R v Duong - [2011] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DUONG & ORS
[2011] SASCFC 100
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Peek)
31 August 2011
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY
CRIMINAL LAW - EVIDENCE - CREDIBILITY - RE-EXAMINATION OR EVIDENCE TO RESTORE CREDIT
EVIDENCE - ADMISSIBILITY AND RELEVANCY - RES GESTAE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
Appeal against conviction - a jury found each of the appellants guilty of murder - the deceased was killed in the course of a brawl that erupted at the end of a birthday party one night in December 2009 - the deceased was fatally stabbed - each of the appellants were present and each of them was involved, to some extent, in the brawl - each appellant pleaded not guilty at trial, putting liability for the death of the deceased in issue.
The issues on appeal included whether the trial Judge erred in allowing the re-examination of a prosecution witness by the prosecutor after the witness had been cross-examined by defence counsel on a prior inconsistent statement - whether the trial Judge incorrectly admitted hearsay evidence on the basis it was part of the res gestae to prove identity - whether the trial Judge erred in directing the jury on the use of various pieces of evidence - whether the trial Judge erred in directing the jury on issues of complicity, aiding and abetting and joint criminal enterprise - whether the trial Judge went into sufficient detail in the summing up - whether a general circumstantial evidence direction was required in this case - whether the trial Judge erred in posing questions to the jury requiring them to speculate - whether directions on manslaughter were too narrow and had the effect of denying the accused the availability of a verdict of manslaughter - whether the summing up of the trial Judge was adequate as whole - whether there was a real or significant risk of a miscarriage of justice - whether the verdicts were unsafe and unsatisfactory.
Held: the trial Judge correctly permitted re-examination - the hearsay evidence was admissible as part of the res gestae to prove the identity of the attackers - the trial Judge adequately explained and directed the jury on the use of various pieces of evidence and its strengths and weaknesses - no circumstantial evidence direction was required in this case - the many complaints concerning the directions of the trial Judge and the summing up of the trial Judge were rejected - if the trial Judge went into the level of detail and specificity contended for by the appellants, it would have been counterproductive and unduly burdensome to the jury - no real or significant risk of a miscarriage of justice - verdicts not unsafe and unsatisfactory in the circumstances.
Appeal dismissed.
Walton v The Queen [1989] HCA 9, (1989) 166 CLR 283; Papakosmas v The Queen [1999] HCA 37, (1999) 196 CLR 297; McAuliffe v The Queen [1995] HCA 37, (1995) 183 CLR 108; R v O'Flaherty [2004] EWCA Crim 526, [2004] 2 Cr App R 20; RPS v The Queen [2000] HCA 3, (2000) 199 CLR 620, discussed.
R v Andrews [1987] AC 281; Shepherd v The Queen [1990] HCA 56, (1990) 170 CLR 573; Gillard v The Queen [2003] HCA 64, (2003) 219 CLR 1; Gilbert v The Queen [2000] HCA 15, (2000) 201 CLR 414, considered.

R v DUONG & ORS
[2011] SASCFC 100
Court of Criminal Appeal: Doyle CJ, Vanstone and Peek JJ

DOYLE CJ: A jury found each of the appellants guilty of murder of Thea Kheav. Thea Kheav was killed in the course of a brawl that erupted at the end of a birthday party one night in December 2007. Thea Kheav was fatally stabbed. There is no doubt that each of the appellants was present at the time and that each of them was involved, to some extent, in the brawl. However, liability for the death of Thea Kheav was put in issue by their respective pleas of not guilty.
Most of the grounds of appeal relate to different aspects of the trial Judge’s directions to the jury.
Facts
What follows is a summary of the evidence. It does not identify all relevant witnesses nor all relevant evidence.
Thea Kheav was 21 years old at the time. He was invited to attend the 18^th birthday party for Richard Nguyen at Parafield Gardens. The party was held at the home of Mr Nguyen’s parents.
Thea Kheav went there with his three brothers, Rithy aged 26, Tha aged 20 and Johnny aged 19.
The four Kheav brothers arrived at the party about 7.00 pm. The party took place in the backyard of the house and at the side of the house.
From the point of view of an observer standing on the street and facing the house, to the immediate left of the house was an enclosed garage with a roller door. To the left of that was a pair of iron gates, wide enough (if the gates were open) for a motor car to drive through. The gates extended to the side fence, closing off the back of the property. Some rubbish bins were adjacent to the point where the gates met the fence. The house was to the right of the roller door referred to. A paved driveway, the width of the double gates and the roller door, led from the street to the gates and roller door. In front of the house was an area of lawn. There was no fence at the front of the property.
During the evening the appellant Rotha Sem (Sem) arrived. He was accompanied by the other two appellants, Chansya Duong (Duong) and Kiet Huynh (Huynh). There were a number of other people with them. Most of the group did not stay at the party for long. Most of them left with Duong and Huynh and went to Duong’s house. Sem remained at the party.
It appears that the Kheav brothers did not like the group just referred to. Thea Kheav spoke to Mr Nguyen or Richard Nguyen about why the group had been invited to the party. This led to a confrontation between Sem and Rithy Kheav, Sem saying he had heard what Rithy Kheav had said about him and his companions. Tha Kheav was present at the start of this confrontation. The confrontation turned into a loud argument in the course of which, according to Rithy Kheav, Sem threatened to kill Rithy Kheav and his family. At some point in the course of this argument Tha Kheav became aggressive, and was restrained by other guests at the party. Tha Kheav broke free and again confronted Sem. Sem and Tha Kheav swore at each other loudly. At some point Sem said words to the effect of “Watch your back”, got into his car and drove off.
By now it was about midnight, and the party was beginning to wind down. People were beginning to leave.
Sem apparently drove to Duong’s house, where the rest of his group were. He told some of them what had happened. According to the witness Ms Francis, he was angry and wanted to go back to the party at the Nguyen house. Ms Francis said that Sem might have said “Let’s go get them.” It appears that the group as a whole began to leave the Duong house. As they were walking out Ms Francis heard someone (she did not know whom) say “Get a knife.” The group, or most of them, returned to the Nguyen house in several cars.
Witnesses who were at the Nguyen house or in neighbouring houses said that they saw a number of cars pull up outside the house. The number of cars varied between two and five, and estimates of the number of people varied between 10 and 40. Witnesses described the men in the group as being armed with bottles, pieces of wood, sticks, blue metal poles, baseball bats, machetes and a fishing knife. The appearance of the group was evidently aggressive, because as they approached the Nguyen house many of the people still at the party retreated behind the roller door of the garage and closed the roller door. The double gates earlier referred to were already closed. Thea Kheav was left outside the garage when the roller door closed.
Ms Pavic, Tran Lan and Bao Lam saw Duong armed with a piece of wood about one metre long. They said they saw him damaging parked cars. Ms Pavic saw Duong throw bottles at the Nguyen house. David Lam saw Sem armed with two spirit bottles when he got out of the motor car in which he arrived.
When the group arrived Thea Kheav was leaning against a motor car on the driveway at the left side of the house. He was with a friend, Ms Farmer. There was evidence from Johnny Lam that Duong hit Thea Kheav on the head with a bottle, and that Thea Kheav fell to the ground, probably on the roadway. Witnesses described the attack on him as continuing, and described him being hit, kicked and punched by a group of people. David Lam saw two or three people kicking Thea Kheav. Some witnesses gave evidence that Sem and Duong were involved in the attack on Thea Kheav. There was evidence that members of the group were hitting, kicking and punching Thea Kheav. Ms Pavic gave evidence that she saw Sem, Huynh and a man, Kimlong Rim, punching and kicking Thea Kheav while he was on the ground. Ms Pavic said she saw Sem hit Thea Kheav with a bottle. There was evidence that Duong hit Thea Kheav on the back of the head with a bottle.
Some people helped Thea Kheav get up and get off the roadway where he had fallen.
Thea Kheav then went towards the double gates, close by the rubbish bins adjacent to the side fence of the property. There was blood on his face. He tried to climb over the gate to escape those who were attacking him. There was evidence that some or all of the group who had attacked him earlier were pulling him from the gate and continuing their attack on him. Johnny Lam saw Duong and Huynh pull Thea Kheav from the gate and hit at him with pieces of wood. Thea Kheav fell to the ground and the group continued to attack him. This was by the rubbish bins. Rithy Kheav saw Sem holding Thea Kheav up so that other members of the group could continue to beat him. Johnny Lam saw Huynh and Duong hit at Thea Kheav with a piece of wood. Rithy Kheav said he saw Duong stab Thea Kheav or carry out a stabbing motion, who was on his knees at the time. David Lam saw several people hitting and kicking Thea Kheav. It is likely that during the course of these events Thea Kheav was stabbed and suffered the fatal wound. Not long after this the brawl came to an end.
Thea Kheav suffered 32 injuries. Many of them were the result of the application of a blunt object, others were the result of cuts from glass or sharp objects. There were bruises on Thea Kheav’s chin, lower lips, nose, eyebrows, left cheek, left eye, left ear, left forehead, and various places on his back and chest. There was only one stab wound, and that was the fatal wound. It was a single stab wound to the central upper abdomen, 20 mm above the belly button. The blade had been plunged 16 cm into Thea Kheav, reaching the spine and cutting a hole in one of the vertebra.
The weapon has not been found. The stab wound was consistent with a blade that was sharp on one side and blunt on the other.
For convenience, I summarise the evidence relating to events at the Nguyen house and relating to each of the appellants. This is based on the summary provided by the Director of Public Prosecutions. It does not attempt to deal with the many criticisms made by defence counsel of witnesses and particular pieces of evidence.
Ms Pavic said she saw Duong, when he returned to the party, with a one metre piece of wood, and throwing bottles at the Nguyen house. Three witnesses (Tran Lan, Bao Lam, and David Lam) also said they saw Duong with a one metre piece of wood. Johnny Lam said that he saw Duong swing a beer bottle to the back of the head of Thea Kheav in the course of the attack on the driveway.
