R v Nguyen

[2010] HCATrans 252

[2010] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M23 of 2010

B e t w e e n -

THE QUEEN

Applicant

and

DANG QUANG NGUYEN

Respondent

HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 29 SEPTEMBER 2010, AT 10.19 AM

Copyright in the High Court of Australia

MR T. GYORFFY:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the applicant.  (instructed by Director of Public Prosecutions (Vic))

MR M.J. CROUCHER:   May it please the Court, I appear with my learned friend, MR C.B. BOYCE, on behalf of the respondent.  (instructed by Michael J. Gleeson & Associates Pty)

HAYNE J:   Yes, Mr Gyorffy.

MR GYORFFY:   Your Honour, the applicant seeks leave to set aside an order made by the Supreme Court in effect quashing convictions against the respondent in relation to attempted murder and murder.  The basis of that application is the basis of the justice of this particular case as set out in Hillier, in particular, paragraph 54 of Hillier.  After the previous application there are really two questions that arise for consideration here today and they are set out in paragraph 1.1 of the applicant’s submissions:

did the Court of Appeal err in law when it concluded that the verdict of the jury in respect of count 1 (murder) and count 2 (attempted murder) was “unsafe and unsatisfactory” -

Then, as a result of a notice of contention coming up the remaining matters that were left down below in relation to the charge were brought up as well, raising the two paragraphs in (b).

Your Honours, the Crown has in this application filed quite extensive summaries of argument and if I can go straight to the point.  The point that the Crown makes is this.  Under the principles of M v The Queen the court below was supposed to go through all the evidence and make an assessment for itself of what evidence was available for the jury to make its decision.  It is contended by us that, in fact, that was not done.  What occurred was that the court set out a summary of the evidence of the different witnesses, but did not resolve the tensions and inconsistencies between them.

The applicant contends that if the court had gone through the process of assessing the facts, as it ought to have, and as was indicated by this Court was necessary in cases that are based on circumstantial evidence in Hillier, then the court would have come to the conclusion that the facts as set out in paragraph 5.9 of the submissions were open to the jury.

Now, we submit that those facts are open after taking into account all of the evidence that went before the jury and the jury exercising its judgment on what parts of the evidence of individual witnesses it would accept and making judgment in relation to the credibility of the witnesses and their reliability in the difficult circumstances that existed in this flat on this night. 

There is one fact that is not mentioned in that particular outline and it would logically go at subparagraph (xxiii) at line 20 on page 7.  What probably should be added there for completeness is the evidence of Mr Ho, which is found in the application book at page 553, where Mr Ho – perhaps it is best if I read what he said in cross‑examination.  This is at lines 8 to 15:

So at this stage you’ve asked, no response, you’ve pulled out the gun, no response, so then you’ve crouched down, haven’t you? ‑ ‑ ‑Yes.

And not only have you pulled out the gun, you’ve deliberately fiddled with the gun so that the occupants, in a way, so that the occupants of the flat could see you fiddling with the gun? ‑ ‑ ‑Yes.

And that still didn’t have an effect, did it?

So it is submitted that that is an important aspect that the gun was fiddled with in the way that the occupants in the flat could see it.  The Crown would submit that what follows from that is that if the jury accepted the evidence that the respondent was sitting on the bed at the time, which was to the right of Mr Ho, he too would have seen that gun at that stage before any shots were fired.

HAYNE J:   What follows from that?

MR GYORFFY:   What follows from that, your Honour, is that he does nothing to take himself out of the situation that is unfolding and then we follow on with the other aspects where the second of the men, who is not before the Court, Khoa Nguyen, tells Mr Ho, points to the person, and says, “Take him out”.  So there is plenty of warning for Mr Quang that things are going on here, and the gun is out and he does nothing; he remains there.

KIEFEL J:   Does it also suggest that Mr Ho made the decision about the further use of the gun after having “fiddled with it”, as you say, in front of the occupants?

MR GYORFFY:   Well, he has brought it out to enforce the agreement which the case was based on, that is the use of necessary force to enforce the debt, including shooting someone, or killing someone.  That was the agreement on which the case was run and it comes within that agreement, and I will come to it later, your Honour.

The Crown’s point in this is that while there are many cases in which there is sufficient differentiation between the two offences that are committed to allow for there to be a difference in agreement or intention between the two events this is not one of those cases.  This is a case where the agreement that existed at the time of that first shot carries through to the time of the second shot because of the small amount of time that is involved.  So, yes, he has escalated the situation but the applicant says that is within the agreement that they had to start with.

What is submitted is when one looks at those facts as set out there, particularly with the addition that I have just sought to make, the jury had ample evidence to come to the conclusion that there was complicity here.  In a sense, this case has gone off on what at one stage your Honour described as a bit of a red herring in that the case was run in a divided way, unnecessarily. 

It was run on the basis that an agreement was reached before the men got to the flat.  If they had not reached an agreement before they got to the flat then the agreement or arrangement arose after they got to the flat on the basis of what occurred within the flat including the respondent getting the samurai sword.  That is really a cumbersome way of doing it when the test is what was the agreement at the time of the offence itself?  That has, to a certain extent, led to the difficulties that were faced later on when the judge had to try and come up with a charge.

So the applicant essentially says when one looks at the analysis of the Court of Appeal, and I am now paragraph 5.15 in the applicant’s submissions, it is not to the point to say that there was no direct evidence in relation to the agreement, there was no direct evidence in relation to the presence of the gun, there was no direct evidence as to where the samurai sword came from.  This case was about looking at the facts that were proved before the jury and making the available inferences from those facts and determining whether on those available inferences there was an agreement of a type that was alleged by the Crown.

To say there is no direct evidence in no way impacts on the weight or strength of the evidence that is there.  In order to do that what has to happen is there has to be a pointing to some other evidence, for example, an inconsistency in a witness’ evidence which would have the effect of, for example, saying that one of the facts that the Crown has set out in paragraph 5.9 could not be found by the jury. 

That is the analysis that had to be undertaken here, looking at all of the evidence, and that includes the inconsistent evidence and there are lots of inconsistencies here.  There are inconsistencies about the position of Mr Khoa, one of the other defendants.  There are inconsistencies about the time that was taken between the events.  There are inconsistencies about people being cut with a samurai sword.  All of those had to be resolved by the jury and had to be resolved by the Court of Appeal before it could apply the test in M.  The essence of the applicant’s argument is that just was not done. 

Really, I cannot add much more to what is in the arguments and the outline of argument that is put there.  We submit that that carries through into each stage and to each part of the analysis in relation to acting in concert, extended concert and aiding and abetting.  It all flows right through because the same type of reasoning is used.

We submit that when one looks at the respondent’s submissions in this case it falls into very much the same pattern.  If we look at Part III of the respondent’s submissions and we look at paragraph 8, there is a general acceptance there, which is footnoted by number 4, to the applicant’s submissions, particularly between 5.1 and 5.10.  Then what the respondent does is set out four matters which are said to, in effect, lead to a different conclusion but they are not really explained.  The first one:

the evidence might be taken as suggesting that the respondent had a sword prior to his entry to the Carlton flat.

That is contested.  What the applicant’s submission is there really is that it was open to the jury to come to that conclusion on all of the evidence.  But, as your Honours would see from the summary in 5.9 it was conceded that when one looked at the photographs and matters of that type then you could not see the samurai sword and it was open to the jury to say that it had not been brought to the premises.  There was a process of reasoning by which the jury could come to that conclusion.  They were told by Mr Ho that he was going there to collect some money.  When the respondent went into the flat and finally was seen by the victim, he had the samurai sword and he had used the samurai sword in that context.

I would be quite happy to concede, as part of these discussions, that probably the better evidence is that he picked up the sword inside the flat.  There is Mr Ho’s evidence which says that he went to another room.  In Mr Rochford’s final address, who was counsel for this respondent at trial, he pointed to a scabbard that was in one of the rooms as being a possible scabbard.  But that does not make a difference ultimately because the time that the agreement has to be reached is just prior to the offence being committed. 

