Tran v The Queen; Lu v The Queen; Do v The Queen

[1992] HCATrans 284

~ ~ , IP .; biA1'1i~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S142 of 1991

B e t w e e n -

QI VAN TRAN

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S89 of 1992

B e t w e e n -

VAN TRUONG LU

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S108 of 1992

B e t w e e n -

QUOC HUNG DO

Applicant

and

THE QUEEN

Respondent

Applications for special leave

to appeal

Tran 1 1/10/92

DAWSON J TOOHEY J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 1 OCTOBER 1992, AT 11.47 AM

Copyright in the High Court of Australia

MS C.C. SIMPSON, QC: If Your Honours please, I appear with

my learned friend, MR W.M. FITZSIMMONS, for the

applicant in each matter. (instructed by

T. Murphy, Legal Aid Commission of New South Wales;

Arden Associates; and Trevor Nyman and Company)

MR R.O. BLANCH, QC:  May iti'please the Court, I appear for

the Crown with my learned friend, MR W.G. ROSER.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions)

DAWSON J: There is no reason why these three matters should

not be heard together, is there, Ms Simpson?

MS SIMPSON:  No, and indeed it would be desirable that they

be heard together, Your Honour.

DAWSON J: Very well.

MS SIMPSON:  Not least, Your Honours, because the outline of

argument in each case is virtually identical.	Your Honours, in the cases of Lu and Do it is
necessary for me to seek an enlargement of the time
for the filing of applications.

DAWSON J: Well, for the moment we can proceed with the

application proper, Ms Simpson.

MS SIMPSON:  Thank you. Your Honours, each application

arises out of a trial on charges of manslaughter of
the three applicants; each being charged as a
principal in the second degree. I say it with some
trepidation, but the issue which arose in the trial

and on the appeal was the doctrine of common

purpose. It was not - - -

Tran 2 1/10/9

GAUDRON J:  On which you were successful below.

MS SIMPSON: Well, to an extent, Your Honour, but not

entirely successful and it is - - -

DAWSON J:  And you complain about some of the things the

Court of Criminal Appeal said.

MS SIMPSON:  What I complain about, Your Honours, is the

declaration of the Court of Criminal Appeal, which

appears at pages 25 and 46, that in determining

what is within the scope of common purpose is to be

determined by the imposition of an objective test.

That is the first ground on which we seek

leave - - -

DAWSON J:  Can we grant you special leave to appeal upon a

point upon which you were successful in order to

correct the Court of Criminal Appeal in what it

said in upholding your submissions?

MS SIMPSON:  Our submission was not, Your Honour, that there

was an objective test - - -

DAWSON J:	No, well, in upholding the relief - the granting of the relief which you were seeking.
MS SIMPSON:	Your Honour, what we sought was not a new

trial, but that the - - -

DAWSON J: Yes, but that was on other grounds. Surely you

could not have got anything more than a new trial

for a misdirection, could you?

MS SIMPSON:  We would say we could, Your Honour, and for

this reason; that in determining whether there was

evidence fit to go to the jury on the question of

common purpose, the Court of Criminal Appeal

imposed for itself that objective test and looked

at the only piece of evidence which was evidence to

go to the jury on that question in the light of

that ruling.

DAWSON J:  I see. Well, the way you put it, of course you

go then to the unsafe and unsatisfactory ground and

you say, well, even taking into account the proper

scope of common purpose, there was not evidence

here sufficient to support the conviction.

MS SIMPSON: Yes, I think we do put it that way,

Your Honour.

DAWSON J: Yes, I appreciate that.

MS SIMPSON: But, in doing the exercise so far as it did the

exercise, the Court of Criminal Appeal did apply

the wrong test. One of our complaints which comes

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later is that the Court of Criminal Appeal would

not embark upon a consideration of the unsafe and

unsatisfactory ground having determined that there

were other deficiencies in the course of the trial

and in particular in the summing up especially.

Your Honours, the outline - - -

TOOHEY J: Sorry - just so I understand this, Ms Simpson,

are you accepting that whatever deficiencies there
may have been in the judgment of the Court of

Criminal Appeal in relation to the doctrine of

common purpose, none of those deficiencies,

independent of the unsafe and unsatisfactory

verdict could have led to a decision to acquit the

applicants?

MS SIMPSON:  No. We do not say that, Your Honour. We said,

in the Court of Criminal Appeal, and we would wish

to say in this Court, that applying the appropriate tests, there was not evidence fit to go to the jury

on the question of common purpose. But in saying

that, Your Honours, I have to acknowledge that

there is this difficult problem, that if this Court

were to accept that the appropriate test is a

subjective test, one appropriate course would be to

remit the matter over to that court for a new

trial. Determining what does come within the scope

of common purpose and on the appropriate test is on

one view of it a jury question - - -

DAWSON J: In the end, what you are saying is, Well look,

even adopting the correct formula for common

purpose and looking at the evidence in this case,

you say there was not sufficient evidence to go to

was unsafe and unsatisfactory and the Court of	the jury, but at the very least you say the verdict ground. All it did was consider the common
purpose, you say got it wrong and granted you a new
trial. That is how it was.

MS SIMPSON: Yes, Your Honour, and we say, I might GAUDRON J: Well it did consider whether there was

sufficient evidence to go -

MS SIMPSON:  No, the court held

GAUDRON J: But on the wrong test, you say, but it did

consider that?

