Huynh v The Queen; Duong v The Queen; Sem v The Queen [2012] HCATrans 334 (5 December 2012)

Last Updated: 5 December 2012

[2012] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A30 of 2012

B e t w e e n -

TUAN KIET DAVID HUYNH

Appellant

and

THE QUEEN

Respondent

Office of the Registry
Adelaide No A31 of 2012

B e t w e e n -

CHANSYNA DUONG

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Adelaide No A32 of 2012

B e t w e e n -

ROTHA SEM

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 DECEMBER 2012, AT 3.30 PM

Copyright in the High Court of Australia

____________________

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR S.J. DOYLE, SC, for the appellant, Huynh. (instructed by Caldicott and Co)

MR J.D. EDWARDSON, QC: May it please the Court, I appear with my learned junior, MR J.P. NOBLET, on behalf of the applicant, Duong. (instructed by Noblet & Co)

MR M.L. ABBOTT, QC: I appear for applicant, Sem. (instructed by Patsouris & Associates)

MR A.P. KIMBER, SC: If the Court pleases, I appear for the respondent with MS E.M. WILDMAN and MS T.J. COSTI. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Yes, Ms Shaw.

MS SHAW: May it please the Court, the prosecution presented its case upon the basis that each of the three accused, including the appellant, Huynh, might be found guilty of murder on four separate bases: as a principal; as an aider and abetter to the stabber, or the principal; as a participant in a joint enterprise with the stabber; or on the basis of extended joint enterprise liability.

In relation to two of those bases, namely joint enterprise and extended joint enterprise, the learned trial judge failed to direct the jury either clearly in his summing-up or at all in the recast oral and written redirections that participation in the joint enterprise with the necessary foresight was an essential element of joint enterprise liability. The second ground of appeal in the notice of appeal at 3 appeal book, page 1217, complains that the Court of Appeal erred in holding that the failure of the trial judge to direct the jury:

that liability by way of “joint criminal enterprise” required proof of an act of participation –

with the necessary foresight was not an error of law productive of a miscarriage of justice such that the appeal ought to have been allowed subject to the proviso. At appeal book 3, page 1171, and in particular at paragraph 98, the Court of Appeal held that there was no error in failing to direct the jury as to this essential element because there was no risk that the jury found any of the accused guilty without finding that they participated in the joint enterprise to kill or cause grievous bodily harm to the deceased.

At paragraph 97 at appeal book 3, page 1170, the Full Court accepted the authorities in this Court that made it plain that participation with the necessary intentional foresight was an essential element of joint enterprise liability. This requirement, we submit, with respect, was recently confirmed by the judgment of this Court in Likiardopoulos v The Queen [2012] HCA 37; (2012) 86 ALJR 1168 and in particular at paragraph [19] at page 1173 in column 2.

The Court further correctly held that neither the oral summing-up or the oral redirection or the written direction did the trial judge on any of those occasions direct the jury that proof of participation with the necessary foresight was an essential element of joint enterprise liability. In the judgment of his Honour the Chief Justice at paragraph 97 his Honour says at line 54:

I agree also that the Judge did not identify this as a separate element to be proved.

As I said, the appellant submits that the reasoning of the Full Court at paragraph 98 and following is erroneous insofar as the court finds that:

there was no risk at all that the jury –

would have found -

the accused guilty without finding that the accused participated in the joint enterprise -

That reasoning, we say, if the Court goes to paragraph 98, depends firstly on what is said by his Honour the Chief Justice, in particular, at line 10:

There was evidence that each of the three accused was armed, and in different ways joined in the attack at the Nguyen house. There was evidence linking them with the attack on Thea Kheav on the roadway. There was evidence before the jury linking each of the accused closely with the stage of the attack at which Thea Kheav was stabbed.

That is the first basis that his Honour reasons that there is no risk. His Honour then proceeds in paragraph 99 to reason that because the issue in the case was whether an agreement could be inferred from the conduct of the individual accused, it followed that if the conduct established an agreement it must also have established participation. His Honour in paragraph 100 deduces that as the basis upon which there was no risk in this case.

At paragraph 102 and, in particular, at page 1172 line 10, his Honour refers again to the issue as to whether or not by the time of the attack the three accused had made an agreement or arrangement of the kind identified by the judge. His Honour then goes on to say at line 14:

Participation in any agreement or arrangement was not the issue in this case. The real issue was what the jury made of the conduct of the accused, and whether that conduct established the relevant agreement or arrangement. If it did, it did it by establishing conduct that amounted to participation.