At the time when Thea Kheav was being attacked adjacent to the rubbish bins, Loc Nguyen said he heard Rithy Kheav say, “Syna [a name used for Duong] with Rotha [a name used for Sem], they are stabbing my brother”. Johnny Lam saw Duong by the gates and saw him punching and kicking at Thea Kheav. Daniel Smith, who was inside the gates, and who knew Duong, said he saw Duong put his head over the top of the gates at about the time of the attack adjacent to the rubbish bins. Johnny Lam said he saw Duong pulling Thea Kheav off the gates, and could see Duong swinging at Thea Kheav with pieces of wood. A witness, Mr Hampton, said at about this time he heard the name “Syna” spoken. Neither Mr Smith nor Mr Hampton were challenged in cross-examination on their evidence that Duong was seen at the gates at this time. Johnny Lam and Rithy Kheav both said they saw Duong attack Thea Kheav by the gates. Rithy Kheav said he saw Duong stab Thea Kheav.
David Lam said he saw Sem armed with two spirit bottles. Johnny Lam said he saw Sem holding a bottle as he approached the Nguyen house. He heard Sem say, “I’m going to fuck this cunt up”. Sem pushed Johnny Lan out of the way. Ms Pavic saw the attack on Thea Kheav on the driveway, and said she saw Sem hit Thea on the head. She said he was the first person to hit Thea with the bottle. She said that when Thea Kheav was on the ground, Sem, Huynh and Kimlong Rim kicked him, punched him and threw bottles at him. When the attack must have been taking place by the bins, Loc Nguyen said he heard Rithy Kheav say, “Syna with Rotha, they are stabbing my brother”. Johnny Kheav said he saw Sem at the gates, and saw him holding Thea Kheav while others punched Thea Kheav.
As to Huynh, Ms Pavic said she saw Huynh and Kimlong Rim hit Thea Kheav and throw bottles at him after Sem hit Thea Kheav on the head with a bottle. When Thea Kheav was on the ground, Ms Pavic saw Huynh continue to hit him. Johnny Lan said he saw Huynh pulling Thea Kheav off the gates as he was trying to climb over them. He saw Huynh swing at Thea Kheav with a piece of wood. Rithy Kheav said he saw Huynh stab Thea Kheav.
The above summary is drawn from a substantial body of evidence. Not surprisingly, some witnesses saw nothing of any particular relevance. There were differences and conflicts as between various witnesses. There were legitimate criticisms to be made of some of the evidence.
The trial was a lengthy one. The jury was empanelled on 14 October 2010. The jury returned their verdicts on 25 November 2010, the 21^st day of the trial.
Re-examination of Johnny Lam (Ground 19)
Ms Powell QC, counsel on appeal for Huynh, and Mr Abbott QC, counsel on appeal for Duong, rely on this ground.
Johnny Lam gave evidence that he saw Duong and Huynh dragging Thea Kheav off the gates and hitting at Thea Kheav. In cross-examination by counsel for Huynh, Johnny Lam was asked about some differences between his evidence relating to Huynh and a statement made to police in January 2008. He was asked about some things he had said then and things he had not said. Then Johnny Lam was cross-examined by counsel about what he had said about the role of Huynh when carrying out a photo identification in August 2008. The video recording of the photo identification was played to Johnny Lam and to the jury. Johnny Lam agreed with counsel that the police officer conducting the investigation had directed his attention to certain parts of his statement of January 2008. The police officer then asked him to tell the police officer “a bit more” about what Huynh did, and Johnny Lam said:
When he turned up he just ran in and started throwing bottles through the gate and started smashing cars.
When asked, in effect, if that was all Huynh did, Johnny Lam said “no”, and when asked about the discrepancies said that he had just woken up, although the identification took place late afternoon.
The purpose of the cross-examination was to challenge the credibility of Johnny Lam, by suggesting an inconsistency between his statement of January 2008 and his evidence.
After hearing submissions, the trial Judge ruled that for the jury to assess the challenge to the credit of Johnny Lam they should know all that he said about the involvement of Huynh in the relevant parts of the January 2008 statement. The Judge allowed the prosecutor to lead evidence in re-examination of what Johnny Lam had said in the relevant parts of that statement.
I would not lightly depart from the trial Judge’s assessment of the impact of the cross-examination as it unfolded. The evidence is a little confusing, but I agree that the jury might well have got the impression from the cross‑examination that all that Johnny Lam said in his January 2008 statement about the involvement of Huynh was what cross-examining counsel identified in the cross-examination. In fact, he had said more. In my opinion the Judge did not err in permitting the prosecutor to re-examine to establish that Johnny Lam had said more, and what it was. That evidence implicated Duong, but that was unavoidable.
In short, it was appropriate to permit re-examination to enable the jury properly to assess the submission of unreliability based on differences between the content of the statement of January 2008 and the evidence given to the jury.
I would reject this ground.
Admission into evidence of hearsay evidence (Ground 1) (Permission to appeal required)
The Judge permitted the prosecutor to lead certain evidence from Mr Loc Nguyen, the father of the young man whose birthday was being celebrated. Loc Nguyen said that as the brawl erupted he retreated into the garage and shut the roller door. He saw Thea Kheav trying “to get in through the side gate”. He said that “three or four guys were dragging him back”, then he heard Rithy Kheav call out:
They stabbing my brother, help me help me.
When asked whether he heard Rithy say who was stabbing his brother, he said:
Yes, only I heard “Syna” [Duong] and with “Rotha” [Sem], they stabbing my brother.
Rithy Kheav did not give evidence of saying what Loc Nguyen attributed to him When asked if he said anything at this stage, he said “I was crying” (T481).In evidence Rithy Kheav said that he saw Duong and Huynh stab Thea Kheav, with a weapon “like machete or samurai”. It is to be recalled that Thea Kheav suffered only one stab wound. The evidence from Rithy Kheav about the number of stabbers and who was stabbing was unclear at times.
The Judge ruled that the evidence was admissible as proof of the identity of the attackers. The Judge provided reasons for his decision. In the course of his ruling he said:
Words are sometimes uttered as a contemporaneous commentary on the speaker’s own conduct, or the conduct of others, as an exhortation to others to act. When spoken in that way, the words are, for all practical purposes, indistinguishable from the conduct that they accompany. It is because words in that context are spoken to give effect to conduct that the risk of concoction may be so reduced as to allow the statement to be safely received into evidence. Moreover, words spoken while the conduct in question is still continuing are less likely to be concocted because the contemporaneous observations of others of the conduct described are capable of exposing the falsity of the assertion. People are less likely to lie in the face of facts or circumstances which are at the time apparent to those other persons to whom they are speaking.
In this case, the proposed evidence shows that the statement of RK, if it was made, was made in a desperate effort to secure some assistance for his brother who was facing a manifestly lethal attack. There is no real dispute that, at the time of the statement deposed to by LN , Thea Kheav was the victim of a ferocious attack. To falsely identify his brother’s attackers could only serve to confuse any efforts which might be made to save him. Moreover, it is unlikely that a person witnessing such an attack on a sibling would have the inclination, or composure, to falsely identify the attackers when others, who were also in a position to see the attackers, could identify the persons whom RK was accusing.
The fact that RK will not depose to making the statement attributed to him does not render the evidence of LN inadmissible. Plainly enough, in the case of a statement made by the victim of a murder, there will be no evidence from the maker of the statement. Because the principle now under consideration is an exception to the hearsay rule, it can not be a necessary condition to admissibility that the maker of the statement give evidence. The absence of evidence to that effect by RK may undermine the reliability of LN’s testimony but that is a question of weight, not admissibility. Even though it is my judgment that these circumstances warrant the admission of the evidence, it will ultimately be for the jury to determine the reliability, and perhaps more importantly the meaning, of the statement attributed to RK.
The Judge told the jury that they could use the evidence to support the prosecution case against Duong and Huynh, if they considered that Loc Nguyen was truthful and that his evidence was reliable.

Mr Abbott submits that the evidence is not admissible to prove identity. He also submits that the evidence was admissible only if the trial Judge first found that the words in question were spoken spontaneously, contemporaneously with the relevant event, and if the Judge found that the evidence (or assertion of identity) was reliable. He submits that in his ruling the Judge focussed on the first two, and did not consider reliability. In relation to that, he makes the point that Rithy Kheav did not say that he said the words attributed to him by Loc Nguyen. He further submits that Rithy Kheav might have made a mistaken assumption about who was stabbing his brother, or might have been mistaken. Loc Nguyen might have been mistaken. Accordingly, he submits that the evidence was not admissible, or should have been excluded by the Judge in the exercise of his discretion.
In my opinion the evidence was admissible.
Its admissibility is supported by considered statements of the law by members of the High Court. For example, in Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 Wilson, Dawson and Toohey JJ said at 304:
An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten; Reg. v. Andrews: see also Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle. Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v. Vocisano. But if sometimes there is an element of hearsay in evidence which is led of statements made by a person other than a witness for the purpose of founding an inference concerning that person's state of mind, the justification for disregarding that element of hearsay may be thought to be of a similar kind. Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable. On the other hand, if a statement by a person about his state of mind is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay.
Citations omitted
In Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 Gleeson CJ and Hayne J at [22] referred with apparent approval to the House of Lord’s decision in R v Andrews [1987] AC 281 (see below). Gaudron and Kirby JJ said at [53]-[55]:
[53]In its early application, the res gestae doctrine was generally confined to statements “forming a portion of or an incident in the transaction which in all its parts and details constitutes one of the matters in issue”. A broader application was acknowledged in Ratten v The Queen, it being said in that case that if “the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received”. The approach taken in Ratten was expressly accepted as correct by Mason CJ in Walton v The Queen and impliedly so in the joint majority judgment of Wilson, Dawson and Toohey JJ.
[54]The more general statement of the principle in Ratten is in these terms:
“[H]earsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”
[55]The principle expressed in Ratten is crucially dependent on the virtual certainty of the statement in question being true and, to that extent, it reflects the common law's bias against the reception of hearsay evidence …
Citations omitted
The concluding sentence in those observations provides a foothold for Mr Abbott’s submission. However, their Honours treated the decision in Andrews as correct. In the course of his speech in that case Lord Ackner said at 301:
5.As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error.