DAWSON J:	I am sorry, yes, it did.
MS SIMPSON:	It did consider there was sufficient evidence

to go to the jury on that point, but said we will

not go on to the unsafe and unsatisfactory ground

because you have got a new trial.

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DAWSON J: Yes.

MS SIMPSON: That does not appear entirely from the

judgment, Your Honours, but it does become clearer

from the transcript of argument which we have - - -

DAWSON J:  I think we all appreciate that that is the

situation.

TOOHEY J: Except, could I ask you this, if you make good

that proposition, what are the consequences?

MS SIMPSON:  The consequence that we would urge,

Your Honour, is an examination of the evidence to

determine whether there was enough to go back for a

new trial.

TOOHEY J: This is where I have difficulty with the notion

of unsafe and unsatisfactory verdict; somehow
divorced and yet somehow bound up with this other

question.

MS SIMPSON:  I cannot say they are divorced, Your Honour,

but ideally we would say - - -

TOOHEY J:	I take it you are not inviting this Court to carry out the sort of Morris-type inquiry, or
rather the inquiry which Morris requires of the
Court of Criminal Appeal.
MS SIMPSON:	We would be inviting this Court to send it

back.

TOOHEY J:  If we cannot do that then can we do any more than

do what the Court of Criminal Appeal has already

done, send it back for a retrial.

MS SIMPSON:  No, we will not say it should be remitted to

the - - -

DAWSON J:  What you would really be asking us to do, would

it not, would be to correct the Court of Criminal

Appeal in what you say are its misconceptions as

regards the doctrine of common purpose and then

send it back to the Court of Criminal Appeal,

having been enlightened in that way, to consider

the unsafe and unsatisfactory ground.

MS SIMPSON: Yes, and of course the section 8, which is

another aspect.

GAUDRON J: But you would only get to that position,

Ms Simpson, would you not, if it were fairly

arguable that the evidence was deficient in some

way - - -

MS SIMPSON: Yes.

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1/10/92

GAUDRON J: 

- - - and against that you have got an analysis

of the evidence which is very much against you
and - well, against each of your clients.

MS SIMPSON: 

The analysis of the evidence, Your Honour, is

against us, but because Her Honour applied the

objective test - and that becomes clear from a
couple of passages in which she does analyse that evidence, she uses the term - perhaps I should go

to it, Your Honours - - -

DAWSON J: Well no, I think that we all know where you are

heading; whether you get there is another question,

so perhaps you should set out on the journey.

MS SIMPSON:  Your Honours, we say that the conclusion that

the test is an objective test is wrong, for the

following reasons. Firstly, that that conclusion

does not and cannot emerge from the authorities

cited as the authority for the proposition; that

Their Honours considered it to be clear from the

terms of the judgment in Varley and Markby, that an

objective test was to be imposed.

The second reason we say they are wrong is

that in so far as such a test may be read into

those judgments, they are inconsistent with

virtually all other authorities on the subject and,

thirdly, we say that it is neither the law in

Australia, nor in the United Kingdom that the scope

of common design is to be determined by the
imposition of an objective test.

Your Honour, could I hand up three bundles of

cases? It was the cases which are numbered 2 and 3
in the bundles that Their Honours regarded as
giving support to the proposition - as being clear

authority for the proposition that an objective

test is the objective test. The first of those is

Varley, and it appears at number 2 of the bundle of

documents, the relevant passages being those on the	last page, at page 246 of the judgment, and
Your Honours will see that what the Chief Justice
there was doing was citing Anderson's case - and I
will come back to Anderson case - and quoting one passage, which was one of the very few passages
which could give any support to the proposition for the doctrine of an objective test.

Significantly, Your Honours, in Anderson was

the use of the word "could" - if Your Honours go

back to Anderson, which is number 1 in the bundle,

on page 120 of that decision the English Court of

Criminal Appeal said:

It seems to this court that to say that

adventurers are guilty of manslaughter when

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one of them has departed completely from the

concerted action of the common design and has

suddenly formed an intent to kill and has used

a weapon and acted in a way which no party to

that common design could suspect is something

which would revolt the conscience of people

today.

His Honour the Chief Justice, in Varley, referred to that passage and it would seem that it is that

that Their Honours in the Court of Criminal Appeal used as the basis for the conclusion that the test

was an objective one.

Secondly, Their Honours went to Markby, which

appears as number 3 in the bundle and although it

is not specified which passage is referred to as

support for that test, on page 112 there is an

extract of that sentence, or part of that sentence,

from Anderson - it is about point 9 on the page:

If the principal assailant has gone completely beyond the scope of the common design, and for

example "has used a weapon and acted in a way

which no party to that common design could

suspect", the inactive participant is not

guilty of either murder or manslaughter.

And there is one other passage in Johns, the

High Court decision in Johns, which may be of some

assistance to the contention that an objective test

is appropriate, and that, Your Honours, appears in

the judgment of the Chief Justice - the case is

number 4 in the bundle - at page 113, His Honour

the then Chief Justice said:

In deciding upon the extent of that ambit, all

those contingencies which can be held to have

been in the contemplation of the participants,

or which in the circumstances ought

necessarily to have been in such

contemplation, will fall within the scope of

the common design.

Well, Your Honours, those passage are the high

point of any argument that an objective test is the

appropriate test.