The appellant contends that there are a number of errors in the reasoning of the Full Court. First of all, the appellant submits that the first and significant error is that a failure to direct as to an essential element of an offence, at least where it has been put in issue as it clearly was in this case, constitutes an error of law productive of a miscarriage of justice, subject only to the application of the proviso - - -

BELL J: Can I just stop you there for a moment, Ms Shaw? I think it is perhaps important to identify what is meant by “participation” firstly, and what was in issue on the trial, secondly.

MS SHAW: Yes.

BELL J: It was not, as I understand it, in issue that your client was one of the group that returned to the house in Vartue Street with the person, Sem. Is that right?

MS SHAW: That is so.

BELL J: I think in the way the trial was conducted it was not in issue that after the cars returned to the Vartue Street premises, or the vicinity, a group of persons including your client got out of the vehicle and that the hostilities, if you like, commenced. Is that so?

MS SHAW: That is so.

BELL J: Now, in terms of participation for the purposes of liability on a joint enterprise basis, firstly, if the joint enterprise is an understanding or arrangement that two or more persons will assault another person or persons intending in that assault to do grievous bodily harm, and only one in fact administers any violence – assuming the other is present – that is a sufficient level of participation, is it not?

MS SHAW: Your Honour, the question of presence in that context has in some cases been given a broad or confined meaning. In other words, if it was a presence in the nature of the presence that was involved in relation to the judgment of this Court in Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439 where the accused arrived at the premises at about the same time, they essentially were the only ones there and their purpose before they went was fairly clear and the issue was who was responsible for the fatal act, then I agree with your Honour that presence in those circumstances might well lead to an inference that the person was participating in the sense of assisting with the necessary foresight as to what occurred. But it must constitute encouragement and support for the conduct of the other parties to the joint enterprise.

BELL J: But in this instance the real issue concerned, did it not, whether the inference could be drawn beyond reasonable doubt of your client’s participation in and agreement or understanding that the violence to be meted out would involve the administration of grievous bodily harm?

MS SHAW: In terms of joint enterprise, participation in furtherance of the joint enterprise with the necessary foresight.

BELL J: That was the issue.

MS SHAW: Yes, the participation was the issue.

CRENNAN J: Was it not this, though? Was not your client’s defence no participation and witnesses to the contrary were unreliable so therefore, as Justice Bell said, there could not be a finding of participation beyond reasonable doubt?

MS SHAW: Yes.

CRENNAN J: I would like to be corrected if I am wrong – the other appellants had different defences. I think Mr Duong was a case of self-defence.

MS SHAW: Mr Sem was the case of self-defence.

CRENNAN J: Therefore, Mr Duong, was he the one about, well, I was only there till the roadway and had no further involvement?

MS SHAW: That is Mr Sem.

CRENNAN J: That is Mr Sem?

MS SHAW: Yes, and Mr Duong’s position was quite different because on the prosecution case he was the most likely stabber and so there was a quite significant body of evidence from a number of witnesses that supported him, the fact that he was armed both at the roadway, in the sense that the way the case was presented there were two separate skirmishes or attacks – at the roadway he was seen armed with wood and there were a number of witnesses who deposed to that. At the gates where the prosecution presented its case as the most likely site of the fatal injury, there was an eyewitness, that he said he was the stabber and there was one stab wound, and other evidence supporting his proximity to the gates at the time of the stabbing.

CRENNAN J: The defence, as I think I said before, one of self-defence?

MS SHAW: That was Mr Sem. Mr Duong’s defence was really taking issue with those various witnesses and, in particular, as his Honour even left to the jury, the reasonable possibility that another man, Kimlong Rim, was the stabber so therefore, as I understood Mr Duong’s defence, that he disputed the prosecution case on the basis of the evidence in the prosecution case. Firstly, there was clear evidence that Mr Huynh, as his Honour left to the jury at appeal book 2, at about page 991, that it was a reasonable possibility that Mr Kimlong Rim was a stabber and, secondly, there was the evidence from the point of view of the accused, Duong, that the two witnesses, Ms Russo and Ms Francis, who were at the Duong house initially and it is Ms Francis who hears the comment about “get a knife” and says Mr Duong has already left. They travelled with Mr Duong to the premises and returned with him to the premises. Both of those witnesses said in relation to Mr Duong that he left the car without any weapons. He returned to the car without any weapons and one said he was gone for two minutes and the other one said he was gone for 40 seconds. So Mr Duong had positive evidence in the prosecution case that put in issue the way in which the prosecution relied upon, although more than one witness, its reliability.