In the present case the statement by Rithy Kheav had all the marks of a spontaneous statement. It was made at the very moment when crucial events were taking place. It related to the infliction of the fatal wound. There were good grounds to exclude the possibility of concoction. The failure of Rithy Kheav to give evidence that he made the statement in question does not, in my opinion, render the evidence of Loc Nguyen inherently unreliable, or even likely to be unreliable. It would not have been surprising if Rithy Kheav had no recollection of a spontaneous utterance, forced from his lips, as it were, by the pressure of events. If Loc Nguyen appeared to the Judge to be a reliable witness, that provided a basis to support the admission of his evidence. There remained the possibility that Rithy Kheav, if he uttered the words in question, was mistaken. But to say that is no more than to say that the evidence was not immune from any attack. I consider that the Judge’s decision to admit the evidence is supported by the authorities.
I do not accept the submission by Mr Abbott that it is a condition of admissibility in cases such as this that the Judge find that the evidence in question is reliable, as well as being contemporaneous with the relevant event and spontaneous. The comment by Gaudron and Kirby JJ (above) which might appear to support that submission, refers to the circumstances and timing of the statement, and is referable to the question of deliberate concoction or distortion, not to the ordinary issue of reliability. The portion of the speech of Lord Ackner set out above is inconsistent with the notion that the Judge must always decide on reliability, and the decision in Andrews has often been referred to with approval. In the words of Lord Ackner, in this case reliability emerges only under the guise of “… the ordinary fallibility of human recollection …”, and accordingly was a matter for the jury.
I do not accept Mr Abbott’s submission that the evidence could not be used to prove the identity of those who attacked Thea Kheav as he tried to escape over the gates. There is nothing in the authorities to support such a general proposition. Mr Abbott relied on some observations in Walton v The Queen (1989) 166 CLR 283 at 306 and 309 to support the submission. Those observations are referable to the circumstances of the particular case, and do not establish any general principle.
The evidence in question was admissible against all defendants. The evidence directly implicated only Sem and Duong. But evidence of their participation in the attack on Thea Kheav in the course of which the fatal wound was inflicted was evidence that, linked with other evidence, could implicate Huynh. The evidence in question was evidence of events part of the overall picture upon which the jury could draw when considering the case against Huynh.
Finally, in my opinion there was no reason why the Judge should have rejected the evidence on the basis that its prejudicial effect outweighed any probative value.
The Judge directed the jury carefully about the use of the evidence. He alerted them to the possibility that Loc Nguyen was mistaken, and also to the possibility that Rithy Kheav was mistaken, even if they were satisfied that he made the statement in question: summing up at 15.
For those reasons I would grant permission to appeal but reject ground one.
Directions concerning the evidence of Mr Hampton and Mr Smith (Ground 16 and Ground 17)
Mr Hampton was at the party. He gave evidence about the start of the brawl. He saw a group of people approaching in a hostile manner, and bottles being thrown. He retreated behind the roller door. Mr Hampton knew Thea Kheav. He saw Thea Kheav run to the gates and try to climb over. Thea Kheav screamed for help. He saw Thea Kheav pulled down from the gates, and then being kicked and hit. He saw someone lunge at his chest. He heard someone speak the name “Syna”, a reference to Duong. This evidence could be used to support an inference that the name was referable to the man who lunged at Thea Kheav. Mr Hampton admitted he had been drinking and consuming cannabis that night.
Daniel Smith also saw the beginning of the brawl. He was very close to Mr Hampton when the two of them were behind the roller door. He saw Thea Kheav trying to climb over the gate. He saw him being hit, and then dragged back off the fence. He could not see who did that. Mr Smith had seen Duong two or three times before at different places and knew his name. While these events were happening, he saw Duong put his head over the gates. He recognised him. He saw Duong put his head over the gates within 30 seconds of Thea Kheav being pulled down from the gate.
The effect of this is that Mr Hampton heard Duong’s name at a crucial stage of the events (although he could not say who uttered it), and Mr Smith saw his face.
Mr Abbott submits that the Judge’s directions erroneously suggested to the jury that the evidence of Mr Smith was corroborated or supported by the evidence of Mr Hampton. This submission appears to be based on a comment made by the Judge that the evidence of Mr Hampton about the naming of Duong appeared to coincide with Mr Smith sighting Mr Duong. In my opinion no valid complaint can be made about that comment.
The fact that one of them heard Mr Duong named, and the other saw him looking over the fence, does not mean that their evidence is necessarily in conflict, nor that the evidence of one could not be some support for that of the other. The circumstances were chaotic. One of them might have heard something the other did not hear, one of them might have seen something the other did not see. I reject this criticism.
I also reject the criticisms of the Judge’s directions. He appropriately warned the jury about the need for them to consider the possibility of mistake by Mr Smith or Mr Hampton, and the possibility of a mistake by the person who called out Mr Duong’s name. Mr Smith’s evidence was recognition evidence not identification, and did not necessarily require a direction of the kind usually given in relation to identification evidence.
It is a relevant fact that in cross-examination neither Mr Hampton nor Mr Smith were challenged as to the accuracy of this aspect of their evidence.
Taking all of these matters into account, I consider that no error on the part of the Judge has been demonstrated.
Directions relating to youth of appellants (Ground 5A)
The Judge gave the jury extensive directions relating to joint criminal enterprise. I will come to them later. In the course of these directions he gave the jury directions about what the accused might have contemplated would happen if they contemplated an attack intended to inflict harm, but not serious harm, or an attack intended to inflict serious bodily harm. He told the jury that it was a question of what each of the accused appreciated might happen. In that context he said that they should take into account the youth of each of the appellants, in deciding whether each of them contemplated that a knife might be used or that grievous harm might be caused. He referred to the possibility that they were prepared to “… take their chances as only a youth might, that although he contemplated the risk he hoped it would not come to pass …”.
The defendants complain that this was a misdirection. They make the point that one might equally reason that a more mature person would be more likely to appreciate the possible risks of the course of conduct on which they embarked.
In my opinion there is nothing in this complaint. It was a comment that the Judge was entitled to make, and that the jury were well able to assess for themselves.
Directions relating to Loc Nguyen, the Kheav brothers, Johnny Lam and Miss Pavic (Grounds 12, 13 and 14)
These grounds raise a number of complaints about the manner in which the Judge directed the jury in relation to the evidence of the named witnesses.
Each of the witnesses gave evidence that was a significant part of the prosecution case. Each of the witnesses were attacked on the basis that their testimony was unreliable, by reference to previous inconsistent out of court statements, or by reference to the failure to say things at relevant times prior to the trial, the relevant things then being raised at the trial.
One of the complaints made is that on a number of occasions the Judge, when referring to the evidence of one or other of these witnesses, told the jury that they were entitled to take into account independent evidence which they considered supported the evidence of the particular witness. The complaint is that the Judge did not identify, separately in relation to each of the witnesses, what the relevant independent evidence was and how it might support the evidence of the witness.
Another complaint relates in particular to the evidence given by Loc Nguyen that he heard Rithy Kheav call out that Duong and Sem were stabbing his brother. The Judge had told the jury that only statements made in court were evidence. He identified for them some relevant exceptions to that rule. He explained the admissibility of the evidence of Loc Nguyen by telling them that some statements, contemporaneous with conduct directly in issue, could be received as evidence. He said that such circumstances:
… are circumstances I weigh up in deciding whether to admit the evidence and receive it”,
and said that such circumstances:
… are circumstances which enhance the reliability of the statements and leave less scope for fabrication”.
He went on to comment that:
It is, you might think, although again it is a matter for you, not very likely that a person witnessing a serious attack on a relative or a friend will call out and speak falsely about what is playing out in front of them.
The complaint is that the Judge has unnecessarily explained his decision to admit this evidence by indicating that he has found the evidence to be reliable, thus inappropriately enhancing the quality of the evidence and undermining any cautionary guidance that he might give to the jury, as he did.
Again, in relation to Loc Nguyen, in the course of posing some matters that the jury might consider in relation to the reliability of his evidence, the Judge said:
You must ask yourself – is there a reason that distracts [probably detracts] from what you might otherwise think is genuinely reliable evidence?
The complaint is that this tends to reverse the onus of proof, by posing the question similar to the question “Does the witness have a reason to lie?”.
Another complaint, illustrated by what the Judge said in relation to evidence by Miss Pavic, is that the Judge again reversed the onus of proof, or undermined any cautionary remarks he made. Referring to her evidence he raised with the jury the question of whether she was for some reason biased, and whether there was any interest she could hope to serve by giving false evidence.
In relation to the three Kheav brothers, the Judge referred to the sympathy which jurors might naturally feel for them, having seen their brother killed without being able to save him. He reminded them of the criticisms of their evidence, and of suggestions that they were motivated by a desire for revenge. He told the jury to:
… treat their evidence with great caution and scrutinise it carefully before basing a verdict of guilty on that evidence alone.
The Judge went on to tell the jury that it was up to them to consider whether the evidence of the Kheav brothers was supported by evidence from other sources, but once again, it is complained, without identifying what that evidence was and which of the Kheav brothers it supported, and in what respect it supported the relevant brother.
I have considered each of the parts of the summing up about which complaint is made. In my opinion, the criticisms made are not valid.
First, the Judge gave adequate general directions about the assessment of witnesses. Second, this was a case in which it was evident that there might be reasons why one of the witnesses now under consideration would have a reason to implicate falsely one of the accused. The risk of mistaken perceptions at a chaotic event like the brawl, and the risk of unreliable recollections of such an event, is also plain. In my opinion this was not a case in which there was a risk of the jury overlooking such matters, unless brought to their attention by the Judge.
