R v Phan

[2001] NSWCCA 29

Reported Decision: 123 A Cim R 30
53 NSWLR 480

New South Wales

Court of Criminal Appeal

CITATION:	R v Phan [2001] NSWCCA 29
FILE NUMBER(S):	CCA 60356/2000
HEARING DATE(S):	16/02/2001
JUDGMENT DATE:	4 June 2001
PARTIES :	Regina Vinh Ngoc Phan
JUDGMENT OF:	Wood CJ at CL at 1; McClellan J at 87; Smart AJ at 88

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70090/98
LOWER COURT JUDICIAL OFFICER :	Sully J

COUNSEL :	M. Grogan for Crown G D Wendler for Applicant
SOLICITORS:	S.E. O'Connor Van Houten
CATCHWORDS:	CRIMINAL LAW - appeals - appeal against conviction - murder - directions to jury - discretion to exclude evidence - whether summing up unbalanced - whether necessary to give instructions on alternative verdict of manslaughter - criminal responsibility - distinction between common purpose and joint criminal enterprise - whether principal in second degree - whether mere presence enough to be guilty of murder - miscarriage of justice
LEGISLATION CITED:	Crimes Act 1900 Part 10A Evidence Act 1995 ss 90, 138 Jury Act 1977 s 54
DECISION:	(1) Appeal against conviction allowed.; (2) Conviction and sentence quashed and a new trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

No. 60356 of 2000

WOOD CJ at CL

McClellan J

Smart AJ

MONDAY 4TH JUNE 2001

Regina v PHAN

The appellant was convicted of murder. He was sentenced to imprisonment for fourteen years with a non-parole period of ten years and nine weeks.

He appealed against the conviction on the grounds that (1) the trial judge failed to give a formal order in compliance with s 54 Jury Act; (2) the trial judge’s directions could not remedy a prejudicial remark made by the Crown prosecutor; (3) the summing up was unbalanced; (4) the trial judge failed to give instructions on an alternative verdict of manslaughter; (5) the trial judge erred in admitting the appellant’s ERISP into evidence; (6) the trial judge’s directions in relation to the liability of the appellant as a principal in the second degree were erroneous and occasioned a miscarriage of justice.

HELD (Allowing the appeal):

Ground 1: Trial judge failed to give a formal order in compliance with s 54 Jury Act

Although it is preferable for a formal order to be made in compliance with s 54 Jury Act, the trial judge gave adequate consideration to the issues before announcing that the jury could separate. The trial judge’s remarks amounted to an implied order under s 54 Jury Act.

Wu (1999) 199 CLR 99 considered. Ketteridge (1915) 1 KB 467; Maher (1987) 163 CLR 99 distinguished. Radju [2001] NSWCCA 103; Hura [2001] NSWCCA 61 applied.

Ground 2: Remark made by Crown Prosecutor in his closing address prejudiced the accused and warranted the discharge of the Jury

The Crown Prosecutor’s observations as to the existence of a possible motive for the murder involving a connection with drugs were both careless and imprudent, however, the remarks were sufficiently dealt with by an explicit and strong direction by the trial judge.

Callaghan

(1993) 70 A Crim R 350 applied.

Ground 3: Summing up was unbalanced

The summing up on the Crown case fell short of any instruction or direction, which tended to boost the first limb of the prosecution case, which depended upon the appellant having been a principal in the first degree. If anything, the summing up tended to favour the appellant. In addition, the trial judge had earlier provided clear instructions to the jury that they were the judges of the facts and to ignore any view the trial judge offered in that regard.

Ground 4: Trial judge failed to give an instruction on an alternative verdict of manslaughter

It does not follow that in every case where murder is charged manslaughter must also be left to the jury. In order for manslaughter to be left the case must be one where there is an evidentiary basis for it. The case fought at trial was one of murder or nothing and the introduction of a possible verdict of manslaughter would have been purely speculative, and potentially disadvantageous to the appellant.

Gilbert [2000] HCA 15 distinguished. Schneidas (No. 2) (1981) 4 ACrimR 101 and Van Den Hoek (1986) 16 CLR 158 applied.

Ground 5: Trial judge erred in admitting the appellant’s post arrest ERISP into evidence when appellant had indicated he did not want to participate in police interview

It may be that despite some initial reluctance, a person being interviewed elects to continue with the interview. Each case must be looked at on its facts and by reference to the extent to which there is any unfair pressure placed upon the suspect. Although it would have been preferable to exclude the ERISP, in view of the fact that it did not add to the earlier interviews, its use was adequately dealt with in the summing up, and its admission did not lead to a miscarriage of justice.

Kerrie-Anne Clarke NSWCCA 31 October 1997 applied.

Ground 6: Trial judge’s directions were erroneous in relation to the liability of the appellant as a principal in the second degree and occasioned a miscarriage of justice

The second limb of the Crown case was that the appellant was a principal in the second degree. The trial judge’s instructions gave rise to an error of law and occasioned a substantial risk of a miscarriage of justice.

McAuliffe (1995) 79 A Crim R 229; Osland (1998) 197 CLR 316 applied.

(a) The instruction given by the trial judge did not sufficiently address the matters required to be proven to establish the liability of the appellant, a case where the defence asserted that his presence at the scene was accidental, that he was unconscious at the time of the shooting, and that he did not provide any encouragement or assistance to the shooter.

Coney (1882) 8 QBD 534; Allen (1963) 3 WLR 677; Clarkson 1971 WLR 1402; Georgianni v The Queen (1985) 156 CLR 473 applied. Russell (1933) VLR 59 distinguished.

(b) In summing up the trial judge referred to what might be a “reasonable view” as to what a reasonable mind might suppose as to whether the appellant said or did anything to assent to or associate himself with the act of the shooter. This aspect of the summing up introduced a test that was inappropriate and risked diluting the requirement of proof beyond reasonable doubt.

c) The case was one that should properly have been left to the jury, in the way decided in Mohan (1967) 2 AC 187and Clough (1992) 28 NSWLR 396.

(1) Appeal against conviction allowed.

(2) Conviction and sentence quashed and a new trial ordered.

IN THE COURT OF

CRIMINAL APPEAL

WOOD CJ at CL

McCLELLAN J

SMART AJ

No. 60356 of 2000

MONDAY 4TH JUNE 2001

REGINA v VINH NGOC PHAN

JUDGMENT

1   WOOD CJ at CL: The appellant was indicted for the murder of Zi Qiang Jin. At his trial, before Sully J and a Jury, he was convicted of that offence and sentenced to imprisonment for fourteen years, with a non parole period of ten years and nine weeks (taking into account seventeen weeks broken custody pre-sentence). He now appeals against that conviction.

FACTS

2   It was the Crown case that, at about 9.30pm., on 11 July 1997, the deceased was shot three times while sitting in the front seat of his Suzuki motor vehicle, in an alleyway at Smithfield. From the spent bullet fragments recovered at the scene, and at post mortem, it was contended that two handguns had been used in the shooting.

3   One of the bullet wounds, being a relatively shallow wound to the left temple, the expert evidence suggested, would have had a concussive but non fatal effect. The second wound to the back of the neck, which was consistent with having been occasioned by a weapon held up against the deceased’s skin, was one that would have caused him difficulty in breathing and led him to inhale blood.

