R v Lam

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505of 2003

THE QUEEN

v

CUONG QUOC LAM & ORS

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JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2005 to 19 September 2005
DATE OF RULING:	9 June 2005
CASE MAY BE CITED AS:	The Queen v Lam & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 294

RULING NO. 20

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Criminal law- elements of complicity by principal in second degree

Abandonment of common purpose by prosecution – Aiding and abetting – Relevance of prior events to accused’s knowledge and intent.

Aiding and abetting - Whether principal offender must be aware of acts of aider and abettor.

Aiding and abetting - Whether principal must in fact be encouraged by acts of aider and abettor.

Aiding and abetting - Non-accidental presence – Acts constituting encouragement or assent and concurrence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Dean S.C. with Mr P. Southey	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For Cuong Quoc Lam	Mr S. Grant	Michael Gleeson & Associates
For Hung Tu Van	Mr A. Jackson	Haines & Polities
For Linh Van Nguyen	Mr D. Brustman	Valos Black & Associates
For Thanh Nha Nguyen	Mr F. Gucciardo	Theo Magazis & Associates
For Long Thanh Tran	Mr G. Mullaly	Victoria Legal Aid
For Hong Bui	Mr J. Saunders	Valos Black & Associates
For Hoang Tran	Mr M. Rochford	Brendan Wilkinson

HIS HONOUR:

The first issue which arises for determination is whether the prosecution may be permitted to use evidence of prior events inside and outside the Salt Nightclub, as probative of whether the alleged acts of aiding and abetting at the murder scene were acts of assistance or encouragement and whether they were performed with the intent of assisting or encouraging a principal in the first degree.

History of the trial

Count one charges each of the accused with the murder of James Huynh. It is the prosecution case that all seven accused participated in a joint criminal enterprise. The complicity of the accused was initially stated by the prosecution as resting upon alternative bases. In opening its case to the jury the prosecution alleged that Cuong Lam, Hung Van and David Nguyen were acting in concert and were principals in the first degree whilst the accused Johnny Nguyen, Long Tran, Hong Bui and Hoang Tran were principals in the second degree. The jury was told that the principals in the first degree were acting in concert and that all or some of them had actually performed acts which caused or substantially contributed to the death of the deceased. Principals in the second degree were said to have aided and abetted the acts of the principals in the first degree by assisting or encouraging the principals in the first degree to commit the crime. Alternatively the prosecution said that all seven accused were acting pursuant to a “common purpose” that they would assault the deceased with the intent to cause death or really serious injury. Very shortly after the prosecution had commenced to call its evidence, and following extensive legal submissions in the absence of the jury, the prosecution announced that it would no longer rely upon common purpose as a basis for the complicity of the accused. The learned senior prosecutor informed the Court that this course was followed to simplify the issues for the jury and in fairness to the accused. The prosecution had always maintained that the primary basis upon which it put its case was that three of the accused acting in concert were principals in the first degree whilst the other four accused were principals in the second degree who were present aiding and abetting the three principals in the first degree.

The decision by the prosecution to abandon common purpose appears to have been rested upon decisions such as R v Mohan[1], R v Clough[2], R v Stokes & Difford[3], R v Phan[4]. In circumstances where the prosecution is able to establish that each of the accused was present at the time of the commission of the alleged offence the doctrine of common purpose may unduly complicate the trial process. Where the evidence leaves uncertain who was present and performed the acts constituting the commission of the offence it may not be appropriate to abandon common purpose.
[1][1967] 2 AC 187
[2][1992] 28 NSWLR 396 at 400 per Hunt CJ
[3](1990) 51 A Crim R 25
[4](2001) 53 NSWLR 480

The accused Long Tran, Hong Bui and Hoang Tran submit that the evidence led by the prosecution relating to events which occurred prior to the attack upon the deceased, James Huynh, at the intersection of Alexandra Avenue and Chapel Street, is irrelevant to the prosecution case made against each of them. Alternatively it is submitted that the prejudicial effect of such evidence would outweigh its probative value and the jury should be directed that they are not to take such evidence into account when considering the case against each accused.

The prosecution case alleges that Long Tran, Hong Bui and Hoang Tran were present at the scene of the murder of James Huynh at the intersection of Alexandra Avenue and Chapel Street at the time that one or more of the principals in the first degree, Cuong Lam, Hung Van or David Nguyen inflicted injuries upon the deceased which caused his death. In the case of Long Tran and Hong Bui the prosecution alleges that they drove their motor vehicles to the murder scene for the purpose of assisting or encouraging the principals in the first degree in the commission of the offence. The prosecution alleges that they alighted from their motor vehicles and stood in close proximity to the deceased whilst some of the injuries which caused the deceased’s death were inflicted. The prosecution further alleges that the accused then returned to their motor vehicles and waited with the intention that they would assist the principals in the first degree by driving them away from the murder scene. The prosecution alleges, in relation to the accused Hoang Tran, that he chased the deceased north in Chapel Street and stood in close proximity to the deceased as he was attacked by one or more of the principals in the first degree at the intersection. The prosecution alleges that the accused Hoang Tran encouraged the principals in the first degree to commit the offence.

May the prosecution rely upon events which precede the acts of aiding and abetting?

Almost half of the trial concerned events which occurred inside the Salt Nightclub, outside the Salt Nightclub in Daly Street and the chase of the deceased from Daly Street north in Chapel Street to the intersection of Alexandra Avenue and Chapel Street where James Huynh came to his death. The prosecution submits that this evidence was relevant and admissible in the case of the principals in the second degree as bearing upon the intent of the principals in the second degree to assist or encourage the principals in the first degree and as demonstrating that those acts were acts of assistance or encouragement. The senior prosecutor submitted that it had always been the prosecution case, understood by all defence counsel, that in the event that the prosecution did not allege complicity by the principals in the second degree on the ground of common purpose, there would be no change to the factual basis upon which the prosecution sought to implicate those accused. That factual basis he maintained was always said to include the events inside and outside the Salt Nightclub and the chase of the deceased north in Chapel Street. On the day that the prosecution announced that it would not pursue common purpose, Mr Dean stated that the prosecution would continue to rely upon the circumstantial evidence of events prior to and subsequent to the acts which caused the death of the deceased as bearing upon the question of aiding and abetting. No objection was raised by counsel representing any of the principals in the second degree as to the relevance or admissibility of evidence concerning the events inside or outside the Salt Nightclub or in Chapel Street or the conduct of the principals in the second degree in those places.