As for the appellant Huynh, in relation to the case against him, it depended solely upon the evidence of two witnesses. There was no evidence that he heard the comment at the Duong house, that he was present. There was no evidence that when he arrived he exited the vehicle with any weapon. The only evidence against him was from the single witness, Ms Pavic, who said that he participated in the assault on Mr Kheav at the driveway or the roadway – that is, on the deceased – when others were present and she initially said, or at one stage said, he had a bottle but then agreed she was mistaken about that.

But there were a number of witnesses in the prosecution case who were in conflict with her account. For example, the young lady who was with the deceased, standing at the car with the deceased, his girlfriend, Ms Farmer, she said that the person who was responsible for the deceased being knocked unconscious wore a baseball cap and it appeared to be a person called Rotha Sem. So there was conflicting evidence and that is just one of the conflicts with her evidence at the roadway.

In relation to the single witness against Mr Huynh that he was involved in striking the deceased at the gates, there was the evidence of Mr Johnny Lam and he claimed that my client, the appellant, struck a person called Bao Lam as he was trying to assist the deceased over the gates. Now, Mr Bao Lam denied he was ever at the gates in those circumstances and, in fact, gave evidence that he had assisted or seen the deceased proceed through the open gate before the roller door came down.

So his evidence was in direct conflict with this witness. Secondly, and I am only referring to two other witnesses, Ms Tegan Long gave evidence that she was at the location where Mr Lam claimed he was at across the road and Mr Lam was inside cleaning up; he was not even out there. In other words, within the prosecution case, there was conflicting evidence that the appellant says needed to isolated in one place as against the appellant Huynh so the jury could determine whether or not they were able to act on the evidence of either Ms Pavic or Mr Lam to prove his participation in the joint enterprise.

BELL J: I understand that last submission is directed, I think, more to your second ground.

MS SHAW: It is.

BELL J: But just taking you back to the first, you referred to Clayton v The Queen.

MS SHAW: As one example.

BELL J: Yes, and I think in that case it was pointed out that in cases involving joint criminal enterprise it is not always helpful for the judge to direct the jury by reference to the legal principles underlying the basis for liability. What one looks to is an identification of the facts that it is necessary for the jury to find before they could conclude guilt established beyond reasonable doubt. I do not purport to be quoting directly, but that is the effect of the joint reasons, I think, in Clayton and I think you accept, Ms Shaw, that it is not necessarily an error of law not to direct respecting every, what you characterise as element, of murder when liability is made out by joint enterprise. It depends on the issues in the trial.

MS SHAW: That, your Honour, depends on whether or not the failure to direct is productive of miscarriage of justice.

BELL J: Indeed.

MS SHAW: I accept that.

BELL J: Yes.

MS SHAW: That is the wording of the section of the Criminal Law Consolidation Act.

BELL J: Can I just take you to what were the issues. If one turns up appeal book volume 2 at 864 one finds counsel for your client – this is at about lines 32 and following:

As to the so-called joint enterprise spoken of by the prosecution I say there is nothing to suggest that Kiet Huynh knew anything about a knife; nothing to suggest that he used the knife; nothing to suggest that he contemplated the use of a knife to cause any harm. There is nothing to say that Kiet Huynh did anything other than enter into this affray, chuck a couple of bottles, perhaps depending on who you believe –

and so forth. Now, it is in that context that one might consider that what the Court of Criminal Appeal was saying was the issue was not whether he was present and participating in some form of affray, but whether from that fact which was not in issue one could infer that he was a party to an arrangement or understanding that a person or persons might be assaulted with the intention that they suffer grievous bodily harm.

MS SHAW: Can I respond to make three points, your Honour?

BELL J: Yes.

MS SHAW: The first is that if the trial judge had directed the jury that what counsel for appellants said was the issue, and that was the case alleged against Mr Huynh, and from that case they could infer agreement then that might be so. The trial judge never identified, as against Huynh, what was the conduct that was the basis for the agreement, the basis for inferring his participation pursuant to the agreement.

The second point is that when his Honour summed up and provided recast written and oral direction, he specifically excluded as an element proof of participation in the joint enterprise. In other words, he confined what the jury had defined to proof of the agreement and, indeed, in his written redirections and in his oral directions he equated a party to the agreement to a participant.