The next point that is made against us in paragraph 10 is that the respondent continued walking around with the sword asking where Mao Duong was, but that view of the evidence is also disputed.  I think the evidence at its highest, and I might point out and apologise for this, but there has been an error in footnote 36 on page 8.

HAYNE J:   That is in your submissions, is it?

MR GYORFFY:   That is in our submissions, your Honour, yes.

HAYNE J:   Yes.

MR GYORFFY:   We have reference to “AB, 101”.  That is a typographical error.  It is AB 109.  The relevance of that goes back to the waving of the sword while the respondent was on the bed.  That is the evidence of the victim who was shot and his initial evidence at 109 was to that effect.  Does the Court want me to take ‑ ‑ ‑

HAYNE J:   You take such course as you think is appropriate, Mr Gyorffy, but does anything turn on at what precise time within the flat the respondent was waving the sword?  There was evidence, I think, was there not, that he was brandishing the sword?  There was evidence from one of the inhabitants or occupants of the flat that he and others were so frightened by this they were up against the wall?

MR GYORFFY:   Yes.  In my submission, no, nothing really turns on it because the whole picture has to be looked at from start to finish of this episode to determine what the agreement was.

HAYNE J:   All this in a context where there was at least some evidence, I think, from Ms Quach that the respondent either was first into the room or at least early into the room demanding to know where is Mau?

MR GYORFFY:   Yes, your Honour, that is so.  There is also evidence of three people in the room who were cut with the sword and your Honours would have seen the exhibits in relation to that in the application book that there were three men cut.  I will come back to the importance of that a bit later, not very much later, but soon, in that that is important in the assessment of the evidence.  So basically the Crown submits that on that evidence there is ample evidence from which the jury could have convicted on certainly an agreement having been reached or an understanding having been reached.  There could be no doubt that the actions, as such, would be sufficient for aiding and abetting because they are not just standing around.  The man is waving the sword, he is threatening people with the sword.  It is not just a case of standing around, he is actually taking part in the events.

CRENNAN J:   How were the cuts dealt with at the trial in the respondent’s case?

MR GYORFFY:   I think they were ignored basically, your Honour.  It is probably unfair of me to say they were ignored.  They were relied on as an effort by Mr Rochford for Quang to say, look, he only inflicted small wounds, therefore that is a factor that you can take into account to suggest that he was not there with a murderous intent.  That is how it was used.

BELL J:   My recollection is there was some evidence of an episode involving the man Hung Manh being advanced upon by the respondent with the sword and I think it was the co‑accused, Khoa, pulling him away from the man Hung.  Is that right?

MR GYORFFY:   There is certainly evidence of those two aspects that Hung Manh was advanced on by the sword and he is one of the people who was cut on the neck.  The material appears in the application book.

BELL J:   Yes, a 30 centimetre long wound, albeit not deep.

MR GYORFFY:   Yes.  There is certainly evidence that somebody pulled Khoa away from somebody, but I am not certain at this stage, your Honour, whether it was that particular person, but both aspects exist, yes.

HAYNE J:   The respondent at trial sought to dismiss these events, at least in part, on the footing that either he was or at least appeared drunk.  The co‑accused, Mr Ho, said, in effect, that he was not very bright and that he was behaving foolishly, giggling while all this was going on as though it was simply play.

MR GYORFFY:   Yes.  There was also another witness who described him as acting like a crazy man.  So there were those aspects put.  On the other hand, the counter argument was put by the prosecutor in the final address was that the actions were purposive and, in a sense, the very point we are talking about, the superficial nature of some of these injuries, is also counter to somebody who is drunk and waiving around and out of control.  So the jury could dismiss those matters or see that they did not have terribly much weight in the context of what occurred.

HAYNE J:   But now, if you are to say that there was evidence that would support the attempted murder and his complicity in attempted murder, what is the nature of the agreement, arrangement or understanding, or the aiding and abetting that the jury must have concluded?

MR GYORFFY:   It must have concluded what her Honour put, in my submission, in the papers that she handed to them, that is, that they were there to collect a debt, they were intending to use violence and to kill if necessary.

HAYNE J:   What was the evidence then upon which a conclusion could be founded that this respondent was party to an agreement to kill if necessary as distinct from do some lesser harm?

MR GYORFFY:   In respect of that, the applicant relies on all of the facts in 5.9 in saying that he comes to the flat when really there is no need for him to come.  It is suggested by Mr Ho that he has gone there to go to the toilet, no suggestion that he does that.  There is a suggestion that he goes down and looks in another room and then comes back with a samurai sword.

HEYDON J:   Fact (xvi) says:

according to Ho, the Respondent went off to the toilet after the men had entered –

I thought you said that he did not go to the toilet.

MR GYORFFY:   According to Ho, that is the co‑accused, the other man who was convicted, the respondent went off to the toilet after the men entered.

HEYDON J:   But there is no point in you relying on Mr Ho unless what he said is correct.

MR GYORFFY:   What I rely on is that he went down into another part of the building, not necessarily that he went to the toilet.  You see, Mr Ho was saying that he went to the toilet because that was the excuse that was given as to why this man came up when there was no other purpose or reason for him to be there.  But he went off into the other parts of the flat and when he emerged from the other parts of the flat, on the view that is contended for by the respondents, he emerged with the samurai sword.  So it is the totality of those facts, your Honour, that are relied on; his conduct in not leaving, he remains, his conduct in taking the pulse of the man, his conduct in being part of the discussion about whether the body should be disposed of.

It was not clear whether he was the one saying we will get rid of the body or whether it was Mr Ho.  Either way, he is part of the conversation going on in relation to that.  When the gun is produced he does not disappear and go away.  He has been inflicting injury and the way it was put by the prosecutor was a very logical way in his final address that the situation escalated.  They started off by wanting to know where the man was, they were not told.  Quang is walking around with a sword threatening people, they are still not told.  Ho brings a gun out, shows everybody he has got gun, revolves the cartridges in the revolver and then he is told by Mr Khoa, fuck him off or get rid of him, something to that effect, and there is a conversation, that one, and then there is a shot.  All through this Mr Quang is sitting there with his samurai sword on the bed, having used the samurai sword to threaten people prior to that.

HEYDON J:   Can I understand this, according to Mr Mau there was a drug debt established between him and Mr Ho?

MR GYORFFY:   Yes.

HEYDON J:   Was that in face‑to‑face dealings?

MR GYORFFY:   That was one of the issues that was run at the trial.  Mr Mau gave evidence that he was initially dealing with Khoa, the other accused, Khoa Nguyen, in relation to those drug deals and then was told that from after the first transaction, or thereabouts, he should deal with Mr Ho.  The evidence covered both Khoa and Ho operating together but then the supplies supposedly being to Ho. 

What was contested in the trial was that it was suggested that the telephone calls were being made to Khoa and it was on Khoa’s telephone and that in fact it was Ho that was answering and Ho that was being dealt with all the time, but my submission, when one looked at the whole of the evidence, the jury was entitled to reject that and that was brought out, particularly, by cross‑examination by the prosecutor of Mr Ho talking about the very clear Australian accent that he had compared to the other man who needed an interpreter in court.

HEYDON J:   But Mr Mau was therefore identifiable either by Mr Ho, if he had ever seen Mr Mau, or by Mr Khoa.

MR GYORFFY:   Yes.

HEYDON J:   Why then did Mr Ho and Mr Khoa, between them, ending up shooting someone who was not Mr Mau?

MR GYORFFY:   They were looking for Mr Mau and they were threatening the people in the unit, or the flat, to tell them where he was and what Mr Ho explained in his evidence was that he thought that the people were hiding him and so it escalated.  So they shot one of the bystanders to encourage the others to then tell them where Mau was.