4   The third shot, to the upper central left back, was one that damaged the spinal cord leaving the deceased quadriplegic, and that then penetrated the pleural cavity and lacerated the left carotid artery. It was common ground that the sequence in which the shots had been fired could not be determined.

5   The Crown case, in the absence of evidence from any eyewitnesses or admissions, was circumstantial, and rested, as emerges from the summing up, upon the following planks:

a) the presence of the appellant in the rear seat of the deceased’s Suzuki, at the scene of the shooting;
b) the three gunshot wounds identified above at least one of which was consistent with having been caused by a shot fired from behind the deceased;
c) the fact that the .38 lead Smith & Wesson bullet recovered from the head of the deceased, the fragments of .38 special/.357 magnum bullets, and the intact copper jacket bullet recovered from the deceased’s vehicle, which although of similar calibre, were not necessarily interchangeable or capable of being fired by the same weapon thereby suggesting that more than one weapon was used;

d) the discovery of blood spots, consistent with blood from the appellant, around the car of the deceased, said to be consistent with him making his way to a getaway vehicle;

e) the discovery of a finger print of the appellant on the outside of the rear near side door of the deceased’s Suzuki, just above the door lock;

f) the laceration to the forehead of the appellant, which was sutured by Dr. Chae Tien Dat Le on the morning after the shooting;

g) the possession by the appellant of a mobile phone (conveniently referred to as service 0418), from which, telephone records disclosed, a large number of calls had been made to the deceased’s paging service, and which number was included in the deceased’s telephone organiser;

h) lies told by the appellant in various interviews with police, in relation to material matters, said to display a consciousness of guilt;

i) the fact that prior to the shooting the deceased received a telephone call at his home requesting him to meet someone, a request with which he reluctantly complied.

6   Based upon these circumstances the Crown case against the appellant was pursued upon the primary basis that he was one of the persons who used a weapon to shoot the deceased. Alternatively, its case was pursued upon the basis that he was present as a principal in the second degree, aiding and abetting the shooter or shooters.

7   It was the case for the appellant, based on the later ERISPS, in which he voluntarily participated, that although he was present in the alleyway, he knew nothing as to the circumstances of the shooting, since, at the time of its occurrence, he had been unconscious. It was his account, given in an ERISP on 29 March 1999, and again on 6 May 1999, that on the night of the murder he had gone to visit a friend Bao, in Fairfield. Bao drove him to a shop. Bao said that they would wait for a friend. Another car approached and stopped near their vehicle. Upon Bao’s instruction he got into the back of this car which drove into the alleyway, while Bao got into the front passenger seat. A quarrel started between Bao and the driver (the deceased) whereupon the appellant began to get out of the vehicle. The deceased, he said, pointed something at him as he was opening the car door. He heard the noise of a shot and then lost consciousness. He remembered nothing further until he woke up at Bao’s house in the morning, after which he was taken by a friend, Van, to a doctor at Mt. Pritchard for treatment to a head wound.

8   The appellant did not give evidence or call any witness. His version of events, accordingly, depended entirely upon the contents of the two ERISPS mentioned which had followed upon earlier interviews with police on 19 August 1997, 13 February 1998, 13 March 1998 and 7 August 1998 (the day of his arrest). In these earlier interviews, it was accepted, assuming the later interviews to have been correct, that he had told a number of lies concerning his presence at the murder scene, the reason for his head wound, his attendance on the doctor Mt. Pritchard on the day after the shooting, and his knowledge of the deceased.

9   Apart from relying upon the version of events offered in the later ERISPS, as leaving open a reasonable doubt as to whether the appellant had fired any of the three shots, and/or as to whether he was present as a principal in the second degree aiding and abetting whoever it was that fired those shots, the defence relied upon two submissions.

10   The first rested upon the argument that the Crown could not prove beyond reasonable doubt that more than one gun was used to fire the three shots, since the slightly larger .38 Smith & Wesson cartridge could have been fired from a poorly made, or worn, .38 special or .357 magnum, even though cartridges of that description would not normally fit such weapons.

11   The second proposition depended upon the highly dubious argument that even assuming the appellant to have been conscious, and sitting in the back of the car, the obstruction caused by the Suzuki headrest would have made it impossible for him to have reached around and fired the shot occasioning the wound which I have referred to as wound 3.

GROUNDS OF APPEAL

12   Several of the grounds of appeal are devoid of any merit and they can be dealt with first.

1. Separation of the jury

13   The jury was sent out to consider its verdict on Monday 27 March. At 4.00pm. the foreman indicated that they would like to adjourn their deliberations and return the following morning. His Honour dealt with the matter in the following terms:

“That’s fine. You’re excused accordingly until 10 o’clock tomorrow. May I say something to you before you go. Please don’t think it untoward, but I think I ought to do it. There was a time not so long ago when jurors were kept together from the time the trial started until the time it finished. That has been done away with many years since, but there is still provision for the jury to be kept together after the end of the summing-up and while they are considering their verdict. I thought of doing it, but I drew back from it. I thought that after three weeks of the efforts that have been asked of you, that was altogether asking too much. So you will be allowed to disperse tonight and to resume tomorrow at 10 o’clock.
You would understand, I am sure, but I think I should raise the matter with you specifically, that the Court trusts you in a particular sense not to gossip about the matter outside your own number; not to do anything else at all that might have an impact upon the objectivity and the detachment with which you continue the work upon which you are now embarked in the trial. I don’t doubt for a moment that you understand it, but its an important thing, and so I think it worth while bringing it to your attention in so many words.
As I said to you before, but it will stand repeating: just keep your counsel to yourselves until you have finished your work, and then its time enough to, shall I say, let some steam off.
All right. Thank you very much for your assistance throughout the day. We will see you at 10 o’clock tomorrow.”

14   No formal order was made. None was requested by counsel, and there was no objection to the jury separating overnight. No question arose of any interference with the jurors or of any untoward event occurring that may have effected their verdict, during the period of separation;

15 It was submitted however that the procedure followed, in the absence of a direction expressed in terms of a “formal order”, failed to comply with S 54 of the Jury Act 1977, which provides relevantly:

“The jury in criminal proceedings:

a) shall, unless the Court otherwise orders, be permitted to separate at any time before they retire to consider their verdict; and

b) may, if the Court so orders be permitted to separate after they retire to consider their verdict”.

The absence of a formal order was said to constitute a fatal procedural irregularity, going to the root of the trial process.

16   Reliance was placed upon the decisions in Ketteridge (1915) 1KB 467, Maher (1987) 163 CLR 221, and Wu (1999) 199 CLR 99 in support of this argument.

17   Ketteridge was a case where the jury expressed a desire to retire to consider their verdict. A court bailiff was sworn and proceeded to conduct the jurors to the jury room. One of the jurors, however, departed alone, left the building, and was then absent for about a quarter of an hour before rejoining his colleagues. It was held, in the circumstances, that the whole proceedings were abortive, and that the conviction returned, following the jury verdict, must be quashed. Lush J, delivering the judgment of the court, said (at 470):

“In our opinion it is not necessary or relevant to consider whether the irregularity has in fact prejudiced the prisoner. We refused to consider an explanatory statement which we were told had been made by the juror which would clearly not be admissible in evidence. If a juror, after the judge has summed up, in any criminal trial separates himself from his colleagues, and not being under the control of the Court, converses or is in a position to converse with other persons, it is an irregularity which, in the opinion of the Court, renders the whole proceedings abortive, and the only course open to the Court is to discharge the jury and commence the proceedings afresh.”