Thirdly, your Honour, in this particular case, the difficulty was that the jury were left – and the Court of Criminal Appeal acknowledged this – with the ability to return a verdict of guilty in relation to proof of the agreement, because that is all the written direction required them to find, on four alternative bases, that is, that the agreement might have taken place at the Duong house before they left.

Of course, if that is the basis upon which the jury reasoned as against any of the accused, namely, we find that the agreement was formed at the Duong house before they left, and that was one of the roots to liability under the written direction that would clearly not include an act of participation as against Mr Huynh because there was no evidence that he heard or did anything at the Duong house. Secondly, the second route to liability was an agreement by jumping into cars and going to the premises.

FRENCH CJ: You mean an agreement inferred from?

MS SHAW: Agreement inferred from jumping in the car and going to the premises and, thirdly, as the court set out at 1183, appeal book 3, at paragraph 153, this was a prosecution where there were not only these different stages at which the agreement could have been reached, but in fact the fatal injury, that is, the causal act for death could have occurred at two separate places, namely on the roadway or at the gates.

BELL J: Indeed. Coming back to the written direction, which is the subject of ground 1, and it is set out at appeal book 1169 in paragraph 94 of the Court of Criminal Appeal’s reasons, I think some of those concerns are addressed in the opening paragraph where it is explained that the agreement needs to be still on foot and that in accordance with the agreement:

one of them does, or they do between them, all the things that are necessary to commit the crime they are both guilty of that crime regardless of what part each played in its commission.

So one does get a general direction, as I would read it, consistent with McAuliffe at that point.

MS SHAW: Yes, I agree, your Honour.

BELL J: Now, your complaint then is with numbers 1 to 4 in what follows, the first of which might be thought favourable to the accused because it required the agreement to be “to use a knife or similar bladed weapon” when for liability on the basis of joint enterprise, it was sufficient that there be an agreement to inflict grievous bodily harm on a person or persons.

MS SHAW: Yes.

BELL J: So for the jury to convict on the basis of this impugned direction, it was necessary for them to be satisfied beyond reasonable doubt that they could infer the existence of an agreement to which your client was a party that a person or persons would be stabbed, thereby causing them really serious bodily harm. That would be done by a person possessed of the requisite intention. So the complaint is in numbers 1 to 4. There was not added “and that the appellant was present lending encouragement or aid”, or something of that character.

MS SHAW: With the necessary foresight.

BELL J: When you say “with the necessary foresight”, it seems to me sometimes your submissions might slide into extended joint enterprise.

MS SHAW: Yes.

BELL J: We have here a concluded understanding that a person is going to be knifed with the intention that they be killed or suffer grievous bodily harm. I think your reference to foresight tends to move into extended joint enterprise, does it not?

MS SHAW: Not in this sense, that for basic joint enterprise clearly at the time of the act of participation the appellant must participate with the knowledge that the principal has the intention to kill or cause grievous bodily harm and his act of participation must be in furtherance of the joint enterprise – that is, to assist or encourage the principal. If he does not participate, if he stayed at the house despite being party to the agreement, then the prosecution might have a charge of conspiracy, but they would not have a charge of murder.

BELL J: Indeed. Just in terms of the issues that were live at this trial, in circumstances where it was not in question that your client returned to the Vartue Street premises in company with a group of other young persons and that he participated to some degree in a melee that occurred, the requirement, pitching it overly high as the first point in these directions did, that the jury had to be able to infer that he was a party to an understanding that someone was going to be knifed in that melee, either to kill them or to do them grievously bodily harm – that, I think, is the point being made by the Court of Criminal Appeal in talking about the participation was the basis for the inference to be drawn to establish satisfaction of the first ingredient.

MS SHAW: Your Honour, the complaint we make about that reasoning is that it is equating involvement of all accused with the legal element of participation as against a separate accused. In other words, even in that reasoning the Full Court does not distil out that there is a different question as to proof of the agreement, which of course can include evidence relating to all of the accused, as compared to proof of whether or not Mr Huynh is a party to that agreement, which is on different evidence, and secondly, more importantly, proof of his participation in that agreement, which might be on the flimsiest evidence, as it was in this case.

Without distilling out the separate cases against the accused, we submit, with respect, that the Full Court has fallen into the trap of the trial judge in treating the case against the accused upon the basis that the starting point is they are all travelling together, they are all there together and therefore the inferences that arise apply to them all.

If in fact during the summing-up the trial judge had distilled out that this is the basis upon which you are entitled to infer that Mr Huynh was a party to the agreement then, in my respectful submission, your Honour’s point might hold good. But his Honour never did that, and the Court of Appeal has not itself addressed that question.