HEYDON J:   The submission you advance is that the attempted murder of Chau Nguyen was just pour encourager someone else to say where Mr Mau was?

MR GYORFFY:   Yes.

HEYDON J:   And the actual murder, a similar motive or – I mean, when ‑ ‑ ‑

MR GYORFFY:   The actual murder was the person who stood up on the bed and was stepping off the bed and he was shot.  Why that occurred, other than he was shot at close range with a pistol through the head and at that point the transaction ended and they left.

HEYDON J:   I am just finding it very hard to understand the behaviour of the shooter that night.

MR GYORFFY:   They are standing over people, your Honour, to try and get information and they are keen to get the information.  That is probably why it is pretty safe to draw the inference that they had an intention to kill as part of the agreement.  They were prepared to take out an innocent bystander that is lying there having a sleep to get the information that they wanted to track down Mr Mau and get the money.

Then it is submitted that the same sort of reasoning flows through in relation to the other grounds that were put by the court for dismissing this matter.  I suppose I should finish off with what is said by the respondent in paragraph 11 of the respondent’s submissions.  There is reference to the time.  It said:

the applicant’s summary asserts that there was at least 10 to 15 seconds between the two shots.  The applicant relies on the evidence of Mr Kathleen Quach (“Ms Quach”) for that assertion.  But it was not open on all the evidence to exclude the possibility that the two shots were only a couple of seconds apart.

We would submit that is not to the point.  The point is whether the jury could accept Ms Quach’s evidence that it was 10 to 15 seconds between the two shots, not whether there was other evidence.  There is also other evidence, I think from a neighbour in the flat, that it was two or three minutes.

BELL J:   Ms Quach, I think, put the interval as involving minutes in her evidence at this trial, but in cross‑examination, in light of things she had said on previous occasions, accepted the shorter period.

MR GYORFFY:   Yes, she did, your Honour, that is correct.  She was taken back to her material and she accepted as true what she said previously, which was that it was 10 to 15 seconds.  The point in here too, is that the shorter that gap becomes, the less opportunity there is for any argument in relation to a different agreement applying to the second shooting.  The final matter that was put in paragraph 12, it:

excludes reference to other aspects of Mr Ho’s evidence demonstrating innocence –

It is submitted that the jury was entitled to dismiss those on the basis that this was Mr Ho trying to help his fellow offenders and he was effectively doing all he could to take the blame himself and let them off the hook.

BELL J:   Can I just ask you about the chronology of events.  There were two trials where the jury was discharged without verdict.  Just broadly, can you explain the circumstances of those?  There is no suggestion that the jury were unable to agree on either of those occasions?

MR GYORFFY:   No, your Honour, I specifically checked up on that.  In the first trial counsel withdrew their instructions part way through.

HAYNE J:   The clients, I assume, withdrew their instructions rather than counsel.

MR GYORFFY:   Sorry, yes, your Honour.  You are quite right, your Honour.

BELL J:   Then the second and third resulted in the discharge.

MR GYORFFY:   In the second trial one juror became distressed and I think it went on after that for a while and then everybody thought, well, that is not good, we better discharge.  On the third occasion – there was another problem with the jury on the third occasion.  But in none of those cases did it get close to the judge getting to a charge.  Is there anything else, your Honour?

BELL J:   Not on that.  I take it you are going to deal with the notice of contention?

MR GYORFFY:   Yes, I am.  I am just coming to that now actually.  In dealing with the notice of contention, I think I can put it simply that the applicant, in effect, supports what the Court of Appeal has said in the Court of Appeal’s analysis and if I can just put in a nutshell why it is contended that, really, manslaughter was not open in this case.

When one looks at the application of Gilbert and Gillard and Markby, all of those cases, they are dependent upon the evidence and the way the case is run.  Now, Gillard and Markby place an obligation on the trial judge to leave the fences that are open on the evidence, in other words, open on the evidence in the way that the case was run.  There was a great deal of debate here with her Honour about how manslaughter could be left at all. 

BELL J:   But, is that not the position that one finds in, I cannot remember whether it is Gilbert or Gillard, but precisely that.  One gets defence counsel for forensic reason urging that it is an all or nothing case.

MR GYORFFY:   Yes.

BELL J:   But if manslaughter is available, the obligation is on the trial judge notwithstanding ‑ ‑ ‑

MR GYORFFY:   I accept that, your Honour, but what I am ‑ ‑ ‑

BELL J:   Why does that not apply here?  Surely on one view of it there was a body of evidence from which it would be open to infer an understanding or agreement that a debt was to be recovered by criminal means involving violence, but that the jury might have entertained a doubt as to whether or not the respondent foresaw the intentional infliction of grievous bodily harm or death.

MR GYORFFY:   My answer is, your Honour, that as a general principle that can be open, but not on the facts of this particular case.

BELL J:   Because of the attempted murder?

MR GYORFFY:   Yes, and the sequence.

BELL J:   How do you overcome the Gilbert problem in that respect?  If you accept, looking at the circumstances and considering that it was open to infer the existence of an understanding that they would recover the debt by violence but that the respondent did not foresee the intentional infliction of grievous bodily harm or death, on the reasoning that applied - your reasoning depends upon a view that the jury had to be satisfied of foresight of an intention to kill with respect to the attempted murder.

MR GYORFFY:   Going a step before that, it depends on the proposition that the Crown could only run this case with an attempted murder and the murder together ‑ ‑ ‑

BELL J:   Yes.

MR GYORFFY:   ‑ ‑ ‑ on the basis of the agreement being an intention to kill and that is the only way it was run.  In fairness, the prosecutor tried to introduce the concept of causing really serious injury as well, but that was knocked out.

BELL J:   Yes.

MR GYORFFY:   The facts, and this is the point, your Honour, to answer what you are saying, the facts here are such that the only agreement that the Crown can succeed on is an intention to kill.

HAYNE J:   If that is so, why was manslaughter left at all in the case of Mr Ho.

MR GYORFFY:   Well, exactly, your Honour.  No, sorry, because, and this is what counsel was at great pains to make clear to her Honour throughout – this is Mr Stuart who appeared for Mr Ho – “My bloke is the principal” is the argument that was put.  He can commit the offence in different ways.  He does not have to be, as it were, a party to the agreement.  The agreement has to be found in relation to the other two.  So it was logical for her Honour to leave manslaughter there open because he was being dealt with simply as a shooter.  The other two, however, to be responsible for what he did have to have what he did come within the agreement that they had.  That is the distinction, your Honour.

HAYNE J:   But were the jury told to consider attempted murder first, that is, the liability of this respondent in respect of attempted murder?  I think not, were they?

MR GYORFFY:   I did not find it there, your Honour, I could not find it.  On the other hand, it would be the logical way for them to go because it is a first offence in point of time.

HAYNE J:   Perhaps so, but the written instructions given to the jury did not differentiate between the two counts, I think.

MR GYORFFY:   No, that is right, at the request of counsel who suggested it became too complicated when that was done and asked for a generic set of notes in relation to concert.

HAYNE J:   The complexity arises from the desire to give the jury a disquisition on the criminal law of complicity rather than focus attention upon the three questions that were identified in Hartwick and Clayton.

MR GYORFFY:   Exactly, your Honour, I agree with that.

HAYNE J:   Perhaps some note might be made of that fact, but there we are, it did not happen at this trial.

MR GYORFFY:   No, it did not happen at this trial, but what happened was that the parameters within which the case was fought was the parameter set by the Crown which was that the only agreement the Crown sought in the end to prove and the only agreement that went to the jury was the arrangement amounting to an agreement between Khoa Nguyen and Quang Nguyen, as the case may be, that they would intentionally, if necessary, recover the debt and – that is paragraph 2 – that they would kill intentionally, if necessary, to recover the debt.  That was the way it was put.  That was the only way it was left to the jury.