DAWSON J:  I am not at all sure that I appreciate the

dichotomy of objective and subjective tests in this

area.	One has to find a common purpose, does one
not?

MS SIMPSON: Yes.

Tran 7 1/10/92

DAWSON J:  And that will normally be a matter of inference

from what occurred.	Is that what you mean by
objective.

MS SIMPSON:  No, Your Honour. We accept that in almost

every case what the purpose of the particular

accused was will have to be determined by

inference.

DAWSON J: Yes.

MS SIMPSON: There is no dispute on our part

DAWSON J:  What do you mean by the objective test, then?

MS SIMPSON: Applying what a reasonable person would have

expected to be within the common design test, and

that is what we understand Her Honour to have been

intending when she said that an objective test was

to be applied.

DAWSON J: Just merely saying what would be a reasonable

inference, is it not?

MS SIMPSON:  Your Honour, she does not say that.

GAUDRON J: Is it not a shorthand way for saying that they

contemplated that there might have been an unlawful

and dangerous act?

MS SIMPSON: Well it is not, Your Honour. Her Honour says

at line 15 on page 26:

it was nevertheless, from an objective point
of view, within the scope of the common

design.

In my submission, she does not mean by that that

this is the proper inference that can be drawn in

relation to this particular accused.

GAUDRON J:  Does she perhaps mean that they must have

foreseen or contemplated that the principal would

engage in an unlawful and dangerous act, which

would, of course, be sufficient to constitute them

guilty of manslaughter, even on your test?

MS SIMPSON:  No, Your Honour, at page 29, at line 20, in

dealing with that piece of evidence about the

knowledge of the existence of the knife, she said,

if they knew of that:

then it could be said that they should have foreseen the possibility of its use against the deceased.

Tran 1/10/92

Not that a jury could draw an inference that they did know of it, which is obviously the inference

that they had to be able to draw in order to

convict.

GAUDRON J: Yes.

MS SIMPSON:  The language is very much that of the drawing

the inference of a reasonable person test.

DAWSON J: But she cannot - it may be an unfortunate use of

language - be talking in a moral sense there, can

she, that they should have - - -

MS SIMPSON:  No. She is using it in the commonly understood

objective reasonable person - - -

DAWSON J: In other words, anyone would have foreseen - any

reasonable person would have foreseen - - -

MS SIMPSON:  A reasonable person would have foreseen.

DAWSON J: Therefore I infer that they did.

MS SIMPSON: Well, she does not go that far.

DAWSON J:	No, she does not.
MS SIMPSON:	And if Your Honour then goes to page 34, she

said, in that first paragraph:

And in my view, this conversation provided

sufficient material to enable a jury to find,

if it was so minded, that any person who heard

it an and was therefore alerted to the fact

that Hiep Van Em Le was carrying a knife, must

have contemplated the possibility that the knife might be used in the ensuing fracas.

GAUDRON J: Well, that is not objective. That is

subjective. That is sufficient, is it not, on all

tests?

MS SIMPSON: There is a perhaps a slightly different

criticism of that passage, Your Honour, and that is

the use of the possibility that the knife might be

used.

GAUDRON J: Yes.

MS SIMPSON: I.am sorry - no - it is at page 35, the first

complete paragraph on the page, she said she

accepted:

that there was evidence from which the jury

could infer that each of the appellants might

have heard this conversation -

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and that, of course, is insufficient as well. But,

Your Honours, the passage on page 26, read with

the whole of the judgment and the way the test was
applied, it has to be seen, in my submission, as

being the application of what a reasonable person

should have foreseen and that is the shorthand use

of the objective test. Had she meant something

else, she surely would have said, "There was

evidence from which the jury could have inferred

that this applicant did know about the use of the

knife."

Your Honours, I was submitting that if we are

correct in the interpretation to be placed on what authority commencing with Johns in a different

passage, at page 125 of the report, in the joint

judgment of Justices Mason, Murphy and Wilson, about

point 8 on the page appears the sentence:

In each case liability must depend on the

scope of the common purpose. Did it extend to

the commission of the act constituting the
offence charged? This is the critical

question.

And then over at page 131 there was a reference to

a comment by Sir Michael Foster, Their Honours said

that:

appears to relate to an act which stands

outside the parties' actual common purpose.

Its effect is to bring the act within the

common purpose if it is a probable consequence

of carrying out that purpose. However this

may be, the statement reflects a view of the

common law which was based on an objective

approach to the relationship between the

common purpose and the act charged. As

Street C.J. pointed out, a subjective approach

to criminal liability has prevailed in more

recent times.

And, if I could move then to the decision in Johns

in the Court of Criminal Appeal, which is number 5 in the bundle, His Honour the then New South Wales

Chief Justice said at page 289, between the letters

E and F, he referred to a submission that was made,

and then, I think, he was quoting from Russell on

Crime, in which it was submitted that the

appropriate test was a subjective one, between

letters F and G he said:

In my view, the law ..... is correctly

stated in the latter portion of this passage I

have quoted from Russell.

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He said it is in line with more recent authority.

Mr Justice Begg, at page 296, appeared to accept an argument that was put by Mr McHugh, as he then was,

that the appropriate test was subjective. He

rejected the proposition that the trial judge in

that case had, in fact, applied an objective rather

than a subjective test, but he accepted the

proposition that the test was subjective.