18   Maher was a case where a failure to comply with a mandatory provision governing the constitution and authority of the jury, meant that a conviction founded on the verdict could not stand. The relevant failure concerned the addition of counts to the indictment after the jury had been sworn, resulting in a situation in which the jury was asked to try issues on counts which they had not been sworn to try.

19   The High Court said (at 233-234):

“The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory, for the entitlement to trial by jury which s604 of the Code confirms is trial by a jury constituted in accordance with the Jury Act and authorised by law to try the issues raised by the plea of not guilty. A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v Public Prosecutor [1921] 2 AC 299.”

…

The principle is clear. A jury must be sworn to try the issues joined between the Crown and the applicant on a count then appearing in an indictment. Here the jury found the applicant guilty of the offence charged in count 20, though it had not been sworn to try the issues on that count. A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect.”

20   In Wu, a juror was discharged on the tenth day of the trial after a report was received that the juror was unwell and would probably not be able to attend Court for two days. The trial proceeded to a verdict of the jury constituted by the remaining eleven jurors. No formal order was made to continue the trial with eleven jurors, although the trial judge said to the jury, after discharging the absent juror, “I think time is running on, so we will carry on with eleven”.

21   The relevant ground of appeal in the Court of Criminal Appeal, and in the High Court, was confined to the correctness of the decision to discharge the absent juror. Leave was sought, but refused in the High Court, to amend the grounds of appeal so as to encompass a suggested irregularity in the continuation of the trial in the absence of a formal order.

22   The present case is, in my view, distinguishable from Ketteridge in that the juror’s absence there was contrary to the order which had been made, and from Maher in that the jury had there been asked to return verdicts on counts which they had not been sworn to try.

23   This Court recently had occasion to consider in the appeal of Radju [2001] NSWCCA 103, the point specifically raised by this ground, in the light of the obiter dicta in Wu concerning the Jury Act requirements for orders for the continuation of a trial with less than twelve jurors, and for the separation of jurors after they have retired to consider their verdict.

24   While the desirability of such matters being the subject of formal orders was noted, the Court recognised that the circumstances and manner in which any such questions were dealt with may give rise to implied orders which would meet the requirements of the Act.

25   In Hura [2001] NSWCCA 61, this Court also accepted, in the context of the finding of guilt consequent upon a plea, required by S91 of the Criminal Procedure Act 1986, that such a finding could be implied, and that the Section should not be given so formal an interpretation as to require a finding made in express terms.

26   While for the reasons expressed in Radju, it would have been preferable for an order to have been made in express terms in the present case, his Honour clearly gave consideration to the question whether the jurors should be allowed to separate, and then announced that they could do so. In those circumstances, I am of the view, similarly to that reached in Radju, that his Honour’s remarks may be treated as amounting to an implied order under s54 of the Act. This ground has not been made good.

PROSECUTOR’S STATEMENT TO THE JURY

27   This ground relates to an observation by the Crown Prosecutor, in his closing address, concerning the phone messages that had been placed to the deceased through his pager, and the circumstances that may have lead to his shooting, as follows:

“But the interesting thing about it is, whenever the phone was used to contact Mr. Jin, it wasn’t a message to call Mr. Bao Pham, call Mr. Phan, call Mr. Tran. It was “call Mr 22”. Or “phone 22”. … Now, when you look at these messages to Mr. Jin and when you consider the evidence of his mother that he wasn’t a particularly nice boy and the sister-in-law didn’t have much regard for him at all, ….. Most probably these calls related to most likely some sort of improper business . I don’t know what it was. But anybody who is going to shoot you in relation to it is going to be pretty significant. It wasn’t a dispute about whether you are going to open up a pizza shop next door. It wasn’t a dispute about whether or not your television is too loud. Whatever it is these people were involved in very, very serious business and whatever very serious business it was, I mean you may think it was drugs or something else. We don’t know from this but whatever it was somebody thought it was serious enough to shoot him three times.
… whether they - whether Mr. Bao and the deceased had a business relationship with one another, whether they had a friendly relationship, we don’t know, but what we do know, assuming it was Mr. Bao’s phone whatever it was they had a significant and long lasting relationship of some manner.
Now if you were to decide that Mr. Jin was a bad person and if you were to decide that Mr. Bao was a bad person, you can’t use that inference of what you decide to say because of that the accused is a bad person, he must have done something. You have to look at all of the evidence and decide whether or not the accused is guilty. You shouldn’t use and you can’t and his Honour will tell you, you can’t say, Mr. Bao is a bad person so I convict Mr. Phan, convict the accused, or because the deceased was a bad person I convict the accused. You can only convict the accused if on the available evidence you find him guilty.”

28   An application by trial counsel for a discharge of the jury, based upon these observations and two other observations of lesser significance, was refused, upon the basis that the matter could be dealt with by a direction in the summing up. His Honour in due course instructed the jury, in the following terms, in relation to the italicised passages:

“Now, ladies and gentlemen, that’s very dangerous material if you do not think about it carefully: “Most probably these calls related to most likely some sort of improper business”. Why? You must ask that carefully. There is absolutely no evidence to suggest it.
Again, forgive me if I repeat what I said to you on Friday: the drawing of a rational inference is something above and beyond intelligent guesswork and intelligent speculation of any other kind. “I do not know what it was” said the Crown. Quite right. Nobody else knows what it was either; if indeed it was something untoward to begin with.
“‘I mean, you may think it was drugs or something else’” Not on the evidence in this case. There is absolutely nothing. There is not a scintilla of evidence in this case that would entitle you to come to any conclusion of that kind. Not a scintilla.
Now, you understand I have not the faintest idea of what impact those submissions made upon you or any of you when you heard them on, when was it, Wednesday I think, of last week. But, for all I know, they might have made a very significant subliminal impact on you. If that is the case, then it is time you reined that impact in, well and truly, in accordance with the observations that I have just made.
I say again, there is absolutely no evidence at all to support the speculative propositions put in this part of the arguments that were addressed to you last week.”

29   The Crown Prosecutor’s observation was both careless and imprudent. In the absence of any evidence as to motivation that subject should have been left unaddressed. The floating of a possible reason for the shooting and of the existence of some improper or unlawful course of dealings between the parties, almost inevitably, would have occurred to the jury as a possibility, and it did not need any encouragement from the Prosecutor. Particularly was this so in the absence of any evidentiary basis providing either a direct or inferential basis for it.

30   It is important that the office of prosecutor not be used to tell the jury that which is not supported by the evidence: Callaghan (1993) 70 ACrimR 350.

31   It is a matter of common sense that shootings of the kind here involved are not normally motiveless, even though a motive may not be capable of ascertainment, and even though it is not essential for the Crown to prove one. I am, however, of the view that the Crown Prosecutor’s observation, while totally inappropriate, was sufficiently dealt with by the explicit and strong direction given to the jury. Accordingly, I am not persuaded that this ground was made good.

