[Home] [Databases] [WorldLII] [Search] [Feedback] Supreme Court of Victoria - Court of Appeal

You are here: 

Smith, Garcia & Andreevski v The Queen [2012] VSCA 5 (31 January 2012)

Last Updated: 31 January 2012

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0121

S APCR 2010 0473

S APCR 2011 0017

---

---

CRIMINAL LAW – Murder – Intentionally causing serious injury – Affray – First appellant pleaded guilty to all counts – Prearranged fight between two groups of youths – Lethal weapons involved – Sentence of 18 years’ imprisonment for murder 1, eight years’ imprisonment for intentionally causing serious injury, and three years’ imprisonment for affray – Total effective sentence 22 years with non-parole period 17 years – Sentence not manifestly excessive – Parity – Sentence on count of affray unduly disparate – Appeal on count of affray allowed – Reduction in individual sentence does not necessarily reopen sentencing discretion as a whole – Re-sentenced on affray to two years’ imprisonment – Other sentences affirmed.

CRIMINAL LAW – Manslaughter – Recklessly causing injury – Affray – Second and third appellants stood trial on counts 1 and 2 and second appellant stood trial on count 3 – Appeals against conviction on counts 1 and 2 – Acting in concert – Whether trial judge failed to direct jury adequately as to principles of complicity – Whether verdicts reasonably open – Appeals dismissed.

CRIMINAL LAW – Sentence – Third appellant sentenced to five years’ imprisonment on count 1, 18 months’ imprisonment on count 2 and 18 months’ imprisonment on count 3 – Total effective sentence five years and six months with non-parole period three years – Not manifestly excessive – Appeal dismissed.

---

ASHLEY JA:

1 I have had the advantage of reading in draft the reasons for judgment of Weinberg JA. I respectfully agree with them. I add only this: in a case in which a convicted person is sentenced for multiple offences, I consider that not only will a successful appeal against a particular individual sentence not open up other individual sentences for consideration, it will not do so in respect of the total effective sentence or the non-parole period fixed unless it was the base sentence, or unless it was the subject of a total or partial order for cumulation.

WEINBERG JA:

2 On 5 March 2010, Nathan Smith pleaded guilty in the Supreme Court at Melbourne to one count of murder (count 1), one count of intentionally causing serious injury (count 2), and one count of affray (count 3).

3 On 8 April 2010, Smith was sentenced to 18 years’ imprisonment on count 1, eight years’ imprisonment on count 2, and three years’ imprisonment on count 3. Four years of the sentence imposed on count 2 were cumulated upon the sentence imposed on count 1. The sentence imposed on count 3 was made wholly concurrent with the sentences imposed on counts 1 and 2. That made a total effective sentence of 22 years. A non-parole period of 17 years was fixed.

4 Two co-offenders, John Garcia and Nikola Andreevski, stood trial for their involvement in the incident that gave rise to these charges. Garcia and Andreevski were each charged with manslaughter (count 1), recklessly causing serious injury (count 2) and affray (count 3). They were each convicted on count 1, and on the alternative to count 2 being recklessly causing injury. Garcia was also convicted on count 3. Andreevski had earlier pleaded guilty to affray. A third accused, ‘JC’, a minor at the time, stood trial with Garcia and Andreevski. However, JC is not a party to the present appeal.

5 On 9 December 2010, Garcia was sentenced to five years and six months’

imprisonment on count 1, 18 months’ imprisonment on count 2, and 18 months’ imprisonment on count 3.[1] Six months of the sentence imposed on count 2 was made cumulative on the sentence imposed on count 1. The sentence imposed on count 3 was made wholly concurrent with the sentences imposed on counts 1 and 2. That made a total effective sentence of six years. A non-parole period of three years and nine months was fixed.

6 On the same day, Andreevski was sentenced to five years’ imprisonment on count 1, 18 months’ imprisonment on count 2, and 18 months’ imprisonment on count 3. Six months of the sentence imposed on count 2 was cumulated upon the sentence imposed on count 1. The sentence imposed on count 3 was made wholly concurrent with the sentence imposed on counts 1 and 2. That made a total effective sentence of five years and six months’ imprisonment. A non-parole period of three years was fixed.

7 Smith now appeals against sentence, pursuant to leave granted by Buchanan JA. His Honour granted Garcia leave to appeal against both conviction and sentence. However, Garcia has not sought to pursue his appeal against sentence. His Honour also granted Andreevski leave to appeal against both conviction and sentence.

8 The appeals of Smith, Garcia and Andreevski were heard together.

Overview of the facts

9 In early February 2009, two groups of young men met at the Diggers Rest Recreational Reserve (‘the Reserve’), where a violent and bloody confrontation took place.

