seen in a vehicle outside the bar, that the appellant made contact with Mr Lee and that the appellant asked Mr Lee to come and tell the men to move on, but that he also told Mr Lee that there was to be no fighting. In the event, the appellant did not give evidence along those lines. He denied any such conversation. But the jury was entitled to reject his denial and to use the opening statement by counsel as evidencing an admission by the appellant that he asked Mr Lee to come and move the men on, but without getting into a fight. (Much time was spent in the appeal exploring a factual issue as to whether counsel’s instructions from the appellant permitted such an opening. We incline to the view that they did, but it is unnecessary to resolve this issue in light of what follows.)

The Law

9    It is necessary to be clear about terminology. The following terms have the following meanings ( Osland v The Queen (1998) 197 CLR 361, per McHugh J at 341-2):

“Principal in the first degree” means the person who actually performs the criminal act.

A person who is criminally responsible in some other way is referred to as a “secondary party”. Secondary parties are as follows.

“Principal in the second degree” means a person, present at the commission of the crime, who aids or assists in its commission.

“Accessory before the fact” means a person, not present when the crime is committed, who urges or contributes towards commission of the crime.

“Accessory after the fact” means a person who assists the perpetrator after the offence has been committed.
10    Along with these legal concepts, stands the doctrine of common purpose. This was explained in McAuliffe v The Queen (1995) 183 CLR 108, 113-4 as follows. We quote from the joint judgment of the court (emphasis added):
“The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission (See Giorgianni v The Queen (1985) 156 CLR 473). But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission (cf R v Lowery and King [No 2] [1972] VR 560 at 560, per Smith J).
Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture ( Mansell and Herbert's Case (1556) 2 Dyer 128b [73 ER 279]; Ashton's Case (1698) 12 Mod 256 [88 ER 1304]; R v Radalyski (1899) 24 VLR 687; R v Kalinowski (1930) 31 SR (NSW) 377. See generally Smith, A Modern Treatise on the Law of Criminal Complicity (1991), pp 209-214.) However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose (See R v Johns [1978] 1 NSWLR 282 at 287-290, per Street CJ).”
11    The concepts in the two paragraphs quoted above were helpfully labelled by Hunt CJ at CL in Tangye (1997) 92 ACrimR 545 as “straight forward joint criminal enterprise” and “extended joint criminal enterprise”. His Honour observed in that case (at 556):
“The Crown needs to rely upon a straightforward joint criminal enterprise only where - as in the present case - it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed.”

12    In Osland (at 343), McHugh J approved the following statement by Hunt CJ at CL in Tangye (at 556):
“The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying on that enterprise.”

Thus, where legal responsibility for the act or acts of another arises from participation in a joint criminal enterprise, the secondary party is liable as a principal for the crime committed by the perpetrator.


13    In this judgment, we will use Hunt CJ at CL’s terminology of “straight forward joint criminal enterprise” and “extended joint criminal enterprise”.

14    Speaking generally, if a person procures another to commit an unlawful act and death ensues because the act inflicted was objectively dangerous, then the first person will be guilty of manslaughter. On this basis of liability, it is vital that the unlawful act be part of the common design or joint criminal enterprise. If the dangerous act done is within the scope of the joint enterprise both the principal offender and the accessory before the fact will be liable ( Giorgianni v The Queen (1985) 156 CLR 473 at 502-3).

15    Identification of the scope of a joint enterprise may be a difficult question of fact, because there will be situations where a particular act is no more than an unexpected incident of carrying out a common design. An accused need not see or authorise every detail of the principal offence. In R v Anderson & Morris [1966] 2 QB 110, the use of a knife was regarded as being beyond the scope of a joint enterprise to beat up the victims and on that basis a conviction for manslaughter against Morris was quashed. On the other hand, in Varley v The Queen (1977) 51 ALJR 243 the use of a cosh was regarded as within the scope of such a joint enterprise. It was said in Varley (at 247) that it could not reasonably be held that the use of such an instrument was not within the scope of the common design, the act done being no more (it was said) than an unexpected incident of carrying out the common design. Varley was a case of straight forward joint criminal enterprise.