COMMENT IN SUMMING UP CONCERNING THE TWO LIMBS OF THE PROSECUTION CASE

32   After summarising the manner in which the Crown pursued the second limb of its case, his Honour observed:

“You might think, but again it is a matter for you; you heard the submissions that were put and may well have formed your own view - that the Crown case on this second approach is, if I may say it without doing violence to the way in which the case was presented, very much a fall-back position. You might think that the Crown’s case at the end of the day really is the case that it argued on the first limb, that the evidence as a whole, when one looks at it, justifies a conclusion, reached in the way that I have explained to you, that the accused did in fact fire one of the shots.
If you were not to accept that, then it seems to me - but I have to say with every proper emphasis that it is not a matter in the end for me but for you - you would have to think long and hard, I would have thought, before you could turn away from rejecting the first limb of the Crown case and find yourselves persuaded and beyond reasonable doubt on the second limb of it.”

33   The section in italics, it was submitted, amounted to an erroneous instruction so far as it tended to support in a subtle way, the first limb of the prosecution case, thereby creating an imbalance in the summing up.

34   There are two answers to this submission. First, when read in its full context, the emphasis was not on boosting the first limb of the Crown case, but rather to suggest that, if that limb was not made good, then it was unlikely that the alternative limb would attract any greater favour with the jury. So understood the comment of his Honour fell well short of an instruction or direction, that tended to boost the first limb of the prosecution case. If anything, it tended to favour the appellant.

35   The second answer is provided by the fact that in clear and explicit terms, his Honour had earlier made it clear to the jury that they were the judges of the facts, and that they were to ignore any view he offered in that regard, whether expressly or by implication, unless it happened to coincide with their own independently formed view. Within the confines of that instruction, his Honour was entitled to comment upon the facts and upon the way the Crown case was put, which it would seem placed a good deal of weight upon the evidence suggestive of two shooters having been involved, and of at least one shot having been fired from the rear seat of the vehicle, in which the appellant had been seated.

36   This ground is accordingly not made good. Before departing from it, I would observe that, in a case where the Crown could not prove who, of several persons present and acting in concert at the time of the shooting, fired the fatal shot, the second limb of the case would have been the more appropriate way for it to be left to the jury: Mohan (1967) 2 AC 187 and Clough (1992) 28 NSWLR 396. In those circumstances, since proof that the fatal shot had been fired by the appellant from the rear seat depended upon inference, it would have been preferable for any emphasis that was thought to be appropriate, to have been placed upon the second limb rather than the first.

ABSENCE OF MANSLAUGHTER DIRECTION

37   His Honour did not give any instruction to the jury in relation to an alternative verdict of manslaughter. It is now submitted that such a direction should have been given for the reasons expressed by Lord Tucker in Ballard (1957) AC 635 at 644:

“Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is evidence upon which such a verdict can be given . To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.”

38   Reliance was also placed upon the decision of the High Court in Gilbert [2000] HCA 15 where the majority (Gleeson CJ and Gummow J in a joint judgment, and Callinan J; McHugh and Hayne JJ dissenting) accepted that the fact of conviction of a greater offence is not always a good answer to a complaint of failure to direct the jury, in relation to the availability of a verdict of guilty of a lesser offence. It does not, however, follow from the reasoning of the majority, that in every case where murder is charged, manslaughter must also be left, perchance the jury might, contrary to the evidence and the directions given, and either out of perversity or out of a sense of mercy, elect to find the accused guilty of manslaughter. This decision is, in my view, to be understood in the context of its special facts, that is, as a case where in accordance with the law as later clarified, the jury having raised the question of manslaughter, were then erroneously instructed in relation to it.

39   In order for manslaughter to be left, it appears to me, that the case must be one where there is an evidentiary basis for it, for example evidence that raises for consideration provocation or diminished responsibility, or where it is a case in which, absent proof of the specific state of mind required for murder, the act of the accused might answer the description of an unlawful and dangerous act.

40   The present case was wholly circumstantial, the only direct evidence concerning the events at the scene of the shooting being that which emerged from the two later records of interview. The account there given was incomplete in the sense that, if the appellant was to be believed, his involvement effectively ceased at the point where he was rendered unconscious while exiting the motor vehicle of the deceased.

41   It was the defence case, based on these ERISPS of March and May 1999, that the appellant had no inkling of what was to occur at the meeting with the deceased, was not party to any concert or understanding with Bao, did not himself shoot the deceased, was not there as an aider or abettor, and simply did not know what occurred after he lost consciousness. In those circumstances, his case was one of non involvement in any activity that could have seen him guilty of either murder or manslaughter.

42   The jury was faced with contradictory versions from the appellant, in the earlier ERISPS, concerning his presence at the scene, and concerning whether he suffered a head injury that night which was then treated upon the following day. It may be accepted that, by their verdict the jury found that the admitted lies of the appellant, in combination with the other circumstantial evidence, were such as left them satisfied of his guilt of murder. The appellant, however, now submits that the accounts given by him, in the March and May interviews, raised the possibility that Bao shot the deceased either in defence of himself or of the appellant. Had that possibility been drawn to the attention of the jury, so it was submitted, even thought it was in truth an acquittal point (Zecevic (1987) 162 CLR 645), a possibility remains that they would have dismissed self defence, but nevertheless returned a verdict of manslaughter, by reason of the act of Bao or of himself having been unlawful and dangerous.

43   As I have observed, this was not the way in which the case was fought at trial, and it involves a chain of reasoning that is at best tenuous. Leaving aside the fact that self defence is also a defence to manslaughter, there was an absence of any evidence of any firearm having been found in the car, or of the deceased having himself discharged such a weapon, or of having behaved in a way that might have been seen to be threatening or provocative.

44   The case was fought at trial on the more narrow basis which I have previously mentioned, namely one of murder or nothing. In the context of this trial, the introduction of a possible verdict of manslaughter in the way explained would have been purely speculative and not something for which there would have been a valid basis on the evidence: Schneidas (No.2) (1981) 2 NSWLR 311 and Van Den Hoek (1986) 161 CLR 158. In summary, the case was not one where there was any reasonable possibility of the lesser verdict of guilty of manslaughter being open. There was, therefore, no occasion for it to have been left. Indeed, it might have been disadvantageous to the appellant to have done so, in case the jury, not being certain of his role, nevertheless thought it likely that he had been up to no good, and hence should be convicted of some lesser offence than that charged. This is a consideration that is more than apparent to experienced defence counsel, and respect does need to be given to forensic decisions not to raise manslaughter as a possibility, when made in the environment of the trial.

45   I am accordingly not persuaded that there was a risk of miscarriage of justice by reason of the absence of any direction as to manslaughter.

