R v Kostic and Stefanopoulos - [2004] SASC 406

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KOSTIC & STEFANOPOULOS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
9 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - PRIOR VISUAL IDENTIFICATION - IDENTIFICATION PARADES
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE
Convictions of arson - evidence - identification of appellant in line-up - previous statement of witness that he had seen a female - line-up comprised of men only - factors relevant to admissibility and weight of evidence - whether evidence of identification admissible - held inadmissible - Evidence of identification - directions to jury - whether directions adequate - Joint enterprise - elements of joint criminal enterprise - directions to jury - whether directions concerning joint criminal enterprise adequate - whether verdicts unsafe and unsatisfactory - appeals allowed
Alexander v The Queen (1981) 145 CLR 395; Festa v The Queen (2001) 208 CLR 593; Davies and Cody v The King (1937) 57 CLR 170; R v Tangye (1997) 92 A Crim R 545; McAuliffe v The Queen (1995) 183 CLR 108; Giogianni v The Queen (1985) 156 CLR 473, applied.
R v Bunting and Wagner (No.6) (2003) 231 LSJS 44, considered.

R v KOSTIC & STEFANOPOULOS
[2004] SASC 406
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J. I agree that the appeals should be allowed, the convictions set aside and a re-trial ordered.
I agree with the reasons for decision prepared by Bleby J.
BLEBY J.
Introduction
In the early hours of 25 May 2002 the Warradale Food Mart at 111 Diagonal Road, Warradale was destroyed by fire. There was evidence that a person or persons had poured kerosene under the rear door of the premises and that the premises were then ignited from the outside. The premises had been for sale at the time of the fire because of some financial difficulties in which the owner, Ms Pavlakos, found herself.
The present appellants were jointly charged with arson in respect of the fire. They pleaded not guilty, and on 21 January 2004 were both found guilty of that charge by a jury. They now appeal against their convictions, but on different grounds.
The evidence at the trial
The prosecution alleged that the appellants were involved in a joint enterprise with an unknown male to set fire to the premises.
A witness, Mr Marinakis, was the owner and operator of a taxi cab. He was working the night shift that night. He stopped for a break at the Saville Motel in Hindley Street, Adelaide and was playing the poker machines in the early hours of the morning. He was approached by the appellant, Stefanopoulos, whom he had known by his first name, Con, for some time. He was asked by Stefanopoulos to drive him and two others to Warradale. He said that he declined at first but eventually relented and agreed to take them. He was acquainted with and knew the first name of the appellant Kostic, but he did not know and had not previously met the third man. The third man was described as being a tall man. Both men were standing by when Stefanopoulos was asking Marinakis to drive the three of them to Warradale.
Marinakis’ evidence was that during the course of the journey one of the passengers in the rear seat – Marinakis did not know who – asked Stefanopoulos, sitting in the front passenger’s seat, if he (Marinakis) was “okay”. Stefanopoulos answered that he was and he had known him for years.
The men requested to stop at a service station. Marinakis drove them into the BP Service Station at the intersection of South Road and Anzac Highway, Glandore. All three men went into the service station. Stefanopoulos returned first and the other two followed shortly. Marinakis believed that they had bought chocolate bars and maybe a drink. Stefanopoulos had bought a pornographic magazine. He also saw the unknown man with a carry bag, like a backpack, which he had when the journey had begun and which he was closing as he came out of the service station shop. He heard the unknown man say to one of the others that he had got three of something. Marinakis did not know what it was that he had obtained.
Marinakis was then directed to drive to a small street known as The Triangle near the intersection of Oaklands Road and Diagonal Road, Warradale which was not far from the scene of the arson. One end of The Triangle joined Diagonal Road on the latter’s western side. Diagonal Road was also readily accessible from the other end of The Triangle. The Warradale Food Mart was also on the western side of Diagonal Road. Marinakis stopped the taxi facing east towards Diagonal Road and saw the appellant Kostic, and the unknown male walk off in a westerly direction behind the cab. Stefanopoulos stayed standing outside the taxi with Marinakis. Marinakis saw the porch light of a nearby house come on. He did not want to disturb the residents so he moved his car about 15 metres towards Diagonal Road. He and Stefanopoulos remained in the car until the others returned, he thought about 10 minutes later, from the direction in which they had left. The two men got back into the cab, the appellant Kostic, and the unknown man sitting in the back. The unknown man said, “Sorry about the smell. I think I have spilt something” or words to that effect. Marinakis was not aware of any smell at that time. He also said that when Kostic returned to the taxi he asked Stefanopoulos why he did not come with them. Marinakis’ evidence was:
“Con responded that ‘we need a lift back’, that he needed to stay with me because I might not have been there when they returned.”