I do not accept the submission that it was incumbent on the Judge to identify for the jury the independent evidence that was capable of supporting the testimony of each of the witnesses now under consideration, and how that independent evidence did so. The Judge had to make an assessment of the extent to which going into details would be counter productive, by adding to the length of the summing up and by over burdening the jury with details. That, of course, cannot be a reason to omit something that is essential. But the prosecution case, taken as a whole, was capable of supporting the evidence of each of the witnesses now under consideration. It was appropriate to consider the evidence of each of those witnesses in the context of the prosecution case as a whole, and indeed in the context of the evidence as a whole. It follows that for the Judge to work through each item of evidence capable of supporting each of the witnesses in question, or even to work through the more significant ones, would not have been adequate. It would have been necessary to paint the broad picture as well.
I consider that the Judge adequately related his directions to the facts, in this respect, and it was not incumbent upon him to go to the further level of detail for which the appellants now contend. Although it is not of great weight, it is relevant that no complaint was made about this at trial.
I agree with Mrs Shaw QC that it would have been better if the Judge had not explained the rationale for admitting Loc Nguyen’s evidence in the manner in which he did explain it. There was no need to tell the jury that the Judge thought that the circumstances enhanced the reliability of the statement said to be made by Rithy Kheav. But the Judge directed the jury carefully and adequately about the reasons why the evidence of Loc Nguyen might not be reliable, and also the reasons why anything that Rithy Kheav said at the time, if he said something, might not be reliable. I do not consider that the Judge’s explanation for admitting the evidence would have misled or would have swayed the jury.
I do not agree that the question the Judge posed, “Was there anything that might distract [or detract] from otherwise apparently reliable evidence?”, tended to reverse the burden of proof. When the Judge made statements of this kind they were in the context of directions to the jury posing questions or raising issues for their consideration. Such statements did not stand alone, as the only issue to be considered. It was relevant for the jury to consider whether there was anything that might detract from what at first sight appeared reliable evidence. The question was relevant and appropriate, as long as the Judge avoided inadvertently reversing the onus of proof. The Judge did not reverse the onus of proof by the manner in which he approached this matter.

Miss Pavic was also a significant prosecution witness. In relation to her, a separate complaint is made. It is that the Judge unduly emphasised in relation to her the question of whether she was biased, or had an interest to serve by implicating the accused, and paid inadequate attention to the question of whether her evidence was reliable. The complaint is not sound. In fact, in the passage complained of in particular, the Judge spent more time on the issue of reliability that he did on the question of whether she might have had a reason to give false evidence.
For those reasons I reject these grounds of appeal.
Lack of circumstantial evidence direction (Ground 10)
The appellants submit that the Judge erred in not directing the jury about how circumstantial evidence could be used to establish guilt. No complaint is made about the trial Judge’s directions about the requirement for proof beyond reasonable doubt, nor about those parts of the summing up in which the Judge dealt with the drawing of inferences from direct evidence and proven facts: summing up 66, 77-78, 104, 107, 123.
To a significant degree the prosecution relied on direct evidence to prove the involvement of each of the appellants in the brawl, in the attack on Thea Kheav and in the stabbing of Thea Kheav. This was evidence identifying one or other of the accused at relevant stages of the brawl, and evidence describing where they were and what they were doing as the brawl unfolded. There was also direct evidence about them leaving Duong’s house and going to the Nguyen house. There was direct evidence from which the jury could conclude that one of Duong or Huynh was the person who stabbed Thea Kheav. It was more or less beyond argument that the fatal stabbing was done with intent to kill or cause serious bodily harm. The wound and the immediate circumstances surrounding the stabbing were powerful evidence of that. However, it is the case that the prosecution relied on the jury drawing inferences as to any plan that the appellants made in the course of the events and as to what the appellants foresaw and expected. It is also the case that to a considerable degree the prosecution case relied on the drawing of inferences from what might be called the episodic direct evidence about the involvement of the appellants.
In that respect, it can be said that the prosecution relied upon circumstantial evidence, in part, to prove guilt.
But there is no principle or rule of law, and no definite rule of practice, that requires a trial Judge to give what is called a circumstantial evidence direction in every case in which the prosecution relies on circumstantial evidence: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 578 Mason CJ; Grant v R (1975) 11 ALR 503 at 504 Barwick CJ.
I have considered the summing up as a whole. There is a significant body of direct evidence. The Judge adequately directed the jury about the drawing of inferences from that evidence, and more generally. None of the counsel at trial asked the Judge to give a circumstantial evidence direction. That is not decisive, but suggests that at trial counsel did not consider the case one in which such a direction was called for. I do not consider that a circumstantial evidence direction along traditional lines was called for. Considering the summing up as a whole, I do not consider that the failure to give such a direction could have given rise to a risk of a miscarriage of justice.
I would dismiss this ground of appeal.
Directions on liability as an aider and abetter (Ground 2)
One of the bases upon which the prosecution put its case was that each of the accused could be found guilty as the aider and abetter of the person (other than the accused under consideration) who stabbed Thea Kheav.
The complaint under this ground, and some of the following grounds, relates to a document containing the directions of law that the Judge gave to the jury. The directions are divided up so as to deal with each separate basis of liability put forward by the prosecutor.
I should explain how the document came into being. The Judge began to sum up late on the afternoon of Monday 22 November 2010. He adjourned after about 30 minutes. The summing up resumed at about 10.30 am the next day. The jury retired to consider their verdict about 3.15 pm. About 4.00 pm the jury asked for a “written description” of the legal issues in the trial. After some discussion with counsel, the Judge released the jury at the end of the day. The next morning, Wednesday 24 November 2010, one of the jurors was unwell, and the document was not ready. The Judge again released the jury and adjourned the trial to Thursday 25 November. On the morning of that day the Judge gave the jury the document they had requested, and read it to the jury. The document is 17 pages long, and is double spaced with several pages not completely covered with text. The jury again retired to consider their verdict about 11.00 am, and returned their verdict about 3.00 pm that day.
In relation to liability on the basis of aiding and abetting, several complaints are made about the document.
The first is that the Judge told the jury that they should consider the knowledge of the relevant accused “at the time the stabber inflicted the fatal wound”. The complaint is that this was not the relevant time. The relevant time was when the act of participation of the relevant accused, as a secondary offender, occurred.
The next complaint is that the Judge told the jury that the relevant accused must have intentionally helped, encouraged, assented to or concurred in the murder, but did not tell the jury that the relevant accused must have had the requisite state of mind at the time of the active participation on the part of that accused.
The third complaint is that the Judge did not tell the jury that any act of assent or concurrence had to amount to intentional assistance or encouragement to the stabber.
In my opinion none of these complaints are sustainable.
The Judge told the jury that the prosecution had to prove that “at the time the stabber inflicted the fatal wound” the relevant accused knew of the presence of the knife, knew what the stabber was doing, realised the stabber was acting unlawfully and realised the stabber intended to kill or cause grievous bodily harm. The Judge then told the jury that the prosecution had to establish that with that knowledge the relevant accused either intentionally helped the stabber commit the murder; intentionally encouraged the stabber to commit the murder by his presence and behaviour; or intentionally conveyed to the stabber by his presence and behaviour an assent to and concurrence in the commission of the murder.
In my opinion there can be no complaint at all that the Judge focussed on the time at which the stabbing took place. If anything, that was favourable to the accused because it might be said to be too limited a time span. Be that as it may, the fact is the Judge told the jury that at the time of the stabbing the relevant accused had to know what the stabber was doing with the knife, had to know the stabber intended to kill or cause grievous bodily harm, and that at that time the relevant accused helped, encouraged, or conveyed assent to and concurrence in the murder, in each case doing so intentionally. The Judge told the jury in terms that they had to find that the relevant accused intentionally helped, intentionally encouraged, or intentionally conveyed assent and concurrence. That covers the matters raised by this ground.
A further complaint is that these directions suggested to the jury that an accused could be convicted if the accused witnessed the stabbing, and subsequently conveyed an assent to the stabbing. No such suggestion was made to the jury.
When the Judge directed the jury on the relevant matters earlier in the summing up, before the document was provided to the jury, he did so in terms that appear to me to be correct. However, I agree that having regard to the prominence given to the written document, after the completion of the oral directions, an error in the written document would not be saved by an earlier correct direction.
I would dismiss this ground.
Ground 3 – Directions on murder by joint enterprise to commit murder (Permission to appeal required)
This ground is based mainly on the written direction that the Judge gave to the jury.
The first complaint under this ground is that the Judge erred in failing to direct the jury that an essential step in the proof of guilt was proof that the relevant accused participated in some way in the joint enterprise, if the jury were satisfied that there was a joint enterprise. It was not enough to prove the making of an agreement or arrangement between the accused and other relevant accused. To prove only the agreement or arrangement, and not participation in the joint enterprise with the necessary foresight, was to prove no more than a conspiracy to commit the crime in question.
The second complaint is that the Judge did not direct the jury that to find an accused guilty they had to be satisfied that he intended that Thea Kheav be killed or suffer grievous bodily harm.
The relevant part of the written directions is as follows:
The general principle is that if two persons come to an agreement or make an arrangement that together they will commit a crime and then, while that agreement or arrangement is still on foot and has not been called off, in accordance with that agreement or arrangement one of them does, or they do between them, all the things that are necessary to commit the crime they are both guilty of that crime regardless of what part each played in its commission.
In order to prove that the accused or any one or more of them is guilty of murder by reason of involvement in a joint enterprise to murder, the prosecution must prove each of the following elements beyond reasonable doubt:
1.That the accused came to an agreement or made an arrangement with others (the participants) to use a knife or similar bladed weapon to kill or cause really serious bodily harm to a person or persons at 8 Vartue Street.
2.That pursuant to that agreement or arrangement a participant killed Thea Kheav by stabbing him.
3.That the participant who stabbed Thea Kheav did so with the intention to kill Thea Kheav or to cause him really serious bodily harm.
4.That the killing of Thea Kheav was unlawful, not in self defence.
The direction closely follows what the High Court said in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108. There the Court said at 114:
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.
Footnote omitted
A little later, the Court turned its attention to liability for crimes that one party foresees but does not agree to. They said at 118:
As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.
This statement of the law was referred to with approval in Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 at [110]-[111] Hayne J, Gleeson CJ and Callinan J agreeing at [10] and Gummow J agreeing at [31]. Hayne J also commented on something foreseen as a possible incident of a joint venture, even if the party did not agree to it being committed. He said at [112]:
The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight.