HAYNE J:   I understand that.  Does that not present squarely the same circumstance that obtained in Gilbert where you have the parties going to the jury on a footing of all or nothing and the Court in Gilbert, at least as I presently understand Gilbert, holding that regardless of the fact that the parties go to the jury on that basis, the trial judge must, if manslaughter is available, put manslaughter to the jury so that the jury are not faced with all or nothing?

MR GYORFFY:   The key words that your Honour spoke then were “if it is available” and if it is available on the facts and that was ‑ ‑ ‑

HAYNE J:   Now, as to that, the argument against you is in paragraphs 62 and following of the respondent’s submissions where the respondent says, look, these are possible ways in which manslaughter could have been available under each of the three heads of relevant liability.

MR GYORFFY:   And my response to those paragraphs, your Honour, is that they are theoretical.  They suffer from exactly the same problem as was confronted by the trial judge in this case having asked counsel to say, “Well, okay, what are the facts I am going to put this on to the jury?”  Nobody could say what the facts were.  In fact, Mr Rochford said it does not make any sense and he tried to persuade her Honour not to put, for example, the additional aspect that was sought, which was really serious injury on the basis that it just does not make sense for somebody to say “I am going to kill somebody by committing really serious injury.”  They were the difficulties and my submission is that, yes, if it is open on the facts, it has to be put, but on the facts of this case it just is not open because the only agreement that was alleged was an agreement to kill.  If the jury rejected that agreement, then that was the end of the case.

HAYNE J:   Mr Gyorffy, it sounds as though I am quibbling, but the point is a real point underneath what seems to be a quibble.  You said the case was run as the only agreement was, therefore you got to the conclusion, therefore that is all the jury had to consider.  Was there an available view of the facts, short of the facts which the prosecution asserted, which the jury could adopt and would found a verdict of guilty of manslaughter?

MR GYORFFY:   That was the subject of a great deal of debate on the transcript and in the end nobody could come up with the facts the Court of Appeal commented on that.  Nobody could come up with the factual basis on which to put it and I have not been able to either.

CRENNAN J:   Mr Gyorffy, just a short point, at 1098 of the application book, at the top of the page, her Honour seems to have had in mind that she would come back to direct the jury in relation to the possibility that Mr Ho was guilty of the murder of Mr Luu but there could be a situation where you might decide that the other two persons were not guilty of murder but guilty of manslaughter.

MR GYORFFY:   Yes.  She did consider that.  Then she went away and considered the submissions that were made by Mr Rochford and came back and really left it solely on the basis of there being aiding and abetting.

CRENNAN J:   It really happened during the course of – she started out she was going to do it and was deflected from that course you are saying?

MR GYORFFY:   Yes, and was deflected from that course for the very reason that I am submitting, that the Gilbert decision does not arise in this case because nobody could postulate the facts on which a Gilbert scenario could be put forward.  That was the problem.

BELL J:   The difficulty that I have with that is this.  One view of the facts that might be open is that the respondent did not know that Mr Ho had the gun with him before they went into the flat, indeed, did not know that until the gun was produced, that the jury might have reasoned upon the basis that the respondent’s conduct inside the flat involving the use of the sword and the threats and the demands to know where Mau was were consistent with him having an understanding with Mr Ho that the debt would be recovered by means, including violence, but that he had not contemplated the intentional infliction of grievous bodily harm or death.  What is wrong with that as an available way that it might have been open to consider the facts?

MR GYORFFY:   Because that blankets out the uncontroverted fact of the production of the gun a long time before the first shooting takes place, the ability to see the gun sitting there, knowing that it is produced and not taking any steps to move away.

BELL J:   But all of these are factual matters for the jury to weigh up.  The jury may have approached the matter on the basis that there was a very short interval and that the production of the gun was a matter of seconds before the shooting of Mr Chau Nguyen.

MR GYORFFY:   There would have to be such a short interval that the respondent could not pull himself out of the agreement.  That is the difficulty, your Honour.

KIEFEL J:   But the agreement initially may have been - to be implied or to be inferred is an agreement to frighten people, even if it went on for other than a very, very short period.  The escalation into something else may have taken them by surprise.  I mean are not these matters that the jury has to consider on the whole of the evidence?

MR GYORFFY:   If it can be put to them in a way that is consistent with the facts that are there and leave them before them, and it is open on those facts, yes it does.

KIEFEL J:   Much may depend upon their view of when Mr Ho decides to fire the gun and whether or not that was something that occurred rather suddenly and without apparent warning that he was going to go that far.  I mean, as these circumstances are unfolding, that seems to be an available option, does it not?

MR GYORFFY:   The question is whether on the facts it is an available option and that is what the judge has to assess.

KIEFEL J:   But why is it not?

HAYNE J:   With a drunk and simple man, the respondent.

MR GYORFFY:   If the jury accepts that he is drunk, he is still doing very complex acts and so on, and that is the difficulty here.  I mean, on the facts, as they unfold, and the conduct immediately afterwards as well - the only time that there is any suggestion of a surprise and why did you do that is in the evidence of Ho when they are going down the stairs, he gives evidence and says that Quang was surprised about what happened.  But the jury is looking at evidence which involves this man taking the pulse of someone who has just been shot and saying “Yea, he’s dead” and then a discussion, “Will we get rid of the body?”  It is very hard in that context to come to any other conclusion.

KIEFEL J:   That requires some precision, perhaps, about agreements and aiding and abetting, the point at which, what you are doing.

MR GYORFFY:   That is after the shooting, your Honour, but it is still relevant to assess the intent prior to the shooting.  That is the argument that is put.  If it is not attractive to your Honours it is not attractive.  But that is the basis on which it is put.  I accept the proposition that Gilbert and Gillard and Markby require that a judge put a scenario that is open on the facts to the jury.  In this situation, particularly because of the attempted murder, and that being first in time, and there being very little time between the two events in which one could say that there could be a change of intention from that which existed at the time of the first shooting, the facts of this case just do not allow the scenario to be put.  I think unless the Court has any other questions to ask me, that brings me to the end.

HEYDON J:   If you won on the appeal and the respondent won on the cross‑appeal, you say there should be a new trial?

MR GYORFFY:   No, your Honour.  We would submit that the convictions of the jury should be reinstated.

HEYDON J:   But if they won on the notice of contention how could that be?  If you win on the appeal, but they win on the notice of contention, it will follow that there were jury conviction ‑ ‑ ‑

MR GYORFFY:   If they won on notice of contention, yes, I think that the only option is that it would have to go back to be considered by a jury unless this Court felt, as sometimes occurs, that the evidence in relation to that is sufficient to substitute that verdict here.  I know Justice Hayne would not be happy for it go back with the delays that exist in the Victorian Supreme Court.

HEYDON J:   Is there an argument that a new trial would be oppressive in view of all the circumstances?

MR GYORFFY:   It raises that issue, your Honour, that often arises where there has been a trial and there has been a conviction and then the exercise of the person’s right has resulted in the setting aside of that conviction wrongly and it really, in my submission, cannot be seen as oppressive to bring back the balance to where it was.

HEYDON J:   I do not know that the wheels of criminal justice have turned in a desirable way in this case.

MR GYORFFY:   They certainly have not, your Honour.  I am not going to pretend that they have.  It has taken a long time.  There were long delays between the order being made and the reasons being given and so on.

HAYNE J:   There is no little difficulty in seven months expiring between hearing and publication of reasons and five months expiring between

hearing and making of orders in a case where the conclusion is that the man has been wrongly imprisoned.  That presents the difficulty acutely.

MR GYORFFY:   Yes, your Honour.  There are no other matters.  Thank you.

HAYNE J:   Yes, Mr Croucher.

MR CROUCHER:   Your Honours, might we deal with the matters in the order in which they were dealt with by our learned friends.  Firstly, on the question whether the Court of Appeal was correct to conclude that the convictions were unsafe or not open on the evidence we say these things.  Firstly, the criticism made by the applicant of the reasons of Justice Neave and the approach that her Honour took to the M v The Queen question we say are not made out.  Her Honour set out the evidence.  Her Honour analysed the evidence.  Her Honour stated her conclusions consistently with authority that the jury must have entertained a doubt on each of the three heads of complicity. 