16    It all depends on “whether what was done was within the scope of the common design” ( Markby v The Queen (1978) 140 CLR 108 at 112 per Gibbs ACJ). It is not sufficient that the principal offender has committed the same offence in law as that promoted by the secondary party. Rather, the execution of the offence by the principal offender must not differ materially in kind from that agreed (cf Fisse, Howard’s Criminal Law 5th ed p343).

17    In Duong (1992) 61 A Crim R 140 Mathews J (with whom Handley JA and Sully J agreed) referred to Anderson & Morris , Varley and Markby and continued (at 148-9, emphasis added):
It is this phrase, “an unexpected incident in carrying out the common design” [ Varley at 246] which has led to some confusion in this area of the law: see, eg, Woolley (1989) 42 A Crim R 418 at 438. Its meaning is central to the resolution of these appeals.
We start with the proposition that the word “incident” means “incidental act” rather than “occurrence” or “event”. This is made clear both by its context and by its use in other authorities on the subject: Johns; Varley; Woolley; Hui Chi-ming [1992] 1 AC 34.
The first step in this as in all cases of accessorial liability, must be to determine the scope of the original agreement. What was the extent of the common design? Was the act which caused death something which, although in fact uncontemplated and unexpected by the accessory, was nevertheless, viewed in retrospect, reasonably within the scope of the joint plan?
This will always be a question of fact, not law, and in many cases will be a matter of degree. So in Varley the use of a baton, although in fact unexpected, was held to be within the range of events which might reasonably be expected to occur during the “roughing up” of a large, strong man. On the other hand, the use of a knife as in Anderson and Morris , was entirely outside the scope of what could be expected to occur during the course of a minor assault.
It is clear from the terms of the Chief Justice’s judgment in Varley and the Acting Chief Justice’s judgment in Markby that their Honours were imposing an objective test upon this aspect of accessorial liability. And there is some logic in this. For when determining an accessory’s culpability for manslaughter in a situation where the principal is guilty of murder, one can assume that the act causing death was not within actual contemplation. If it had been, then in most cases the accessory would also be guilty of murder. The issue in relation to manslaughter is whether, notwithstanding that the fatal act was not in fact foreseen or contemplated, it was nevertheless, from an objective point of view, within the scope of the common design. If it was then the accessory will be taken to have encouraged it, and he will be guilty of manslaughter. If it was not, then the principal will have gone so far outside the common purpose that the accessory will bear no criminal responsibility for his actions.
18    It is necessary in every case to decide whether the act done is materially different from the act agreed. If it is, contemplation of the act done is necessary to establish secondary responsibility and the principles relating to extended joint criminal enterprise would have to be engaged.
Grounds of Appeal


19    The grounds of appeal include the following: That his Honour gave directions as to the elements of manslaughter, including joint enterprise, which were erroneous and misleading.

20    In our view, the appeal should be allowed on this ground. Our reasons follow. It is unnecessary for us to consider the other grounds of appeal.

The case submitted to the jury


21    From beginning to end, the crown put its case on manslaughter as one of joint criminal enterprise. Conformably, the trial judge summed up on that basis.

22    The trial judge provided the jury with written directions. This was not done until towards the end of the summing up. The summing up anticipated the written directions, but with some qualification to which we will refer.