Submissions

The prosecution submitted that where the question of intent of an accused arises in a criminal trial, the prosecution is entitled to rely upon relevant circumstances both before and after the performance of the actus reus to establish the intention of the accused at that time. Thus it was said that the involvement of principals in the second degree in the fight in the nightclub, their observations of the principals in the first degree and their observations and conduct outside the Salt Nightclub and in Chapel Street, culminating in their presence in the vicinity of James Huynh as he lay on the nature strip close to the intersection of Alexandra Avenue and Chapel Street, were facts and matters which could properly be taken into account by the jury in determining whether or not the acts of aiding and abetting of the principal in the second degree which the Crown relied upon were acts of encouragement or assistance and were intended to be so. It was submitted that the prosecution was permitted to place the acts of aiding and abetting in a contextual setting so that evidence of prior acts and surrounding circumstances could be relied upon to cast light on the nature and quality of the acts said to constitute aiding and abetting. The prosecutor relied upon R v Clarkson[5] in support of this submission.
[5](1971) 3 All ER 344

Counsel for Long Tran acknowledged that in principle, knowledge by a principal in the second degree that the principal in the first degree would or might commit a crime at a future point of time would be relevant and admissible as bearing upon the intent of the principal in the second degree at the time the crime was committed. However he submitted that in the present circumstances such evidence could not be used in this manner because of the risk that the jury would misuse the evidence to find that there was an agreement between the principals in the first and second degree which would be used to demonstrate knowledge by the principal in the second degree of the intended crime. He submitted that having regard to the prosecution’s announcement that it would not rely upon “common purpose” it would be improper and unfair for the evidence to be used in this way. It was contended that awareness by a principal in the second degree of an impending assault by a principal in the first degree was not relevant to the formation of the principal in the second degree’s intent at the time when the principals performed the acts constituting the act of murder or alternatively that there was a risk that the evidence would unfairly prejudice the accused..

Reliance was placed upon the decision of the High Court in The Queen v Giorgianni[6] that liability of an aider and abettor depended upon proof of presence of the aider and abettor and knowledge of all of the essential facts that constitute the offence charged. Acts involving a principal in the second degree prior to this time would throw no light on the intent of the aider and abettor at the crime scene.
[6](1985) 156 CLR 473

It was suggested on Long Tran’s behalf that to avoid the risk of misuse of such evidence, the Crown should not be permitted to use the evidence of events inside or outside the nightclub or in Chapel Street as evidence bearing upon the acts of aiding and abetting or the intent which accompanied them. He submitted that the jury should be instructed that the intent of the aider and abettor had to be based upon the knowledge which the jury found the aider and abettor had at the time when the acts of aiding and abetting were performed.

Counsel for Hoang Tran also submitted that these events could throw no light on the subsequent intent of the principal in the second degree. The contention was reiterated that the relevant time to determine the intent of the aider and abettor was at the time that the acts of the principal in the first degree were being performed. It was submitted that the conduct of Hoang Tran prior to his arrival at the crime scene was not capable of being used in the way the prosecution contended. He adopted the submissions made on Long Tran’s behalf that such evidence could not be relied upon to show any understanding between a principal in the first and second degree as a consequence of the way in which the prosecution had elected to present its case.

It was conceded on Hoang Tran’s behalf that evidence of prior acts could be relevant to a principal in the second degree’s motive for attending the crime scene. The acts of a principal in the second degree preceding the acts of aiding and abetting were, in this sense, capable of throwing light on why the principal in the second degree was present at the murder scene. Nevertheless counsel for Hoang Tran attempted to draw a distinction between the use of evidence of prior events for the legitimate purpose of explaining the accused’s motives and how he came to be at the scene of the crime and what he said was the impermissible use of the evidence to throw light on the acts of aiding and abetting at the crime scene.

Counsel for Hong Bui also recognised that there would be circumstances in which acts preceding those which constituted the crime would be relevant to the formation of an intent by the accused at a subsequent time. He referred to O’Leary v The King[7] as a case in point. Although accepting that such evidence may be marginally relevant to the requisite intent to aid and abet he submitted that the prosecution should not be permitted to use such evidence because it was likely to be misused by the jury resulting in prejudice to the principals in the second degree.
[7](1946) 73 CLR 566

It was submitted that if the prosecution were to allege that a principal in the second degree, prior to their attendance at the vicinity of the crime scene, had formed an intention to chase or assault the deceased, the prosecution would then be alleging common purpose. Upon that assumption, the submission continued, that the jury would be invited to draw inferences from the prior acts that there was an agreement and that this would have a two-fold prejudicial effect. It was submitted that the jury would be likely to give such evidence more weight than it deserved and it was likely to divert the jury from their task. Counsel relied upon the judgment of Justice McHugh in Festa v The Queen[8] in support of this submission.
[8](2001) 208 CLR 593

Counsel for Hong Bui further argued that evidence of Hong Bui’s conduct in chasing the deceased or driving his car to the crime scene would provide no proof that his client had the necessary intent at the time of the alleged assistance or encouragement provided to the principal in the first degree.

If the evidence was to show, at best from the prosecution’s perspective, an intent by a principal in the second degree to assault the deceased, there was a real risk of the evidence being misused. It was contended that if there was a focus upon the intent of principals in the second degree prior to their conduct at the murder scene, the jury may erroneously treat an intention to assault as an intention to cause really serious injury or death.

It may be seen at once that each of the submissions advanced by counsel for Long Tran, Hong Bui and Hoang Tran involved an acknowledgement that such evidence had some probative value to the prosecution case but its probative value was so slight and its prejudice so great that the prosecution should not be permitted to rely upon such evidence.

Principles

In The Queen v Lowery & King (No. 2)[9] Smith J set out the principles relating to aiding and abetting which have been consistently applied in this State for over 30 years. His Honour said:

“Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another – another whom the law calls the principal in the first degree – if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connection means doing one or other of these three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree.[10]”

[9](1972) VR 560

[10]At

In Giorganni v The Queen[11] Justice Mason examined the terms “aid, abet, counsel or procure” and then said:

“But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen ACJ in R v Russell [1933] VLR 59, at page 67, as being applicable to secondary participation in misdemeanour. Having listed various words, including ‘aiding’ and ‘abetting’ which have been used to refer to the conduct of a principal in the second degree in felony His Honour observed: ‘all the words above mentioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission’. As R v Russell itself illustrates, there need not exist any agreement or consensus between the principal in the second degree or secondary participant and the principal offender[12].”

[11](1985) 156 CLR 473

[12]Ibid at 492-3

The requisite mental element of a principal in the second degree was stated by Wilson, Deane and Dawson JJ as requiring “intentional participation in a crime by lending assistance or encouragement”.[13] The necessary intent for aiding and abetting or counselling and procuring requires “knowledge of the essential facts of the principal offence”.[14] As Giorgianni illustrates, a secondary participant will not have sufficient knowledge and hence the necessary intent if the participant does not know that the principal offender was about to do or was doing something which amounted to the alleged offence.
[13]Ibid at 506
[14]At 504-5

Knowledge of the essential facts includes knowledge of the principal in the first degree’s intention. In R v Stokes & Difford[15] Hunt J stated:

“To establish that an accused is an accessory to the commission of a crime by another person (whether or not he is a co-accused), by aiding and abetting him, the Crown must establish: (1) the commission of that crime by the principal offender, and (2) that the accused was present at the time when the crime was committed, and (3) that .. the accused knew all the essential facts or circumstances which must be established by the Crown in order to show that the crime was committed by the principal offender (whether or not the accused knew that they amounted to a crime) and (4) that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that crime. The accessory’s intention to assist or encourage the principal offender must be based upon that knowledge[16].”