ADMISSION INTO EVIDENCE OF THE ERISP OF 7 AUGUST 1998

46   It was submitted that his Honour erred in admitting into evidence this ERISP, over objection, since it occurred at a time when the appellant was in custody, and in circumstances where he had indicated to police that he did not wish to participate in it. The transcript of he ERISP reveals the following exchange with the interviewing police:

“Q4 Do you agree prior to the commencement of this record of interview I told you that I intended to ask you some further questions about this matter. A. (Interpreter) You can ask but I don’t know anything.”
…
“Q.20 And putting it simply that is that you did, did maliciously murder Zi Qiang Jin. Do you agree that you spoke to your legal representative, Due Vu, on the telephone earlier tonight? A. (Interpreter) What did I say.
Q.21 Do, do you agree that you spoke to your legal representative on the telephone? A.(Interpreter) yes.
Q. 22 And he gave you certain advice? A.(Interpreter) No, he didn’t give me anything.
Q. 23 Did he, he didn’t tell you anything? Did he tell you anything? A.(Interpreter) He said, yes, but he said to give the police detective blood?
Q.24 so, is it true to say that he has indicated, that is your legal representative, that, or has advised you to give blood? A. (Interpreter) He said, Did you say anything to his solicitor? And the solicitor advised him to give blood.
Q, 25 In relation to police speaking to you, what, did he give you any advice? A. (Interpreter) He advised me not to, not to have the audio recording.
Q. 26 So you’re indicating that, I’ll withdraw that. Do you wish to participate In this electronic interview” A. (Interpreter) No I don’t want to participate.
Q. 27 I understand what you’ve told me and I’m intending to ask some certain questions and you can act according to, you can act according to the advice you’ve been given. A. (Interpreter) My solicitor didn’t, didn’t give any, any advice at all. He just, that’s what all he said to me or advised me.”

47   Notwithstanding those answers, the police asked the appellant a number of questions which he answered, in the course of which he said that he had never known the deceased (“Q.31), that he did not remember where he had been on the day of the shooting (Q.36), that he did not know how his fingerprint got on to the motor vehicle of the deceased (Q.86), that he did not remember if he had ever touched a vehicle described as a “white Suzuki”, and that he did not know if he had ever been in an “unknown laneway, next to Duglen Street Smithfield, in July 1997” (Q.88) A number of other questions of a more formal nature, or of no particular significance were asked, but they were of no moment, for present purposes.

48   In Ireland 126 CLR 321 at 333, Barwick CJ noted that:

“It was improper for police investigating the commission of a crime to persist in questioning a suspect after an indication that he did not wish to answer any more questions”.

49 Sully J, in his reasons for judgment on the voir dire, held that the conduct of the police in pursuing the interview after the appellant’s indication that he did not wish to participate in it, was improper. However, he declined to exercise the discretion which fell to be exercised under s 138 of the Evidence Act to exclude the interview, finding the impropriety to not have been “deliberate or reckless”. Additionally, his Honour found that the tape did not suggest to him that the interviewing police “browbeat, overbore or in any way sought to dominate the will of the appellant”. Further, his Honour observed that the appellant presented as being “laconic, self possessed and perfectly capable of understanding with the assistance of the interpreter ... what was being said to him; and of responding relevantly, and with the same assistance, in whatever way he wished to do”.

50   His Honour found that this was not a case where the appellant had been cross examined or badgered, in the face of a clear and consistent stance, that he did not wish to be interviewed. His Honour held, in effect, that the impropriety involved was outweighed by the desirability of admitting the evidence, observing in this regard:

“The evidence in question has, it is agreed on all sides, probative value of real substance. The material in the interview is capable, at least on one view of it, of manifesting lies told, in the requisite legal sense, so as to permit of the drawing of an inference of consciousness of guilt of the crime actually charged.”
and further that:
“I think that it suffices to say that insofar as what was done might be thought to have been improper in a relevant sense, the impropriety was not deliberate or reckless, and was not so grave as to entail that evidence having the potential importance of the evidence here in question should be excluded.”

51 The admissibility of an interview conducted in the face of an indication, by the interviewee, that he does not wish to be interviewed, needs to be considered not only in the light of s 138 but also in the light of s 90 of the Evidence Act. Although no express reference was made to this provision, his Honour did give careful attention to various technical breaches of the procedure laid down in Part 10A of the Crimes Act 1900, and in the Crimes (Detention After Arrest) Regulation 1998. A substantial, although imperfect, compliance with these provisions was found. Such failure to comply with the relevant requirements was described by his Honour as “not a simple and contumelious disregard” of them.

52   When his Honour came to deal with this interview in the summing up, he referred to only three questions and answers of relevance to the shooting, before observing in relation to it:

“You should just bear this in mind in connection with this particular record of interview; not in any extreme or extravagant sense, but with a little prudence and balance.
When a person in the position of the accused, whose first language is not English, who is dealing through an interpreter, who has had legal advice, I think one might fairly infer, from a solicitor Mr Duc Vu, who in whatever way, was able to communicate with him and give him advice, and the advice is that he does not want - a reasonable inference is that the advice is that he does not want to participate, you have got to bear these things in mind carefully. He is entitled not to participate. There is no rule of law that says that if the police want to interrogate you at all, never mind in the form of a formal record of interview, that you must take part; and you are perfectly entitled to say “I do not wish to answer any questions”.

…

“If thereupon the police continue to press you with questions without having first established clearly that you are content upon reflection to change your mind and to answer what they want to ask - your solicitor from whom you got the advice not being, as I understand the fact, present - it is worth considering whether what you say is to be held against you in quite as stark a fashion as might have been justified if you had been willingly taking part had your solicitor been there, and you knew what you were doing.
Again, please understand those are observations which you are free to take up or not as you prefer, but they seem to be matters of fairness and common sense. I do not say that you simply brush it aside; not at all. It is there as part of the evidence. But when you are assessing and deciding what weight to give to it, one thing - bear in mind not the only thing, not the most decisive thing - to bear in mind is that earlier in the piece he said he did not want to participate, and other questions were then asked of him searchingly and repeatedly in the face of that.”

53   These observations do not sit particularly comfortably with the reasons for judgment upon the voir dire. That is however probably explicable upon the basis that the significance of this ERISP had been viewed, by all concerned, somewhat differently earlier in the trial, and upon the further basis that, when carefully examined, it did no more than repeat some of the lies that had earlier been told.

54   There is no absolute rule that an interview conducted in the face of an objection by a suspect, or continued in the face of an indication that he or she does not wish to participate any further in it, should be rejected if tendered in evidence. This was made clear in Kerrie-Anne Clarke NSWCCA 31 October 1997, when Hunt CJ at CL said:

“It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. [19] It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. [20] No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure. [21]”

55   Smart J similarly observed:

“It is not uncommon for an accused to intimate that he does not wish to answer any questions and then to decide to answer some questions or to make a statement or explanation. There may be something in a police statement or summary of the situation which the accused regards as wrong and needs correction or something which needs explanation. There are many possibilities. It would be unwise to hold that every time an accused states that he does not want to answer questions, some further questions are put and answers are given or explanations or statements made such answers, statements or explanations are inadmissible. Everything depends on the circumstances.”

56   In an appropriate case, it may well be that despite some initial reluctance, the person interviewed may elect to continue with the interview, and even see an advantage in providing further information with a view to dispelling doubts, or answering matters which may give rise to suspicion. Any apparent impropriety in continuing to question a suspect may turn out, in those circumstances, to be of such little weight as not to justify exclusion of the ERISP as evidence. Each case must be determined upon its own facts, and in particular by reference to the extent to which there is any unfair pressure placed upon the person being interviewed, or unfair advantage taken of his position, for example because of his age, vulnerability, lack of familiarity with the English language and so on. Moreover, in any weighing exercise the probative value of the evidence needs to be taken into account.