23    In the written directions, which we will now quote in full, we have emphasised passages for later reference:
“ DIRECTIONS IN RELATION TO EACH ACCUSED AND EACH VICTIM
MURDER - JOINT CRIMINAL ENTERPRISE
Elements :-
1. An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the particular 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.
2. In accordance with the agreement to assault the victim and to inflict grievous bodily harm on him and while the accused continued to be a party to the agreement, a party or parties to the agreement did an act or acts with intent to inflict grievous bodily harm that is to inflict really serious bodily injury, which in fact caused the death of the victim.
3. The accused participated in some way in the joint criminal enterprise to assault the victim and to inflict really serious bodily injury on him.
It is sufficient for the Crown to prove that the accused participated in any one or more of the following ways:-
(i) The accused himself did the acts done with intent to inflict grievous bodily harm which in fact caused the death of the victim (“the fatal act or acts”)
or
(ii) At the time when the fatal act or acts were done by some other party or parties to the agreement, the accused was present and knowing that that party or those parties to the agreement intended to inflict really serious bodily injury on the victim, intentionally assisted or encouraged that other party or those other parties to inflict really serious bodily injury on the victim
or
(iii) In the case of Mr Chai, Mr Chai procured the party or parties to the agreement who did the fatal act or acts, to inflict really serious bodily injury on the victim
or
(iv) At some time before the fatal act or acts were done the accused, knowing that other parties to the agreement intended inflicting really serious bodily injury on the victim, had by words or acts assisted or encouraged parties to the agreement, including the party or parties who subsequently did the fatal act or acts, to inflict really serious bodily harm injury on the victim.

MURDER - EXTENDED JOINT CRIMINAL ENTERPRISE
Elements:-
1. An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the particular victim.
2. In the course of the carrying out of 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 with intent to inflict grievous bodily harm, that is to inflict really serious bodily injury, which in fact caused the death of the victim.
3. Although the inflicting of really serious bodily injury on the victim was not within the agreement, nevertheless the accused contemplated that, in the course of the carrying out of the agreement to assault the victim, a party or parties to the agreement might do an act or acts with intent to inflict really serious bodily injury on the victim, but nevertheless the accused, having that contemplation, continued to be a party to the agreement up to and including the time when the act or acts done, with intent to inflict grievous bodily harm and causing death were done.
4. The accused participated in some way in the joint criminal enterprise to assault the victim. It is sufficient for the Crown to prove that the accused participated in any of the following ways:-
(i) The accused himself did an act or acts assaulting by way of participating in the assaulting of the victim.
or
(ii) At the time when the act or acts done with intent to cause really serious bodily injury and causing the death of the victim (“the fatal act or acts”) were done by some other party or parties to the agreement, the accused was present and knowing that that party or those parties intended to assault the victim and contemplating that that party or those parties might do an act or acts with intent to inflict really serious bodily injury, intentionally assisted or encouraged that party or those parties to assault the victim.
or
(iii) In the case of Mr Chai, he procured the party or parties to the agreement who did the fatal act or acts, to assault the victim.
or
(iv) At some time before the fatal act or acts were done the accused, knowing that the other parties to the agreement intended assaulting the victim and contemplating that a party or parties to the agreement might do an act or acts with intent to inflict really serious bodily injury on the victim, had by words or acts assisted or encouraged parties to the agreement, including the party or parties who subsequently did the fatal act or acts, to assault the victim.
If the jury are satisfied beyond reasonable doubt of all of the elements of murder-joint criminal enterprise or extended joint criminal enterprise, they should find the accused guilty of murder. If the jury are not satisfied beyond reasonable doubt of all of the elements of either murder-joint criminal enterprise or murder-extended joint criminal enterprise, they should find the particular accused not guilty of the murder of the particular victim and they should proceed to consider manslaughter.
MANSLAUGHTER
Elements
1. An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the particular victim.
2. In the course of the carrying out of 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 victim.
3. The accused participated in some way in the joint criminal enterprise to assault the victim. It is sufficient for the Crown to prove that the accused participated in any of the following ways:-