[15](1990) 51 A Crim R 25

[16]At 37

After some analysis of Giorganni Hunt J, speaking of both accessories before the fact and those who may be present said:

“It is usually more appropriate to speak of the accessory’s knowledge (or awareness) of the principal offender’s intention to do an act with a particular state of mind at the time when the accessory aids, abets, counsels or procures the principal offender to commit the crime in question than it is to speak of the accessory’s knowledge of the act done by the principal offender with that state of mind. The knowledge will usually crystallise in the accessory’s mind before he involves himself as an accessory to that crime.
In the case of an accessory who is present and who intentionally gives the principal offender assistance and encouragement in relation to his commission of that crime, it may well be that either or both of them has or have already been involved in an assault upon the victim. The accused charged with being an accessory – having become aware of the principal offender’s intentions no doubt by reason of his involvement in the assault up to that time – only at that stage, and with that knowledge, intentionally assists and encourages the principal offender – for example, by himself continuing to assault the victim. That was the basis of the decision in Mohan. But even in such a case, it is strictly with the accessory’s awareness of the principal offender’s intentions for the future that he then encourages and assists him, rather than with his awareness (except in the loosest sense) of the actions done by the principal offender in the past.[17]”

[17]At 38-39

This reasoning illustrates both the relevance of preceding events and the need to ensure that the distinction is maintained between a belief or intent of the secondary participant arising from prior knowledge and the intent required at the time of the acts of assistance or encouragement.

Both principle and authority suggests that the prior acts of a secondary participant and the surrounding circumstances in which the secondary participant was involved are relevant to the intent of the secondary participant and the nature and the quality of the alleged acts of aiding and abetting.

In R v Beck[18] Macrossan CJ, after observing that one may look at all of the aider’s conduct to see whether he intends and is giving support at a particular moment, said:

“Intentional encouragement may come from expressions, gestures or actions intended to signify approval. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend upon a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions … a calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime would be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no tell tale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out[19].”

[18](1989) 43 A Crim R 135 at 142-3, 1990 1 Qd R. 30

[19]Ibid at 142-3

The decision of The Queen v Kepa, Savage & Solomon which followed Beck is very much in point[20]. The appellants had been charged as aiding and abetting the principal offender in the crime of rape. The offence occurred at a beach but the prosecution relied upon conduct of the appellants and the principal offender in dealing with the complainant at an earlier location. Such evidence was said to be relevant to the guilt of the appellants arising from their conduct at the beach. On the appeal it was not in issue that the prior events could be considered by the jury for the purpose of determining whether the presence of the appellants at the scene of the crime was “intended to encourage and capable of encouraging” the principal offender.[21] The appellants’ complaint was that the trial judge had gone beyond the way the prosecution had put its case by inviting the jury to also consider those prior events as acts of aiding and abetting by the appellants. The Court of Appeal held that it was open to the trial judge to have done so having regard to the manner in which the trial had been conducted[22]. See also Jefferies v Sturcke[23] to the same effect.
[20]R v Kepa, Savage & Solomon [1997] QCA 152
[21]At [5]
[22]Per Fitzergald P at [10]
[23](1992) 2 Qd R 392

The prosecution relies upon the conduct of the secondary participants inside and outside the Salt Nightclub and the pursuit of the deceased north in Chapel Street only as evidence which bears upon whether the presence of those accused at the crime scene was intended to encourage and was capable of encouraging the principals in the first degree. Whilst it may have been open to the prosecution to rely upon such earlier conduct as acts of aiding and abetting, it did not do so.[24]
[24]Archibold Criminal Pleading, Evidence and Practice, Sweet and Maxwell Limited 2005 at 1723; National Coal Board v Gamble [1958] 3 All ER 203; Thambiah v R [1966] AC 37; Blakely v DPP [1991] RTR 405, DC at 411; Chief Executive Officer of Customs v Camile Trading & Ors [2001] NSWSC 1075

The passage from the judgment of Hunt J in Stokes & Difford to which I have referred also illustrates the relevance of prior conduct. In Roughley Marshall & Heywood v R[25] the prosecution relied upon evidence of earlier conduct of the secondary participant to the crime of rape. Zeeman J, in the principal judgment considered that the earlier conduct of the appellant was relevant evidence capable of explaining the purpose of the secondary participant’s presence at the time of the offence. The trial judge had directed the jury that it may take into account events involving the appellant before and after the commission of the offence which might throw light on the intent of the appellant at the time of the offence. Such a direction was regarded as unexceptional by the Court of Appeal, such events having the capacity to throw light upon the state of mind of the actor at the material time. In R v Morgan[26], the Court of Criminal Appeal, addressing the question of whether a secondary participant must be present at the commission of the crime, observed that the proof of complicity “depends on all the circumstances from which the person’s involvement is capable of being deduced”.[27] It is unsurprising that texts recognise that presence following some prior association may be taken into account as evidence of assistance or encouragement[28]. Events which precede the commission of the crime may explain the accused’s presence at the crime. Such facts may go merely to presence and not to complicity unless those facts afford evidence of the accused’s intention or otherwise illuminate the character of the accused’s acts.
[25](1995) 78 A Crim R 160
[26][1994] 1 VR 567
[27]At 573
[28]Dunlop and Sylvester v The Queen (1979) 47 CCC (2d) 93 at 111. A Modern Treatise on the Law of Criminal Complicity KJN Smith, Clarendon Press, 1991 p 36

To the extent that the evidence relied upon by the prosecution demonstrates a knowledge of the fight in the Salt Nightclub or of the assault with weapons upon the deceased in Daly Street and the chase of the deceased north in Chapel Street to the crime scene and their involvement in any of those events, they are facts which the jury may conclude explain the presence of those accused at the crime scene. Such evidence may bear upon the intent of each of those accused in performing the acts relied upon by the prosecution as aiding and abetting the commission of the offence. Such evidence may be probative on the question whether such acts were acts of encouragement or assistance. The fact that such evidence may bear upon the intention of the accused or the quality of such acts does not relieve the prosecution from its burden of establishing the requisite mental element of a principal in the second degree at the time of the commission of the offence. The prosecution must establish that the secondary participant intentionally participated with knowledge or awareness that the principal offender was committing or was about to commit the crime the subject of the charge and that the secondary participant intended his acts to assist or encourage the principal in the first degree or intentionally conveyed to the principal in the first degree that he supported what was being done and would be willing to provide some help if necessary.[29]
[29]R v Makin [2004] 8 VR 262 at 267 per Ormiston JA

The probative value of such prior events does not depend upon some agreement or understanding between the principals in the first and second degree. It is the knowledge and conduct of each individual accused which is relevant. The prosecution, having withdrawn common purpose as an alternate basis for complicity, cannot invite the jury to consider whether those prior events demonstrate some agreement or understanding between the principals in the first and second degree. But the potential cogency of the evidence of prior events rests upon the extent to which such evidence reveals the conduct of each of the accused in those events, and their knowledge of them. The fact that such evidence may also be capable of supporting the inference that there was an understanding between any of the principals in the first and second degree does not prevent the jury from using the evidence in the limited manner contended for by the prosecution. The submission, so far as it was pressed, that such evidence had little or no probative value, is also without substance.