DAWSON J:  Now, you say on that basis, looking at the

evidence, one can only come to one conclusion?

MS SIMPSON: Yes, Your Honour. But, Your Honours, those are

the cases I have referred to in the written

submission. There are additional cases and some of

them have been referred to this morning. Could I

very briefly go to Chan in which - - -

DAWSON J: Well, we only have to establish the point. I

mean, it is only a special leave application.

GAUDRON J:  The real question is whether, assuming you are

right on that point, the evidence bears out what

you say, whether it is arguable that the evidence

is deficient in either of the ways that you say.

MS SIMPSON: Yes, and that is a matter that we would say

that the Court of Criminal Appeal would have

to - - -

GAUDRON J: Well, not exactly. There is no point in giving

you special leave if it is not fairly arguable that

the evidence is deficient in one or other of the

ways you complain.

MS SIMPSON: Well, I suppose there is this point,

Your Honour, that if we are unsuccessful in this application, or unsuccessful if an appeal

eventuates, there will be a new trial, and - - -

GAUDRON J: Well, you have got a new trial.

MS SIMPSON: But, Your Honour, as things stand, a trial

judge would be required to direct the jury in

accordance with what Her Honour says on page 26,

and that, in our submission, could and probably

would lead to a further miscarriage.	So that, it
is - - -

DAWSON J: Well, there is a lot of other authority on the

question of common purpose which Her Honour

accepts, and he has a fair menu to choose from, I

think.

MS SIMPSON: It would be difficult, Your Honour, for a trial

judge, if there is to be a new trial, to direct the

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jury in accordance with authorities other than the

Court of Criminal Appeal in this very case.

TOOHEY J: What, not even the High Court?

MS SIMPSON:  Yes, Your Honour. It would be necessary for

counsel to persuade the trial judge that what has

been said in the High Court is applicable over what

the Court of Criminal Appeal has said in this very

case. So that, Your Honours, we say it is an

important point for that reason alone, if for no

other reason, that we would have the spectre of

being back here again in a couple of years time if

the point is - - -

GAUDRON J: Well, perhaps.

MS SIMPSON:  - - - perhaps - if the point is not corrected

now.

DAWSON J:	Maybe it could not.
MS SIMPSON:	But the risk is certainly there if the jury are

to be directed in terms of an objective test.

Well, Your Honours, not on the list of authorities, but could I very briefly refer to Giorgianni, which

makes it clear that the subjective intention is the

appropriate intention and I have referred to Chan,

and perhaps I do not need to go any further on that

point.

Your Honours, there are two further grounds

sought to be argued; the first of those is the
unsafe and u,nsatisfactory ground, and whether the

Court of Criminal Appeal discharged its obligation

in refusing to embark upon an independent

assessment of the evidence. What the Court of

Criminal Appeal, in effect, held was that since

they had decided to grant a new trial because of deficiencies in the summing up, it was not	necessary for them then to perform that independent	assessment that is required by a series of cases in
this Court, so that, I suppose, the special leave
point on this aspect of the matter is whether what
has been said in Chidiac, in Morris and in other
cases, extends to the circumstance where a Court of
Criminal Appeal has already decided on one ground
that the conviction cannot be permitted to stand,
but that a new trial is the appropriate result.

DAWSON J: In Jones v Reg, 166 CLR, this Court said that

whilst generally if the Court of Criminal Appeal

failed to consider a ground which may have lead to an acquittal, it should be sent back to the Court.

It is not necessarily so if to do so would be

futile when it is obvious that the point would not

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be successful. I am paraphrasing what was said,

but that is what was said in Jones v Reg.

TOOHEY J: Could you have gone back to the Court of Criminal

Appeal and asked them to deal with the unsafe and

unsatisfactory -

MS SIMPSON:	We did.
TOOHEY J:	You did.
MS SIMPSON:	We did, Your Honour, and that is why we have

brought the transcript of the argument in case it

does become an issue in this application. What we

did was to ask the Court of Criminal Appeal to

proceed to deal with the unsafe and unsatisfactory

and the other grounds of appeal and then to perform
the independent assessment of the whole of the

evidence, we would add on the basis that the jury

were properly directed in the manner in which they

clearly were not on the original trial. There

were, for example, a number of deficiencies which the Court of Criminal Appeal did not even get to,

one being the whole question of character that was

raised by the applicant Tran.

GAUDRON J:	I am sorry, I did not hear what you said.
MS SIMPSON:	A question of character was raised by Tran. There were a number of grounds of appeal that would
have been argued in the Court of Criminal Appeal
had they been inclined to proceed to hearing the
other grounds.

GAUDRON J: But they did consider, albeit, you say, on a

wrong basis, whether there was evidence to go to

the jury. And their analysis was that there was.

MS SIMPSON:  Yes.

GAUDRON J:  And the real question, it seems to me, to go

back to what I said earlier, is for you to show

that on the analysis made it is arguable that there

is now no evidence to go to the jury or it is

arguable that a verdict based on that evidence

would be unsafe and unsatisfactory.