10 The fight between the two groups was prearranged. Ante Vucak, then aged 18, wanted to avenge a friend whom he believed had been attacked by Kyle Nunan (‘Kyle’) and some others several weeks earlier at Sunbury. Vucak and Kyle had never previously met. Nonetheless, the two men agreed over the telephone that they would settle matters between them at the Reserve on the evening of Sunday, 8 February 2009. It was understood that they would be accompanied by their respective supporters.

11 Vucak recruited a number of friends and associates, including Garcia and Andreevski, to take part in the fight. For his part, Kyle also told several others about what was planned. They included Kyle’s brother, Nathan Roberts-Nunan, and a friend, Stephen Thorneycroft.

12 On the Sunday afternoon, Vucak arranged for the members of his group to meet at the home of Timothy Lutze, in Acfold Court, St Albans. Smith and Garcia both lived with Lutze at that address. Andreevski was amongst those who gathered at Lutze’s home at Vucak’s request.

13 At the Acfold Court premises, knives,[2] machetes, baseball bats, tyre levers and tool handles were assembled and laid out on the driveway. Lutze was seen to put a metal baseball bat and a machete into the boot of his car. He also assisted Vucak in preparing two petrol bombs, or ‘Molotov cocktails’, for use in the fight.

14 The weapons were distributed amongst the young men present. Smith, who was employed as a drover at an abattoir, went into the house. He emerged with two boning knives that he normally kept in his work bag.

15 By that stage, the size of the group at the Acfold Court premises had expanded to about 14. Some, but not all, were known to each other. They left together in a convoy of three separate cars. En route to the Reserve, they stopped at a service station in Calder Park. There, Vucak was given a small sword, which Garcia was seen to handle.

16 There was evidence that, while at the service station, various members of the group spoke of what they would do once they arrived at the Reserve. They used expressions such as, ‘get these guys’, ‘fuck up these cunts’, ‘gonna fuck’em up’ and ‘chop him, chop him, fuck him’.[3]

17 The group then continued in convoy to Ingot Road, Diggers Rest, not far from the Reserve. Located within the Reserve was a skate park that was being used by children and others. They arrived shortly before 6:00pm. They initially drove past the Reserve, noting the presence of Roberts-Nunan’s car parked adjacent to the skate park.

18 Local residents saw what was happening and, anticipating trouble, telephoned the police. However, before the police arrived, some nine young men, including Smith, Garcia and Andreevski, got out of their respective vehicles and ran towards Roberts-Nunan’s car. Some members of this group were carrying weapons, though there was no evidence that this was true of Garcia or Andreevski.

19 Roberts-Nunan had come to the Reserve accompanied by his friend, Thorneycroft, in order to support his younger brother, Kyle. Roberts-Nunan was at that stage sitting in the back seat of his car, while Thorneycroft was in the front passenger seat. Kyle was standing next to the car.

20 As the group associated with Vucak approached Roberts-Nunan’s car, Kyle, anticipating what was about to happen, ran from the scene.

21 Roberts-Nunan emerged from his car and was immediately set upon by Vucak, who was armed with a machete. At the same time, Smith, who was in possession of the boning knives, attacked Thorneycroft, stabbing him once in the stomach. The wound was an extremely serious one, almost eviscerating him.

22 Roberts-Nunan tried to defend himself with a club-lock which he removed from his car. Another of the men associated with Vucak struck Roberts-Nunan with a baseball bat. The blow was inflicted with such force that the bat broke.

23 At that point, Smith stabbed Roberts-Nunan twice, once to the left mid-section of his back, and once to the upper part of his right arm. The wound to the back proved to be fatal.

24 Smith and several others then set about attacking Roberts-Nunan’s vehicle. They smashed its windscreen, and some of its other windows.

25 Garcia admitted to having been in close proximity to the car during the attack. Andreevski claimed that he was towards the rear of the group as they ran across the oval. He maintained that once the attack began, he stopped, stood still, and did not advance any further.

26 Vucak’s group, including Garcia and Andreevski, then ran back across the oval. In the course of doing so, some of them damaged a car belonging to Roberts-Nunan’s father.

27 The men then got back into their cars and drove a short distance to a rural property in Diggers Rest. That property was the home of the man who had earlier given Vucak the small sword at the service station. Lutze said that, after they arrived, he heard some of the others bragging about what they had done back at the Reserve. There was next a discussion about destroying evidence, and setting up false alibis. The men then left, leaving behind weapons and bloodied clothing.

28 At 8:07pm that night, Roberts-Nunan was pronounced dead at the Royal Melbourne Hospital. Thorneycroft underwent surgery for a lacerated liver. His spleen had to be removed. The evidence was that injuries of the type that he sustained were commonly fatal.

29 In his record of interview, Garcia admitted to having been aware, from the time the group left Acfold Court, that Smith was in possession of a ‘butcher’s knife’ that was ‘slim and slender’, with an ‘orange or a yellow handle’.