Citation omitted
I agree that liability on the basis of joint enterprise depends on the jury being satisfied that there was more than an agreement or arrangement to commit the crime in question. There must be some participation in the joint venture by the accused, so that it can be said that the accused participated in the joint venture with the necessary foresight. I agree also that the Judge did not identify this as a separate element to be proved.
But in the circumstances of this case, there was no risk at all that the jury found any one of the accused guilty without finding that that accused participated in the joint enterprise to kill or to cause really serious bodily harm to Thea Kheav. The three accused left Duong’s house together. They travelled to the Nguyen house together. Ms Francis gave evidence that Sem encouraged the others to return to the Nguyen house. There was evidence that each of the three accused was armed, and in different ways joined in the attack at the Nguyen house. There was evidence linking them with the attack on Thea Kheav on the roadway. There was evidence before the jury linking each of the accused closely with the stage of the attack at which Thea Kheav was stabbed.
As I have said, in my opinion there is no risk at all that the jury convicted any one of the accused on the basis of an arrangement to kill or to cause serious bodily harm, without being satisfied that the relevant accused participated in the joint venture. This is the case whether the arrangement was made at Duong’s house, on the way to the Nguyen house, or at the Nguyen house. It was sufficient if the jury was satisfied that the agreement or arrangement was on foot at the time of the fatal injury.
As I understand it, the case was based on the conduct of the three accused from which the jury might infer, as the prosecution suggested, an arrangement or understanding to kill Thea Kheav or cause him serious bodily harm, and the carrying out of that arrangement. The issue was whether, from what the accused did, the jury were prepared to find that the necessary arrangement or understanding was made. Any such finding was necessarily based on evidence that amounted to proof of the making of the arrangement or understanding and participation in it.
Mr Abbott made a separate complaint about the earlier directions that the Judge gave on this topic, before the written memorandum was prepared. As it happens, in that part of the directions the Judge directed the jury in terms that met the criticism just dealt with, because he referred to the accused acting as a team to achieve a mutually agreed result. In relation to this passage, Mr Abbott complained that it was worded in a manner that might convey to the jury that if three or four people made an agreement or arrangement, the combined action of any two or more might render all of them guilty of the crime which the two or more committed. That is a strained reading of the relevant passage, and there is no reason to think that the jury would have understood the passage in an incorrect sense.
Mr Abbott also submitted that the Judge erred in failing to direct the jury in a good more detail than he did. He appeared to argue that the Judge should have directed the jury in terms requiring them to find just when the relevant agreement or arrangement was made, what was its scope at that moment, what were the acts of participation on the part of each accused, if there was an agreement or arrangement, whether there was any change in the planned or contemplated crime, and when and how that occurred. He made further complaints of this kind. I do not agree that it was necessary for the Judge to direct the jury in that manner, nor do I consider that it would have been helpful to do so. There was no need in this case for that kind of precision. The issue was whether, bearing in mind what happened at Duong’s house, the return to Nguyen’s house, the carrying of weapons, AND the attack on Thea Kheav, the jury were prepared to find that the three accused had by the time of that attack made an agreement or arrangement of the kind identified by the Judge. It was not necessary to track the unfolding of the agreement or arrangement, as it were, from stage to stage. Participation in any agreement or arrangement was not the issue in this case. The real issue was what the jury made of the conduct of the accused, and whether that conduct established the relevant agreement or arrangement. If it did, it did it by establishing conduct that amounted to participation.
I would grant permission to appeal on this ground, but would dismiss this ground of appeal.
Directions relating to murder on the basis of “extended joint enterprise” (Ground 4)
The first complaint under this ground is the same as the first complaint under the previous ground. The answer to the complaint is the same.
The second complaint is that the Judge failed to direct the jury that the relevant accused must have foreseen the possibility that another person might stab someone at Nguyen’s house, but as well must have foreseen that the stabber might do so with intent to kill or to cause really serious bodily harm.
The Judge did not make this mistake in the written directions. The written directions are clear and specific on the point. I consider that any possible mistake in the earlier directions was remedied by the written directions. In any event, I have considered the earlier directions and in my opinion they are correct. On two occasions, when dealing with the topic of joint enterprise, the Judge referred specifically to the intent of the stabber: summing up 68-70, 124-126. In another passage (summing up 92-93) the Judge did not, but in that passage the Judge was focussing on the awareness of the relevant accused that a knife was going to be used. Similarly, in another passage (summing up 105) the Judge did not refer to the intent of the person with the weapon but there the Judge was directing attention to the question of whether the accused had contemplated that one of their number might bring a knife with him.
I would dismiss this ground.
Misdirections on details of joint enterprise (Ground 5)
The first complaint under this heading is that the Judge directed or allowed the jury to consider the prosecutor’s “vague narrative as to the alleged joint enterprise”. The complaint is that the prosecutor did not, before the jury, properly particularise the joint enterprise upon which he relied. The prosecutor, and the Judge directing the jury, should have been specific in relation to when the agreement relied upon was made, who were the parties, the stage of events when the agreement was reached, the scope of the agreement, whether the agreement changed as events unfolded. The complaint is that having regard to the manner in which events unfolded, from the discussions at the Duong house to the final fatal stabbing, and having regard to the fact that at the Nguyen house there were a number of encounters and acts of violence, it was essential for the Judge to pose more specific questions for the jury. On this approach, it would have been necessary for the Judge to pose a series of questions for the jury, covering at least all of the main possibilities.
I do not accept that submission. It was for the jury to decide what agreement was made, between whom it was made, when it was made and what its scope was. The Judge told the jury that, early in his directions (summing up 67). In some cases it will be helpful for the Judge to pose quite specific questions for the jury, supported by references to evidence, that will help them focus on specifics. But in the present case it was not practical to do so, without lengthening the summing up considerably. Along the way the Judge directed the jury clearly about the kind of agreement that they had to consider. This material was repeated in the written memorandum. The prosecution case was not vague. It was that each of the appellants was involved in an attack on Thea Kheav, as part of a joint enterprise to kill or to inflict grievous bodily harm, or because there was a joint enterprise in which one or other of the accused foresaw that another of the accused (or even another person) might act with intent to kill or cause grievous bodily harm, or because the relevant accused aided and abetted the murder. As long as the jury understood the elements or essentials of liability, it was for them to apply those elements or essentials to the facts. I would go so far as to say it would not have been helpful for the Judge to try to identify all of the possible permutations and combinations for the jury. That would have been counterproductive.

In my opinion, in the circumstances of this case, the Judge did not err in the respect complained of.
Another complaint is that Judge referred to guilt being based on “any one of the accused” agreeing to something. On many occasions the Judge used the formula “the accused or any one of them” or something similar to that. The complaint in relation to this is that the jury were not directed that a finding of guilt depended on whether the prosecution had proved that a particular accused had made an agreement that included the principal offender. In my opinion there is nothing in this point. Earlier in the summing up (summing up 59) the Judge told the jury that the expression “the accused or any one of them” was used “… to emphasise the importance of giving the case against each accused separate consideration”. I am confident that the jury, on the many occasions when the Judge used a formula of this kind, would have understood that he was raising for their consideration a question of what a particular accused had done or agreed to or contemplated.
A further complaint is that this formula “any one of the accused” was used in a manner that suggested that each of the accused might be guilty on the basis that any one of them had contemplated something. For example, at summing 69 the Judge said:
The question becomes for you: does the evidence show beyond reasonable doubt that the accused or any one of them agreed to join in the proposed assault … Alternatively, are you satisfied that the accused or any one of them contemplated that the others who jumped in the cars … might arm themselves in any number of ways with the intention of inflicting really serious harm … ?
Once again, in my opinion there is no risk of the jury being misled by, or misunderstanding, what the Judge was saying. The Judge made it clear that the jury had to consider the case against each accused separately. He used a relatively simple formula, having told them what it meant.
Yet another complaint is that by using the word “participants” in his directions, the Judge left it open to the jury to think that a particular accused might be guilty on the basis of an arrangement between other persons to kill or cause really serious bodily harm, those other persons being the participants, the particular accused simply having joined in after relevant events had occurred. The submission is that this tendency towards erroneous reasoning was implicit in the word that Judge used, and that the tendency is exemplified in the passage from the Judge’s written memorandum set out earlier in my reasons. I will not repeat it here. It suffices to say that I find no support for that criticism in anything that the Judge did.
Yet another complaint is based on a different expression that the Judge used. The Judge told the jury that participants in a joint criminal enterprise rarely put their agreement or arrangement in writing. He did this as part of his explanation to them of what he meant by an agreement or arrangement. He told the jury that they could use their “common experience of human affairs” to assist them in deciding what agreement or arrangement, if any, was made involving the accused. The Judge said (summing up 66):
A person can throw his lot in with others in a number of ways. You can throw your lot in with someone by jumping in a car, by carrying a similar weapon and accompanying him down the street which is the evidence in this case. You can throw your lot in for the purpose of joining in an agreement in that way. But whether you are satisfied that the evidence in this case proves that the accused engaged in conduct by which they throw their lot in with the others is a matter for you and a matter which must be proved beyond reasonable doubt.
I should add that on a number of occasions the Judge used the expression “throwing his lot in with others”.
Two complaints are made about this passage. The first complaint is that the issue for the jury was whether a particular accused was proved to have made an agreement or arrangement with another accused or offender and to have participated in some way in the execution of that agreement or arrangement. It was argued that the expression repeatedly used by the Judge had a tendency to distract the jury from the key issue. The expression “throw his lot in” diverted the jury from proof of an agreement and proof of participation in the execution of the agreement. The second complaint is that the Judge effectively took a critical issue out of the jury’s hands. The evidence was that the accused had travelled from Duong’s home to Nguyen’s home by car, taking weapons with them. The complaint is that in the passage above the Judge has, in effect, told the jury that the evidence in the case before them was proof of a key issue, the joining in an agreement or understanding as between the accused and possibly others. The complaint is based on the words “which is the evidence in this case”.