Marinakis was then directed to take the men back to the city which he did. He asserted that he had asked for the fare of approximately $47 but was told by Stefanopoulos that they had no money and would pay him later. He had never been paid the taxi fare. He referred to the fact that he had his log book showing the journey, but he was not asked to produce it.
Mr McBrayne was a console operator at the BP Service Station where the taxi stopped on its way to Warradale. He gave evidence that he worked predominantly the “drag shift”, but there was no other evidence that he was actually working that shift on the morning of 25 May 2002. However, he gave evidence to the effect that he could recall two or three men of scruffy appearance buying two or three litres of kerosene on one of the drag shifts on which he was working. Stock records of the service station were produced which indicated that three litres of kerosene was purchased on 25 May 2002. He said that kerosene was an unusual item to sell.
The witness, Mr Bradshaw, lived at No.3 The Triangle, Warradale. His house was on the northern side of that portion of the street which ran west from Diagonal Road. His house was on the corner of The Triangle, with his driveway on the eastern side of the property. His house faced south. He was woken by his dog at about 2.45 am on 25 May. He looked out of his front window and saw a taxi parked immediately east of his driveway facing east with two men standing nearby. He later took the registration number of the taxi. It was Mr Marinakis’ taxi. The two men were smoking at the back of the taxi. Mr Bradshaw turned his front porch light on. The two men got into the taxi and drove further down the street, stopping about 20 metres further on.
Mr Bradshaw went out to his drive to watch the taxi with the two men in it. He later became aware of two people walking around the south-western corner of his property to turn east along The Triangle and walk towards the taxi. They were walking side by side. He exchanged a greeting with the taller man who was closest to him. He was carrying a bag which looked like a backpack of some sort. The other person was shorter with longish hair. Mr Bradshaw claimed that he could see the left-hand side of this person’s face. There was a street light on the southern side of The Triangle in a south-westerly direction from where Mr Bradshaw was standing, so at no stage did that light illuminate the shorter person’s face. In the meantime, Mr Bradshaw had turned his porch light off, and apart from the street light in The Triangle, there was some indirect illumination from yellow lights on Diagonal Road. As the two people passed he said he could smell “something like a cross between nail thinners, like a nail polish remover, and metho. Fairly pungent odour”. He saw the two people then get into the taxi and the taxi drive off. He reported the presence of the vehicle to the police and about 15 minutes later heard sirens on Diagonal Road.
Mr Bradshaw subsequently gave a statement to the police which included a description of the shorter of the two persons walking along the footpath. At that time he believed that the person was a female. His statement included the following:
“The female I describe as being fair skin with dark straight hair, which seemed to be in a bit of a bob cut down to her shoulders. She was about 20 to 25 years of age, 5 foot 8 inches tall, she came up to his shoulders, of medium to slightly large build, about 65 kg. She was wearing dark clothing as well. I did not get a very good look at her because she was alongside the other person the whole time and I only ever saw her side-on. From what I saw, I am positive that she was a female’.
The appellant, Kostic, was arrested on 1 October 2002 in connection with this offence. Mr Marinakis gave evidence that he was approached once in the Rosemont Hotel in Adelaide and twice at the Britannia Hotel at Kent Town. He was approached by the appellant, Kostic. No dates were given for these approaches but it appeared to Marinakis that Kostic was aware of what Marinakis had told the police. It would therefore appear that these conversations occurred after Kostic’s arrest.
Marinakis deposed that on the occasion at the Rosemont Hotel Kostic said to Marinakis, among other things, “How can you remember it was me? You don’t want to tell them it was me”, and he gave details that appeared to come from Marinakis’ statement to the police.
On the first occasion at the Britannia Hotel Kostic asked Marinakis how his family was. Kostic is alleged to have said, among other things, “You said this, you have also said this. You told them everything. How can you remember it was me? You got to say you can’t remember me.”