There was some criticism, perhaps not orally today, but in the written submissions that her Honour did not deal with an important fact, obviously, the respondent’s waving of the sword, brandishing the sword in the particular circumstances, but the fact is her Honour does deal with that in her reasons at application book 1424, paragraph 106 and following, through to 110.  Her Honour expressly starts off, as you can see in paragraph 106 at application book 1424, that:

Quang’s behaviour in waving around the sword before the first shot could be regarded as consistent with an agreement or understanding, reached after the men arrived at the flat, to threaten the occupants to discover the whereabouts of Mau.

But then she goes on and explains for various reasons why, on all the evidence, one could not exclude the possibility that it did not amount to, under the “concert” heading, an agreement to kill, under the extended “Common purpose” heading, an agreement to inflict some sort of violence foreseeing the possibility of an intention to kill, thirdly, aiding and abetting with the requisite intention.  So her Honour does deal with it. 

Now, whether or not the Court is persuaded by our submission on her Honour’s analysis, we say that the conclusions that the court reached were correct and they were correct principally for these reasons.  Absent knowledge of the gun, until it was too late to do anything about it, it was not open, in our respectful submission, to say(a) that there was an agreement to kill entered into by the respondent with Mr Ho, or (b) that there was an agreement to offer violence foreseeing the possibility that Mr Ho might kill intentionally; extended common purpose, or (c) that the respondent encouraged Mr Ho to shoot and, with the requisite intention, kill the deceased or, for that matter, with the requisite intention to shoot the other man who was the subject of the attempted murder, Mr Chau.

The time between the production of the gun and the shootings, on any view, was very, very short.  Even Ms Quach, whose evidence has been spoken of when she spoke about 10 to 15 seconds between the two shots, when you look at her evidence it is plain that she is not very good at estimating time.  As Justice Bell said a moment ago, her first estimate was something like three of four minutes, and then she said, yes, 10 to 15 seconds. 

Then when you actually look at her evidence of her description of what happened she describes what is happening and she describes it as happening in quick succession; the pulling out of the gun, the spinning of the chamber, someone suggesting that it be fired, that he fires at Mr Chau and then he turns when Mr Hieu stands up and shoots him.  That is the sort of timeframe we are speaking about, probably in the sort of timeframe that I have just uttered it now; that is what the evidence supports.

HEYDON J:   Well, it was long enough to say, “You stop that”, or to leave, was it not?

MR CROUCHER:   No, not in my submission.  The other thing that my learned friend says is that he points to a passage in Mr Ho’s evidence that suggests that people could have seen what was going on.  There was no evidence that the respondent was aware of the production of the gun, none.  Indeed, there are other people in the house who were not aware of the production of the gun until it was fired, which is not surprising.

HAYNE J:   When you say no evidence, by that you mean no witness said and that is all you mean, is it not?

MR CROUCHER:   Yes, and I say it is not open on all the evidence to infer ‑ ‑ ‑

HAYNE J:   How big is this room, Mr Croucher?

MR CROUCHER:   It is six by four metres.

HAYNE J:   We have got how many people in there?  Seven occupants.

MR CROUCHER:   Yes, something like that.

HAYNE J:   Three men have come in, right.

MR CROUCHER:   The lighting was described as poor.

BELL J:   There is a description of Mr Ho down on one knee, gun out and spinning the cylinder in a room of that size.

MR CROUCHER:   That is true, but ‑ ‑ ‑

BELL J:   It is one thing to say that the jury might have entertained as a reasonable possibility that the respondent did not see the gun.  For my part, to say there is no evidence that he did does not really assist an analysis of the facts upon which it was open.

MR CROUCHER:   I understand the difference, your Honour, in saying that “it might” is not enough.  Obviously the jury must have entertained a doubt about that fact in order that the point that I seek to make be made good.

Our submission is that when you look at all the evidence, it cannot be inferred by indirect means, beyond reasonable doubt, that indeed he was aware of it at any material time before the gun was fired.  In fact, the evidence about his behaviour afterwards, none of which attracted a consciousness of guilt direction, which ordinarily it should, but there it is, that did not happen, was to the effect that, “Why did you shoot him?” as if – he was not even aware of the first person being shot, only is aware of the second and then realised that he was dead.

BELL J:   Is that a submission directed to Mr Ho’s evidence?

MR CROUCHER:   Yes, in part.

BELL J:   Mr Ho’s evidence, it was more than open to consider, was tailored, he having accepted as it were the inevitable, to helping the two respondents.  There were implausibilities about it that left that, one might think, well open.

MR CROUCHER:   Yes.  I understand your Honour’s point.  Anyway, we rely on what we have written about the facts to support the court’s orders on the question of its being unsafe.  Your Honours, we feel duty‑bound to raise a decision of the House of Lords in Regina v Rahman and others [2009] 1 AC 129 which we only discovered last night, which we will hand up to your Honours now. The significance of this is to be found in the speech of Lord Brown, particularly at paragraph 68. The context is this, that this was one of those extended common purpose cases that came up to the House of Lords on a question about the scope of extended common purpose which, of course, as your Honour Justice Hayne mentioned a moment ago, was reconsidered in Clayton’s Case by this Court.

Your Honour would remember in particular that Powell, which was the House of Lords decision in 1997, had been considered by this Court in Clayton.  This case was a reconsideration of some of the issues that were raised in Powell and English.  In particular, the issue that seems to have developed in the English jurisprudence about the unexpected production of weapons and killing by unexpected means.  You will see in the speech of his Lordship at page 165, paragraph 68, his Lordship there having discussed Gamble’s Case ultimately seeks to summarise the position, at least at English law, in that extract where his Lordship says this:

If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture –

Stopping there, that is more or less a description of extended common purpose as we know it in this country.  Then there is a proviso put on the end of it –

unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A’s act is to be regarded as fundamentally different from anything foreseen by B.

The reason we draw that to your Honours’ attention is because if that were the law in this country as well, it seems particularly apt in this particular case because of the view of the facts which is that at best for the Crown there was this spontaneous production of the gun at the last minute and the man was assaulted, namely, killed or sought to be killed by the attendant murder count, in ways that might not have been foreseen or intended.

KIEFEL J:   Does an approach such as this tend to distract somewhat from the requirement that one first identifies the scope of the agreement?  Because once you identify the scope of the agreement, the production of the weapon should fall either within or without it.

MR CROUCHER:   Your Honour, I respectfully agree with your Honour’s observation, but I think their Lordships see it as actually doing that, as dealing with the concept of what is the scope of the agreement and how the scope of the agreement can be altered and whether or not that has some ‑ ‑ ‑

KIEFEL J:   It is rather working backwards, though, is it not?

MR CROUCHER:   Yes, your Honour, it may be, but we thought it appropriate to at least draw it to your Honours’ attention.  As I say, the point is, if it is right, if it were adopted by this Court, then it would add to the argument, firstly, that it was not open on all the evidence to convict in this case.  Secondly, it would also suggest that the jury were not properly directed on complicity in this particular case because this is a fundamental type of direction that will be given in this type of case.  So that is the point.  We have copies of Powell as well if your Honours wish to have that, but, of course, there is great discussion of Powell and, in particular, Lord Hutton’s judgment in – Powell and English were heard together and it is the English branch of the Powell and English Case that attracts this principle, if you like, or this discussion.

HAYNE J:   If the jury were to accept evidence which was before them that the respondent in the room had a samurai sword which he was brandishing causing fear while demanding “Where is Mau?”, what inference, if any, is available to the jury from those facts that is relevant to this case?