Discretion to exclude prior events as prejudicial

I then turn to the contention that there is a substantial risk of prejudice to the accused if the jury is permitted to utilise the evidence in the manner sought by the prosecution. It is said that there is a risk that the jury, by considering such evidence, would conclude that the actions of the principals in the second degree were pursuant to an agreement thereby finding common purpose between the accused, a case which the prosecution had eschewed. It does not follow that evidence of prior conduct and knowledge by a secondary participant must be evidence of an agreement or understanding with principals in the first degree. Evidence which suggests that a secondary participant may have been aware of the intentions of a principal in the first degree prior to the commission of the crime or the formation of an intent by the secondary participant to encourage or assist the commission of the crime by the principal in the second degree may occur without any communication or understanding between the principals in the first and secondary degree. Evidence of a prior association between the principals in the first and second degree does not establish an agreement or understanding between them as to the commission of the offence. The prosecution has not adduced evidence of any agreement between the primary and secondary participants. Without objection, it has introduced evidence which directly or by inference may establish that a number of the accused, present inside and outside the Salt Nightclub, formed an intention to assault the deceased with knives and swords. It would be open to the jury to find that the principals in the first degree, Cuong Lam and Hung Van agreed to do so. It would be open to the jury to also find that one or more of the secondary participants intended to do so or at least became aware that the principals in the first degree were intending to do so. The jury may find that when the deceased came into Daly Street the principals in the first degree gave effect to their agreement and that some or all of the principals in the second degree further demonstrated their intention to do so or at least to support the principals in the first degree and others who intended to do so. The jury may find that the secondary participants present in Daly Street ran towards the deceased and participated in the chase of the deceased in a northerly direction in Chapel Street towards Alexandra Avenue and the river. It would be open to the jury to find that each of the secondary participants present in Daly Street resolved to pursue the deceased, whether on foot or in their motor cars with the intention that the deceased should be assaulted or that they would provide assistance or encouragement to those who would do so. The jury may find that upon their arrival at the crime scene the secondary participants maintained or formed an intention to assist or encourage the principals in the first degree who they understood intended to commit the crime with which they are all charged. Such a process of reasoning, if followed by the jury, does not necessitate a conclusion that there was an agreement or understanding between the primary and secondary participants before the arrival of the secondary participants at the crime scene. There is no direct evidence of such an agreement or understanding and the prosecution will not suggest to the jury that such an agreement or understanding existed. No party intends to invite the jury to draw such an inference. It is not a prominent hypothesis having regard to the evidence led by the prosecution. Even if the jury might reason that a principal in the second degree was acting pursuant to an understanding with a principal in the first degree, there is no reason why the prosecution should be precluded from relying upon such evidence which the jury may conclude provides a cogent explanation for their presence and intention at the scene of the crime.

The contention cannot be accepted that such evidence is likely to give rise to unfair prejudice as explained by Gleeson CJ in Festa v The Queen.[30] The risk of such a prejudice arises where the jury may use evidence in an impermissible manner which goes beyond its probative value. Such prejudice arises from

“The risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility[31].”

[30][2001] 208 CLR 593

[31]Ibid

I can detect no risk of improper use which would arise from the jury’s use of such evidence. Implicit in the accused’s submission is the recognition that there would be inculpatory consequences for the secondary participants if the jury considered that such evidence demonstrated the existence of an agreement or understanding between the primary and secondary participants.

Assuming for present purposes that the evidence might support the inference that there was such an agreement or understanding between the principals in the first and second degree, the prosecution has abandoned common purpose as a basis for founding complicity by the secondary participants. If the jury considered that such evidence not only threw light upon the knowledge and intention of each secondary participant but also established some agreement or understanding between the primary and secondary participants (and I do not think that it does) no impermissible prejudice would arise, such evidence being probative as to the conduct and intention of the aiders and abettors in the commission of the offence.

It is trite that evidence of the conduct of an accused prior to the commission of an offence is frequently relied upon as relevant to the intention of the accused at the time of the commission of the offence. Proof of intent is almost always made out by a circumstantial case short of an explicit and undisputed admission[32] The jury will be directed as to the requisite mental element of the crime. Evidence which bears upon the accused’s intention will be used by the jury to evaluate whether the prosecution has established that the accused possessed the necessary intent at the time of the commission of the offence. Where the evidence bearing upon the accused’s intention prior to the commission of the offence may indicate that the accused did not have the requisite, but some lesser intent, than that required for the commission of the offence, the jury’s attention may be drawn to such matters. In the present case all parties have agreed that the alternative verdict of manslaughter should be left to the jury with respect to each accused on the basis that the principals in the first degree agreed to no more than the commission of an unlawful and dangerous act, namely to assault the deceased and that the secondary participants intended to assist or encourage no more than the commission of such an offence. All parties will address the jury on the question of each accused’s intention. The suggestion, that the jury may confuse an intention by a secondary participant to assault the deceased, formed at a time prior to their arrival at the crime scene with the requisite mental element for a principal in the second degree to the crime of murder is without substance.
[32]R v Franklin (2001) VSCA 79 at [115]

Three questions concerning aiding and abetting

The secondary participants Long Tran, Hong Bui and Hoang Tran each admit to being present either on foot or in their motor car or both, in the vicinity of the crime scene. They each claim that they performed no act which constituted assistance or encouragement of a named principal in the first degree and that their presence, perhaps unknown by the principal offenders, cannot constitute aiding and abetting. Three interrelated questions have thus arisen as to the directions of law which the jury should be given relating to the acts of aiding and abetting.

(1)Must the prosecution establish that the principal in the first degree was aware of the acts said to constitute aiding and abetting.
(2)Must the prosecution establish that the act or acts said to constitute aiding and abetting in fact assisted or encouraged the principal in the first degree.
(3)May the secondary participant’s presence in close proximity to the deceased at the time of the commission of the offence by a principal in the first degree be sufficient to constitute aiding and abetting.

The last of these questions was expressly raised on behalf of Hoang Tran in the course of a submission that he had no case to answer because he was merely present and arises implicitly from the submissions advanced on behalf of Long Tran and Hong Bui. It Having indicated that I was unable to accede to Hoang Tran’s no case submission it is convenient that I provide my reasons in the course of this ruling.

Must the principal be aware of the acts of aiding and abetting? Must the principal in fact be encouraged?

It is convenient to deal with the first two questions together.It was submitted on behalf of Long Tran, Hong Bui and Hoang Tran that it is necessary for the prosecution to establish the acts of aiding and abetting relied upon had some effect or consequence on the principals in the first degree. It was said that it must be shown that the principal in the first degree was aware of the conduct of the secondary participant said to be aiding and abetting and that it must be established that there was assistance or encouragement in fact. The decisions of R v Clarkson, R v Roughley, R v Phan and R v Schriek were relied upon to support these propositions. It was submitted that there must be a “link in purpose” between the primary and secondary participant which renders it more likely that the offence will be committed. It was submitted that presence alone would be insufficient to constitute assistance or encouragement in fact.

It was again submitted on behalf of these secondary participants that the evidence of prior knowledge or acts of the accused in Daly Street or Chapel Street were irrelevant to the acts of aiding and abetting or alternatively the prosecution should not be permitted to rely upon such evidence as it would work unfairness to the accused. The argument was reiterated that for the prosecution to rely upon the preceding events was to, in fact, allege common purpose. Thus it was submitted that in the absence of any relationship between the primary and secondary participants, or any prior knowledge by a secondary participant of the intention of a principal in the first degree or an intention formed by the secondary participant prior to reaching the crime scene, it was for the prosecution to establish, by reference to the events at the crime scene, that the acts of the secondary participant were intended to constitute assistance or encouragement, and in fact assisted or encouraged the principal in the first degree.

