Reg v Chai

[2001] HCATrans 263

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S226 of 2000

B e t w e e n -

THE QUEEN

Applicant

and

CHONG MUN CHAI

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 AUGUST 2001, AT 9.30 AM

Copyright in the High Court of Australia

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR R.D. ELLIS, for the applicant.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

MR G. NICHOLSON, QC:   I appear with MR B.W. CROSS for the respondent, your Honours.  (instructed by Susan N. Goodsell)

McHUGH J:   Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, this is an unusual application in as much as it as an application by the Crown in a criminal case but ‑ ‑ ‑

McHUGH J:   There are two applications by the Crown in the list.

MR SEXTON:   Well, your Honour, it shows that there is no collaboration on our side.  Your Honours, we say that the problem with the decision of the Court of Criminal Appeal in this case is the impact it may have on directions to juries in what is a relatively common fact situation where there is a joint attack by a number of participants on a victim.  In this case there were five participants and there were two victims.  The question that is important, in our submission, is whether the trial judge - because we say this is what follows from the Court of Criminal Appeal’s decision – is required to direct the jury on extended joint criminal enterprise in relation to manslaughter when the Crown case relies, as it did in this case, only on joint criminal enterprise.

McHUGH J:   This is a nice piece of jargon that has been introduced into this area of law, “extended joint criminal enterprise”.

MR SEXTON:   Your Honour, I use it because ‑ ‑ ‑

McHUGH J:   It has got some sanction in judgments in the New South Wales courts but I do not know what juries would think of all this.

MR SEXTON:   It is an important point in this case, your Honour, that the directions to the jury, as your Honour would appreciate from seeing the papers were, even in this case, extremely complicated and there must be a question as to how a jury would come to grips with those and the result of the decision in the Court of Criminal Appeal is that at any retrial in this case, or we say perhaps trials in other cases, the directions would have to be even more complicated.

McHUGH J:   Yes.  The Court of Criminal Appeal seems to have been influenced by its view as to what would be understood by the term “assault”.  Am I right in thinking that?

MR SEXTON:   Yes, your Honour.

McHUGH J:   They seem to think that merely directing the jury about the necessity to prove the assault might be thought by the jury to include no more than the threat of force but it would have to be a sophisticated jury to draw that distinction.  I mean, not even lawyers think of assault in its really technical sense much these days, I do not think.  At least I do not, any way.

MR SEXTON:   It is really in many ways the heart of the problem with that judgment, in our submission, your Honour, because this was a case where the Crown case was that it was an agreement to seriously assault the victims.  There was never any suggestion on the Crown case that this was an agreement to conduct a merely technical assault.  Whatever that could involve, in this case ‑ ‑ ‑

HAYNE J:   Or the gentle pushing away of these men from outside the establishment.

MR SEXTON:   Yes.

McHUGH J:   That seems a bit unreal in the circumstances in this case. There are gangster outside and you send for somebody to deal with them.  I do not think juries would be thinking that ‑ ‑ ‑

HAYNE J:   “Please move along” was perhaps not the words that sprang most instantly to mind.

MR SEXTON:   There was very little gentle behaviour that can be seen in this case but, of course, the case for the accused was not that, either.

McHUGH J:   I know, but, nevertheless, if a view of the evidence was open then the judge was bound to direct the jury on that basis.

MR SEXTON:   We say that he did direct.

McHUGH J:   I know he did, but the Court of Criminal Appeal said he did not go far enough.

MR SEXTON:   That was based upon, as your Honour points out, the term “assault”.  The trial judge, I think in those specific directions about manslaughter, used the term “merely assault”.  We would say, implicit in what your Honour said, that that would be understood by the jury in the

context of this case as administering at least a beating of some kind and not some kind of mere threat or jostling, as perhaps Justice Hayne suggested.  In those circumstances, we would say it is fanciful to imagine that a jury would have been misled by that reference to “merely assaulting”.  We would say it is fanciful that the jury would have been ‑ ‑ ‑

McHUGH J:   Yes.  Mr Solicitor, we might hear from your opponent.
Yes, Mr Nicholson.

MR NICHOLSON   Your Honours, the respondent’s position of the questions advocated by my friend do not arise from the judgment.  They are not the subject of determination in the judgment.  It is not to the point what the Crown case was.  It is to the point that directions are to be applied to the evidence before the jury, not for the ‑ ‑ ‑

HAYNE J:   The written directions that were given to the jury, were they a matter of debate with counsel before they were given to the jury?

MR NICHOLSON   Yes, there was considerable debate between counsel.  If I could take your Honours to ‑ ‑ ‑

HAYNE J:   Before you go on, was specific objection taken to the form of written direction that was given that it did not make the points to the jury which the Court of Criminal Appeal said should have been made to the jury?

MR NICHOLSON   It is not a simply yes or no, as things often are not. There was objection, there was debate over days and the written directions really reflect that debate.  There was a position taken by counsel for the respondent at trial that a knowledge was necessary, something more than simple assault, some sort of knowledge.  The Crown’s position was to the opposite.  It urged that an intention to assault, without more, was a proper direction to the jury on manslaughter.  That is to be found at application book 29 in the context of the debate - at the base of application book 28 and the top of 29.  That is in the early days of debate about the topic.  Your Honour will see it picking it up at “His Honour” at line 40, page 28.