30 Andreevski, on the other hand, claimed that he ‘didn’t realise that this guy [Smith] had ... professional butcher’s knives on him’.

31 Notwithstanding Andreevski’s denials, the Crown invited the jury to infer that he was well aware, at all material times, that Smith was in possession of a knife or knives. Before this Court, the Crown submitted that, on any view, Andreevski must have seen Smith brandishing those weapons in the moments before Thorneycroft and Roberts-Nunan were stabbed. And, the Crown submitted, Andreevski must have been aware, when he ran across the oval to attack Kyle and his supporters, that some members of Vucak’s group were armed with other equally dangerous weapons.

Smith’s appeal against sentence

32 Counsel for Smith relied primarily upon one ground in support of the appeal against sentence; that of manifest excess.

33 He also relied upon a second ground, that of parity, though only in relation to the count of affray. The parity ground was predicated upon the fact that Vucak, who was the instigator of the affray and accordingly more culpable than Smith in relation to that offence, had received a sentence of only 18 months’ on that count, whereas Smith had received a sentence of twice that length. Moreover, the sentence imposed upon Smith for the affray was longer than that imposed on any other member of the group ultimately dealt with for that offence.

34 The judge, in his sentencing remarks, found that Smith must have been aware, throughout, that he was being asked to take part in a violent and potentially bloody gang fight. He added that Smith must have appreciated that the fight could have serious consequences.

35 His Honour noted that Smith had made full admissions to the police. He had also pleaded guilty and expressed remorse. His plea of guilty was offered at the earliest practicable opportunity.

36 Vucak, along with three other participants in the affray, only came to be sentenced by his Honour some four months or so after Smith had been dealt with.

37 It is convenient to deal first with the parity ground, as it was conceded by the Crown that that ground was made out. In my opinion, that concession was entirely appropriate.

38 It is difficult to see why Smith should have received a three year sentence for his part in the affray (to which he of course pleaded guilty), whereas no-one else dealt with for that offence received a sentence of more than two years. The disparity is particularly evident when one compares the sentence imposed on Vucak, namely 18 months’ imprisonment, with the three years that Smith received.

39 It may be that the explanation for Smith having received a heavier sentence for the affray was his having brought the boning knives with him to the fight. However, Vucak, who not only instigated the affray but was also the first to strike a blow, was himself armed with a machete. It could hardly be thought that Smith’s carrying knives rendered him more culpable, with regard to the affray, than Vucak.

40 Certainly, it would not have been appropriate to punish Smith more heavily than the others on the count of affray simply because it was he who had stabbed Thorneycroft and Roberts-Nunan. That would have offended the rule against double punishment.

41 Whilst the Crown conceded that the sentence imposed upon Smith for the affray was unduly disparate, and that it should be reduced, it submitted that there should be no flow-on effect on either the total effective sentence of 22 years’ imprisonment, or the non-parole period of 17 years. The Crown noted, in that regard, that the sentence on the count of affray had been made wholly concurrent with the sentences on counts 1 and 2, and submitted that the same course should be adopted in relation to any new sentence substituted on the affray.

42 The Crown submission gives rise to an important question; namely whether, as a general rule, a reduction by this Court of a minor component of a lengthy aggregate sentence, the effect of such a reduction being relatively inconsequential, necessarily means that the entire sentencing discretion is reopened.

43 There are competing views about that issue. The first is that once this Court interferes with any part of a total effective sentence, no matter how small or inconsequential, the entire sentencing discretion is reopened. In re-sentencing, then, the Court is at large.

44 The second view is that reflected in a recent decision of this Court, Phan v The Queen.[4] There, the appellant had been sentenced for a number of drug offences. There was a problem with the sentence imposed on one count only, count 4 – possession of a small quantity of cannabis for personal use. The sentencing judge had wrongly assumed that the maximum penalty for that offence was a term of imprisonment. Under that mistaken belief, the judge sentenced the appellant to two months’ imprisonment for that offence. In truth, the offence carried a maximum penalty of a fine of five penalty units.

45 The issue to be determined was whether, having concluded that a component of the total effective sentence had to be set aside, it necessarily followed that the appellant was to be re-sentenced on all other counts. It was argued that the sentencing discretion had been generally reopened, notwithstanding the fact that no error had been demonstrated in relation to any other aspect of the sentencing process.

46 Nettle JA (with whom Whelan AJA agreed) rejected the submission that the Court, having found error in relation to count 4, was now at large. His Honour said:

[5] ... If it were necessary to consider the sentences imposed on Counts 1, 2 and 3, I see no error in them or in the judge’s orders for cumulation. To the contrary, it appears to me that his Honour’s comprehensive sentencing remarks are a clear and compelling exposition of why it was in order to impose the individual sentences on those counts and make the orders for cumulation which he did. The sentencing remarks deal persuasively with each of the considerations now said to require that we impose lesser individual sentences.