57   The ERISP was of relevance so far as it was the one that followed immediately upon his arrest, and was also one that the Crown relied upon as continuing the pattern of lies that could be seen in the earlier interviews. Upon the other hand, it did not add any fresh “lie”, ie it did not raise any matter that had not emerged in the earlier interviews, which was then relied upon as a further lie displaying a consciousness of guilt.

58   In the light of its limited probative value, and the appellant’s acknowledgment that he had told lies to the police, and in the light of the way that the interview was down-played in the summing up, I am of the view that it would have been preferable, with the advantage of hindsight for it to have been excluded. I am not, however, persuaded that its admission led to any risk of a miscarriage of justice having been occasioned. This ground has not been made good.

DIRECTION AS TO THE SECOND LIMB OF THE CROWN CASE

59   The Crown case was opened, and pursued, on the basis that the appellant was guilty of murder either because he fired one of the three shots (first limb); or, if he did not fire any of those shots, then upon the basis that he was guilty of murder because he was present as an accessory, encouraging or assisting the principal offender, or being ready to provide encouragement and assistance if needed (p.16 of opening address, and p.680 of the trial transcript).

60   It remained the Crown case at all times in relation to this second limb, that the appellant was a principal in the second degree. In a written instruction (mfi 24) given to the jury by his Honour, they were informed:

“ The second approach cannot succeed unless the Crown proves to your satisfaction and beyond reasonable doubt all of the following matters:

1. the death by shooting of Mr. Jin.

2. that the accused, although he cannot be shown to have fired himself any one or more of the three gunshots, can be shown to have been present when they were fired and can be shown to have said or done something that indicated his willing assent to what was being done.

3. that the accused, in so indicating his assent to what was being done, intended at that time that Mr. Jin should either be killed or have inflicted upon him some form of grievous bodily harm.”

61   When his Honour dealt with this in the summing up he said (at p.36)

“If the Crown cannot prove beyond reasonable doubt that the accused fired one or more of the shots, then it has to prove, if it is to succeed on this approach, and prove beyond reasonable doubt, that the accused, although he cannot be shown to have fired himself any one or more of the three gunshots, can be shown to have been present when they were fired, and - please note the “and” is in bold type. All these things must be brought together - the Crown has to show beyond reasonable doubt that he was present at the time the shots were fired, and said or did something that indicated his willing assent to what was being done.
You do not become vulnerable to conviction for murder because you happen to be present at the scene where somebody is murdered. What makes you vulnerable is that you are not only there when the murder is committed, but that you are therein some capacity, doing or saying something that on a reasonable view associates you with what is being done although you are not doing it yourself.

62   His Honour repeated this direction, although with a slight variation (at 122-123):

“In that event, the second approach that the Crown puts forward is, in essence, perfectly simple. It is this. The accused, it is argued, if he did not actually fire one of the shots, was there when the shots were fired; was not unconscious, but was conscious and aware of what was happening; and said or did something of which a reasonable mind would conclude that it associated him deliberately with what was being done - one must assume it was by Mr. Bao Pham, who is the only other person who is likely to have fired the shots, on the evidence as it stands at the moment.”

63   No correction of these directions was sought, but on appeal, it was argued that they were erroneous and occasioned a miscarriage of justice, in that:

a) there was an insufficient explanation concerning the need for a concert or understanding between the appellant, and whoever it was who shot the deceased, that they would kill him or inflict grievous bodily harm upon him: McAuliffe (1995) 79 A Crim R 229 (CCA) and (1995) 183 CLR 108 (HC); and

b) the direction, so far as it was predicated upon whether something was done or said by the appellant which a “ reasonable mind would conclude … associated himself deliberately with” what was being done by the shooter, or upon whether he did or said something that “ on a reasonable view” associated him with what was being done by that person, was erroneous so far as it invited an objective view, and posed a test falling short of the criminal standard.

64   The first of these submissions was framed by reference to the doctrine of common purpose. The distinction between “common purpose” and “joint criminal enterprise” is not always respected, having regard to the way in which these terms, and the related terms “common design” and “concert” are very often used interchangeably: see Stokes & Difford (1990) 51 A Crim R 25; Tangye NSWCCA 10 April 1997; McAuliffe and Osland (1988) 197 CLR 316 per McHugh J at paras 69 to 95.

65   The present case, so far as the second limb was concerned, was not one of common purpose strictly speaking in which it was alleged that the parties agreed to commit a particular crime but had in contemplation some further crime, as a possible incident of its commission, cf Johns (1979) 143 CLR 108. Rather it was a case, if anything, of common enterprise in which the parties to it were each active participants and hence liable as principals in the first degree, or one where the crown being unable to prove which of several persons, present at the scene of a crime, committed the particular act giving rise to the offence, nevertheless was able to establish that each was assisting the other, in which event it was properly left as one of principal and accessory: Mohan (1967) 2 AC 187 and Clough (1992) 28 NSWLR 396.

66   The distinction between those various categories of case was carefully drawn by McHugh J in Osland in the paragraphs mentioned above, and it is an important distinction for the reasons mentioned later.

67   The alternative case was one which was properly presented by the Crown as one in which the appellant was a principal in the second degree (Mohan), rather than a principal in the first degree (Lowery and King No.2) (1972) VR 560.

68   It needs to be borne in mind that the liability of a principal in the first degree is primary (Osland at para 72) and is not derived from that of another principal, while that of a principal in the second degree is derivative and depends upon the guilt of the principal in the first degree being established; Dunn (1930) 30 SR (NSW) 210 and Osland at p 71.

69   Moreover, mere acquiescence or assent to a crime does not make a person liable as a principal in the second degree. What was needed in such a case is 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.

70   In Coney (1882) 8 QBD 534, Hawkins J, at 557-558 identified the essential requirement for such a case in the following passage:

"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, or principals. Encouragement does not of necessity amount to aiding and abetting, 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, in the former he does not. It is no criminal offence to stand by, a mere passive 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, 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 for the jury whether he did so or not."

71   Cave J, in the same case, said at 539:

“Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal in the second degree merely because he does not endeavour to prevent the felony or apprehend the felon.”

72   Similarly, in Allen (1963) 3 WLR 677, Edmund Davies J said at 683:

“…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. To hold otherwise would be, in effect … to convict a man on his thoughts, unaccompanied by any physical act other than the fact of his mere presence.”

73   In Clarkson 1971 WLR 1402, where Megaw LJ similarly pointed out (at 1405) that “non-accidental presence at the scene of the crime is not conclusive of aiding and abetting”; See also Roughley 78 A Crim R 160 at 162, per Cox J.

74   It is true that in Russell (1933) VLR 59, Cussen ACJ observed p 66:

“I am of the opinion: (1) that if a person present at the commission of a crime in the opinion of the jury on sufficient evidence shows his assent to such commission; he is guilty as principal, and (2) that assent may in some cases be properly found in the absence of dissent, or in the absence of what may be called effective dissent….”

…

and, at p 68:

“Silence in some circumstances amounts to acquiescence and gives consent.”

75   These observations were, however, made in the context of the particular facts of the case in which the accused was charged as a principal in the second degree when he refrained from intervening while his wife drowned herself and her children. In the light of the special relationship which existed between them, his acquiescence or silence was properly capable of being understood as encouragement.