MR CROUCHER:   What matters is putting it through the strainer, if you like, of the three ways in which the Crown put its case or the way it was left to the jury, can you infer from those facts that your Honour has just outlined an agreement to kill?  No, obviously not, in our respectful submission.  That means one limb of the Crown case or one leg of the Crown case falls away.  Two, can you infer that he, as well as being part of such an agreement, foresaw the possibility that Mr Ho would go beyond the plan and intentionally kill someone, because it was put on intentionally killing because of the attempted murder issue, that being the requisite intention for attempted murder and the same way for murder in this case, because they were so close in time?  The point my learned friend makes about that is right.  So we say no to that. 

Thirdly, aiding and abetting.  Well, he has to have known about the presence of the gun, has to have known that he was going to use it with an intention to kill for the purpose of attempted murder and with an intention at least to cause death or really serious injury for purposes of the murder, both close in time, and has to have encouraged or assisted him in that endeavour.  Our respectful submission is that it just does not get there, the evidence.

HAYNE J:   Is it open to infer from the facts I have identified – was it open to the jury to infer from the facts I have identified that there was an arrangement to which the respondent was party to collect a drug debt?

MR CROUCHER:   Yes, a debt – at least a debt, I should say, your Honour.

HAYNE J:   Is it then a debt?

MR CROUCHER:   And the reason we are a little bit sensitive about that is, you saw the discussion below and Justice Heydon was talking about that with the face‑to‑face relations between Mr Khoa and Mr Ho and Mr Mau, there was no evidence that the respondent had anything to do with any of that.  He was a third wheel who came along at the last minute for whatever reason.

HAYNE J:   Is it then an available view of the evidence for the jury to conclude that there was an appreciable – let me leave aside the quantitative content of that – an appreciable period of time in which Ho, having produced the weapon, was spinning the chamber and conversing with Khoa?

MR CROUCHER:   Our submission is no, but can we just point you to what really the Crown’s high point was about that evidence, and that is Ms Quach at 243 of the application book, so the first volume, and we actually set this out, I should say, in our submissions in summary form at paragraph 11, where she says, for example, at line 4:

So that’s where he was standing when you first saw the gun, is that the situation? ‑ ‑ ‑ That’s correct.

And what did he do?  Did you see where he pulled the gun from or did you just see him with the gun in his hand? ‑ ‑ ‑ He pulled it out of his pocket before that.

He pulled it out of his pocket.  What did he do, can you describe what he did? ‑ ‑ ‑ He was spinning the barrel around, yes, and then closed the gun and then Chau woke up so he turned around and, yeah, took a shot.

When you say turned around, what do you mean? ‑ ‑ ‑ Because he was, I was on the opposite side of him and, yeah, he was just looking around that side so Chau was further down so he turned around and he took a shot.

Did you see what happened to Chau? ‑ ‑ ‑ Yes, it was all happening really quick because, like, he just turned around and he shot him and Chau got hit in the head.

Then she describes what happened to Mr Chau.  Then on the next page, and I am not deliberately not reading, and I will just leave it there for your Honours to read, but he then asks on the next page at line 8:

You saw Chau get hit by the bullet, what happened then? ‑ ‑ ‑ And then Hieu –

who is the deceased in the first count –

the one laying on the bed, he woke up because of the shot fired and, yeah, he was sleeping, or he was smoking choof before that so, yeah, he was sleeping and he wasn’t aware of what’s going on . . . 

So he woke up and what happened then? ‑ ‑ ‑ He was laying down so he just stood up very fast, maybe because he was shocked, I don’t know, it was just an immediate reaction, he woke up and then the blond haired guy, he turned around and he took another shot.

That is why I put before that this is all happening quickly so that when she says initially three or four minutes and then comes back to 10 or 15 seconds, in the context in which others who were in the place said it was really only one or two seconds ‑ ‑ ‑

BELL J:   Accepting that it is happening relatively quickly one has, in addition to Ms Quach’s evidence, the evidence of the victim Chau Nguyen who describes waking up and looking above the blanket that he has pulled over his head, and he recalls the man, Ho, saying “Find Mau for me”.  He recalls someone pacing up and down and then Khoa saying “Get him off”, or “Fuck him off”, or words to that effect, then the gun being pointed at him and Ho pausing in order to get the direction from Khoa.  Now, these things can happen in a relatively short amount of time ‑ ‑ ‑

MR CROUCHER:   I accept that.

BELL J:   ‑ ‑ ‑ but inferences might be available from that sequence of events taken with Ms Quach’s evidence in circumstances in which the respondent is armed with a sword capable of inflicting a cutting injury, as it did, and the circumstances of its production.

MR CROUCHER:   I understand that, your Honour, and the force of that point, with respect, but the context is as well that there were others who were there witnessing events as well and did not, for example, witness Mr Khoa apparently pointing to Mr Ho to “off him” or whatever the words were, or words to that effect.  So there is no reason why the respondent might not have – indeed it could not be said that he heard these things, for example.  Anyway, I understand your Honour’s point and as I say, we rely on what we have written. 

Our alternative submission under the unsafe point is that even if all three limbs are not unsafe - and I am here speaking of our short submission at paragraphs 37 to 38 - that at least one of those three heads was not open, for example, it was never sensibly open, in our respectful submission, to say that this was an agreement to kill from the outset, and that was the way it was left.  It was just was not there on all the evidence.  That being so, a false path of reasoning to conviction has been left to the jury, albeit that on this hypothesis one or more of the other paths might be open, that pursuant to the authority we have relied on, Galas & Mikhael at paragraph [16], a decision of our Court of Appeal in Victoria, is a basis for saying not that the conviction is unsafe and that an acquittal would follow, but that the verdict has to be set aside and then the question whether to retry or not arises as a matter of discretion.

HAYNE J:   But let me just understand what aspect of the statute this would come under.  This is an argument, is it not, alleging misdirection?

MR CROUCHER:   No, it is an argument saying that at least one of the ways in which the case was left to the jury was not open.

HAYNE J:   Well, that is misdirection.

MR CROUCHER:   All right then.

HAYNE J:   It seems, Mr Croucher, the proposition is put far too hard back at you and you accept it too readily.

MR CROUCHER:   Please disabuse me, your Honour.

HAYNE J:   But at least, it seems to me, not to be the unsafe, unsatisfactory ground which is properly described as contrary to the evidence and ‑ ‑ ‑

MR CROUCHER:   Unreasonable or cannot be supported having regard to ‑ ‑ ‑

HAYNE J:   Unreasonable and cannot be supported by the evidence.

MR CROUCHER:   All right, your Honour.  I respectfully accept the point you are making.  That is another basis for supporting the orders setting aside the conviction.

HAYNE J:   Well, that seems, if I may say so, to be introducing new grounds of a kind not presently raised by you, is it, and to raise a way of looking at it never agitated in the Court of Appeal.

MR CROUCHER:   At footnote 41, your Honours, of our submissions, we did put in that if it be thought that this point must be the subject of a notice of contention, then notice is hereby given to make the relevant application.  But we say it cannot be said that it was not taken in the Court of Appeal in this sense.  Yes, you are right.  It was not formally taken, but it is a second alternative or an alternative argument on an unsafe ground.  It is saying that all three heads are unsafe.  Therefore, there must be an acquittal.  In the alternative, if at least one of them is unsafe, then the jury might have gone down a false path of reasoning.  That, in of itself would not lead to an acquittal necessarily because, by definition, other bases were open, but this was one was not.  Therefore, the fact that one or more of the jury may have convicted on this false basis means that the conviction is unsafe in the English sense.  The conviction has to be set aside, not that it is not open to convict.  That is what we want to say about that. 

The next point is this.  If we are wrong about all of that and that any or all of the three bases put by the Crown at trial were open, then in the circumstances of this case – I am now dealing with the notice of contention – it necessarily follows that there was a viable alternative manslaughter available and consistently with the principles laid down by this Court, by the majority in Gilbert, affirmed and applied in Gillard, there is a miscarriage of justice and the proviso cannot be applied, in our respectful submission.