FRENCH CJ: This is points 10 and 11 of your outline I think, is it not?

MS SHAW: Yes, it is.

FRENCH CJ: So the agreement can be accept the agreement can be proven by what happened after putative agreement was formed and of course direct evidence of discussions that might have occurred at the house as evidence of the agreement being formed?

MS SHAW: Yes.

FRENCH CJ: But the use of the conduct at the time to infer that it is done pursuant to an agreement does not answer the question whether the accused was participating in the implementation of the agreement. That is your point, is it not?

MS SHAW: It is.

FRENCH CJ: That that has to be the subject of a separate direction?

MS SHAW: It has to be the subject of a separate direction and I was simply adding the point in relation to her Honour Justice Bell that if indeed you were looking at a summing-up where the jury had reached a conclusion as to element 1 against a background of the directions distilling out, well, this is the evidence upon which you are entitled to infer that Mr Huynh was a party to the agreement, then one might be satisfied that the jury at least got to the point of finding that he was a party. But in relation to the – that did not happen in this case so the court - - -

CRENNAN J: I am sorry, but to get – the first point in the written direction requires satisfaction respecting each accused beyond reasonable doubt of a very specific agreement. Now, this is in a context where it is said that the Crown cannot establish that the agreement was necessarily formed before the point when persons returned to the scene, some of them apparently having a bit of wood or a bottle with them or something of that character, and the melee begins. I am having some difficulty grasping the loss in terms of the issue that you identify of not adding the further requirement of participation.

MS SHAW: But, your Honour, first of all the prosecution in its closing address pitched its case on the basis that the agreement – one view was of the evidence that it had been formed at the time they left the house and his Honour left that basis to the jury and that, as I have said, has been acknowledged. But, your Honour, in this case the critical issue was, bearing in mind that there were between four and five cars returned, up to 40 people who had returned, the real issue was there was the possibility of presence but it fell short of participation in accordance with the legal element of participation, namely, in furtherance of the joint enterprise and with the intention to assist the principal offender, whoever that might be.

CRENNAN J: You are complaining, are you, as I think the Chief Justice put to you, that between directions - points 1 and 2, having regard to “there were 40 people present” and so on, that there should have been a direction that the accused – that is to say each accused – performed an act of participation in pursuit of that agreement that is described in 1.

MS SHAW: Yes, that is right. That is the complaint, and, your Honours, just to emphasise the significance of these elements, at page 1073 of appeal book 3. when his Honour introduces the delivery of these directions, bearing in mind that these directions come after the jury have asked a question at 1007 seeking a written description explaining the components of murder, joint enterprise and aiding and abetting and manslaughter as related to the law to refer to whilst deliberating and his Honour then introduces the delivery of this written redirection at 1073 at point 305, having posed a number of factual questions in the abstract to the jury, “equipped with such answers” - that is to the factual questions, divorced from the separate cases against the accused:

you are able to find proved beyond reasonable doubt you will be able to step through the elements which I am about to read out to you.

His Honour then reads out the aide-mémoire and in particular when he comes to page 1079 in reading out the written direction on joint criminal enterprise his Honour of course does not have the missing element that we complain about, but insofar as there might have been any previous abstract illusion to participation as compared to being a party to the agreement, his Honour substitutes “party” for the word “participants” as he proceeds through the elements.

In other words, if the jury were using this as a checklist, which his Honour asked them to do, one, we say they would not have addressed the questions as against the separate accused and, secondly, they would have not considered whether a particular accused did indeed participate in furtherance to the agreement at either of the locations where the fatal injury was inflicted.

GAGELER J: You referred earlier to the Criminal Law Consolidation Act and I think you were referring to section 353.

MS SHAW: Yes.

GAGELER J: One basis upon which an appeal can be allowed is a wrong decision on a question of law. A distinct basis upon which an appeal can be allowed is if there was on some ground a miscarriage of justice.

MS SHAW: Yes.

GAGELER J: You mentioned several times “miscarriage of justice”, but is your point really simply that there was a wrong decision on a question of law?

MS SHAW: That is our first point, and in the context of there being different views about whether an error on a question of law necessarily includes an erroneous direction by the trial judge, I rely upon a productive of miscarriage of justice. The erroneous question of law does not need to be productive. In our respectful submission, that is a matter where the accused has not had a trial. That is where the erroneous non-direction relates to an essential element of the offence. The accused has not had a trial – that is, a fair trial – in relation to that particular offence. This Court in the case of Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 was dealing with a situation where the New South Wales Court of Appeal had relied upon joint enterprise principles effectively to address a Code offence where, under the Commonwealth Code, joint enterprise was not available as a basis for liability.