[6] More to the point, however, it follows from what was said by this court in Ludeman v R ([2010] VSCA 233, [82]) that the only offence in respect of which the appellant falls to be re-sentenced in this appeal is the offence comprised in Count 4. In the circumstances of this case, it is also clear that, if the appellant is re-sentenced on Count 4 to a fine, it will not affect the appropriateness of the individual sentences imposed on the other counts or the orders for cumulation. Little wonder that Maxwell P observed at the time of the application for leave to appeal that, in his opinion, there was no reasonable prospect of a less severe sentence overall. With respect, I entirely agree.

47 In my view, the approach taken in Phan is correct and should be followed. The sentence of three years’ imprisonment imposed upon Smith for his involvement in the affray should, as a matter of parity, be reduced. It does not follow, however, that this results in the sentencing discretion as a whole being reopened.

48 Because the sentence on the affray was such a small component of the total effective sentence, and was in any event wholly concurrent, any reduction in that sentence does not automatically mean that Smith should be sentenced afresh. If this Court is to interfere with the sentence imposed on either of the remaining counts, or reduce the total effective sentence or non-parole period, that should only occur if manifest excess is established.

49 That brings me to ground 1. It was submitted in support of that ground that the sentence of 18 years’ imprisonment for murder, in the circumstances of this case, was manifestly excessive. The same was said in relation to the sentence of eight years’ imprisonment on the count of intentionally causing serious injury.

50 There were plainly a number of mitigating factors in this case. Smith was entitled to rely upon his youth (having been aged only 18 at the time of his offending), his troubled and unsettled early life, his reason for having become involved in the affray (to assist a friend, to whom he felt a particular obligation), his plea of guilty and evident remorse, his co-operation with the police, and his lack of any prior convictions. The judge found that he had ‘reasonably good’ prospects of rehabilitation, a finding with which no-one could cavil. Of course, these mitigating factors had to be balanced against the gravity of the offending.

51 Counsel for Smith next submitted that there was a problem with the non-parole period being fixed at 77 per cent of the total effective sentence. He argued that this was an unusually high ratio for a case of this nature and, in accordance with the authorities, called for appellate scrutiny.[5]

52 The Crown submitted, in reply, that both the sentence of 18 years’ imprisonment on the count of murder, and the sentence of eight years’ imprisonment on the count of intentionally causing serious injury, were within range. Both offences were crimes of the utmost gravity, committed in horrific circumstances. Each warranted severe punishment. There was nothing to suggest that the judge had failed to take into account, or give sufficient weight to, the various mitigating factors that were present in Smith’s case.

53 The Crown further submitted that there was nothing untoward about the judge’s decision to fix a non-parole period of 17 years, relative to the total effective sentence of 22 years. It was said that 17 years properly reflected the minimum amount of time that Smith should serve for offences as serious as those to which he had pleaded guilty.

54 In my opinion, the Crown’s submissions should be accepted.

55 Manifest excess is, and ought to be, a ground that succeeds only sparingly.[6] Smith was a willing participant in a carefully planned, orchestrated, and extremely violent attack by a gang of youths, a number of whom were armed, upon two innocent victims. He had armed himself with two knives, plainly in anticipation of using them. The attack took place in full view of a number of bystanders, some of them children. The effect upon those who witnessed it must have been traumatic.

56 The injuries inflicted upon Thorneycroft were horrific. The evidence was that he clutched at his intestines in order to keep them within his body. His Honour described Thorneycroft’s victim impact statement as revealing that

he still suffers from the physical consequences of his wounds, he has lost an opportunity for employment, [and that] the psychological and emotional effects upon him have been severe. His daily life is affected by these events and apart from the physical injuries that he suffered, some of which are permanent, he will carry these matters with him for the rest of his life.^[7]

57 As I have already stated, it was necessary in sentencing Smith to make allowance for, inter alia, his youth, prospects of rehabilitation, and relatively deprived background. However, these factors had to be balanced against the need to ensure that any sentence imposed punished Smith adequately for what he had done, as well as deterring others from behaving in a like manner.

58 It was not suggested that a sentence of 18 years’ imprisonment for a murder of this kind, even for a youthful offender, was inconsistent with ‘current sentencing practice’ in this State. Nor was that said of a sentence of eight years’ imprisonment for intentionally causing serious injury, in circumstances such as these.

59 Having given this matter careful consideration, I am not persuaded that the individual sentences on either count 1 or count 2 were manifestly excessive. Nor am I persuaded that the total effective sentence of 22 years merits that description. The non-parole period of 17 years was, in my view, within range.

60 I would therefore propose that Smith’s appeal against the sentence imposed on count 3 be allowed. I do so solely on the basis of parity. I would set aside the sentence imposed on count 3 and, in lieu thereof, impose a sentence of two years’ imprisonment on that count. I would make that sentence wholly concurrent with the sentences on counts 1 and 2.