MS SIMPSON:  The latter part I accept, with respect,

Your Honour. The former, I do not, because of the

distinction between whether there is evidence fit to go to the jury or not. If a verdict, based on

the evidence at the original trial - and if I could

interpolate there, by a jury properly instructed -

would be unsafe and unsatisfactory, or if it is

arguable that it would be unsafe and

unsatisfactory, then the Court of Criminal Appeal

should have proceeded to consider the whole of the

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case in that light. That is what I was unable to

persuade the Court of Criminal Appeal to

do. Your Honours, there are a number of - - -

GAUDRON J: Except that they did undertake an assessment of

the evidence.

MS SIMPSON: Well, Your Honours, they only undertook an

assessment of one part of the evidence. They did

not undertake an assessment of the quality of the

evidence which they were entitled - we would say
obliged - to do. They looked at it in the light
of: what should a trial judge do if this were the

evidence in the trial, and on that basis they said there was evidence fit to go to the jury, but they

did not do the Chidiac exercise - - -

DAWSON J:  But this is not a case where quality arises. A

Morris-type situation is a relatively infrequent

situation where you have a witness in that case who

is suffering from mental disabilities, or a

Freeman-type case, where you have a witness who is a self-confessed liar, or where you have a witness

who has an indemnity against prosecution. It is

not that sort of case where there are possible

defects in the evidence. These are just -

MS SIMPSON:  I am sorry, Your Honour, there was an

indemnified witness - - -

DAWSON J: There was an indemnified witness, that is right,

yes.

MS SIMPSON:  It is not just a question of the reliability of

any individual witness. It is also an assessment
on the proper basis of what inference could be
drawn from what Their Honours acknowledge was the

only evidence on which the applicants could have been convicted, and the best Their Honours could say, in relation to that, was the sentence at

page 35 that I have already taken the Court to,-

that: 

the jury could infer that each of the

appellants might have heard this conversation.

GAUDRON J: But this raises again a difficulty that appeared

in the earlier case today, to some extent.	They
were, in fact, all present in the backyard.

MS SIMPSON:	Yes.
GAUDRON J:	Or the evidence was that they were present in

the backyard; that there was an assault whilst they

were present and that thereafter they left

laughing.

Tran 14 1/10/92

MS SIMPSON:  Your Honour, in respect of Tran there was no

evidence that identified him as being at the scene

of the fracas.

GAUDRON J: Yes.

MS SIMPSON:  He said he was present at Mr Duong's house and

I think he said he went across the road. He did not go further than a couple of steps inside the

Ball household. Of course there was other evidence

against him in the nature of some confessional

material, but that in itself had problems. So that

there was no evidence that he was present at the

time when what might be seen to have been the

original common purpose could have been varied and

that really comes back to those - - -

GAUDRON J:  Now that common purpose, assuming the

correctness of your first argument, would require

no more than that he contemplate the commission of

an unlawful and dangerous act.

MS SIMPSON:	No, he would have to - - -
GAUDRON J:	Is that not an inference that could properly be drawn from the evidence against him?
MS SIMPSON:	He would have to contemplate some use of the

knife.

GAUDRON J: Yes, involving - - -

MS SIMPSON: Involving violence.

GAUDRON J: Well, which constituted an unlawful and

dangerous act.

MS SIMPSON:	Yes.
GAUDRON J:	It would have to be no more than that, and

offhand, you know, the use of knives is, of their

nature, usually of that kind.

MS SIMPSON: Except, Your Honour, that what was said - the

conversation which was really the centre of the
Crown's case was that somebody asked: "What do you

want a knife for?"	And the answer was, "To protect
myself".	So that even at the high point of the

Crown case - - -

GAUDRON J:	And Mr Tran heard that evidence?
MS SIMPSON:	No, there is no evidence that he heard that,

Your Honour.

GAUDRON J: There is no evidence that Mr Tran heard that.

Tran 15 1/10/92

MS SIMPSON:	The best that can be said is that all of them were present when it was said, and the witness
added, "I do not know if they heard it or not, I do
not know who heard it".

GAUDRON J: Yes, well that does not - - -

MS SIMPSON:  Her Honour dealt with that. So that there was

just no evidence from which an inference could be

drawn that he did, in fact, hear it. And certainly

there was no evidence from which an inference could

be drawn that he contemplated its use in anything

other than a defensive way, but may I add to that,

and this does not appear in the judgment: there was

also no evidence that at the time of that

conversation any knife was produced.

We know, obviously, that at some stage the

principal assailant had a knife and used it, but

that conversation was limited to this: "Has anybody

got a knife", or something like that; "What do you

want a knife for?"; "For defensive purposes". And

then there is nothing to say that somebody went

inside to get a knife, somebody said, here is a

knife, I have got a knife I always carry one -

nothing like that, but some time later, at a time

when Mr Tran, at least, was not present in the Ball

household or at the scene of the affray, a knife

was produced.

Now, really what we say about that is that,

applying the proper test, the Court of Criminal

Appeal may well have come to a conclusion, and we would· say, should have come to a conclusion, that

there was not evidence fit to go to the jury in

respect, probably, of any of the applicants, that

the evidence in relation to any of them is no better

than the others on that point.

GAUDRON J: There is evidence that Mr Tran was there?

MS SIMPSON:  Yes. He was there, being at the Duong house,

yes.

GAUDRON J: And is there evidence that Mr Tran was at the

Ball house?

MS SIMPSON: There was evidence that he went, if I - - -

DAWSON J: Inside - - -

MS SIMPSON:  A couple of steps inside; not inside the house.