HAYNE J:   What consequence do you say follows from that?  If you wish to deal with that subject later as a whole do so, but what consequence would follow?

MR CROUCHER:   I will deal with it now.  We do make the point in our submissions for several reasons, whilst the usual consequence, obviously enough, on the assumption that there was a case, would be to set aside the verdicts and direct a retrial, in the unusual combination of circumstances that arise in this particular case the proper order would be if the Court of Criminal Appeal were hearing it and now that your Honours are hearing it, would be to acquit, or, put another way, not to disturb the orders of the Court of Appeal on that issue. 

The reasons are these, and we have set them out in summary form at paragraph 40 of our written submissions, and they are these.  Firstly, as the chronology reveals there were four trials and it has been explained the circumstances in which there were four trials, but it would mean a fifth trial – very unusual circumstances for there to be a fifth trial in my experience.  My learned friends have more experience of these things than I do, but it is a pretty unusual thing.

Secondly, extraordinary delay has occurred in this matter.  The incident happened on 8 November 2004.  The trials, plural, were heard in 2006 and 2007.  The appeal was ultimately heard in July 2009 before the Court of Appeal.  Orders made setting aside the convictions and directing acquittals in December last year.  The respondent had been in custody, therefore, for just over five years at that point.  He is now at large.

Even assuming this Court would hand down its decision or make orders immediately, the state of the lists are that, we say, it would be reasonable to assume it would not get on as a trial again until well into next year, so we are looking then at something like nearly six and a half, seven years between the incident and the trial.  Thirdly, as we say, the respondent has already spent over five years in custody.  Fourthly, as the judge found, accepted on the plea, the respondent has significant psychiatric and psychological afflictions which moved her Honour to impose a shorter than usual sentence because time would be harder for him. 

Next, we say that on this hypothesis, whilst it might be open to convict, it is still a very weak case against him for murder and attempted murder.  It was always a manslaughter at best, in our respectful submission, in this case, it was nothing but.  A further point that we have learnt today, for what it is worth, your Honours, is that the respondent’s wife has since died and he is now the sole carer of their child.  So that is what we say about those relevancies. 

The other thing, as well, of course, is that the principles that this Court has applied on many occasions about Crown appeals against acquittals are that basically it has to be a very exceptional case before special leave is granted.  When you consider the notice of contention point and the discretionary considerations that I have just mentioned, in our respectful submission, it would be a proper course for this Court simply to affirm, effectively, or not disturb the orders of the Court of Appeal and thereby, effectively, allow an acquittal to stand.

HAYNE J:   Are those matters that you have mentioned matters that go to whether the prosecution should give effect to an order for a new trial or are they matters that affect what order this Court should make?  Our jurisdiction is to make such order as the Court of Appeal should have made.

MR CROUCHER:   Indeed, they go to both, and there are many occasions where a Court of Criminal Appeal would hear that sort of submission and say, well, no, we will leave it to the – because there is a case left against him, we will leave it to the Director’s good sense to make a decision about it.  I cannot say that that is not an option, but we are now here six years later, we say it obviously should end, but that is our submission.

HEYDON J:   On paragraph 74 of your written submissions, bullet point three, subparagraph (c) seems to be different from what you have just been submitting.  Do we cross a line through that?

MR CROUCHER:   Sorry, which one, your Honour, I did not quite hear you?

HEYDON J:   Paragraph 74, you see the third bullet point:

(c)that, if the appeal is allowed, either:

(i)Order 4 –

and I suppose, we have to assume the possibility that the appeal is allowed but that your so‑called notice of contention point, which is probably, strictly speaking, an application for special leave to cross‑appeal, succeeds.  The question is, where do we go from there?

MR CROUCHER:   Well, there you go, your Honour.  All right.  Well, that reflects my lack of thinking it through.  What I mean by that result is paragraph (b), that is to say ‑ ‑ ‑

HEYDON J:   All these complicated orders about setting aside some of the Court of Appeal’s Orders and ordering acquittal on one count and a retrial on another count, we ignore that?

MR CROUCHER:   We do not want those things, but they are the fourth alternative type of thing, if that is what we are driven to.

HEYDON J:   I see.  You maintain them, but only as the most extreme of fallback positions?

MR CROUCHER:   Indeed.  In light of what your Honour has just said, perhaps there should be something between (b) and (c), “application for special leave is granted”, appeal allowed, notice of contention allowed, orders of the Court of Appeal affirmed, or something.  I do not know ‑ ‑ ‑

HAYNE J:   I suspect that you can maintain this last ditch of the several alternatives that you are putting to us only through the medium of application for special leave to cross‑appeal because you are not seeking the, in this last ditch position, you are not seeking maintenance of the orders of the Court of Appeal.  You would be seeking orders setting aside their orders and directing a new trial be had, and I assume that if needs be, albeit as the third, fourth or whatever number we are up to as the choices you would make oral application for special leave to cross‑appeal in that event.

MR CROUCHER:   Yes, your Honour.

HEYDON J:   What is the justification for the costs order you want?

MR CROUCHER:   The authorities we have referred to there, your Honour, in R v Shrestha and in Carne and in Franklin, they were all special leave applications I should say, not full appeals, although this is still a special leave application, not before an enlarged Bench as on appeal, that when the Crown is seeking to set aside the orders of the Court of Criminal Appeal in those sorts of circumstances, I should say that is one of the issues, but also, in the exceptional nature of it, those cases that I have mentioned there are sentencing cases though, where sentence applications have been brought against a Court of Criminal Appeal’s orders and the application for special leave has been refused.

So it is recognised that, at least according to Mr O’Brien in his book that you can see there on the Bar table that these are possible but of course it is a matter for the Court’s discretion whether or not you do so.  It has been done before and this is an appropriate case for the reasons we have already advanced, in my submission.

HAYNE J:   I think the difficulty you have about any application for costs is that both sides of the record assert that this was a case that called for the application of well‑known and well‑established principles to the particular facts of the case and called for no elaboration of those principles.

MR CROUCHER:   Your Honour, we are not here for costs; it is just a consequential order.  We are here to deal with this man’s liberty, so I will say no more about it in those circumstances.  Do your Honours want me to go back though - your Honour, the learned presiding Judge mentioned before our paragraphs, I think it was 62 and following, where we set out possible bases on which each of the three heads of complicity, properly directed, could have given rise to an alternative verdict of manslaughter, and we say it is classic Gilbert/Gillard reasoning.

This is a better example of Gillard than Gillard itself.  Gillard was a very narrow basis, as your Honours will remember; the difference between knowing that the man had a gun, presenting it for the purposes of robbery, firing it without an intention to kill or cause really serious injury, foreseeing this possibility, and doing so with the requisite intention, very slender basis.  Here much more realistic and open basis, if that is the right way of putting it.  So it is Gillard, to the power of E, we say in this particular case.

Now, one thing we should point out to you, this is in part premised on the view that there was no alternative left of manslaughter – well, what her Honour effectively left was manslaughter on the basis only that Mr Ho was found guilty of manslaughter and only on aiding and abetting basis.  Your Honour Justice Crennan asked before, you pointed out a page earlier in the proceedings where her Honour was going to come back to this issue of leaving an alternative where Mr Ho had committed murder.  She in fact did and we need to point that out to you as a matter of propriety, if nothing else, your Honours.  That is at page 1199 of the application book.  You will see there that her Honour is there speaking of the alternative possibility where knowing that:

Mr Ho intended to kill Mr Luu or cause him really serious injury, let us say you were not satisfied about that, but you were satisfied that he intended to encourage or assented or concurred with Mr Ho in doing an unlawful and dangerous act in shooting Mr Luu, then you could find Mr Khoa Nguyen or Mr Quang Nguyen not guilty of murder even though Mr Ho was guilty of murder –

The difficulty is that the subsequent directions that her Honour gives, both orally and in writing, completely supplant all of that, in our respectful submission.  In particular, at pages 1320 to 1324, what her Honour does is she says, in summary, “You know those directions I gave you earlier about concert and extended” – or common purpose, she called it, “in relation to manslaughter, forget about that.  Disregard that entirely.  Here is a document.  This is your template for deciding this case”, and that template contemplated no version where Mr Ho was guilty of murder, yet either the respondent or Mr Khoa could be guilty of manslaughter on that basis.