McHUGH J:   Mr Nicholson, the Court of Criminal Appeal thought there was some deficiency in the direction that the trial judge gave in respect of manslaughter but, after all, the judge had, in effect, defined what an assault was when he dealt with murder and he spoke about “assault the particular victim, that is to apply physical force to the victim’s body” and then when he dealt with murder and joint extended criminal enterprise he just simply referred to assault and, again, when he referred to manslaughter, but why would not the jury think, having regard to the judge’s directions as to what was meant by an assault in this context, it might just simply be something about moving him on?

MR NICHOLSON   Your Honour, the distinction needs to be made between what my friend has characterised as the Crown on the evidence.  There was one witness of significance.  That was Mr Lee, S.H. Lee, and Mr Lee was cross‑examined extensively over the nature of the telephone call to come and move them on.  That was a factual scenario in front of the jury and, indeed, trial counsel opened on that basis.  The issue was a live one as to whether that was the scenario or whether the scenario was one of involvement in those wicked activities that night.

Two alternative scenarios were put.  It was characterised for the Crown and with the urging of the prosecutor, to which I have just taken your Honours, that continues throughout the argument, that mere procurement is a sufficient - procurement to assault, without more, is sufficient to visit responsibility for manslaughter for whatever followed.  Now, there are problems with that, obviously, logically.  Procurement is antecedent to agreement.  That does not appear to have been the subject matter to which the Court of Criminal Appeal needed to move on to but the scenario put was that procurement to move them on in circumstances where the beatings followed was sufficient to embrace an assault and that manslaughter would follow.

It was quite odd, if I could put it that way, that the – your Honours have had the benefit of the submissions in this case to the Court of Criminal Appeal and I will not go over them again, but the test for “inflict grievous bodily harm maliciously” was much higher than for manslaughter and his Honour outlined that by reference to the extra ingredient of malice.

HAYNE J:   But as the evidence of the principal witness emerged, was the debate at trial focused largely, though not entirely, upon whether there was a request simply to move them away or some agreement reached to beat them up?

MR NICHOLSON   That was the entire division during the prosecution case.  Sang Hoon Lee ‑ ‑ ‑

HAYNE J:   The direction given to the jury was, in effect, “Was there an agreement to assault them?”  Now, where is the deficiency in that?

MR NICHOLSON   There are two reasons I advance.  The first is that procurement, which was the foundation way that was put, is not an agreement.  The second ‑ ‑ ‑

HAYNE J:   The jury are asked to decide, “Is there an agreement?” 

McHUGH J:    The jury were not asked to decide whether or not your client procured the assault, they are asked to find, specifically, was there an understanding or arrangement amounting to an agreement to assault the particular victim and whether he continued to be a party to the agreement or one of the other parties did an act or acts which were unlawful and dangerous and which in fact caused the death of the victim.

HAYNE J:   Trial judges are to direct the jury on so much of the law as they need to know to decide the issues.  They are not to conduct a disquisition on credible responsibility.  Now, what was the issue – factual issue – about which the jury needed to know the law?

MR NICHOLSON   The factual issue about which they needed to know the law was how to deal with the alternate scenarios, “come and move them on” and what followed subsequently, “a beating” and that is the issue to which the Court of Criminal Appeal directed themselves.  The question of “come and move them on” of course does not mean that there cannot be the application of physical force to the bodies of those persons described as gangsters and it is not to the point to say that there is something in the Court of Criminal Appeal’s judgment taking issue because it does not.  What is required is simply that the participation – the agreement to assault – needs to be a little more than to apply physical force which may be characterised objectively as dangerous.

Now, that is what is absent and that is the problem, and that is the problem identified by the Court of Criminal Appeal.  It is the case that the directions to the jury were highly technical and very, very difficult to deal with.  However, on this issue it is extremely clear that a mere assault is not an intention to do something which may be characterised as more than unlawful but also objectively dangerous.  The appreciable risk of serious injury does not follow from every assault and that is the point the court was making and that was the attack upon Sang Hoon Lee throughout the prosecution case.  That is the point on which the Court of Criminal Appeal determined the issues.

To answer your Honour’s comments about the complexity of the directions and the fact that they appear to be, to some extent, in vacuum, rather than directly applied to the facts.  This was a matter taken before the court below and is not sought to be agitated here.  Thank you, your Honours.  I do not think I can take it further than the case turned upon the finding by the Court of Criminal Appeal that an agreement to assault, whilst it was an agreement, of course, to be something illegal and it may be taken in common parlance, perhaps, doing some form of battery, does not go so far as to mean that it is an agreement to do something dangerous, objectively, in the sense of causing an appreciable risk of serious injury.

That does not follow at all and it is not under challenge in the decision of the Court of Criminal Appeal.  To the extent that my friend’s submissions go the other way I think, with respect, that they do not address the issue of the Court of Criminal Appeal at all.   Your Honours, I do not think I can take it further than that.  It is a single point.

McHUGH J:   Thank you, Mr Nicholson.  Yes, we need not hear you in reply, Mr Solicitor.  There will be a grant of leave in this matter.

MR SEXTON:   If the Court pleases.

McHUGH J:   The Court will now adjourn to reconstitute.

AT 9.45 AM THE MATTER WAS CONCLUDED