61 I would otherwise affirm each of the individual sentences on counts 1 and 2, the total effective sentence, and the non-parole period.

Garcia – conviction appeal – ground 1

62 Garcia’s ground 1 was in the following terms:

1. The trial on counts 1 and 2 miscarried by reason of the trial judge’s directions to the jury on the legal liability of Smith for his acts upon the victims Roberts-Nunan and Thorneycroft. In particular, the trial judge erred by:
   1. directing that:
      1. if Smith’s acts were accompanied by an intention to kill or cause really serious injury, and an intention to cause serious injury, they amounted respectively to murder and causing serious injury intentionally;
      2. the trial of [Garcia] and his co-accused [Andreevski] ‘proceeded on the basis that Smith murdered the deceased’; and
      3. what is necessary for murder ‘includes what would be necessary for what is called unlawful and dangerous act manslaughter’;
   2. failing to direct the jury in terms sufficient to guard against their impermissible use of the information contained in the directions set out at [(a)] (i)-(iii).

...

63 In order to understand what lies behind this ground, it is necessary to set out briefly certain events that took place during the course of the trial. At a relatively early stage, an issue arose as to what, if anything, the jury should be told about Smith and, in particular, whether they would hear evidence as to his having pleaded guilty to murder. The transcript indicates that defence counsel were divided as to whether evidence of that fact should be led.

64 Counsel for Garcia made it plain, on a number of occasions, that he wanted the jury to be made aware of the fact that Smith had been dealt with for murder, though not necessarily that he had pleaded guilty to that offence. The judge was concerned about how Smith’s having been dealt with for murder could possibly be relevant. However, counsel for Garcia was adamant that the jury should be made aware of that fact. He submitted that it was not sufficient, for his purposes, that the

jury receive evidence simply of the fact that it was Smith who had stabbed Roberts-Nunan.

65 The transcript indicates that counsel for Garcia did not state with any clarity just how such evidence could be said to be relevant. The closest he came to articulating his position emerges from the following passage:

[COUNSEL]: My fear is that the jury will take out whatever, potentially take out whatever verdict they can against my client [Garcia] absent them knowing that the man who engaged in the deliberate act ...

HIS HONOUR: They will be told they don’t speculate about such things. The law runs its course. What if Smith was yet to be tried?

66 The discussion continued as follows:

[COUNSEL] Well, Your Honour, it hasn't been put to the jury by the Crown or, with respect, the judge that the man who inflicted the fatal blow committed murder on the Crown's case and that there's no dispute about that. The jury are not aware of that. In my submission, there is a risk that jury will take this out on this accused, my accused, that, "Well, we can't find him guilty of murder but we will compromise on manslaughter because he was part of that group", when someone has clearly deliberately killed - - -

HIS HONOUR: But they will be told not to.

[COUNSEL]: I understand that, Your Honour. I'm sure Your Honour will give all the appropriate lawful directions and we understand generally that juries act on the directions the trial judge gives, but in my submission there would be no unfairness to - - -

HIS HONOUR: I will have a think about it. It may be that the Crown will put murder, but I don't know that the plea to murder has got anything to do with it, that's all, that he has pleaded guilty to murder has got anything to do with it.

[COUNSEL]: I would like to know sooner rather than later if the Crown is going to put murder.

HIS HONOUR: The Crown proceeds on the basis that the deceased died from a deliberate conscious voluntary act with intent to kill by Nathan Smith.

[COUNSEL]: Aka murder.

HIS HONOUR: Yes.

[COUNSEL]: Well, if there's no secret about that.

HIS HONOUR: No, that's fine, I don't mind the jury being told that, but I don't think that they need to know one way or another that he's pleaded guilty.

[COUNSEL]: I poorly expressed that.

HIS HONOUR: That's aside thing, that's all. No, no, the way put, to say there isn't any conundrum about it, Smith has murdered him.

[COUNSEL]: That's what I want, Your Honour.

67 The reason why counsel for Garcia was so insistent upon the jury being made aware that Smith had previously been dealt with for the murder of Roberts-Nunan seems to have been a concern on his part that, otherwise, there was a risk that they might look to his client as a scapegoat.

68 A few days later, the judge reminded counsel, in the absence of the jury, that the issue of whether they should be made aware of what had happened to Smith remained unresolved. His Honour said that if anyone wished to elicit evidence of Smith having been dealt with for murder, it needed to be done whilst the last Crown witness was giving evidence.

69 Counsel for the third accused, JC, intimated that from his point of view nothing should be said to the jury about Smith having pleaded guilty to murder. His Honour then ruled that while he would permit defence counsel to ask the informant whether Smith had been dealt with for murder, assuming any of them wished to do so, he would not permit evidence of Smith’s guilty plea to be led.