76   That there is no general principle by which assent or acquiescence, without more, will give rise to liability can, also, be seen from the decision in Georgianni v The Queen (1985) 156 CLR 473 where Mason J said, at 493:

“In felony at common law the terms "aid" and "abet" are generally used to refer to the conduct of a principal in the second degree, or one who is present at the commission of the offence by the principal offender, while the terms "counsel" or "procure" are generally used in relation to the conduct of an accessory before the fact, or one who is absent at the time of the commission of the offence: 4 Bl Comm 34-36; Ferguson v Weaving [1951] 1 KB 814 at 818-819. In substance, however, there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence. In misdemeanour, where no attempt has been made to classify the parties to an offence, each of the four terms is employed to refer to the conduct of a secondary participant. But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen ACJ in Russell [1933] VLR 59 at 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 abovementioned 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."

77   Moreover, in Georgianni, 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.

78   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.

79   It would have been preferable for his Honour to have directed the jury in the precise way discussed in Mohan and Clough. It would also have been preferable for attention to have been directed to the mental element of each person who was involved in the shooting, as discussed in McAuliffe, Osland and Georgianni.

80   Of greater importance, however, was the introduction into the oral summing up of the reference to what might be perceived upon “a reasonable view”, or what a “reasonable mind” might perceive, as to whether the appellant said or did anything to assent to or to associate himself with the act of the shooter.

81   It may well be that a particular fact or element of a crime may be perceived by a jury as something that upon a reasonable view was present, or as something which a reasonable mind might conclude was present. However, that is not the same as saying that such a matter has been proved beyond a reasonable doubt. Another possibility, even a contradictory possibility, may also be available as a “reasonable view” or as something which a “reasonable mind” could perceive as open.

82   The problem in this regard needs to be considered in the context that this was a circumstantial case in which the jury had to draw inferences. A critical inference, for a conviction of the appellant based upon the second limb, was his non accidental presence as an aider and abettor, in the way explained above. Unless that inference was the only rational inference available, then the proper verdict would have been one of acquittal: Shepherd (1990) 170 CLR 573 and Clarke (1995) 78 A Crim R 226.

83   The oral directions did not deal with this critical aspect. They introduced a test that was inappropriate and that risked diluting the requirement of proof beyond reasonable doubt. His Honour had earlier in his summing up given an instruction to the jury which was correct in law, as to circumstantial proof, and although the written directions did not contain the offending passages, they do need to be regarded as subservient to the specific directions given at this point of the summing up, or at least subject to any qualification introduced thereby.

84   In these circumstances I am of the view that the instructions given concerning the second limb gave rise to an error of law and to a risk of a miscarriage of justice.

85   I am not persuaded that the jury would inevitably have been convicted upon the basis of the first limb of the case, since it was classically a case of the kind considered in Mohan and Clough, in which the Crown could not prove which of Bao and the appellant fired the fatal shots. Particularly was it necessary to turn to the second limb, and to direct the jury with some precision as to what was required to establish the criminal liability of the appellant as a principal in the second degree, since it was his case that he was there as an accidental participant who had no knowledge of what was to occur, who played no intentional part in the shooting, and who provided no encouragement or assistance.

86   The case is not therefore appropriate for an application of the proviso. I would accordingly allow this ground of appeal, quash the conviction and sentence, and order a new trial.

87   McCLELLAN J: I agree with Wood CJ at CL.

88   SMART AJ: The facts and the background are set out in the judgment of Wood CJ at CL with which I agree. I wish to add few comments. One of the problems in the present case was that the Crown appeared to put the prosecution case in slightly different ways.

89   In his opening speech the prosecutor said to the jury (T 16 of 6/3/00):

"In relation to this trial you will have to decide one of two things. You will have to decide whether or not the accused pulled the trigger or whether he was there present knowing that someone - knowing that the gun was going to be fired and knowing that Mr Jin was going to be attacked and he was there available to help him whether or not he fired that bullet …".

90   That was a curious way to open the Crown case. Rightly understood, the Crown case was that both Bao Pham and the appellant were present in the car when the deceased was shot dead. Three shots were fired. Either one of the men fired all three shots or each man fired one or more shots. At least one of the shots killed the deceased. If the jury was not satisfied that the accused fired one of the shots that did not matter so long as they were satisfied that both the men were present, with one or both of them firing the shots and the other aiding and abetting. As Hunt J pointed out in Stokes & Difford (1990) 51 A Crim R 23 at 35, even if the Crown had been unable to establish which one of the two co-offenders was responsible for inflicting the injury it would still have been a classic case of each of them aiding and abetting the other: Mohan [1967] 2 AC 187 at 195. In Mohan the evidence established that the two co-offenders were present and attacked the deceased. The Crown could not say who struck the fatal blow. Hunt J further explained:

"The ratio of that case is that a person who is present, aiding and abetting another in the commission of crime is guilty of that crime as an accessory even in the absence of any pre-arranged plan. That ratio does not depend upon the fact that each of the accused in that particular case was physically attacking the deceased. It would be equally applicable where the finding of aiding and abetting is available from other conduct".

91   It is a pity that the prosecutor did not open the prosecution relying on the principles of Mohan, Stokes & Difford and Clough (1992) 28 NSWLR 396. The judge's attention was not drawn to these authorities and the principle they supported.

92   At the start of his closing speech the prosecutor stated that the Crown case had both a short form and a more complicated form. The short form was that the deceased was murdered by being shot three times. The evidence against the appellant was that he was in the car behind the deceased and in a position to fire the shots. The prosecutor said:

“The only issue is … whether or not when he was sitting in the back seat behind the deceased … he was the one who fired the gun".

93   The prosecutor next referred to the more complex form of the Crown case, contending that it led to the same conclusion of guilt. The prosecutor analysed and discussed the evidence at some length. His address took the best part of a day. In the latter part of his address the prosecutor said:

"On the Crown case, it could very well be that Mr Bao shot the deceased one or more than one times. It's clear from the way the evidence is that he could very well especially have fired the shot into his temple".

94   The prosecutor, after refuting the suggestion that the deceased was the one doing some shooting, contended that the appellant was trying to protect Bao Pham:

"Why is the accused trying to protect Mr Bao here? The only possible reason is because he and Mr Bao were there together. They were there together in relation to shooting the deceased. There is nothing else … open on the evidence. Whether Mr Bao fired all three shots, or whether the accused fired all three shots or whether it was a combination of both of them, it doesn't really make any difference. It doesn't make any difference if the accused didn't fire any shots, or if you are not satisfied beyond reasonable doubt whether he fired any shots. On the evidence its clear they were there together and one of the reasons you can be sure why they were there together … is because the accused is lying about the whole thing".

95   In this passage the prosecutor was adopting or close to adopting the kind of approach envisaged in Mohan, Stokes & Difford and Clough. The matter was not put in those terms in the prosecutor's opening speech.

96   At the end of the prosecutor's closing speech the judge enquired of him whether he wanted the case to go to the jury "on the principal in the first and principal in the second". The prosecutor replied, "I do".

97   In his closing speech counsel for the appellant contended that the Crown was having a two-way bet (T689). However counsel revealed his understanding of the Crown case, stating (T689):

"[The prosecutor] said you will have to decide one of two things: Whether … the accused pulled the trigger or whether … he was present there and knowing that the gun was going to be fired and knowing that Mr Jin was going to be attacked and he was there available to help [Bao], whether or not he fired that bullet or not".