On the second occasion at the Britannia Hotel it was alleged that Kostic again said, “How can you possibly remember it was me?”.
There was evidence led from hotel staff tending to confirm, by reference to subsequent conversations between them and Mr Marinakis, that conversations had taken place between Marinakis and Kostic on two of the three occasions. There was also evidence that on 29 August 2003 Mr Kostic, in the company of a tall unidentified man, had visited the house of Ms Pavlakos, the owner of the delicatessen.
Finally, there was evidence led of an identification parade held on 24 March 2003 in which the appellant Kostic was placed and was identified by Mr Bradshaw as being the shorter of the two men whom he had seen walking past the front of his premises on 25 May 2002.
Neither appellant gave evidence at the trial.
THE APPEAL OF MR KOSTIC
Evidence of identification
Before the jury was empanelled, objection was taken on a voir dire hearing to the admissibility of evidence of Mr Bradshaw’s identification of Mr Kostic. The trial Judge viewed a video-tape recording of the identification process and heard evidence from the police officer who arranged it. He did not hear evidence from Mr Bradshaw on the voir dire.
The complaint on the voir dire was that, although there were ten persons in the line-up, very few of them bore any resemblance in height or facial features to Mr Kostic. There was a complaint about the delay between the event in question and the line-up and the fact that, given that Mr Bradshaw in his statement to the police was positive that the person he saw was a female, there were no females in the line-up. The trial Judge admitted the evidence. At the trial Mr Bradshaw gave evidence that the person he identified in the line-up was the shorter of the two persons he had seen on the morning of 25 May 2002. No explanation was offered for his earlier assertion to the police that the person he saw was a woman.
Alexander v The Queen (1981) 145 CLR 395 was a case of photographic identification. Gibbs CJ said at 399: “In theory the manner in which an accused was identified out of court goes to the weight rather than to the admissibility of the evidence”. However, the Chief Justice also acknowledged a general discretion to exclude evidence of identification where its prejudicial effect outweighs its probative value. He said, at 402-403:
“The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.”
See also Murphy J at 435.
Weakness of the evidence in itself will not justify its exclusion. In Festa v The Queen (2001) 208 CLR 593 at 609 McHugh J said:
“But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. Any evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
Nor is it an automatic ground of exclusion that the identification took place at a court house or after someone has suggested that a suspect may be present at a particular place. The courts have not gone so far as to say that a court house identification must be automatically excluded where a police officer or other person has suggested that the identifying witness should be on the lookout for the perpetrator of the crime at the court house. Such statements inevitably weaken the effect of the identification evidence. They are matters to be considered in determining whether evidence should be excluded because its probative value is outweighed by its prejudicial effect. Of itself, however, a statement such as that made by Detective Holmes does not provide a ground of exclusion.”
There were many weaknesses in the identification evidence in that case. Nevertheless, it was admitted.
Davies and Cody v The King (1937) 57 CLR 170 involved identification by a witness of a single person then in police custody and in a court dock. In their joint judgment Latham CJ, Rich, Dixon, Evatt and McTiernan JJ held, at 182:
“[I]f a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial.”
In reaching that view the court said, at 181:
“A witness who is taken by the police for the purpose of seeing whether he can identify a person who is in custody in relation to a particular crime has in his mind a recollection or impression of the person whom he saw, or, it may be, heard, at the scene of the crime or in relation to some matter which is connected with the crime. The recollection probably relates to the appearance of the person, and possibly to his mode of standing, moving, or speaking or some other characteristic. It is important that this recollection should not be overlaid or in any way affected by suggestions that a particular person in custody is either the person previously seen by the witness or is the person suspected of or charged with the crime. Moreover, inspection of a photograph of the person in custody before viewing him naturally tends to impress on the mind the characteristics shown in the photograph, so that the witness, however honest he may be, tends to identify the person in custody with the person shown in the photograph rather than with the person whom he himself saw previously.
Similarly, if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him.”