(i) The accused himself did an act or acts of assaulting by way of participating in the assaulting of the victim
or
(ii) At the time when the act or acts which were unlawful and dangerous and which caused death (“the fatal act or acts”) were done by some other party or parties to the agreement, the accused was present and knowing that that party or those parties intended to assault the victim, intentionally assisted or encouraged that party or those parties to assault the victim
or
(iii) In the case of Mr Chai, he procured the party or parties to the agreement who did the fatal act or acts, to assault the victim
or
(iv) At some time before the fatal act or acts were done, the accused, knowing that other parties to the agreement intended assaulting the victim, had by words or acts assisted or encouraged parties to the agreement, including the party or parties who subsequently did the fatal or acts, to assault the victim.
If the jury are satisfied beyond reasonable doubt of all of the elements of manslaughter, they should find the accused guilty of manslaughter. If the jury are not satisfied beyond reasonable doubt of all of the elements of manslaughter, they should find the accused not guilty of manslaughter and should proceed to consider maliciously inflicting grievous bodily harm.
MALICIOUSLY INFLICTING GRIEVOUS BODILY HARM
Elements
1. An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the victim and to cause some injury to the victim.
2. In the course of the carrying out of the agreement to assault the victim and to cause some injury to him and while the accused continued to be a party to the agreement, a party or parties to the agreement did an act or acts in assaulting the victim with intent to cause some injury to the victim, which in fact caused grievous bodily harm, that is really serious bodily injury, to the victim.
3. The accused participated in some way in the joint criminal enterprise to assault the victim and to cause him some injury. It is sufficient for the Crown to prove that the accused participated in any one of the following ways:-

(i) The accused himself did an act or acts of assaulting with the intent to cause some injury, by way of participating in the assaulting of the victim.
(ii) At the time when the act or acts causing grievous bodily harm were done by some other party or parties to the agreement, the accused was present and knowing that that party or those parties intended to assault the victim and cause him some injury, intentionally assisted or encouraged that party or those parties to assault the victim and to cause him some injury
or
(iii) In the case of Mr Chai, he procured the party or parties to the agreement who did the act or acts causing really serious bodily harm, to assault the victim and cause the victim some injury.
or
(iv) At some time before the act or acts causing really serious bodily harm were done, the accused, knowing that the other parties to the agreement intended assaulting the victim and causing him some injury, had by words or acts assisted or encouraged other parties to the agreement, including the party or parties who subsequently did the act or acts causing really serious bodily injury, to assault the victim and cause him some injury.
If the jury are satisfied beyond reasonable doubt of all of the elements of maliciously inflicting grievous bodily harm, they should find the accused guilty of maliciously inflicting grievous bodily harm.
If the jury are not satisfied beyond reasonable doubt of all of the elements of maliciously inflicting grievous bodily harm, they should find the accused guilty of that charge.”

24    The direction recorded in para 3(i) under the heading, “Murder-joint criminal enterprise” was withdrawn. That was because the crown did not assert that the jury should or could find that the appellant or Mr Bae had done the particular act or acts which caused death in relation to either of the deceased.

25    It may be noted that, in relation to the second basis for murder, the heading over that section included the words “Extended joint criminal enterprise”. The section also included, as an element in the case to be proved, that the appellant contemplated an act or acts done with intent to inflict really serious injury. The other sections in the written directions - relating to the first basis for murder, and to manslaughter and maliciously inflict grievous bodily harm - did not carry those words in the respective headings, and did not include the element of contemplating an act or acts which had a character different from that agreed upon as the subject of the joint enterprise.

26    The trial judge’s oral summing up concerning the elements in the crime of manslaughter, as those charges were left to the jury, was as follows (emphasis added):
“1. The first element is the same as the first element in the extended joint criminal enterprise way of establishing guilt of murder. The first element is that an understanding or arrangement amounting to an agreement came into existence between the particular accused you are considering and other persons to assault the victim. All that I said earlier about such an understanding or arrangement applies equally here. 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.