GAGELER J: But that was a proviso case.

MS SHAW: Yes, it was.

GAGELER J: Here the Court did not get to the proviso.

MS SHAW: That is so. Your Honour, the case of Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 86 ALJR 459, and in particular at paragraph 31, addresses the question of whether or not it is an error if there is a failure to direct on an essential element of the offence. In our respectful submission, when it is an element of the offence that is not the subject of the direction, then that is an error on a question of law. It is not an error that is not able to be glossed over in the way that the Full Court has purported to do it, in our respectful submission.

GAGELER J: So your point is that the Full Court should have then gone to the proviso?

MS SHAW: That is so. The appeal should have been allowed subject to the application of the proviso.

GAGELER J: Was it put to the Full Court that it should have applied the proviso?

MS SHAW: As I understand it, no, it was not.

BELL J: Does it follow from that that in your submission it was incumbent to give legal directions on liability for murder in relation to each of the four possible bases that you say the judge made reference to in the course of the summing-up, notwithstanding that some were not live issues in the trial – I am just trying to marry up how one reconciles that view with the statements in the plurality reasons in Clayton, particularly directed to the approach to summing-up in a joint enterprise case. I appreciate that this summing-up may not accord with that, but that is one - - -

MS SHAW: Your Honour, can I perhaps raise these two points? First of all, courts at various times have frowned upon the prosecution presenting their case under so many heads of liability, with so many alternative paths to guilt and, in this case, four separate potential agreements. However, if the Crown choose to pitch their case on so many alternative bases of liability, it means that the individual accused remains entitled to a trial where the proper directions are given in relation to the case against him on each of the bases the Crown set to lead.

In relation to the facts of Clayton, in my respectful submission, that is a case where it is plain that the conduct of the accused arriving together and being the only ones there, and the plan being clear as to what they were going there for and what they did at the same time, is quite different to a situation where the evidence is that when Mr Huynh left this house he was with up to 40 other people. There is no evidence he was armed, that when they got to that house there was a myriad of fights, described by some witnesses as “numerous fights”, all occurring within a short space of time at different locations at the front of this house. As to the role of any of those 40 people – that is, whatever might have been said back at the house or whatever anybody might have heard, because there was no evidence Mr Huynh heard anything – comes down to what was the evidence against

him at any particular point in time during a melee involving some 40 people.

BELL J: That seems to me to move somewhat to your second ground. Can I just raise this with you? If it was the prosecution case, as I understand it was, all who returned to the scene of the birthday party in Vartue Street, on the Crown case, might have been liable for what unfolded if the jury were satisfied that they were a party to an agreement of the character described in the first point of the written directions. At issue in this fast-moving melee, in relation to those who returned to the party, whether they returned armed or not, was a question of whether they were a party to the agreement, surely, in the way the matter was being run. Certainly, on your client’s behalf, he was acknowledging some participation, but his point was he was not a party to any agreement to do grievous bodily harm to anyone. That was the issue, surely.

MS SHAW: What your Honour says is correct – not that the prosecution case was that everyone who returned was party to an agreement, because the prosecution case was those accused who were in the dock were party to the agreement; not everyone who returned. I appreciate that is not what your Honour was really saying. The second point is that whereas against Mr Sem there was some evidence of earlier contact with the deceased’s family members at the Nguyen house earlier on and a comment had been made like “watch your back”, there was a continuity of conduct from Mr Sem that the Crown could draw upon to suggest that he did have a basis, or was considering action at the house on his return to the Nguyen house. Join that with the evidence at the roadside – and whatever people said at the roadside – to say this shows an agreement formed at the house on the basis of what had occurred at the Nguyen house at the party.

As against Mr Huynh, however, the only basis that the jury could infer agreement was based on his conduct at the roadway, but the jury were not told that was the only basis, and which might lead into the second point that emphasises that if the jury are stepping forward to find the agreement proved as against Mr Huynh they were never told to look at the evidence solely against him. So, the finding, if there was a finding in relation to element 1 as against Mr Huynh, we submit it was clearly on a shaky foundation because there was no direction to support a finding as against him on the evidence against him.

FRENCH CJ: Ms Shaw, that might be an appropriate time. We will adjourn until 10 o’clock tomorrow morning.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 6 DECEMBER 2012