DAWSON J:  Not inside the house, inside the gates, yes. The

gate was battered down and he entered.

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MS SIMPSON:	Yes.	And then the assault took place at a

caravan down the end of the driveway.

GAUDRON J: But, was there not evidence of how many people

were down at the caravan?

MS SIMPSON: Well, there was some evidence, but it varied.

There are a number of members of the Ball family

who gave evidence, and this was - - -

DAWSON J: There is no doubt that the evidence against Tran

was not as strong as it was against the others, but

there was evidence.

MS SIMPSON: There was evidence, Your Honour, and if we fail

on the submission that, looked at properly, there

was no evidence fit to go to the jury in his case,
we still would submit that the Court of Criminal

Appeal should have looked at the whole of the

evidence in order to determine whether a reasonable

jury, properly instructed, should have entertained

a reasonable doubt.

DAWSON J: There is no doubt that a reasonable jury could

have come to the conclusion that Tran, as with the others, went to the Ball house, where the gate was battered down, and entered with the common purpose

which was alleged by the Crown. There was

evidence.

MS SIMPSON:  We would submit not, Your Honour; that even if

there were evidence fit to go to the jury it would

not withstand an unsafe and unsatisfactory

challenge in the Court of Criminal Appeal.

DAWSON J:  Why? Why should he have a different purpose, and

as long as he entered the grounds of the house,

that is sufficient?

MS SIMPSON:	It comes back to what purpose can be shown.
DAWSON J: But why should he have a different purpose from

the others? Clearly the jury found that they had

the purpose which was alleged.

MS SIMPSON:  Your Honour, we would say that the verdicts in

their cases were unsafe and unsatisfactory as

well -

DAWSON J: Yes.

MS SIMPSON:  - - - because it cannot be shown in any case

that any individual applicant was aware of the

existence of the knife.

DAWSON J: Well, of course, you have got a new trial on the

question of common purpose.

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MS SIMPSON:	Yes.	But we would say that if there were a

conviction arising out of the evidence as presented

in the first trial, that it would be unsafe and

unsatisfactory and what the Court of Criminal

Appeal should do is to independently assess that evidence so that there is not a new trial. If that

is going to be futile -

DAWSON J:  It is clear if it had done so it would have come

to the same conclusion, is it not? I mean it would

have come to the same conclusion as it did in

relation to the submission that there was no case

to go to the jury.

MS SIMPSON: No, Your Honour, not necessarily at all. For

example, one of the grounds that would have been

argued related to the way the question of character

was dealt with. Your Honours, during the course of
the trial Tran's counsel asked one of the police

witnesses if he had any prior criminal record, and

the answer to that was, no, he did not. We have

extracted, Your Honours, just one page of the

transcript; could I hand up three copies of that?

I am sorry it does have a marking, but it is in the

passage that I would be referring the Court to.

Your Honours, in re-examination, in the middle of the page the prosecutor asks:

Yesterday you conceded to defence counsel

for - - -

DAWSON J:	Who is Mr Carroll?
MS SIMPSON:	A police witness, Your Honour:

you conceded ..... that enquiries directed .....

indicated -

he -

was not an associate of the criminal element:

And you stick to that, as a general indication

of what is know of the man. There is nothing

to indicate that he associates generally with
the criminal -

And then there was an objection and then on the second-last question on the page:

Do you yourself know of an occasion when in

fact he has associated with men with prior

convictions -

and then there was an objection; the question was

allowed and the witness said:

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Yes, I do.

and that was the end of the re-examination. Now

that was the first aspect of the matter that we

would have raised.

DAWSON J: It was a very unwise line of questioning, but

still.

MS SIMPSON: That question had a number of deficiencies,

Your Honour. Firstly, it was among the most

blatantly leading questions that can ever have been

seen in a criminal case. Secondly, it did not

specify what was the occasion when he was said to

have been associated with men with prior

convictions, who those people were, what their

prior convictions were; what they were for. But

one can see how it may well have put off counsel

further inquiring into the antecedents of the

applicant.

DAWSON J:  But there is no application made on the basis of

that answer, the trial was allowed to proceed.

MS SIMPSON:  No, the objection was taken, Your Honour.

Then, Your Honours, in the summing up His Honour

said, if I could hand up three copies of the

summing up - the top of page 11, His Honour said:

Then there is another direction of law I

give you and this has to do with character.

Mr Jamieson has chosen to call some witnesses

concerning character, on behalf of Mr Duong.

The household - and you remember that; an accountant came to say what a good boy he was,

because he banked his cash takings which,

apparently, is unusual for people who have

cash businesses. One lady came to say what a

good man he was - he gave her a lot of chicken

pieces for her dog; and other man in business

found him to be a pretty straight sort of

person. There is no evidence that he has bad

character. If there were, the Crown could

have called it.

And then he went on and gave some additional

directions on character. That, Your Honours, in my

submission, unduly and quite unfairly trivialized

the character evidence that had been called and the

approach that should have been taken by His Honour

to the question of character.

GAUDRON J: But we are not concerned with Mr Duong, are we?

MS SIMPSON:  No, Your Honour, but His Honour gave no

directions at all initially in relation to Mr Tran,

who was the other applicant who had raised

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character, and they appear at page 69 - where he

did give directions they appear at page 69 - at the

top of the page he said -

DAWSON J:	I do not seem to have a 69.
TOOHEY J:	We seem to run out at 54.