2. And this is the second element of manslaughter; in the course of carrying out the agreement to assault the victim and while the accused whose case you are considering 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. The crucial point with manslaughter is that it is not necessary that the act or acts which caused death should have been done with the intent either to kill or to inflict grievous bodily harm. It is sufficient that the act or acts were unlawful and dangerous. 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 this case there is no evidence of any lawful excuse and you might think it clear that neither victim consented. 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.
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. It is not necessary that the person doing the act should himself have realised that doing the act would expose another person to an appreciable risk of serious injury.
In the present case the Crown submits that the acts which caused the head injuries from which the victims died were acts which were dangerous; that is, acts such as a reasonable person in the position of the person doing the acts would have realised would expose the person to which the acts were done to an appreciable risk of serious injury;
3. And this is the third element of manslaughter; the particular accused participated in some way in the criminal enterprise to assault the victim. It is sufficient for the Crown to prove beyond reasonable doubt that the accused participated in any one of the following ways which are similar to ways I have described earlier: The first alternative, the accused himself participated in the assaulting of the victim by doing an act or acts of assaulting; or, secondly, at the time when the act or acts causing death were done by some other party or parties to the agreement, the accused was present and, knowing that that other party or those other parties intended to assault the victim, intentionally assisted or encouraged that party or those parties to assault the victim: thirdly, in the case of Mr Chai, that he procured the person or persons who did the fatal act or acts to assault the victim; fourthly, even if the accused whose case you are considering was not present at the time when the act or acts causing death were done nevertheless at some time before those acts causing death were done the accused, knowing that other parties to the agreement intended assaulting the victim, had by words or acts assisted or encouraged other parties to the agreement to assault the victim including the party or parties who subsequently did the fatal act or acts. What I said earlier about the subject’s presence, knowledge, assisting or encouraging and procuring applies equally here as well.

27    A question arises as to what the jury understood or may have understood by this direction, with particular regard to the element of agreement “merely to assault”. Assuming the jury were not persuaded that the appellant joined in the beating, what would the jury have thought would be sufficient to establish an agreement to commit assault for the purposes of the alternative case based upon the appellant’s telephone call to Lee?

28    It is trite law that the crime of assault does not necessarily include physical force, let alone injury, nor even physical contact, although the crime may, of course, involve force and injury. There was, in fact, no definitive direction to the jury as to what they were to understand by the term “assault” for the purpose of the case, particularly the alternative case now under consideration. Herein lay the seeds of ambiguity as to the scope of the common design in the alternative, procurement scenario.

29    In relation to the charge of manslaughter, the jury were told in the oral part of the summing up which we have quoted that it was sufficient if the object of the agreement was merely to assault the victim. His Honour also said, however, in that part of the summing up, that what he had said in regard to assault, when dealing with murder by an extended joint criminal enterprise, applied. The written directions in that connection referred simply to an agreement to assault. However, the written directions relating to murder by a straight forward joint criminal enterprise, appearing immediately before, explained assault as meaning “to apply physical force to the victim’s body”. Furthermore, the oral directions, were in terms that the allegedly agreed crime was assault involving physical force to the body of the victim (summing up pp 38 and 45). The distinction between murder by a straight forward joint criminal enterprise and murder by an extended joint criminal enterprise was explained (summing up p 45) as being that, in the former case, there had also to be an agreement to inflict really serious injury whereas, in relation to murder by an extended joint criminal enterprise that was unnecessary. This left the trial judge’s reference back to what was said about murder by an extended joint criminal enterprise as meaning that, for the purpose of the charge of manslaughter, assault included some degree of force to the victim’s body. Injury or risk of injury was immaterial according to these directions.

30    In connection with the charges of maliciously inflict grievous bodily harm, the jury asked a question after the written directions were provided. The question was as follows (Tr 260):
“Could you please explain in the simplest possible terms the difference of element 1 in manslaughter as opposed to element 1 maliciously inflict grievous bodily harm, in particular the word “assault”, if possible in writing.”
31    The trial judge answered the question as follows so far as is presently relevant:
“Ladies and gentlemen, the first element of manslaughter is set out at page 3 of the directions. An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the particular victim.
The first element of maliciously inflicting grievous bodily harm is set out at the foot of page 4 and the top of page 5 of the directions. The first element of maliciously inflicting grievous bodily harm is the same as the first element of manslaughter except that the words “and to cause some injury to the victim” appear at the end of the first element of maliciously inflicting grievous bodily harm. The reason for the inclusion of the words, “and to cause some injury to the victim” in the first element of maliciously inflicting grievous bodily harm is that it is an ingredient of the offence of maliciously inflicting grievous bodily harm, that the inflicting of the grievous bodily harm was maliciously done and in the present circumstances that would require proof beyond reasonable doubt that an understanding or arrangement came into existence between the accused and other persons to assault the victim and to cause some injury to the victim.
It is the case that the first element of maliciously inflicting grievous bodily harm as compared with the first element of manslaughter requires proof of that further matter. That is, the agreement was not just to assault but to cause some injury to the victim.”