HAYNE J:   It is the passage really, I think, from line 25 on 1320 to lines 11 or 12 on 1321 which is the sharp change in tack.

MR CROUCHER:   It is, and her Honour says at the very end of this passage of directions, which finishes at 1324, line 24:

It is in that context, that is the document you should use when you are making your deliberations, taking into account all the evidence and everything that has been said –

When you go to that document, which your Honours have been provided with and which is also extracted in Justice Neave’s judgment, you will see that on each of the three heads of complicity, concert, common purpose, as she described it, and aiding and abetting, they are premised on this:

In order to prove that Khoa Nguyen or Quang Nguyen is guilty of any crime committed by Bill Ho . . . 

(1)the crime in question was committed by Bill Ho –

and so on with each of those three heads.  Thus, it means that there was circumscribed in this way that, in terms, the jury were left only with one version of manslaughter by aiding and abetting and that was only if Mr Ho was guilty of manslaughter, which of course was a highly unlikely proposition, possible but highly unlikely.  The real issue in the case for the respondent was, assuming Mr Ho is guilty of murder, what happens to the respondent.  Is he part of that as well or is it manslaughter or is it nothing?

HEYDON J:   Is there any part of the transcript in which counsel for your client protested about these directions?

MR CROUCHER:   It is true.  He did not seek to cut out extended common purpose, your Honour.  He said concert – he had trouble with the idea of concert manslaughter.

HEYDON J:   Which page?

MR CROUCHER:   Can I find that for your Honour.

HEYDON J:   Yes.  It is not necessary now.

BELL J:   I think it starts at page 1135 and ‑ ‑ ‑

MR CROUCHER:   It goes on and on, your Honour, there is a lot of talking.  With respect, we say, there was serious discussion about those things.

BELL J:   Yes, at 1135, line 6 and following.  I think he comes back to it at 1141.

MR CROUCHER:   Yes.  My learned friend has helpfully given me a list of pages where this was discussed, but your Honour is on the right track.  I can read his list if you want me to?

BELL J:   Indeed.

MR CROUCHER:   He says 1140, 1143, 1144, then 1145 to 1147.  Well, he is really saying from 1144 through to about 1153, breaking it down.  Then 1205, 1207 and 1288 to 1291.  I am sure my learned friend is right about that.  There is also a passage, after the document was distributed to counsel but before the instruction was actually given, where this exchange occurred.  This is at 1318, line 5, Mr Rochford says:

Your Honour, if I understand Your Honour that, therefore, the only basis upon which Quang could be convicted of murder is as an aider and abetter?

Now, that is a curious question because it suggests that he has thought that she is getting rid of extended common purpose and concert for the purposes of murder as well.  They seem to be at cross purposes because her Honour then responds by saying:

No, either of them could be convicted of manslaughter if the jury is satisfied either that they agreed that they would intentionally kill to recover a drug debt, or if they agreed to use violence to recover a drug debt, and they foresaw the possibility that an intentional killing would be a necessary part of that violence, which amounts to the same thing.

Just stopping there, it suggests that her Honour’s enforced in the view that all that is left is manslaughter by aiding and abetting where Ho has committed manslaughter, not any basis on which Ho has committed murder that there be manslaughter against the other people. 

HAYNE J:   The fundamental point can perhaps be expressed as being that the jury were told that there could not be any different verdict of guilt against any accused with respect to count 1 of murder.

MR CROUCHER:   Yes, that is the effect of it in the end.

HAYNE J:   The difficulty I think that the applicant then confronts is whether that is consistent with Gilbert and Gillard.  The response made by the applicant is there was no viable case of manslaughter for consideration by the jury.

MR CROUCHER:   Yes.  As your Honours know, we say that it is inconsistent with Gillard and Gilbert, there was a viable case.  In fact, their own submission that the conviction is safe rather than unsafe or open puts the lie to the suggestion to the contrary, because it means necessarily that there was a factual substratum on which a manslaughter could have been based.  It can be a very fine difference, as in Gillard itself.  It can be a very fine difference through to quite a difference and this case encompasses all of those possibilities and everything in between.  As we say, it is a better example of an application of the principle in Gillard and Gilbert than Gilbert or Gillard themselves, in our respectful submission.  So unless the Court has any further questions of me, those are our submissions.

HAYNE J:   Yes, thank you, Mr Croucher.  Yes, Mr Gyorffy.

MR GYORFFY:   Just very briefly, your Honours.  In relation to the case of Rahman that was put by my learned friends, even if that principle were

applied and we looked at paragraph 68 and the words in italics, the problem is there is no evidence to establish that:

B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying –

The fact is that there was no evidence here from the respondent and the record of interview did not cover the circumstances of events, so there is no triggering point to allow any conclusion of that nature to be formed on the evidence.  Turning to my learned friend’s footnote 41 we would indicate to the Court that if this Court felt that leave should be granted it is not opposed by the Crown.  We are here to see justice is done, not to play games.

The final point I would make is that in relation to what my learned friend said about the inconsistencies of the witnesses, that reinforces a point made by the Crown in 5.24 that the jury here had an advantage.  Yes, they gave different accounts.  It was a harrowing experience.  Different witnesses were concentrating on different matters.  Ms Quach, in particular, was concentrating on Quang and the sword and the jury was in a better position than any court to assess those inconsistencies and work out how they fit together and which parts should be taken into account.

As we assert in paragraph 5.24, the point is that that was never ever recognised by the Court of Appeal.  They never took the view – never even mentioned the possibility that the jury could have been in a better position to assess this.  The whole assessment was done on the basis that “We can do it as well as the jury can”.  If ever there was a case where we have got difficult circumstances, a very violent confrontation, number of people present, bits and pieces confirmed by different witnesses, this is a case for a jury to decide.  Thank you, your Honours.

HAYNE J:  Yes, thank you, Mr Gyorffy.

MR CROUCHER:   Your Honours, might I mention something I forgot to mention.

HAYNE J:   Yes, Mr Croucher.

MR CROUCHER:  That was on the point that was in response to my learned friend, but in respect to the point that Justice Bell raised about Gillard and the fact of attempted murder being amongst all this as well, in Gillard at paragraph 27 of the joint judgment of the Chief Justice and Justice Callinan, their Honours deal with that proposition, as does perhaps Justice Gummow implicitly at paragraph 34.  We simply make the point, as we did in writing, that the possibility cannot be excluded that the error in

relation to the manslaughter…..properly to leave manslaughter, infected the way the jury approached the attempted murder issue as well.

HAYNE J:   Just one minor matter of fact, Mr Croucher, I omitted to ask you.  You spoke of Ms Quach’s evidence about 10 to 15 seconds.  I think I may be right in saying that her evidence about that subject at page 256 was that the 10 to 15 seconds elapsed between the shots.  Is that right?

MR CROUCHER:   Yes, your Honour is right.

HAYNE J:   Yes.  I may have misunderstood you.  Yes, thank you.

MR CROUCHER:   My point was simply that when you look at what she describes happening, from start to finish it is probably only a matter of seconds in the way that I sought to demonstrate physically and orally at the same time.  If the Court pleases.

HAYNE J:   Mr Gyorffy, is there anything that emerges from any of those matters?

MR GYORFFY:   No, your Honour.

HAYNE J:   Thank you.  The Court will consider its decision in this matter, and will adjourn to 9.45 am tomorrow for pronouncement of orders.

AT 11.57 AM THE MATTER WAS ADJOURNED