MS SIMPSON:  I am sorry, Your Honours. He said:

Then, in respect of Mr Tranh - Mr Tamine's client - I am reminded that he also raised the

matter of good character, as did Mr Duong. And, effectively His Honour said, "Well you get the

same directions in relation to character that

Mr Duong had". I might say, Your Honours, that no

additional evidence was called on character in

respect of Mr Tran. But the trivialization of the

approach to character was then applied by

His Honour to Mr Tran - - -

GAUDRON J: There is not a lot that could be done with

character evidence in circumstances where, at the

very least, these people had decided to take the

law into their own hands. Now, whether or not they

had intended the consequences is the matter with

which this appeal is concerned, but at the very

least they had intended to take the law into their

own hands.

MS SIMPSON: That is one view of the evidence, Your Honour,

and certainly against Mr Tran if his alleged

admissions were accepted, it was a stronger

inference in respect of him, but there was another inference equally available and that was that they

were going over to ask for the property back.

Certainly, some of them were going over to ask for

the property back.

DAWSON J: That is true, but the jury had this before them.

MS SIMPSON: Well they had, Your Honour, but it was quite

clear in the appeal that the jury were not properly

directed. There were gross deficiencies in the

summing up.

DAWSON J:  We accept that, and you have got a new trial.

MS SIMPSON: There were other deficiencies besides those to

which the Court of Criminal Appeal adverted.

DAWSON J: Well, they still would entitle you only to a new

trial.

MS SIMPSON:  Your Honour, we say they entitle us to more

than that; that they entitle us to a proper

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independent consideration of the evidence by the

Court of Criminal Appeal, before determining that

it was a matter for a new trial. That follows, we

say, both from the unsafe and unsatisfactory ground

and also from the application of section 8 of the

Criminal Appeal Act. I have referred Your Honours

to some of the authorities on section 8. There is

no automatic new trial in New South Wales where a

conviction has to be quashed. The Court of

Criminal Appeal is required to turn its mind to

whether the interests of justice are best served by
ordering a new trial or by some other order.

Section 8 appears at number 11 of the bundle of

documents that were handed up. What the court is

required to do - the court is limited in ordering a

new trial to circumstances where it:

considers that a miscarriage of justice has

occurred -

well it certainly concluded that -

and that having regard to all the

circumstances, such miscarriage of justice can

be more adequately remedied by an order for a

new trial than by any other order which the
court is empowered to make.

The Court of Criminal Appeal, by reason of that section, as well as the unsafe and unsatisfactory

principles, should have turned its mind to the kind

of matters which were listed, for example in Reid,

which appears at 14 of the bundle of documents, and

the second-last page, page 350, of that report, the Privy Council listed some factors - it was at pains to say that this was not an exhaustive list, but it listed some of the matters to be taken into account

in determining whether a new trial should be

ordered:

The seriousness or otherwise of the offence

must always be a relevant factor: so may its

prevalence; and where the previous trial was

prolonged and complex, the expense and length

of time for which the court and jury would be

involved in a fresh hearing may also be

relevant considerations. So too is the
consideration that any criminal trial is to
some extent an ordeal for the defendant, which

the defendant ought not to be condemned to

undergo for a second time through no fault of

his own unless the interests of justice

require that he should do so. The length of

time that will have elapsed between the

offence and the new trial -

and importantly, in the next paragraph:

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The strength of the case presented by the prosecution at the previous trial is always

one of the factors to be taken into

consideration but -

with varying weights. So that, for two reasons,

Their Honours should have been assessing the

overall quality of the whole of the case, not just

the individual evidence presented by any particular witness, but the overall quality of the Crown case, and they should have done that having regard to the

errors in the directions that were given by

His Honour the trial judge, including, especially
we say, the directions on character, but all of the

other matters that would have been raised.

Another illustration, Your Honour, of matters

that would have been raised by the applicants is -

certainly in Tran's case - was the need for a

direction in accordance with Carr. There was
evidence of admissions; they were denied, but no

appropriate direction was given by His Honour.

Your Honours, for those reasons, we would

submit that special leave should be granted so that

the matters of importance raised, ie, the test for
the content of common purpose; the role of the

Court of Criminal Appeal where it has already decided that a conviction must be quashed, and the

proper application of section 8 of the Criminal

Appeal Act would warrant the grant of special leave

in this case. If Your Honours please.

DAWSON J:  Thank you, Ms Simpson. Mr Blanch.

MR BLANCH: If the Court pleases. It would be our

submission that the applicants in this case cannot

be in any better position at the end of the day

because the evidence -

GAUDRON J: Well, they might be to this extent that even if

they had a new trial that there might be some

clarity about the way the law should be applied.

There does seem to be some difficulty, does there

not, about the statement of the law in the Court of

Criminal Appeal?

MR BLANCH: Well, Your Honour, the Court of Criminal Appeal

had difficulty in coming to terms with the analysis

of the law, and in particular in the context

of - - -

GAUDRON J: Is it a difficulty that is likely to be repeated

in a subsequent trial at the hands of the

prosecution?

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MR BLANCH:	Your Honour, that could be the case, yes.	The

difficulty that arose in the Court of Criminal

Appeal -

GAUDRON J: Well, would it be?