There were many features which rendered Mr Bradshaw’s evidence of identity of Mr Kostic very weak. Kostic was previously unknown to him. The opportunity he had to see the shorter of the two persons on the footpath in front of his house was necessarily brief. The lighting was poor. It was not shining on the face of the person concerned. Mr Bradshaw only saw the left-hand side of the person’s face, and for part of the time while they were passing the person was obscured by the larger male passing between them. The identification line-up took place 10 months after the event in question. However, none of these features, even taken together, render the evidence inadmissible, although it may well carry very little weight.
The best police practice may well require that an accused person be placed in a line-up with persons of similar build and appearance: Alexander v The Queen (supra) at 398: R v Bunting and Wagner (No.6) (2003) 231 LSJS 44; [2003] SASC 254 at [12] – [13]. However, if that objective is not achieved to the desired level, it does not render the evidence inadmissible. Once again, it merely goes to weight, unless the selection of persons is so unbalanced as to suggest to the witness that it could only be the accused who was the suspect. That cannot be said in this case, and I would reject that as a ground for rendering the evidence inadmissible.
The more difficult question concerns the strongly held belief by Mr Bradshaw at the time of his statement to the police that the person he saw was a woman.
By submitting Mr Bradshaw to an all male line-up for the purpose of identifying the person that he saw on the morning of 25 May 2002, the police officer was suggesting to him that the person he saw could not possibly have been a woman, and that it must be the male person in the line-up who looks most like the woman that he claims to have seen. Furthermore, the fact that only males were presented in the line-up suggested to the jury, by that fact, a belief by the police that the suspect must be a man and that Mr Bradshaw’s earlier statement could not be relied on. It was not for the police to make that assertion directly or indirectly by their choice of persons in the line-up. The feature of suggestibility which rendered the conviction dangerous in cases like Davies and Cody v The King was present.
It was argued that, in the light of Mr Marinakis’ evidence, it was not possible properly to have included a female or females in the line-up. That may be so. There was an obligation on the police to present persons of reasonably similar build and features to those of Mr Kostic. That could not include a woman. However, that did not render the evidence admissible. The fact that Mr Bradshaw had previously described a woman as the person he was then asked to identify merely meant that he should not have been asked to identify anyone from the line-up at all, particularly given the other weaknesses attending any evidence of identity by Mr Bradshaw. His positive identification of Mr Kostic was highly prejudicial to the appellant in the sense discussed by McHugh J in Festa v The Queen. It was of no probative value at all.

In my opinion the evidence was wrongly admitted.
The question then arises as to whether the conviction should be set aside. In Davies and Cody v The King (supra) at 182 the Court added a rider in the passage quoted above to the effect that where evidence is admitted which is insufficient by itself to justify a conviction it will be unsafe to convict unless the identity of the accused is further proved “by other evidence direct or circumstantial”. The Court continued:
“Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe.”
See also Gibbs CJ in Alexander v R (supra) at 399, 401 and 403.
The purpose of Mr Bradshaw’s evidence of identification was to identify Mr Kostic as being one of the persons walking in an easterly direction in front of Mr Bradshaw’s house at the relevant time, being one of the persons who then got into the stationary taxi, then about 20 metres east of his drive. It was established by independent evidence that the taxi concerned was that of Mr Marinakis. There was other evidence before the jury which, taken with Mr Bradshaw’s other evidence, would have enabled a jury to conclude that one of the men who walked past Mr Bradshaw was Kostic. However, the qualification that the conviction may still be upheld only applies where evidence, though admissible is insufficient by itself to sustain the conviction. Here, the evidence was inadmissible. It was relied on by counsel for the prosecution in his address to the jury to support Mr Marinakis’ evidence and thus to support the conviction. The conviction is thereby rendered unsafe.
It follows that the appeal should be allowed, the conviction set aside and a retrial ordered on this ground alone.