70 In accordance with that ruling, counsel for Garcia shortly thereafter asked Detective Senior Constable Warren Chapman of the Homicide Squad the following question:

[COUNSEL]: Mr Chapman, Nathan Smith, he has been dealt with for murder, hasn’t he?

[MR CHAPMAN]: Yes, he has.

71 It was that question, and the answer that it elicited, that led his Honour to direct the jury in the following terms:

Here it is the Crown case that the deceased was killed by Nathan Smith and that Stephen Thorneycroft was seriously injured by Nathan Smith. If Nathan Smith did what he did, intending to kill or cause really serious injury, that would be murder in relation to the case of Mr Nathan RobertsNunan, and intentionally causing serious injury for the case of Stephen Thorneycroft. It is not suggested that any of these accused before you [Garcia and Andreevski] had that intention.

Manslaughter occurs where a person kills another by an act which is said in the law to be conscious, voluntary and deliberate, and there is no suggestion here that the act which caused death was otherwise, when a reasonable man I am talking about manslaughter in the position of the person would have realised that there was an appreciable risk of serious injury.

Murder, of course, would itself satisfy those elements. So the fact that this case has proceeded on the basis that Nathan Smith murdered the deceased does not matter in that regard. That is, what is necessary for murder includes what would be necessary for what is called unlawful and dangerous act manslaughter.

72 His Honour’s direction regarding Smith having murdered Roberts-Nunan gave rise to Garcia’s ground 1. It was submitted that, despite the fact that it was defence counsel himself who chose to lead evidence that Smith had been dealt with for murder, the judge should not have said what he did regarding that matter.

73 To describe that submission as bold is, in my view, an understatement.

74 First, the evidence was led at counsel for Garcia’s insistence.

75 Secondly, and not surprisingly, no exception was taken to what his Honour said about that evidence.

76 Thirdly, the judge was plainly entitled to assist the jury in understanding the evidence by explaining, in brief terms, the difference between murder and manslaughter. Had his Honour not provided such an explanation, the jury would have been left to speculate as to what that evidence meant.

77 Fourthly, it is difficult to see how, in the context of the trial, the fact that Smith had been dealt with for murder could have operated to Garcia’s prejudice. His very defence depended upon the jury drawing a clear distinction between Smith’s actions and his own. Garcia’s case was that Smith had acted alone and gone outside the terms of any arrangement or understanding that had been reached. And there was potentially some advantage, from a forensic point of view, to having it made known that someone, other than Garcia, had been dealt with for murder.

78 The judge made it clear, as he was bound to do once counsel for Garcia elicited the evidence that Smith had been dealt with for murder, that the elements of that offence differed significantly from those of manslaughter. He also made it clear that the fact that Smith had been dealt with for murder had nothing whatever to do with whether Garcia was guilty of the lesser offence of manslaughter.

79 For these reasons, ground 1 must fail.

Garcia – conviction appeal – grounds 3A and 3B^[8]

80 It is convenient next to consider Garcia’s grounds 3A and 3B. These grounds relate, in various ways, to the doctrine of complicity, and its application to the facts of this case. The grounds are in the following terms:

3A. A miscarriage of justice was occasioned by the Prosecutor’s having put the case against [Garcia] on counts 1 and 2 in terms not capable in law of amounting to guilt of the offences of manslaughter and causing serious injury recklessly.

...

3B. Further and alternatively to ground 3A, the verdicts on count 1 and 2 are unsafe and unsatisfactory since a properly instructed and reasonable jury ought to have had a reasonable doubt about [Garcia’s] guilt.

81 In order to understand just how these grounds were put, it is necessary to consider how the issue of complicity was dealt with at various stages of the trial.

82 The case against Garcia (and Andreevski), in relation to both counts 1 and 2, was put on the basis of acting in concert.[9] At common law, two or more persons may be jointly criminally responsible for the commission of an offence which, tacitly or otherwise, they have agreed to commit, and which is committed while an agreement remains on foot.[10] The criminal responsibility of each participant in such an enterprise is direct, each being equally responsible for the acts constituting the actus reus of the crime.[11] Whether or not each is to be held liable for precisely the same criminal offence will, however, depend upon the particular mental state that is established in relation to each participant.[12]

83 The prosecutor opened the case as follows:

The prosecution case is that a group of young men organised for the purpose, gathered together and amassed a quantity of weapons. They did this for the specific intention of going to the skate park at Diggers Rest and there to engage in an armed fight with other young males who they expected to be there. They assembled at a venue being the home of one of the group. They then broke up into three groups and having armed themselves those groups then travelled in three separate cars with weapons to Diggers Rest where the confrontation took place.