DAWSON J:  You have it in your hands to make what

submissions you want.

MR BLANCH:  To the trial judge, Your Honour?

GAUDRON J: Yes.

MR BLANCH:	Yes. Well, I must say that my own assessment of the situation, Your Honour, is that it would be
appropriate for the Crown to run a case such as
this on the basis that the accused embarked upon an
enterprise foreseeing the possibility of an
unlawful dangerous act arising.  However, the
difficulties that arises - and I would expect that
that would be the way the case would be conducted - and I must concede this - arising from the judgment
of the Court of Criminal Appeal, is that on an analysis of the statements in the judgments saying
no more than an unexpected incident - or it was an
unexpected incident of the event - it is those statements that an unexpected incident may make the
non active party guilty of manslaughter, that has
given rise to the judgment of the Court of Criminal Appeal, and that is obviously a matter of some
debate.

DAWSON J: Well, you would proceed on the basis of Johns,

rather than the judgment - - -

MR BLANCH:  Yes, that is what I am saying, Your Honour, yes.

DAWSON J: Yes.

MR BLANCH:  And it is a matter that ought to be avoided, but

it could be avoided if in refusing the application

for special leave this Court were to make some

comment to that effect. On the other hand, in any

event, as a matter of practicality, the prosecution

would certainly be run on the basis of John's case.

The other submissions that I was going to put to

the Court were as to the facts, but I concede there

is not much point - - -

GAUDRON J: Well, perhaps you should. I interrupted you

when you - - -

MR BLANCH:  I was only going to say as to that, Your Honour,

that the Court of Criminal Appeal did analyse the

facts. It looked at the evidence of the witnesses

and looked at the evidence as it exists against

each person and clearly there was evidence that the

Tran 23 1/10/92

three applicants had gone to Mr Duong's house.

There is evidence that the three of them were there

in a group when the man who actually wielded the

knife said that he wanted a knife and somebody

called out, "Why do you want it?" and he said, "To

defend myself", and then they were all there at

that time. They all then went across the house

into the yard. Mr Tran says that he only went five

paces into the yard, but the evidence of the people

in the house was that there were five people, I

think, identified by one of the witnesses, as

corning into the back yard.

Quite clearly there was evidence upon which

the jury could conclude that there was a - even if

it could be said that at the starting point it was

clear that the knife was there only for the

purposes of being used in a defensive manner, that

it went far beyond that once they got across the

street into the house, and then there were a

sequence of events from which the jury was entitled

to draw conclusions.

The Court of Criminal Appeal looked at all of

that and came to the conclusion that even looked at

on this basis, that the Court of Criminal Appeal

came to the conclusion that an objective test

should be applied. What that amounts to in

practical terms is this, if you apply an objective

test - and on that objective test you can say that

a reasonable person would have expected certain

consequences - then that is also a finding that

that is a matter that the jury can take into

account in determining whether these accused had

that purpose.

DAWSON J: But it is an unfortunate way of putting it.

MR BLANCH: Well, yes, Your Honour.

DAWSON J:  Do you wish to add anything, Ms Simpson?

MS SIMPSON: Only on the practical question, Your Honours,

that the Crown could undertake to run this case in

a way that does not rely on the critical passages

in the Court of Criminal Appeal's judgment. That,

of course, does not remove those passages from

being binding authority for the inferior courts in

New South Wales until they are corrected.

DAWSON J: Yes. Thank you.

The applicants in these applications complain

that the Court of Criminal Appeal was in error in
the observations which it made concerning the scope

of common purpose or design in this case, but the

Court of Criminal Appeal made those observations in

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the course of upholding the applicants' contention

that the trial judge was in error in the directions

which she gave to the jury. As a consequence the

Court of Criminal Appeal ordered a retrial. Whilst

we should not be taken as agreeing with all that

the Court of Criminal Appeal said on that aspect of

the case, it would be inappropriate for this Court

to grant special leave to appeal to consider the

remarks made by the Court of Criminal Appeal in

deciding that matter in favour of the applicants.

The applicants also submit that the Court of

Criminal Appeal erred in that, having decided in their favour on the first point, it proceeded to

order a new trial before going on to consider the
other grounds of appeal, in particular, the ground

that the verdict of the jury was unsafe and

unsatisfactory. The applicants are correct in

their contention that the Court of Criminal Appeal

ought to have considered this other ground before

making any order, because if it were upheld it

would justify the entry of a verdict of acquittal.

In that respect we refer to the authority mentioned

in argument, Jones v Reg.

But the Court of Criminal Appeal, in

considering another of the applicants' submissions,

namely that the trial judge ought to have directed

an acquittal, did carry out an assessment of the
evidence, and it is apparent from that assessment
that, had the court turned specifically to the

ground of appeal that the verdict was unsafe and

unsatisfactory, it would have rejected it. Not

only that, but the Court of Criminal Appeal's

analysis of the evidence makes it apparent that the

ground must fail in any event, and irrespective of

any considerations raised by the application of the

doctrine of common purpose.

In the circumstances, this is a case in which

special leave on that ground should be refused,

notwithstanding the failure of the Court of

Criminal Appeal to consider it. No other point is raised which would warrant the granting of special

leave, and accordingly the necessary extensions of

time are granted and special leave to appeal is

refused.

AT 12.43 PM THE MATTER WAS ADJOURNED SINE DIE

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