The trial Judge’s direction on the identification evidence
Although it is not necessary for the decision in this case, some observation should be made about the trial Judge’s directions to the jury about that evidence. In directing the jury as to Mr Bradshaw’s evidence the trial Judge said:
“I should say something about identification. Of course, this case, like many, depends upon the identification of the accused. In particular, here, of course, it is the evidence of … Mr Bradshaw. Normally this month, you may hear, during summings up, it is said to you you should take great care with identification evidence, because it is easy for honest people to make a mistake when identifying a person. You may have done this in your own lifetime, and may do it in the future, so it is easy for mistakes to be made when, in effect, identifying persons. The ability to form and retain an accurate impression of a person comes from observations of physical features, and sometimes identifications take place momentarily, and it may be in bad light, so you have to take great care before acting on that evidence, and so you should here. So, as I say, there are always dangers involved and great caution needs to be taken when acting on identification evidence. Here, of course, you have had the evidence of Mr Marinakis and his background knowledge of the two accused, but, of course, the evidence of Mr Bradshaw was probably in the second category; that is, an observation at night. Although there was some streetlighting, it was certainly of a limited period. Naturally, with any such evidence, you really have to view it with caution and with some concern before accepting it, but you have heard that evidence and that is a matter for you to decide.”
After the jury retired the trial Judge was asked to give a stronger warning as to the use that could be made of Mr Bradshaw’s evidence of identification. In redirecting the jury on a number of topics the Judge said:
“I should have mentioned to you, which you are probably aware of anyway, Mr Bradshaw’s observations on this night. You will recall his evidence about thinking the shorter man was a woman and all of the areas of natural concern when one makes an observation at night in probably poor light, people that have not been seen before and all those areas of concern. You have to concern yourself with that before considering evidence, and you may remember it has been criticised. Indeed, the subsequent line-up did not occur, I should have pointed this out, until 24 March, a considerable time later.”
I have already referred to the substantial weaknesses in Mr Bradshaw’s evidence of identity. Those weaknesses were compounded by the fact that Mr Bradshaw had previously described the person he saw as a woman. In my opinion the weakness of the identification evidence required a stern warning from the Judge about the extreme difficulty in making a positive identification in all the circumstances that I have identified. It was insufficient just to give a general warning about the dangers involved in the use of such evidence without pointing to the particular weaknesses in this case. That was not done in the Judge’s primary charge. Although some additional points were picked up in the redirection, they were barely related to any warning about the use that could be made of Mr Bradshaw’s identification evidence.
In my opinion, the direction, considered in its entirety, was inadequate and amounted to a misdirection. It was an inadequate attempt to warn the jury of relying on that evidence.
Directions as to the evidence of Mr McBrayne
The complaint is made that, in discussing the evidence of Mr McBrayne, the console operator of the BP Service Station, the trial Judge asserted to the jury that he was the drag shift operator on 25 May, when there was no evidence that he was on duty that night. That was a technical misdirection. There was no dispute that Mr McBrayne was working at the service station during a period which included 25 May 2002, predominantly as the drag shift operator. He did not claim to work every night. He did, however, give evidence of the two or three men on one occasion coming into the service station in an early morning and buying kerosene, and that that was an uncommon sale which he remembered. That evidence, coupled with the documentary proof of a sale of three litres of kerosene at the service station on 25 May 2002 and Mr Marinakis’ evidence that he drove the appellants and the unknown male to that service station on that morning and that all three went into the service station provides an almost irresistible inference that Mr McBrayne was in fact working at the service station that morning. There is no substance in this ground.
The subsequent statements to Marinakis
Mr Kostic claims that the trial Judge erred in his directions as to the use that the jury could make of the statements that were made to Marinakis by Kostic on the three occasions after the event. When summarising the evidence of Mr Marinakis, the trial Judge also summarised those conversations without comment. Subsequently, when referring to those conversations and of the evidence of the visit to the home of Mrs Pavlakos, the Judge said:
“[T]hose statements, of themselves, just considered by themselves, really offer little assistance. It may be a suggestion it was an innocent man doing his best to overcome the difficulties he is faced with, but it can be used, I think, in the limited area, if you do find that Mr Kostic, the charge against him, was proved beyond reasonable doubt. You may gain some weight from the fact that, in fact, he has made those approaches and was seen at Mitchell Street. In that limited way, it may support your finding, but, by itself, of course, there are those limitations.”
As I have already mentioned, the fact that two conversations subsequently occurred between Marinakis and Kostic was supported by independent evidence. The conversations were capable of confirming that Kostic had been present in Mr Marinakis’ taxi and was one of the people who left the taxi in the vicinity of the fire for about 10 minutes. The Judge warned that the conversations offered little assistance in proof of the prosecution case. What the Judge said did not amount to a misdirection.