As to the first complaint, it might have been better for the Judge to avoid the use of a substitute expression. But the Judge told the jury clearly and repeatedly that they were concerned with a joint criminal enterprise, and he frequently referred to an agreement or arrangement, to people acting in a team to achieve a mutually agreed result. He frequently used the word “agreed” or “agreement”. He told them that it was a matter of drawing inferences from proven conduct. It was in the context of directions like that that, on occasions, the Judge used the language about which complaint is now made. In the written directions the Judge did not use this language at all. He spoke only of “agreement” or “arrangement”. I have considered each of the passages complained about. There were also some other occasions on which the Judge used the expression complained about. I am satisfied that there was no risk of the jury being diverted from the correct issue, or failing to misunderstand it, from the language used by the Judge.
The second complaint has more substance to it. I agree with Mrs Shaw that it would have been better to avoid using the facts of the case to illustrate an aspect of the Judge’s directions. But in the passage set out, and on other occasions, the Judge emphasised that the facts were for the jury. The issue in relation to this complaint is whether what the Judge said might have led the jury to think that the Judge was telling them the answer to the relevant question, or was inappropriately expressing an opinion on it. I have carefully considered the passage complained of, which is set out above. I am not persuaded that the jury might have thought that the Judge was saying that the facts of the case did establish a joint agreement or arrangement. I am satisfied that they would have understood that the Judge was saying only that they could so conclude, and of course, that was right.
Directions relating to Sem’s continued participation in the joint enterprise (Ground 7)
The only evidence identifying Sem as involved in the final stage of the brawl, when Thea Kheav was pulled down from the gates and probably was stabbed, came from the Kheav brothers and from Loc Nguyen (the evidence of what he said he heard Rithy Kheav say). This evidence is summarised under Ground 1. There was other evidence identifying Sem as being involved in the initial attack on Thea Kheav on the roadway.
The Judge directed the jury in relation to the question of whether, even if Sem was part of a joint enterprise to attack and to kill or seriously harm Thea Kheav, Sem might have abandoned or withdrawn from the joint enterprise before the fatal wound was inflicted. For example, (at summing up 124) the Judge reminded the jury of the absence of evidence, other than from the Kheav brothers, about Sem’s presence at or near the gates. He said that the absence of “independent evidence” that Sem was by the gates did not mean that they need not consider whether Sem was involved in what happened at the gates “by way of a joint enterprise”. The Judge said (summing up 124-125):
If you are satisfied beyond reasonable doubt that from what he saw and heard, at or near the roadway incident, Rotha Sem contemplated by that time, or shortly after, that the attack might involve the infliction of grievous bodily harm intentionally and with a bladed weapon, then the Crown case of guilt by way of extended joint enterprise would have been proved. In this context you will remember what I said in the example I gave you when I first discussed joint enterprise. Absence from the yard even if there was absence from the yard at 8 Vartue Street at the time of the gates incident, that is if Rotha Sem was not in the yard at the time of the gate incident, that absence in itself, or a possibility that he was absent, does not leave open the possibility that he had abandoned the joint enterprise. Indeed we know that people who are likely to have had close contact with Thea Kheav got into his car, and I am referring there, that is got into Rotha Sem’s car, and I am referring to the DNA profiling. So ladies and gentlemen, if on the evidence you entertain the possibility that Rotha Sem was not even in the yard at the time of the gateway incident. This question of whether he had thrown his lot in with a joint enterprise involving infliction of grievous bodily harm, whether it had already occurred at the time of the roadway incident. And must you ask yourself, is the fact that he might not have been in the yard, might have been in his car, sufficient to show an abandonment of the joint enterprise?
There is I remind you no evidence that he attempted to call off the attackers, to tell the others that he was out of it, and again you will remember what I said about this question when I gave you the example.
In the course of this passage the Judge referred to an example that he had given to the jury earlier in his directions. This was an example of an agreement between two persons to break and enter a house, one of them going into the house, the other one waiting outside in a motor car with the engine running. In that context the Judge said (at summing up 64-65):
If the driver were to get cold feet while he waited outside his pact with the robber remains on foot unless and until the driver, by words or conduct, communicates to his partner in crime, calls off the enterprise. Indeed, even if unbeknown to his mate in the house the driver were to drive off leaving the robber stranded on the street after the job was done, the driver is nonetheless as guilty of the robbery as the robber, as his partner. The driver’s earlier commitment to play his part in the robbery remains a continuing cause of the crime committed by his partner inside even if he drives off. Only if the driver takes all reasonable steps to neutralise the assistance he gave by joining in the agreement can the driver avoid responsibility.
The Judge then gave some examples.
When considering the point now under consideration, one has to bear in mind that there was no evidence that Sem did anything that might be identified as terminating any agreement or arrangement with the other accused. The present issue arises only because some witnesses who said that they saw Sem involved in the attack on the roadway did not see him after that.
Ms Shaw submits that the Judge’s directions missed the real point. The case before the Court she submits, is unlike the one the Judge used by way of an illustration, in which there was an agreement to break into a house, and a sharing of tasks. She submits that in the present case there was a series of events and acts of violence. There were separate episodes of violence at different points close to and on the house property. The jury might find an agreement involving an accused, and Sem in particular, extending to or embracing the fatal stabbing at the gates, if that is where it occurred. But the jury might find that anything that Sem agreed to did not extend beyond a particular episode or incident, in particular, the attack on Thea Kheav on the roadway. Ms Shaw submits that the jury needed a more detailed and particular direction. This submission echoes other submissions put to the Court. The jury had to be directed to ask themselves whether, if Sem was party to an agreement, at what stage of the unfolding events was it made, with whom was it made, what did it embrace, what evidence was there to support each possibility. In particular, did any agreement to which Sem was a party extend beyond the attack on the roadway?
Ms Shaw referred to the decision of the Court of Appeal (Criminal Division) in Regina v O’Flaherty [2004] EWCA Crim 526; [2004] 2 Cr App R 20. That case bears some resemblance to the present case. It also was a case of joint enterprise. The Court treated the case of one of “spontaneous violence” at [61]. That is not an adequate characterisation of the present case, and that needs to be borne in mind. In the course of the Court’s reasons, the Court said at [61]:
61Furthermore, the decision in R v Mitchell and King (1998) 163 JP 75, so far as we can see, an authority not brought to the attention of the judge, shows that in a case of spontaneous violence in principle it is possible to withdraw by ceasing to fight, throwing down one’s weapons and walking away. In that case one of Mitchell’s defences was that he had withdrawn before the fatal injuries had been inflicted. It was stated by the Court (p. 81) that in those circumstances the jury had to be directed (a) that they must be satisfied that the fatal injuries were sustained whilst the joint enterprise was continuing and that the defendant was still acting within that joint enterprise, and (b) that they must be satisfied that the acts which caused the death were within the scope of the joint enterprise.
62In R v Mitchell and King this Court also considered Soan J. A.’s statement in R v Whitefield that “where practicable and reasonable there must be timely communication of the intention to abandon the common purpose”. It held that while communication of withdrawal is a necessary condition for disassociation from pre-planned violence it is not necessary when the violence is spontaneous.
63For these reasons a defendant who effectively disengages or withdraws before the fatal injury is or injuries are inflicted is not guilty of murder because he was not party to and did not participate in any unlawful violence which caused the fatal injury or injuries. We consider that the question whether or not the violence formed one evolving incident or was two separate and discreet incidents is only relevant in helping to decide whether a particular defendant disengaged before the fatal injury or injuries were caused or joined in after they had been caused.
As I said, the present case cannot be described as one of “spontaneous violence”, bearing in mind how the events began with Sem returning to the Duong house. But there are evident similarities, in the sense that at the Nguyen house there was a sequence or series of acts of violence, involving a number of perpetrators, and not necessarily pursuant to any joint venture. The passage to which Ms Shaw referred is helpful, and I have carefully considered the Judge’s directions in the light of what His Lordship said. In particular, I have considered whether the directions made it clear that the fatal injury had to be sustained while the joint enterprise was continuing, and that Sem was still acting within it, and had to be directed that they needed to be satisfied that the acts causing the death were within the scope of the joint enterprise.
I consider that the written directions met that requirement. I set them out again, with emphasis added:
The general principle is that if two persons come to an agreement or make an arrangement that together they will commit a crime and then, while that agreement or arrangement is still on foot and has not been called off, in accordance with that agreement or arrangement one of them does, or they do between them, all the things that are necessary to commit the crime they are both guilty of that crime regardless of what part each played in its commission.
The balance of this part of the directions is set out earlier in these reasons. It does not detract from what is in the passage just set out. This same direction was repeated to the jury when the Judge came to deal with joint enterprise to commit manslaughter.
I have looked also at the Judge’s earlier directions.
The Judge dealt with the drawing of inferences if the jury concluded that Thea Kheav was stabbed not in the course of the assault on the roadway, but at the gates (summing up 107). In the course of doing so he said:
The question is, after the roadway incident, assuming Thea Kheav was not stabbed there, what has it been shown, what are you prepared to find beyond reasonable doubt the accused contemplated in terms of the use of weapons? Are you satisfied beyond reasonable doubt that the accused or any one of them who continued to participate in the events in the yard at Vartue Street, contemplated, by that time, that a knife might be used?
In this passage the Judge refers to an accused who continued to participate in the events. And there can be no doubt that the Judge had adequately directed the jury that the stabbing had to be something within the scope of the joint enterprise, if it existed. Later, he directed the jury in relation to knowledge that one of the participants in any joint arrangement had a “bladed weapon”. At (summing up 116) the Judge said:
To repeat if you are satisfied beyond reasonable doubt that a bladed weapon was used to inflict the wound on Thea Kheav in the roadway incident you must ask yourselves are you satisfied beyond reasonable doubt on the evidence of the locations of each of the accused that they saw the wound inflicted or became aware at least that a bladed weapon had been used shortly after it was inflicted. If so, are you able to reach a conclusion beyond reasonable doubt about whether the accused or any one of them remained participants in the attack contemplating one or more of their number might use a bladed weapon to cause grievous bodily harm with an intention to do so, or is the evidence still just all to confusing and doubtful to satisfy the stringent requirements of the criminal onus.