One of the group who you have heard [h]is Honour refer to, Nathan Smith, was armed with boning knives and during the course of the fight Nathan Roberts-Nunan was stabbed in the back by Nathan Smith and suffered terrible injuries and died as a result of those injuries. In the same fighting Nathan Smith stabbed Stephen Daniel Thorneycroft in the stomach with one of those boning knives and almost disembowelled him. During the course of this all of the other young men involved, we say, were involved, engaged in the fighting with the group, that is Nathan Roberts-Nunan, his brother Kyle and Stephen Thorneycroft.

Manslaughter in the context of this case is that each of the young men charged before you engaged in an unlawful and dangerous act, namely the common enterprise of travelling armed to Diggers Rest for the purpose of

engaging in an attack. That unlawful and dangerous act in itself was of the kind, we say, that a reasonable person in the position of the accused that you are considering would understand as exposing another person or persons to an appreciable risk of serious injury.

...

We say also that the accused, young men, were offenders in the conduct as accomplices to Nathan Smith who delivered the fatal wound in the context of the manslaughter charge. That will be in contention. That Nathan Roberts-Nunan died as a result of the wounds inflicted. There won't be an issue about that. That the conduct, we say, as understood was individually engaged in was unlawful and dangerous.

I'll detail to you shortly that whilst Nathan Roberts-Nunan was stabbed by Nathan Smith, we say each of the accused men is alleged to have been

complicit in that conduct by their willing engagement with him and others in the attack at the skate park.

84 Dealing first with manslaughter, the Crown case was that both Garcia and Andreevski were party to an agreement to do an act that was both unlawful and dangerous, and that relevantly contributed to the death of Roberts-Nunan. The ‘act’ upon which the Crown relied was the ‘common enterprise of travelling armed to Diggers Rest for the purpose of engaging in an attack’. In the circumstances of this case, that meant the affray in the particular way that it was carried out.

85 Counsel for Garcia, in his response to the prosecutor’s opening, said:

The fundamental premise of the Crown case is very much in issue, because the fundamental premise of the Crown case is that John Garcia was a party to or part of an agreement, understanding, common purpose, the terms are interchangeable, to commit a dangerous and unlawful act. That is challenged. That is in dispute. So the Crown, he who makes the allegation, is required to prove it. The Crown is required to prove beyond reasonable doubt that Garcia was a party to this alleged agreement, understanding or common purpose. So you will be required to examine and analyse matters such as, firstly, what role, if any, did Garcia play in this tragic affair? Secondly, what acts, if any, did Garcia actually engage in? Three, what words, if any, were spoken by Garcia? Because we say, members of the jury, in deciding whether the Crown has met its burden, has proven its case beyond reasonable doubt that we were a party to this alleged agreement, that you'd need to look at both before the lead-up to this incident and critically at the time of the incident what it is that Garcia actually either did, said or what role we say he actually didn't play. They would be the important critical times for you to analyse on the evidence in deliberating, in really answering this question that the Crown puts to you, this assertion that he in fact was a party to the agreement.

...

We say on this critical issue as to whether the Crown has proved or will prove that he was a party to the alleged agreement to commit a dangerous and unlawful act, that John Garcia in particular, particularly at the critical time, as the incident on the field is happening, did nothing, said nothing, was not armed, did not raise a weapon, did not punch, did not kick, did not strike any person or any thing. He did not damage the car that you'll hear about was damaged by others. We say he did not participate as a party to this agreement, as is asserted by the Crown. He was not party to any agreement with Nathan Smith or anyone else for that matter.

86 It is clear, therefore, that the case against Garcia was opened on the understanding that the Crown would have to establish an agreement on his part to commit an unlawful and dangerous act. In charging manslaughter, the Crown undertook to establish that the circumstances were such that a reasonable person in Garcia’s position would have realised that he was exposing another or others to an appreciable risk of serious injury.[13]

87 In relation to count 2 which was, at that stage, a count of recklessly causing serious injury, the prosecutor went on to open the case against Garcia (and Andreevski) as follows:

Each of the charged men is said to be guilty of the second charge on the presentment as well, that is recklessly causing serious injury to Mr Thorneycroft. In the course of the same fight and at about the same time Nathan Smith stabbed Stephen Thorneycroft in the abdomen a number of times. This conduct occurred in the context of the unlawful fighting. That unlawful fighting, we say, is that which each of the young men agreed to engage in at the skate park.

By virtue of their agreeing to engage in this conduct of unlawful violence armed with weapons, the prosecution alleges that each of the accused has committed the offence of recklessly causing serious injury to Mr Thorneycroft. Again you will see when you read the charge in the documents you have that it's alleged to have occurred at the same time and place. There won't be any issue over that, but there will be issues over whether we say that each of them was individually involved in the conduct alleged. We say that each of them was acting in this conduct as accomplices to Nathan Smith pursuant to an agreement to be involved in the attack.