98   Counsel for the appellant also made a lengthy closing speech canvassing the facts in much detail. Upon the conclusion of that speech, the judge (at T728) told counsel how he proposed to instruct the jury on the first approach by the Crown, namely, that the accused fired some one or more of the three gunshots. The judge next explained how he proposed to instruct the jury on the Crown's second approach. That was in terms of his written directions as set out in the reasons of the Chief Judge.

99   The prosecutor asked the judge to tell the jury additionally on the second approach that if they were not sure whether the deceased fired one of the shots they did not have to find that the other person fired all the shots. They could still convict the accused.

100   The judge replied (T729):

"The reality of your case is, isn't it, that this accused and Bao were in the car. Either or both of them fired the shots. That is your first case. Your second case is that Bao fired the shots but the accused was not unconscious. He was there sentient, observing what was happening and doing something which in the necessary sense stamped him as a principal in the second degree.
The prosecutor replied "Yes". That states the prosecution case in slightly different terms from the way it was put in the closing speech of the prosecutor.

101   At T732 the judge stated that he had some problem with the second way in which the Crown put its case. He thought that it was mainly based on speculation and suspicion and that there was not a lot of evidence to support the second approach. He indicated to counsel that he was going to warn the jury about the difficulties of the second approach in the terms which he did as set out in the Chief Judge's reasons.

102   I have set out the discussion at such length between the judge and counsel to show the difficulties experienced at the trial. They started with the prosecutor not opening sufficiently clearly the bases on which the Crown case was put and subsequently putting the case on a somewhat different basis. As a result of the Crown not relying on the approach in the cases earlier cited the Crown assumed a burden more onerous than the law required. It did not matter whether the appellant fired the shot or the co-offender fired the shot and the appellant was at the scene of the crime aiding and abetting, so long as one of these alternatives must have applied.

103   The case went to the jury on the primary basis that the Crown had to prove that the appellant fired some one or more of the three gunshots at and into the deceased and if that were not proven on the alternative basis that somebody other than the appellant was the person who actually fired the shots, but that the appellant was then present and in some way associating himself with the shooting of the deceased (SU33). The matter was not left to the jury on the basis of the principle emerging from Mohan, Stokes & Difford and Clough.

104   The judge's directions as to aiding and abetting did not follow the traditional format. Usually a jury is told that the Crown must prove beyond reasonable doubt:

(a) the commission of the crime of murder by the principal offender

(b) the presence of the accused at the time the crime was committed

(c) the accused knew all the essential facts or circumstances necessary to show the crime was committed by the principal offender (including that the principal offender intended to kill the deceased or inflict grievous bodily harm upon the deceased);

(d) with that knowledge, the accused intentionally assisted or encouraged the principal offender to commit the crime.

It is then necessary for the jury to be told the elements which the Crown must prove beyond reasonable doubt for them to be satisfied that the principal offender committed the crime. This may overlap with sub-paragraph (c) above.

105   The directions and principles set out above are based on Stokes & Difford at 37-38, and Giorgianni v The Queen 156 CLR 473 at 487-488, 493-495, 500-501. Knowledge of all the essential facts includes knowledge of the necessary state of mind or intent encompassed within the crime.

106   In Giorgianni at 481 Gibbs J pointed out that similar matters need to be proved in the case of an accessory before the fact and that of an aider and abettor. Mason J at 493 stated that in substance "there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence".

107   Again, in Giorgianni at 481 Gibbs J cited this passage from Russell on Crime 12th ed (1964) p151 "the bare minimum which is necessary to constitute a person as an accessory before the fact is that his conduct should indicate (a) that he knew that the particular deed was contemplated and (b) that he approved of or assented to it, and (c) that his attitude in respect of it in fact encouraged the principal offender to perform the deed". Gibbs J went on to point out that the law had developed and that knowledge of the facts is necessary before a party can be made liable as a secondary party for the commission of an offence (481-482). Further, the person charged must have intended to help, encourage or induce the principal offender to bring about the forbidden result. (482)

108   The directions given by the judge refer to the necessity of the accused being present when the gunshots were fired. That is correct. The directions also refer to the Crown having to prove that the accused said or did something that indicated his willing assent. Technically, "willing assent" does not necessarily involve the same concept as intentionally assisting or encouraging the principal offender. "Willing assent" is however a manifestation of "encouraging" and in the circumstances of the present case where both the accused and the co-offender were in the car at the same time with the deceased this part of the direction is sufficient. The direction does not tell the jury that they must be satisfied beyond reasonable doubt that the crime of murder has been committed (by the principal offender) and spell out the elements. Nor does it state that they must be satisfied beyond reasonable doubt that the accused was aware of all the essential circumstances including the state of mind of the principal offender.

109   While the direction does not state in terms that the Crown must prove beyond reasonable doubt that the accused intended to assist or encourage the principal offender the direction that the jury must be satisfied that the accused intended that the deceased should either be killed or have inflicted upon him some form of grievous bodily harm sufficed. If you intend that the deceased should be killed or have grievous bodily harm inflicted at the time you indicate your assent, it follows that you intend to assist or encourage.

110   For the reasons earlier indicated I regard the directions given as to aiding and abetting as inadequate. I do not think that the proviso can be applied.

111   The Crown case has considerable strength. There should be a new trial. Upon the assumption that the Crown presents a case that the accused was either a principal offender or an aider and abettor, but it cannot say which, the jury should be instructed that before the accused can be convicted of murder the Crown has to prove the following beyond reasonable doubt.

(a) the deceased died as a result of a gunshot fired by the accused or Bao Pham

(b) with intent to kill the deceased or inflict upon him grievous bodily harm, that is really serious bodily harm

(c) the accused and Bao Pham were present at the time the crime was committed

(d) the accused and Bao Pham knew all the essential facts or circumstances necessary to show that the crime was committed by the other

(e) with that knowledge the accused or Bao Pham intentionally assisted the other to commit the crime.

I would add:

Thus you are required to be satisfied beyond reasonable doubt that the accused fitted the role of either the principal offender who fired the fatal shot or the aider and abettor. If you are so satisfied the accused is guilty of murder. If you are not so satisfied he must be acquitted of murder.

112   There would, of course, need to be the necessary directions defining murder including intent and aiding and abetting and explaining that an aider and abettor is just as guilty of the crime as the person who actually committed it. It would also have to be explained that if the Crown cannot prove who fired the fatal shot or shots but is able to prove that the accused must have either fired the shot or aided and abetted, such accused is guilty of murder.

113   If, on the retrial the Crown alleged murder based on a common enterprise other directions would be required.

114   I return to the oral directions given by the judge on the second limb of the Crown case and in particular the words:

"The accused, it is argued, if he did not actually fire one of the shots, was there when the shots were fired; was not unconscious, and aware of what was happening; and said or did something of which a reasonable mind would conclude that it associated him deliberately with what was being done - one must assume by Mr Bao Pham".

115   The reference to "a reasonable mind" introduces an alien concept into this branch of law. The relevant element of aiding and abetting is that the accused assisted or encouraged the co-accused (Bao Pham) and did so intentionally. That element must be proved beyond reasonable doubt. It is not a question of something said or done by the accused which a reasonable mind would conclude associated him deliberately with what was being done by Bao Pham.

116   I agree with the orders proposed by the Chief Judge.

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