Again, the Judge has referred to the question of whether the accused in question remained a participant in the attack, contemplating the use of the bladed weapon.
This part of the summing up is later followed by the passage (summing up 124-125), set out earlier in this part of the reasons. In this part of the reasons the Judge spoke of abandonment, rather than continuance of the joint enterprise.
Although I have found the observations in O’Flaherty helpful, I should say that I do not treat that case as directly applicable to the present case. In that case there was no suggestion of a prearranged plan. In the present case, it was part of the prosecution case that the jury might find there was such a plan formulated at Mr Duong’s home, or as the offenders were leaving or on the way to the Nguyen house. On the other hand, there are aspects of the events which could also be described as “spontaneous violence”.
Be that as it may, taking the Judge’s directions as a whole, I consider that they sufficiently brought home to the jury the need to find that Sem continued to participate in a joint enterprise, if they were to convict him on the basis that the fatal wound was inflicted at the gates, and if they were not satisfied that Sem was present at the gates. Of course, that had to be considered even if Sem was present. My point is that if Sem was found guilty even though the jury were not satisfied that he was involved in the incident at the gates, they had to be satisfied that an agreement or arrangement made at a prior time continued on foot and that Sem continued to be involved.

Then (at summing up 89), the Judge turned to relating the directions on accessorial liability to the facts of the case. The Judge introduced this in the following way (summing up 89):
I will now attempt to put the legal directions I have given you on criminal responsibility as an aider and abettor on the one hand, or as a participant in the joint enterprise on the other in the context presented by the evidence in this case. I want to first draw your attention to the evidence on which the prosecution relies for convictions on the basis either that the accused Chansyna Duong inflicted the fatal wound, aided and abetted by the accused Rotha Sem, and/or on the alternative basis that all three accused aided and abetted a fourth person, perhaps Kimlong, perhaps yet another unidentified person, who inflicted the fatal wound.
Because of the evidence, there are two locations at which Thea Kheav might have been stabbed, I will have to deal with the evidence as to both even though the most convenient first step for you I think will be to decide at which of the two locations Thea Kheav was stabbed. That means that I am going to spend time talking about the one you do not choose. It is not then going to be of use to you but I must do it.
In dealing with the evidence the Judge took what was referred in argument to a narrative approach. He dealt with events stage by stage and witness by witness. He dealt with the evidence bearing on the question of whether the stabbing had occurred outside the house on the road way (summing up 90-96). By way of illustration, at summing up 91 he said:
If you were to conclude that Thea Kheav was fatally stabbed at the end of the road or at the end of the driveway, you will then have to turn to consider the culpability of any one of the accused either in the case of Chansyna Duong as the stabber or in the case of all of them as aiders and abetters of some other person who did stab Thea Kheav. You are unlikely to have any difficulty about the criminal intention of the person who inflicted the stab wound. However, again, that matter is a matter for you.
He referred to the links between the evidence and each of the accused. He dealt with the evidence witness by witness. When dealing with the evidence in this way he identified which accused was implicated, and to what extent. He referred to criticisms that had been made of the relevant witness, and frequently posed for the jury the question of what the evidence proved in relation to each accused. Then he moved to the evidence of events near the gates (summing up 98-103). Again, he took the evidence witness by witness, but linking it to each of the accused and canvassing the possible probative effect and limitations of the evidence. In doing so he reminded the jury about the need for caution in relation to weaknesses in the evidence and in relation to the evidence of the Kheav brothers. What I have just covered related to liability as an aider and abetter.
Then the Judge turned to liability on the basis of joint enterprise, which he dealt with at summing up 103-116. Again he took a narrative or sequential approach, starting at the Duong house and taking events forward to the stage at which those who returned to the Nguyen house had got out of the cars and then to events on the road outside the house. Again, he considered the evidence witness by witness, what it might prove and what its limitations were. He referred to the inferences that might be drawn from the evidence. He referred to significant aspects of the cross-examination of witnesses. He linked it to each of the accused. He turned then to what happened at the gates at summing up 116, completing this part of the summing up at summing up 126. His approach was the same. He dealt with the evidence of the relevant witnesses, with the possible probative effect of that evidence and with its limitations. He did not overlook the differences in the evidence relating to each of the accused. For example, at summing up 123-124 he said:
I remind you that Rotha Sem was not seen by anyone independently of the Kheav brothers at the gateway incident. However, irrespective of whether the accused or any one of them were, or were not, directly involved in the attack on Thea Kheav at the gates, the prosecution case on joint enterprise must be addressed. What does the evidence of the presence of Kiet Huynh and Chansyna Duong at the gates confronting David and Bao Lam, damaging cars, allow you to find about their state of mind, their participation in the joint enterprise and their contemplation of the weapons which might be used and the level of harm which might intentionally be inflicted? Did they by that conduct join or continue participation in a criminal enterprise, which by then, they must have realised might extend to one of the people who come with them using a bladed weapon intentionally to inflict grievous bodily harm? Are you satisfied beyond reasonable doubt that they contemplated that possibility? Alternatively, did they contemplate the infliction of some harm in what they realised was an unlawful attack on Thea Kheav? Are you satisfied that attack was a dangerous one and did Thea Kheav die as a result of it? If you are so satisfied beyond reasonable doubt a verdict of guilty of manslaughter is available.
He then briefly summarised some of the points made by counsel for the DPP (summing up 127-129).
Then he turned to the defence addresses, summarising points that had been made by counsel for the accused (summing up 129-137). That completed the summing up. As a result of the request by the jury for written instructions he provided the jury with a written memorandum which he read to them (summing up 206-223).
While counsel for the appellants made a number of criticisms about what the Judge said, in my opinion there is no significant blemish in what the Judge said.
The complaint under the present heading is one that I have already identified. The complaint is about the failure of the Judge to crystallise separately in relation to each accused the case the prosecution advanced. The submission is that each accused should have been treated separately in relation to each basis of liability, in relation to each of the two places at which the stabbing might have occurred, and in relation to each stage of the events at which an agreement providing a basis for liability on the basis of joint enterprise might have been made.
That raises the issue of whether what the Judge did was an acceptable way of discharging the Judge’s obligation. I accept the submission by counsel for the appellants that it is common to take the approach that they submit the Judge was obliged to take, and that in that respect it could be said that the Judge’s approach was not the usual approach.
But I consider that in all the circumstances of this case the Judge’s summing up was adequate, despite that.
The narrative or sequential approach that the Judge took to events was an appropriate one. In a case like this it would have been difficult for the jury to grapple with the issues of law and fact if the Judge had not outlined the case to them in this sequential manner, linking his directions on matters of law, and his treatment of the evidence, to the events as they unfolded. In other words, I consider that the Judge had little choice but to take the approach that he did. The question is not whether, instead of that, he should have taken the approach that counsel for the appellants submit he was obliged to take. The question is whether he should have done what counsel for the appellants complain he should have done, as well as what he did.
In my summary of the summing up I have endeavoured to convey the manner in which the Judge linked the evidence to the directions on matters of law, and the manner in which he dealt with the evidence in relation to each of the accused as he went. By referring to page numbers I have indicated that the Judge spent a good deal of time linking the law to the facts. I consider that what the Judge did was a sufficient discharge of his duty to put before the jury the case in relation to each accused, and the case being made by each accused. By identifying the limitations and possible weaknesses of the evidence in relation to each of the accused, when dealing with evidence, the Judge did that.
The submission by counsel for the appellants assumes that the only way of discharging the Judge’s duty is what they called the usual way. In my opinion that submission cannot be accepted. The other difficulty with the submission is that it would have necessitated a substantial addition to the summing up, one of some complexity and one that would have added substantially to the length of the summing up. I say this because it was not just a matter of giving a concise summary of the evidence as against each of the accused, highlighting the differences in the evidence as against each accused. That could be done fairly briefly, and was done in a helpful manner by counsel for each of the appellants in the course of the appeal. To meet the complaint by counsel for the appellants the Judge would have found it necessary to revisit much of the summing up, because counsel for the appellants argue that it was necessary to revisit the elements of the offences, all bases of liability, the separate stages at which the stabbing might have occurred, the separate stages at which an agreement or arrangement giving rise to a joint enterprise might have been made. And in relation to each of these they contend that the evidence should have been marshalled again, and its limitations pointed out. I consider that the response to that is that the Judge had in effect done all that, the only valid complaint being that he did not do it separately in relation to each accused. And the answer in relation to that is that it was not essential to do that to discharge the Judge’s duty, to do it would have run the risk of being counterproductive by unduly burdening the jury in terms of length and complexity.
The submission which counsel for the appellants make under this head is one that it is difficult to respond to, otherwise than by pointing to what the Judge did. I have attempted to do that. For the reasons indicated, I would reject these grounds of appeal.
Complaint about directions dealing with evidence about Huynh’s involvement (Ground 8A and Ground 15)
This ground relates to the appellant Huynh only. Submissions in support were put by Ms Powell.
When dealing with the topic of liability as an aider and abetter, and with events close to the bins, the Judge said (summing up 102):
But the point I am making is that the only evidence which identifies the accused in such close proximity that you would be able to make findings satisfying the elements of aiding and abetting, is from the Kheav brothers.
Ms Powell submits that this was wrong. Neither Johnny Kheav nor Tha Kheav gave evidence that Huynh was involved at this stage. The only such evidence came from Rithy Kheav, and Ms Powell submits he was an unreliable witness.
I am satisfied that the jury would have understood the Judge to mean that in relation to the three accused as a group, the only relevant evidence came from the Kheav brothers as a group, and that as to any one of the accused, the evidence came from one or other of the Kheav brothers. In other words, the Judge’s statement was to the effect that one had to turn to the Kheav brothers to find which of them gave evidence implicating which accused. The Judge had just outlined the evidence on this topic (that is, liability as an aider and abetter, and events close to the bins) (at summing up 98–102). The comment complained about concluded that summary, subject to a warning, that followed immediately, to treat with care the evidence given by the Kheav brothers. In the summary the Judge dealt with the evidence by each of the Kheav brothers, and spent some time on the criticisms of the evidence given by Rithy Kheav. It must have been clear from the summary that only Rithy Kheav claimed to have seen Huynh at the gates. In fact, the Judge warned the jury to exercise caution in relying on Rithy Kheav’s evidence when it was not “strongly and directed (sic) supported by other evidence”.