Attention was drawn to the basis upon which the prosecution alleged complicity on the part of Hoang Tran. Counsel submitted on his behalf, that the prosecution relied upon his presence alone as demonstrating either encouragement or assent and concurrence as there were no words or acts which could support such grounds of aiding and abetting. Presence alone, it was submitted, could not constitute aiding and abetting. Counsel referred to a number of texts and the authorities therein referred to in support of this contention.[33]
[33]See Bourke’s Criminal Law para 232.651; Ross on Crime para1.2360

The prosecution, in answer to the submission of no case by Hoang Tran submitted that in addition to the accused’s admitted presence, in close proximity to the deceased, at a time when he has admitted that Cuong Lam was chopping at the deceased, there is a substantial body of evidence which the jury may take into account to determine whether or not the accused’s presence and conduct at the scene of the crime constituted an act of encouragement performed with the requisite intent. The prosecution pointed to the fight in the Salt Nightclub which involved the principals in the first degree, Hung Van and Cuong Lam, and that the accused Hoang Tran had been injured in that fight. The prosecutor pointed to evidence that Hoang Tran was angry and drunk when he left the nightclub and to evidence that he was seen to put a chain or belt around his hand shortly before the assault upon the deceased took place in Daly Street. The Crown relies upon evidence that the accused ran towards the scene of the fight and joined the pursuit of the deceased in Daly Street and Chapel Street as they ran towards the intersection of Alexandra Avenue and Chapel Street. The prosecutor pointed to evidence that Hoang Tran was still observed to have something wrapped around his hand. The prosecution relies upon the admissions made by Hoang Tran that he observed Cuong Lam, whom he knew, armed with a sword and wearing gloves, also chasing the deceased. The prosecution pointed to his admission that when he arrived at the scene of the crime, Mark Ung was present in his motor vehicle and the conclusion that Hoang Tran observed Cuong Lam “chopping” at the deceased. The prosecution relies upon the answers given in his interview that he stood within about a metre of the deceased as this took place and that he moved even closer to the deceased whilst he was being attacked with swords. The prosecution submits that the circumstantial evidence would permit the jury to conclude that during this period there were a number of people standing around the deceased yelling loudly and that a number of Hoang Tran’s and other accused’s friends, who testified in the trial were then present in the immediate vicinity of the deceased’s body. The vehicles of Hong Bui, Long Tran, Mark Ung and Johnny Nguyen are also said to be present. The prosecution also relies upon the accused’s initial false denial that he was present at the scene of the crime.

In reply Mr Rochford contended that the evidence was insufficient to permit the jury to conclude that Hoang Tran was aware that Hung Van or Cuong Lam were involved in the fight in the nightclub or that he was aware of events in Daly Street before the fight broke out between the deceased and Hung Van and others. He submitted that the evidence showed that Hoang Tran had been speaking to a bouncer and that he had his back to the events taking place in the street. He submitted that it was not open to the jury to conclude that Hoang Tran was present when the witness Amanda Chen observed the occupants of a red car alight and go to the body of the deceased and join a group of men who assaulted the deceased with weapons.

As I have stated, no objection was taken during the course of the trial to the introduction of any evidence that related to the secondary participants Long Tran, Hong Bui and Hoang Tran in the nightclub, outside in Daly Street or when they followed the deceased north in Chapel Street on foot or in their motor vehicles though such evidence had possible inculpatory consequences for those secondary participants. The prosecution had made clear from the outset that such evidence was relied upon as relevant to the acts of the accused at the crime scene. [34] For the reasons that I have already expressed in the first section of this ruling, such evidence was relevant to the intention of the secondary participants at the crime scene and was also relevant to how their conduct at that time could be viewed.
[34]See R v Lam & Ors [2005] VSC 277

Senior counsel for the prosecution submitted that it was unnecessary for the prosecution to establish either that the principal in the first degree was actually aware of the acts of aiding and abetting nor was it necessary to establish that the principal offender was in fact assisted or encouraged by such conduct. He submitted that the references in the authorities such as R v Schriek[35] to a link or commonality of purpose between the principal and secondary offenders means does not call for proof of awareness on the principal in the first degree’s part of the conduct of the secondary participant or that the principal in the first degree was in fact assisted or encouraged by those acts. The “link in purpose” need be no more than a unilateral intent of the principal in the second degree who intends, by his act of assistance or encouragement, that the principal in the first degree commit the crime charged. The prosecution submitted that it was open to the jury to use the evidence of prior events if there was some connection between them and the acts of constituting aiding and abetting relied upon. The evidence of the conduct of the principals in the first and second degree prior to their arrival at the crime scene was relevant to the question whether the acts performed by a secondary participant at the crime scene could be viewed as acts of assistance or encouragement.
[35](1997) 2 NZLR 139; R v Phan (2001) 123 A Crim R 30 and R v Makin [2004] VSC 485

Relevant Principles of aiding and abetting

The principal in the first degree is one who commits the crime or is present at the time the crime which has been agreed upon is committed.[36] The principal in the second degree is present but not acting in concert with the person who commits the crime and has a derivative liability.[37]
[36]It may be doubted whether presence is essential. Pong Su Ruling
[37]R v Tangye (1997) 92 A Crim R 545; Osland v R (1998) 197 CLR 316 at 341-2 per McHugh J; R v Donnelly [2001] NSWCCA 394 para [77-8]

In the early work of Foster’s Crown Law[38] it is stated

“In order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary, and therefore if A happeneth to be present at a murder, for instance, and taketh no part in it, nor endeavoureth to prevent it, nor apprehendeth the murderer, nor giveth hue and cry after him, this strange behaviour of his, though highly criminal, will not of itself render him either principal or accessory[39].”

[38](1762)

[39]Ibid at page 350

In R v Coney[40] Hawkins J identified the essential requirement for aiding and abetting in the following manner:

“In my opinion to constitute an aider and abettor some active steps must be taken by word or action with the intent to instigate the principal of principals. Encouragement does not of necessity amount to aiding and abetting and it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words or gestures, or by his silence or non-interference, or he may encourage intentionally by expressions, or gestures, or actions intended to signify approval. In the latter case he aids and abets and in the former case he does not. It is no criminal offence to stand by, a mere passage spectator of a crime even of a murder … Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances offer cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not.”[41]

[40](1882) 8 QBD 534

[41]Ibid at 557

The judgments of Cave J, Stephen J and Lopes J are to the effect that mere presence, if unexplained, is evidence of encouragement and so of guilt but it is not conclusive proof of encouragement or guilt.[42]
[42]Cave J at 543; Lopes J at 552; Stephan J at 548

In R v Allan & Ors[43] Edmund-Davies J, in a judgment of the Court, found that the trial judge had misdirected the jury that the appellant’s presence at an affray provided evidence of encouragement amounting to conclusive proof of guilt as the appellant had chosen to remain at the fight nursing the secret intention to help if the need arose but doing nothing to evince that intention.[44] The Court approved the passage from Cave J’s judgment in Coney where it was said