32    This direction conveyed to the jury that it was sufficient for the charge of manslaughter that the agreed crime was to assault without causing injury. That was consistent with the earlier directions that to establish an agreement to assault for the purpose of the manslaughter charges, it was sufficient that what was agreed was an assault involving some degree of force to the victim’s body.

33    Contrary to this reading of the summing up, the crown submits on appeal that the trial judge made it clear to the jury that procurement of a severe beating was an essential feature of the crown case. The crown relies on a passage in the summing up where the trial judge was reviewing the arguments put to the jury by the crown prosecutor and trial counsel in their final addresses. The trial judge said (summing up p 148):
“The Crown does not suggest that there was any pre-formed agreement to assault the two victims. The Crown accepts that the two victims turned up outside near the Ehwa uninvited and unwanted. The Crown suggested that it was decided by the accused to give the two men a beating to prevent or discourage them from interfering with the business of the Ehwa.”


This passage cannot be construed as a direction by the trial judge that it was an essential part of the crown case that the accused entered into an agreement to give the deceased a beating. The essential elements in the crown case were conveyed to the jury by the written directions and those parts of the oral summing up to which we have referred. Those directions fell short of any such direction.

Discussion

34    The directions relating to manslaughter were within the legal framework of joint criminal enterprise. Accordingly, they contained no instruction that it was necessary for the jury to find that the appellant contemplated what might be done beyond what was agreed.

35    So far as concerns agreement to do a criminal act, the trial judge directed the jury that the agreement asserted against the appellant was an agreement to assault the victims, meaning thereby (he said) the application of physical force to the body. An agreement to move the men away from the bar, if necessary by the application of physical force to the body but without injuring them, would have satisfied this element of the crown case as it was left to the jury. Such a finding as to what was agreed could well have been made by the jury on the basis of the evidence by Mr Lee that he was asked to come without more specific instructions as to what he and his companions were to do when they arrived or if the jury acted on the opening statement by counsel that the appellant asked Mr Lee to come and tell the men to move on but “no fighting”.

36    What was actually done was the severe and prolonged beating of the two men. That this happened was not seriously in dispute. The appellant’s presence and participation, were, however, in dispute. In these circumstances, 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.

37    There is a significant difference between moving men on, if necessary by the application of bodily force but without injuring them, and the severe and prolonged beating which occurred. It could not be said that such a beating was a mere incident of what was agreed to be done, if the procurement was limited to the former category. In the context of this trial, reference to “an agreement … to assault” in par 1 of the written directions on manslaughter was too general. Absent greater specificity, it embraced a situation where the appellant summoned Lee and his companions with instructions to move “the gangsters” away by no more than threat of force as well as a situation where the instructions were to beat the gangsters if necessary. What is critical is that, in a summing up that avoided reference to extended joint criminal enterprise qua manslaughter, the scope of the former situation did not in fact embrace a beating, even as an unexpected incident. Unless Lee and his companions were summoned to administer that type of assault if necessary, the joint enterprise between them and the appellant did not involve the act that turned out to cause the death.

38    There is, therefore a serious possibility that the jury may have convicted the appellant on a basis which would not amount to criminal responsiblity according to law. That is a miscarriage of justice. Subject to Rule 4, the conviction should be quashed.

39    Although trial counsel for the appellant did ask for a further direction, he did not ask for the direction that mattered, namely, that, in the circumstances of the case, there had to be either an agreement to do what was done or contemplation that what was done might occur. Rule 4 therefore applies. However, the problem with the summing up is so fundamental that leave should be granted.

40    The following orders should be made:


1. Appeal allowed.
2. Conviction quashed.
3. Order a new trial.

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