Unsafe and unsatisfactory verdict
The ground that the verdict was unsafe and unsatisfactory was argued independently of the admissibility of Mr Bradshaw’s evidence. Complaint was made by Mr Kostic that the case against him was largely circumstantial and relied heavily on the evidence of Mr Marinakis. It was said that that evidence was unreliable and inconsistent in a number of respects. There were alleged inconsistencies between the evidence of Marinakis and McBrayne as to the amount of money that was available for the purchase of items at the service station. There were said to be other inconsistencies in Mr Marinakis’ evidence throwing doubt upon whether or not it was Mr Kostic who was a passenger in the taxi that morning.
In my opinion these criticisms add nothing to the argument based on the inadmissibility of Mr Bradshaw’s evidence of identity which, in itself, renders the verdict unsafe. There was evidence, apart from Mr Bradshaw’s evidence of identity, from which the jury could conclude that Mr Kostic was involved in a joint enterprise to burn the delicatessen. There was evidence that he was present when the transport by means of Mr Marinakis’ taxi was arranged. There was evidence that he was present in the taxi and that he was present when comments consistent with a plan to commit a crime were being made in the form of asking whether Marinakis was “okay”. There was evidence that he was present when the kerosene was purchased at the BP Service Station. There was evidence that he got out of the taxi close to the scene, that he left the taxi with the unknown male, that he returned to the taxi some time later, and that there was then a smell about the two men consistent with that of an accelerant. There was also evidence that he made comments to Marinakis after the crime consistent with his having been present, and he was seen at the home of the owner of the premises three months after the arson was committed. Mr Marinakis’ evidence, which was that principally under attack by Mr Kostic, was corroborated at a number of points. The criticisms and strength of his evidence were matters properly left for the jury to decide. Without Mr Bradshaw’s evidence of identification there was evidence which could support the conviction.
Conclusion
It follows that I would allow the appeal by Mr Kostic, set aside the conviction and direct a retrial of Mr Kostic.
THE APPEAL OF MR STEFANOPOULOS
Joint enterprise
The case against Mr Stefanopoulos was that he was involved, with the other two men, in a joint enterprise to set fire to the delicatessen. The evidence of his involvement was that it was he who arranged the taxi transport with his acquaintance, Mr Marinakis, for the purpose of going to the scene of the arson. He went into the service station with the other two at the time when kerosene was purchased. He remained with Mr Marinakis at his taxi while the other two began the fire in order to ensure that he did not leave and was available to evacuate them from the scene.
In the circumstances it was necessary that a clear and full direction be given to the jury to explain carefully the necessary element of joint criminal enterprise and to identify the evidence said to establish Mr Stefanopoulos’ participation in such a joint criminal enterprise.
In the course of his summing up the Judge gave an explanation to the jury that because the two men were charged with the offence it was a joint offence and therefore the two could be tried together. He pointed out, however, the need to consider the evidence against each accused separately. The Judge then continued:
“As you have heard a number of times, the basic legal principle is that if two or more people act together in pursuance of a common or unlawful purpose, every act done really in the furtherance of that purpose by one or more of them is, in law, in effect, done by them all, and notwithstanding the part that they played, because they say that there is that common criminal intent which has been previously agreed upon, so that makes them all guilty of the resulting crime.
You have heard several times here the illustration of the armed robber and the people playing separate roles, so you can see the elements that are apparent in that illustration. Really, it is a common purpose and it is persons concerned very much to be acting in agreement to achieve a result.
But in order to prove that an accused who is not the actual perpetrator is guilty, it is necessary, of course, as has been mentioned, for the prosecution to prove beyond a reasonable doubt a number of things: that, of course, the alleged crime was committed; that the accused was a party to that common purpose or agreement with the other person; that the common purpose, of course, included the commission of the crime charged; that the accused was present at or about the vicinity of the crime scene, in effect playing out his or her part.
The agreement need not be anything of a formal nature. It may be simply a tacit understanding. It may even be arrived at without a word spoken, and it may be something which has occurred on the spur of the moment, but what is essential, of course, is that those parties are acting in concern (sic) or in collaboration in the pursuance of that unlawful purpose or act, and so that is why these two men have been charged jointly; because, as you have heard the Crown say, of the nature of this planning and because they say they were both involved.”