“where presence is prima facie not accidental it is evidence, but no more than evidence for the jury[45]”

[43][1965] 1 QB 130

[44](1963) 2 All ER 897 at 900

[45]Ibid at 900

The Court of Appeal concluded that encouragement in one form or another is a minimal requirement before an accused person may be regarded as a principal in the second degree and that a conviction could not be sustained where the appellant was convicted on his thoughts unaccompanied by any physical act other than the fact of his presence.[46]
[46]At 901

Allan’s case was referred to in R v Clarkson[47]. The appellants were soldiers in Germany. One night in the barracks a woman was taken to a room and raped by fellow soldiers of the appellants. The latter, hearing the noise, had entered the room and been present for at least some of the time during which the rapes occurred, watching what took place. They were charged with aiding and abetting. There was no evidence that any of the appellants had done any physical act or uttered any word which involved the direct physical participation or verbal encouragement. However there was evidence to suggest non-accidental presence. Megaw LJ, delivering the judgment of the Court, after referring to Coney and the judgment of Edmund-Davies J in Allan found that the judge advocate had misdirected the Court martial by failing to instruct it that where the evidence is of non-accidental presence, without firm agreement or positive physical acts of participation in the actual commission of the crime, the elements which must exist are an intention to encourage and the need for actual encouragement. His Lordship stated

“There must be an intention to encourage; and there must also be encouragement in fact, in cases such as the present case”. (emphasis mine).[48]

[47](1971) 3 All ER 344

[48]Ibid at 348

Immediately preceding the use of the phrase “encouragement in fact”[49] was this quotation from Allan[50]

“In our judgment before a jury can properly convict an accused person of being a principal in the second degree to an affray, they must be convinced by the evidence that, at the very least, he by some means or other encouraged the participants.”

[49]Ibid at 348

[50]R v Allan & Ors at 898-901

In Giorgianni v The Queen Mason J referred to a passage from the judgment of Cusson ACJ in R v Russell[51] where the terms “aid and abet counsel or procure” were discussed in these terms:

“All the words above mentioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission’.
As R v Russell itself illustrates, there need not exist any agreement or consensus between the principal in the second degree or secondary participant and the principal offender. [52]”

[51][1933] VLR 59

[52](1985) 156 CLR 473 at 492-3 and cited with approval in R v Guthrie & Watt [2003] VSC 323 at [30]

No “meeting of the minds” is required between the principal offender and the secondary party[53]. It is settled that liability of an accessory is not dependant upon proof of agreement.[54]
[53]R v Mohan [1967] 2 AC 187; R v Kupferberg [1918] 13 Cr App R 166; Larkins v The Police [1987] 2 NZLR 282
[54]Kupferberg [1918] 13 Cr App R 166; The Queen v Lowery & King (1972) VR 560 at 561; R v Harding (1976) VR 129 at 160 per Murphy J

In Attorney-General v Able[55] Woolf J after quoting a passage from Smith and Hogan in which it was stated that “aiding” requires actual assistance but neither consensus nor causation, went on to conclude that no offence could be committed if the principal was neither assisted or encouraged.
[55][1984] QB 795

In Larkins v The Police[56], Eichelbaum J, referred with approval to a number of texts and authorities in support of the proposition that a person may aid and abet another to commit a crime without knowledge of the person who is being aided. His Honour found that whilst it was unnecessary that the principal be aware that he was being assisted, there must be proof of actual assistance. After referring to other authority where the issue was addressed in less direct terms, Eichelbaum J described a consistent thread in the authorities “that at common law actual assistance or encouragement is required as a pre-requisite for conviction of the secondary party for aiding or encouraging”.[57]
[56][1987] 2 NZLR 282
[57]Ibid at 290

The obiter references in Larkins v The Police for the need for “actual encouragement” before a secondary party could be convicted as an abettor were disapproved in R v Schriek, a judgment of the Court of Appeal in which Chief Justice Eichelbaum presided.[58] After an examination of English authority, it was stated “with confidence” “that the prosecution need not prove a causal connection between the act of encouragement and the commission of the offence”.[59] The Court of Appeal considered that the trial judge’s direction to the jury, that the “encouragement be communicated” to the principal offender, put the position adequately for the purposes of that case. The Court said:

“It is not necessarily an all embracing or exhaustive definition to suit all circumstances, nor will we attempt to construct one. In the prize fight or duel situation, or the more commonly found equivalent today where violence is inflicted or sexual offending perpetrated in the presence of others, it would be a manifest nonsense to require proof that the principal offenders were aware of the encouragement provided by each individual. If ‘by his countenance and conduct’ the secondary party intentionally is giving encouragement of which the principal offender could be aware, even if only by virtue of being conscious of the presence of a group of people behaving in similar fashion, in the generality of cases there would be sufficient evidence of abetting. Indeed, as Smith and Hogan say at p 131 with reference to Coney and prize fights:
‘Presence at such an event is certainly capable of amounting to an actual encouragement. If there were no spectators there would be no fight and therefore, each spectator by his presence, contributes to the incentive to the contestants.’

It needs to be noted that the foregoing discussion is separate from the situation where the spectators are present pursuant to a joint enterprise.”[60]

[58][1997] 2 NZLR 139

[59]Ibid at 149

[60]Ibid at 150

For an example of an accused being one who was unidentifiable amongst a number, is the case of The Queen v Snarch[61]. The mere presence of the appellant amongst a number of persons was viewed as sufficient to constitute aiding and abetting where the number present gave the illegal occupation of premises at the university the strength to maintain an effective occupation.
[61](1969) 4 CCC 284 at 297

The Court of Appeal in Schriek described as too favourable to the accused the summing up in R v Misitea[62] where the jury had been told that if the person committing the offence did not know that the secondary participant was present the latter could not be guilty even though he may have intended to encourage because “the person committing the offence must in fact be encouraged by the alleged party”.[63]
[62][1987] 2 NZLR 257 at 260-1
[63]R v Schriek at 150

No causal connection is required between the act of aiding and abetting and the offence committed.[64] The authors of Smith and Hogan suggest that it is unnecessary that the principal offender be influenced in any way by the principal in the second degree. They argue that the natural meaning of the terms of aiding and abetting does not imply a causal element. If the acts of the secondary participant were ignored or if the offence would have been committed even if such acts had not been proffered, secondary participation would have been established.[65]
[64]Smith and Hogan On Criminal Law 7^th Ed 1992 p 127-8
[65]Ibid at page 145

Gillies similarly submits that it would be irrelevant to establish that the principal did not see or hear or was indifferent to the act of the secondary participant. Legal texts recognise that in criminal trials in which the secondary participant is not said to be acting pursuant to an agreement with the principal offender, it would be unrealistic and most often impossible to establish that the principal offender knew of the secondary participant’s act and was influenced by it to commit the crime.[66] Gillies suggests that it is sufficient if the accessory’s act, viewed objectively, is considered by the jury to be reasonably capable of having encouraged or assisted the principal offender. It need not do so in fact.[67]
[66]Gillies The Law of Criminal Complicity p 54; Text Book of Criminal Law 2^nd Ed Glanville Williams p 339; See Smith In Reshaping the Criminal Law, Ed. Gladesbrook (London 1978) 131-134; The General Part, 2^nd Ed 381-383
[67]Gillies The Law of Criminal Conspiracy p 54-5