Another complaint related to a passage (summing up 128) where the Judge referred to “evidence that Kiet Huynh was seen at the gates and to bash and pull Thea off the gate”. But the Judge was here summarising the submissions by the prosecutor, and the Judge made it clear that that is what he was doing. It was not a comment by the Judge. It was not necessary for the Judge, in the course of the summary, routinely to clarify submissions by counsel.
Finally, Ms Powell complained about a passage (summing up 328) where the Judge referred to evidence given by David Lam, Bao Lam and Johnny Lam. The Judge said there was “some similarity” between what the former two described and what the latter described. Ms Powell submits that there were many differences, and that to suggest there was “some similarity” was misleading. Once again, this comment had been preceded by a brief summary of the evidence of these three witnesses. It was apparent that there were differences between what they said. The Judge’s comment does not in any sense deny that there are significant differences, and I do not consider that the jury would have been misled by this comment.
I would reject this ground of appeal.
Complaint that the Judge provided written directions to the jury containing the elements of the offences in question without relating those elements to the facts (Ground 9) (permission to appeal required)
I have explained earlier in these reasons that the jury’s request for written directions came after the Judge had completed his summing up. I do not agree that the request indicated that the jury were confused. In the circumstances, the request was not a surprising one. The directions on matters of law were lengthy and were not simple. It is increasingly common for Judges to provide written direction on matters of law. A member or members of the jury might have heard of this, or might have been involved in a case in which it was done.
If written directions are provided, it cannot be said that whenever that is done the written directions must be accompanied by a further set of directions linking the directions of law to questions of fact. Particularly in the circumstances of the present case, bearing in mind that the Judge had completed his summing up, it cannot be said that he was obliged to do this. There is no reason to think that if the jury had wanted more assistance, they would not have asked for it.
I would dismiss this ground of appeal.
Complaint about miscarriage of justice and unsafe conviction (Grounds 20, 21 and 22)
The appellants submit that having regard to the deficiencies said to be present in the summing up, taken cumulatively, and to the weaknesses in the evidence implicating each accused, there is a real risk of a miscarriage of justice and, further, the evidence in any event was such that acting reasonably the jury could not have been persuaded beyond reasonable doubt of the guilt of any one of the appellants.
I have concluded that the complaints about the summing up are unfounded. I have considered them separately. It is necessary to consider their cumulative effect. Most of the complaints require no further consideration, because I am satisfied that there is nothing in them. A few of the grounds raised what I would call minor deficiencies. For example, in relation to the evidence of Loc Nguyen, it would have been better if the Judge had not explained to the jury that he admitted the evidence because the circumstances suggested the evidence was reliable. But reviewing the separate complaints as a whole, it cannot be said that they give rise to a real risk of a miscarriage of justice, based on what the Judge said and did. However, under this head I have reconsidered the submission that the Judge erred in failing to present to the jury the case against each accused separately, rather than in narrative form as he did. I do not here need to repeat the complaint, nor my answers to it. But I have considered whether, even though it was not an error for the Judge to take the approach he did, it can be said that in light of the facts of the case, the failure to take the approach contended for adds force in some way to the attack on the verdict based on the evidence before the jury.
I return to the question of whether the evidence was such that, acting properly, the jury could not have been satisfied beyond reasonable doubt of the guilt of any one of the appellants.
I have already made the point that the brawl was undoubtedly a chaotic event. It involved a number of people, two different groups (the group that came from the Duong house and the group at the Nguyen house), different acts of violence by different people, and a series of unfolding events. Not surprisingly, the recollections of witnesses differed. One can be confident that some witnesses would have observed some of the events, and other witnesses other events. Differences in their evidence are to be expected, rather than to be surprising. A lot would turn on where each witness was, and the direction in which the witness was looking. Differences of evidence do not necessarily amount to a conflict of evidence. Counsel for each of the appellants provided a concise summary of the evidence relating to the relevant appellant, as did Mr Kimber, counsel for the DPP. Counsel for the appellants made the point that a substantial number of witnesses did not implicate any of the appellants, and that in some respect the witnesses relied on by the prosecutor as implicating the appellants were contradicted by other witnesses. Some witnesses were affected by alcohol. Some had motives to lie. The evidence of the Kheav brothers was significant evidence from the point of view of the prosecution. But the Judge told the jury in clear terms of the need for caution in relation to their evidence. Some witnesses had made statements out of court that were inconsistent with their evidence.
It is also the case that out of all the witnesses who were called, the number of witnesses who implicated one or more of the appellants was relatively small, as was the number of witnesses who claim to have seen a knife or bladed weapon. All of these were matters for consideration by the jury, and I accept that they required careful consideration.
However, the broader picture was not a complex one. I outlined it early in my reasons, encompassing Sem arriving at the Duong house, the conversation there, the group returning to the Nguyen house armed with various items, and clearly in an aggressive mood, and the launching of an attack on the people at the Nguyen house, and in particular on Thea Kheav, culminating in the stabbing of Thea Kheav near the gates. The appellants were part of the group who travelled from the Duong house to the Nguyen house, and there was powerful evidence that they were involved in the attack on those at the Nguyen house and, to some degree, in the attack on Thea Kheav.
The central issue for the jury was what each of the appellants did, whether they were prepared to infer that a particular accused was party to a joint enterprise or acted as an aider and abetter, and in the case of a joint enterprise, when it came into being and what its scope was, and what each of the accused foresaw as part of or a consequence of the joint enterprise. I have not attempted to express this in precise terms. It is not my intent to suggest that, contrary to the submissions, the issues for the jury were straightforward. My point is simply that the broad outline of what occurred is relatively straightforward, some involvement on the part of the accused is beyond argument, and a focus for the jury was on the next step in a process of reasoning – the nature and extent of the involvement of each of the accused.

It cannot be denied that there was evidence implicating each of the accused, to some extent at least, in the final stage of the brawl when Thea Kheav was stabbed. Nor can it be denied that there was evidence implicating each of them in an attack on Thea Kheav. I do not consider that the deficiencies in the witnesses relied upon by the prosecution was such that the jury could not properly act on that evidence and return a verdict of guilty. The fact that there were reasons to be cautious about acting on the evidence of certain witnesses, in particular the Kheav brothers, does not lead to a conclusion that their evidence could not be acted upon. The fact that there were limitations and deficiencies in the evidence of other witnesses likewise does not lead to the conclusion that the jury could not properly have acted on that evidence, or parts of it. If one keeps in mind the broader picture, and focuses on the issue of the nature and extent of the involvement of each of the accused, I consider that there was a basis for the jury to return the verdict that they did return.
Under this head I have considered the complaint about the structure of the summing up. I have considered the complaint in particular by reference to the question of whether the facts of this particular case were such that, unless the issues were marshalled in the manner for which the appellants contended, there was a risk of the jury losing their way, and in particular a risk of the jury not properly understanding the limits on the prosecution evidence and the substance of the defence case. I am not persuaded that there is such a risk. I consider that the defence case was presented with sufficient clarity by the Judge, using the approach that he took. In the end that case might be said, in general terms, to be based on limited evidence of involvement, conflicts between witnesses and inherent weaknesses in the evidence of witnesses. A re-reading of the summing up confirms that these matters were brought to the jury’s attention as the Judge’s description of events was unfolded by him.
I reject this ground of appeal.
Orders
I would grant permission to appeal on grounds 1 and 3.
I would refuse permission to appeal on ground 9.
I would dismiss the appeals against conviction.

VANSTONE J: I agree that these appeals should be dismissed.
I agree with the reasons given by the Chief Justice, but wish to add an observation in respect of ground 10 and a qualification in relation to the Chief Justice’s reasons for dismissing ground 7.
Ground 10
The appellants argue that the trial judge erred in failing to give a circumstantial evidence direction. Such a direction is usually given where “the case depends upon circumstantial evidence” (Gibbs CJ in La Fontaine v The Queen (1976) 136 CLR 62) or where “the case rests substantially upon circumstantial evidence” (Barca v The Queen (1975) 133 CLR 82 per Gibbs, Stephen and Mason JJ at 105). The evidence in the present case does not answer either description. This was a case of direct evidence. The fact that the jury would have had to consider drawing inferences from some of the facts it found does not alter the situation.
It is undesirable to give the circumstantial evidence direction where the case does not call for it. To do so would tend to complicate the summing up: La Fontaine per Barwick CJ at 71-72. It might lead to confusion in the jury as to how the standard of proof is to be applied.
Ground 7 – Sem only
Mrs Shaw, counsel for Sem, argued that the direction concerning the possibility that Sem had withdrawn from the events prior to the fatal stabbing were inadequate. In his reasons, the Chief Justice has touched on the English case of R v O’Flaherty [2004] 2 Crim App R 20 315 and the issue of what is required to effect withdrawal from a joint enterprise. The question can also apply to ceasing to aid and abet. As the Chief Justice has observed, there was no evidence that Sem withdrew from any joint enterprise of which he was a part. Mrs Shaw relied on the mere absence of evidence putting him at or near the gates where it is likely the stabbing occurred.
It is not easy to make general statements about what is required in order to effect a withdrawal from a joint enterprise, or to describe what must be done to, in effect, negate the assistance or encouragement necessary to render an aider and abetter criminally responsible. However, in my mind, one would look for communication to the other parties by word or deed of the withdrawal from or abandonment of the crime. A unilateral decision to depart the scene, without any indication to the other parties, would not suffice. It is unnecessary to explore the question further in the circumstances of this case.
I agree with the orders proposed by the Chief Justice.

PEEK J: I agree that the appeals should be dismissed for the reasons given by the Chief Justice. I agree with his proposed orders.