A number of observations need to be made about that direction. In the first place, taken in its context, it appears to be no more than an incident in the explanation to the jury of why the two men were tried together. Secondly, early in the passage there is reference to acting together in pursuance of a common “or” unlawful purpose, as if any common purpose would be sufficient. Thirdly, there is no illustration given to assist the jury in understanding the nature of joint criminal enterprise apart from a rather unclear reference to an armed robber. Fourthly, there is an emphasis on common purpose but with little assistance given as to what that common purpose must be. Fifthly, there was no direction as to the requisite intent or state of knowledge on the part of the participant in the alleged common purpose in order to render him part of the common enterprise. Sixthly, there was no attempt to apply the concept of joint criminal enterprise to the facts of the case and to the part played by Mr Stefanopoulos or by others in the alleged joint enterprise.
I adopt, with respect, what Hunt CJ at CL said in R v Tangye (1997) 92 A Crim R 545 were the necessary elements of a direction on joint criminal enterprise. McInerney and Sully JJ agreed with him. The comments were based on what the High Court said in McAuliffe v The Queen (1995) 183 CLR 108 at 113-116. Hunt CJ said, at 556-557:
“So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines:
(1)The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2)A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3)A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
(4)If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.
It is advisable to give an example of facts right away from the facts of the particular case after the definition in the second of those directions in order to assist the jury’s understanding of what is meant.”
As can be seen, the direction in this case was lacking in a number of important respects which I have identified. It was positively misleading with its emphasis on a vague and ill-defined common purpose. In particular there was no direction given as to the intent necessary to be found on the part of Mr Stefanopoulos in his alleged participation in the joint criminal enterprise. In Giorgianni v The Queen (1985) 156 CLR 473 Wilson, Deane and Dawson JJ said, at 506:
“The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.”
A direction along those lines was essential in the case of Mr Stefanopoulos. It was not given.
A proper direction on joint criminal enterprise was fundamental to the fair trial of Mr Stefanopoulos. The direction was inadequate in a number of respects. The conviction should be set aside on that ground alone.
Reference to counsel’s opinion
Objection was taken to a statement in the summing up which referred to the “opinion” of prosecuting counsel as to the extent of the involvement of the two appellants in the arson of the shop. It was argued that the jury was thereby misled by giving undue weight to the prosecutor’s address and elevating it to the level of fact or opinion on which the jury could rely, as if it were evidence.
While such expressions are undesirable in a summing up, in the circumstances of this case the expression amounted to no more than a slip which is likely to have passed unnoticed by the jury. In my view the jury would have interpreted the remark as being no more than reflecting the submission of counsel based on the evidence. I would reject this ground of appeal.
Unsafe and unsatisfactory verdict
Counsel for Mr Stefanopoulos argued that the mere presence of Mr Stefanopoulos in the taxi cab was insufficient to amount to proof beyond reasonable doubt or that he knew that Kostic and the unknown man were going to set fire to the premises. It was said that there was no evidence to prove that Stefanopoulos was present when the kerosene was purchased at the service station or that he contributed to the cost of it. He returned to the taxi shortly before the other two, having purchased a pornographic magazine for himself.

On the other hand, there was evidence that it was Stefanopoulos who arranged the transport to the scene, that he arranged that with an acquaintance who he thought could be trusted, that he assured the other two men in the car that Marinakis could be trusted and that he entered the service station with the other two men at the time when the kerosene was purchased. It could also be inferred that his remaining with Marinakis at the taxi cab while the fire was lit was to ensure that transport away from the scene was available. It was Stefanopoulos, according to the evidence of Marinakis, who undertook to pay the taxi fare at a later time.
In my opinion, there was evidence on which a jury, properly directed, could reach a verdict of guilty beyond reasonable doubt. It cannot be said that the verdict was unsafe and unsatisfactory on the ground of lack of credible evidence involving the appellant Stefanopoulos. This ground of appeal does not succeed.
Conclusion
It follows that Mr Stefanopoulos succeeds on the first ground, and that his appeal should be allowed. I would set aside the conviction and direct a retrial of Mr Stefanopoulos.
ANDERSON J. I agree with the conclusions of Bleby J in both matters for the reasons he gives.
In each case I would allow the appeal, set aside the conviction and direct a retrial.