The concept of “encouragement in fact” by the secondary participant of the principal offender appears in a number of decisions of the Tasmanian Supreme Court. In the unreported decision of Hutt & Ors v The Queen[68] it was found that the trial judge’s failure to instruct the jury that proof was required to the requisite degree that the principal offender was in fact encouraged by the conduct of the accused constituted an error of law. It was necessary that the jury be instructed that the conduct of the accused in fact encouraged the commission of the crime.[69] The proposition that abetting requires that the principal offender “is in fact encouraged” was restated by the Tasmanian Court of Criminal Appeal in Randall v R; Farmer v R[70] and in R v Roughley[71]. It should be observed that the phrase used in Roughley was whether the appellant’s presence “in fact so encouraged” the principal offender. The phrase used by Megaw LJ in Clarkson that there be “encouragement in fact” is I think, a reference to the nature of the acts performed by the secondary participant, not the effect of those acts upon the mind of the principal. As the Court of Appeal in Schriek stated, it would be “manifest nonsense” to require proof that the principal offenders were aware of the encouragement provided by each accused or that there had to be a causal connection between the acts of the secondary participant and the commission of the offence.
[68]BC 8900026
[69]Underwood J at 23-4
[70][2004] TASSC 42
[71](1995) 78 A Crim R 160 at 162 per Cox J and at 207 per Zeeman J

May non-accidental presence be sufficient

The submissions made on behalf of the secondary participants Long Tran, Hong Bui and Hoang Tran either expressly or by implication involved the contention that the prosecution case, viewed in the most favourable light, established no more than a physical presence by each of them in close proximity to the deceased James Huynh when the crime was committed by one or more of the principal offenders. This, it was said, could not constitute aiding and abetting.

Although counsel for Hoang Tran on the no case submission had initially accepted that the evidence of prior events was relevant to motive he later argued that the accused’s motive for attending the crime scene was irrelevant. He relied upon the judgment of Devlin J in the National Coal Board v Gamble,[72] a case in which the owners of a lorry were convicted of unlawfully using a lorry on a road when it was loaded above the maximum permitted weight. The appellant, the National Coal Board, was prosecuted for having aided and abetted the offence through its employee who, having weighed the lorry at the weighbridge, assented to the overweight quantity of coal on the lorry being taken. The majority found the coal remained the property of the appellant at the time the lorry was weighed so that there was proof of a positive act of assistance voluntarily done by the appellant which could constitute an act of aiding and abetting[73]. The appellant further argued that it was not enough that the appellant furnished the coal essential to the crime with knowledge of the use to which it was to be put but that it must be established that that the appellant’s motive was to further the crime or encourage the criminal otherwise there was no mens rea. This argument was rejected. Devlin J said:

“Prima facie – in R v Steane (1947) 1All ER 813 makes this clear also – a man is presumed to intend the natural and probable consequences of his acts and the consequence of supplying essential material is that assistance is given to the criminal. It is always open to the defendant, as in R v Steane to give evidence of his real intention; but in this case the defence called no evidence. The prima facie presumption is therefore enough to justify the verdict, unless it is the law that some other mental element besides intent is necessary to the offence. This is what counsel for the Coal Board argues, and he describes the additional element as the purpose or motive of encouraging the crime. No doubt evidence of an interest in the crime or of an express purpose to assist it will greatly strengthen the case for the prosecution, but an indifference to the result of the crime does not of itself negative abetting. If one man deliberately sells to another a gun to be used for murdering a third, he may be indifferent whether the third man lives or dies and interested only in the cash profit to be made out of the sale, but he can still be an aider and abettor. To hold otherwise would be to negative the rule that mens rea is a matter of intent only and does not depend on desire or motive.[74] (emphasis mine)

Devlin J continued after referring to R v Coney:
“The judgements all refer to ‘encouragement’ but it would be wrong to conclude from that, that proof of encouragement is necessary to every form of aiding and abetting. Presence on the scene of the crime without encouragement or assistance is no aid to the criminal; the supply of essential material is. Moreover, the decision makes it clear that encouragement can be inferred from mere presence.”[75]

[72][1958] 3 All ER 203

[73]Devlin J at 207

[74]Ibid at 209

[75]Ibid at 210

After referring to the passage from the judgment of Cave J to which I have already referred His Honour continued:

“This dictum seems to me to support the view which I have expressed. If voluntary presence is prima facie evidence of encouragement and therefore of aiding and abetting, it appears to me to be a fortiori that the intentional supplier of an essential article must be prima facie evidence of aiding and abetting.”[76]

[76]Ibid

Gamble’s case is not authority for the proposition relied upon by counsel for Hoang Tran – it is to the opposite effect. If the evidence establishes that an accused has the requisite intent of a secondary participant, indifference or absence of motive that the crime be committed will not matter, but evidence which establishes motive may be relevant to the existence of the offender’s intention at the time that acts of encouragement or assistance are performed. Non-accidental presence at the scene of an offence may constitute evidence of an intention to aid and abet that offence.

In Archibold Criminal Pleading, Evidence and Practice 2004 the encouragement necessary to constitute aiding and abetting is explained in these terms:

“It must be proved that the defendant intended to encourage and wilfully did encourage the crime committed. Mere continued voluntary presence at the scene of a crime, even though it was not accidental, does not of itself necessarily amount to encouragement; but the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition, though he might reasonably be expected to prevent it and had the power to do so or at least express his dissent, might in some circumstances afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted, but it would be purely a question of fact for the jury whether he did so or not: R v Clarkson 55 Cr App R 445. In R v Jones and Mirrless 65 Cr App R 250, Court of Appeal at CA, it was emphasised (following R v Allan [1965] 1 QB 130, 47 Cr App R 243, CCA) that mere voluntary presence which in fact encouraged the principal was not enough; nor was mere voluntary presence coupled with a secret intention to assist, if required. What none of the cases make absolutely clear is whether mere voluntary presence, which in fact encourages the principal, and which is intended to do so, is sufficient. In principle, it is submitted that it should be; the act is the voluntary act of being present. This conclusion is consistent, it is submitted, with the leading case of R v Coney (1882) 8 QBD 534 CCR (non-accidental presence at an unlawful prize fight capable of being encouragement); and with Wilcox v Jeffrey [1951] 1 All ER 464, DC (intentional encouragement in fact by voluntary attendance at a concert performance known to be unlawful. The voluntary presence of a defendant as part of a crowd engaged in threatening behaviour over a period of time and/or distance is sufficient to raise a prima facie case against him on a charge of threatening behaviour, notwithstanding the absence of evidence of any act done by himself; Allan v Ireland 79 Cr App R 206, DC; applying R v Allan, ante. The same principle plainly applies, for example, to affray.”[77]

[77]Archibold para [18-18] p 1684-5

Gillies suggests that “mere presence may inculpate the witness to a crime as an accessory if this presence (to his knowledge) encourages the perpetrator to proceed to commit the crime.[78] The author argues that liability is not dependant upon consensus, conspiracy or concert between the secondary participant and the principal offender.[79]
[78]The Law of Criminal Complicity – Peter Gillies - Law Book Company 1980 p 51
[79]Ibid at p 7

There are a number of Canadian decisions which suggest that non-accidental presence at the scene of a crime, whilst not conclusive, may afford evidence of aiding and abetting.[80]
[80]See for example Preston v The King (1949) 93 CCC 81, [1949] SCR 156; R v Black [1970] 4 CCC 251

KJM Smith in his modern treatise states that a direction based upon the accused’s presence at the scene of an affray ready to intervene if necessary but without indicating this to others would be deficient. The author states

“Rather, actual encouragement, in one form or another, of the principal is the minimum requirement for complicity in any offence. Although presence following some sort of prior association can be taken as evidence of encouragement, this will not be inevitable. Thus cohabitation alone may not be evidence of encouragement or assistance. However, if presence is a consequence of an agreement to be on hand to render any necessary assistance, then encouragement would be presumed.”[81]

[81]A Modern Treatise on the Law of Criminal Complicity KJM Smith 1991 Clarendon Press Oxford p 36, footnote 75

In Victoria, directions concerning secondary participation have consistently been given in accordance with the principals contained in the passage from Smith J’s judgment in Lowery & King No. 2.[82] In each of the three circumstances in which secondary liability may arise, attention is focussed upon the knowledge, intention and conduct of the secondary participant. In R v Phan[83] Wood CJ at CL with whom McLennan J agreed, after referring to Coney, Russell, Allan, Clarkson, Roughley and Giorganni said:

“Moreover, in Giorganni, the Court made it clear that the principal in the second degree must actually know that the crime is being committed or will be committed. To that extent, the non-accidental presence of the appellant and his acquiescence in or assent to what occurred would not be enough, unless it was also made clear that the Crown had to establish that such assent or acquiescence amounted to that degree of encouragement or assistance as would constitute him a principal in the second degree.”[84]

[82](1972) VR 560

[83][2001] 53 NSWLR 480. See also R v Fowler [2003] NSWCCA 321; R v Adam (1999) 106 A Crim R 510

[84]R v Phan at 487 para [78]

The Court considered that there was no general principle by which assent or acquiescence without more could give rise to a liability. What was needed was proof that the principal in the second degree was:

“Linked in purpose with the person actually committing the crime and was by his or her words or conduct doing something to bring about, or rendering more likely, through encouragement or assistance, its commission”.[85]

[85]Ibid at 485 para [69]

No reference was made in Phan to the third head of liability discussed by Smith J in Lowery & King of “intentionally conveying by words or presence and behaviour that one is assenting to and concurring in the commission of the crime”[86].
[86]R v Lowery & King

As a consequence of the decision in Phan, a direction based upon the third head of Lowery & King was challenged in R v Makin[87]. Ormiston JA with whom Phillips JA agreed observed that “passive acquiescence” will not ordinarily provide a basis for a finding of aiding and abetting. The third head requires the accused to concur in the commission of the crime which as His Honour observes, is not merely passive acquiescence or assent. Ormiston JA and Callaway JA in separate judgments emphasised that the third head of liability requires an “intentional conveying” to the principal offender that the accused is “assenting to and concurring in his commission of the crime”. Callaway JA considered that it would be a rare case where that will not amount to knowing encouragement.[88] Ormiston JA, noting that the first head of liability in Lowery & King involves “intentionally helping” and the second head involves “intentionally encouraging” considered that the third head involves “a direct or indirect expression of willingness to assist as opposed to provision of actual assistance” which is a less direct form of encouragement.[89] His Honour concluded:

“’Concurring’ here connotes only a unilateral agreement with what the principal offender is doing albeit that the direction requires that it should be ‘intentionally conveyed’ to the perpetrator by words or conduct. It does not seem to require the genuine consensus required for concert or a joint criminal enterprise but merely the direct conveying of agreement such as would intimate that the aider and abettor supported what was being done and would be willing to provide some help if necessary. There seems to be no need for proof of the reaction of the main perpetrator.”[90] (emphasis mine)

[87][2004] 8 VR 262

[88]Ibid at 275 para [42]

[89]Ibid at 266-7 para [14]

[90]Ibid at 267 para [15]

The judgments of the Court in Makin treat Smith J’s formulation as a model charge for aiding and abetting. The contention was rejected that such a direction invites the jury to rely solely on the accused’s acquiescence in the principal offender’s activities. The obiter observation of Ormiston JA in the last sentence of the passage quoted confirms the position enunciated in most texts and in many of the authorities that proof of a causal connection between the conduct of the secondary participant and the commission of the crime by the primary offender is not required.

Conclusions

In answer to the question whether the prosecution must establish that the principal in the first degree was aware of the acts said to constitute aiding and abetting, a distinction must be drawn between acts of assistance and acts of encouragement. The primary offender need not be aware of acts of assistance performed by the principal in the second degree with the requisite knowledge and intention. Acts of encouragement must be viewed differently. For the words or conduct of an accused person to have the capacity to encourage the perpetrator of the crime, the words must be spoken and the conduct take place in the presence of the primary offender. The prosecution must establish that the secondary participant conveyed or communicated to the principal offender his encouragement by words or by his presence and behaviour that the offence should be committed. The prosecution need not establish that the principal in the first degree was aware of the words or acts of encouragement so long as they were communicated or conveyed with the necessary intention by the secondary participant and in circumstances where the principal offender could be aware of them.

The prosecution is not required to establish that the acts said to constitute aiding and abetting in fact assisted or encouraged the principal in the first degree. The suggestion in some of the authorities to which I have referred that it must be established that the principal in the first degree was in fact assisted or encouraged do not in my respectful opinion accord with principle or those authorities which I regard as persuasive and plainly correct. Such a direction to a jury would be too favourable. It would impose an impossible burden upon the prosecution, who would rarely be in a position to place evidence before a jury as to the effect of the secondary participant’s conduct on the principal offender’s state of mind.

Where the secondary participant is one of a group of persons behaving in a similar fashion, and the present circumstances may be such a case, it is unnecessary for the prosecution to establish an awareness of the encouragement proffered by each member of the group. Proof is not required that the principal offender was in fact encouraged by each individual’s conduct. In circumstances such as the present, the prosecution must establish that the conduct of the secondary participants said to be acts of encouragement, whether performed on foot or in a motor car, were acts of which the principal offender was or could have been aware.

In relation to the third question, the jury may use the non-accidental presence of participants in the second degree as some but inconclusive evidence of aiding and abetting. It will be open to the jury to consider the conduct of each of the secondary participants, who the prosecution allege came within very close proximity to the body of the deceased James Huynh, in the context of the surrounding circumstances. They may take into account evidence of prior events involving the secondary participants to determine whether a secondary participant’s conduct constituted an act or acts of encouragement or assistance accompanied by the necessary intent. A direction is appropriate in accordance with Smith J’s formulation in Lowery & King. Under the third head of liability, reference should be made to those observations to which I have referred from the judgments in Makin.

I was unable to accede to the submission that Hoang Tran has no case to answer. There is evidence upon which a jury may find that the conduct of the accused at the scene of the murder constituted encouragement and the intentionally conveying to the principals in the first degree who were present that the accused supported what was being done and would be willing to provide help if necessary.

Citations

R v Lam (No 20) [2005] VSC 294

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[2005] VSC 294

9 June 2005