That serious injury happened to Stephen Thorneycroft as a result of those actions is an allegation and that won't be in issue. We say this conduct was engaged in recklessly and that there was no lawful excuse for any of the accused men to engage in the conduct.

Again, what I say now trespasses to some extent on His Honour's domain about what recklessness is. In very shorthand form a person acts recklessly if they can foresee the probability that their conduct will cause serious injury to another person and goes ahead and engages in that conduct, indifferent as to whether the serious injury will result.

88 After counsel for both Garcia and Andreevski had replied to the prosecutor’s opening, the judge outlined the principal issue to be determined by the jury, in relation to both counts 1 and 2, in the following way:

Ladies and gentlemen, sometimes at this stage of the trial I'd say more about what the issues are between the parties but I think it's clear enough to you in this case that the Crown says they will be capable of proving beyond reasonable doubt the existence of an agreement, the scope of which included an unlawful and dangerous act or otherwise the use of a knife that would lead to what is count 2, and it's said really emphatically on behalf of each of the accused men no such agreement. That's the issue as it will unwind in the trial.

89 Counsel for Garcia submitted, under the general rubric of ground 3A, that his client had suffered a miscarriage of justice because the judge, in his charge to the jury, summarised the Crown case in a way that did not properly reflect the manner in which that case had been conducted and, implicitly, in a way that was unduly favourable to the prosecution.

90 That argument, as developed orally, proved difficult to follow. Essentially, counsel seemed to be saying that the Crown had opened its case on the basis that Garcia’s participation in the affray was itself the actus reus of the offence charged. It was submitted that that, of itself, could not amount to an unlawful and dangerous act, and further submitted that the Crown should have been held to that case, even if it was wholly untenable. Counsel went on to add that, in his submission, the prosecutor had closed the Crown case on exactly the same, entirely untenable, basis.

91 Counsel submitted that the judge, on the other hand, had focused not merely upon the affray as the unlawful and dangerous act, but rather upon the circumstances which surrounded it. That was a different, and necessarily more difficult, case for Garcia to meet.

92 Before setting out the passages from his Honour’s charge that were said to reflect this fundamental difference, it is necessary to place them in context.

93 The judge first gave the jury the following general direction as to acting in concert:

It is very important that you understand the way the case is put against each of these accused. It is not suggested that any of the accused did any act personally which caused the death or Mr Nathan RobertsNunan or the serious injury to Mr Stephen Thorneycroft. What is put on behalf of the Crown is that they are responsible for the death and serious injury in accordance with the role that they each played. When I say "death", I mean "manslaughter". When I say "serious injury" I mean "recklessly causing serious injury".

The law says that if two or more persons reach an understanding or arrangement that a criminal act or acts will be committed by them or by one or some of them and if while that understanding or arrangement is still on foot and has not been called off a crime is committed by one or more of them of a kind which falls within the scope of the understanding or arrangement, and if they are all present at the scene of the crime, then they are all equally guilty of that crime regardless of what part each played in its commission. In such a case they are said to have been acting in concert in commission of the crime. For people to be acting in concert in the commission of a crime their assent to the understanding or arrangement between them need not be expressed by them in words, their actions may be sufficient to convey the message between them that their minds are at one as to what they shall do. The understanding or arrangement need not be of long standing, it may be reached only just before the doing of the act constituting the crime.

In deciding whether any understanding or arrangement existed you may draw inferences from all the surrounding circumstances established by the evidence including the conduct of the persons in question before and after the crime.

94 His Honour then explained how a party said to have acted in concert could escape liability by establishing that he had withdrawn from the relevant joint enterprise. He said:

Although any understanding or arrangement there is must not have been called off before the commission of a crime, the mere fact that one or more of the parties to it feels qualms or wished they had not got themselves involved or wished that it was possible to stop the criminal act or acts agreed upon, will not amount to a calling off of an understanding or arrangement once it has been made. In order to call it off so far as it concerns himself, a party must communicate his withdrawal to the other parties or at all events take some positive step. You might think that there is a good example in this case of the conduct of [others] who, whatever party to whatever agreement, or whatever they thought was going to go on, on the way to or on arrival at Diggers Rest they decided to remain in the car, that is they did not go on with it, but I put that merely as an example.

95 Next, the judge summarised the Crown case as follows:

It is put by the Crown in general that the agreement which was reached was one to go to Diggers Rest and take part in a fight and to use weapons. That agreement was put into effect as the group took weapons out of the cars, produced the weapons as they ran across the oval and continued towards the group containing Nathan Roberts-Nunan, Stephen Thorneycroft and Kyle Nunan and that a reasonable man would have realised there was an appreciable risk of serious injury being inflicted by one of them and that while the understanding or agreement was in place that Nathan Smith did what he did.

The Crown does not have to establish that what was in the mind of the accused was any particular intention to injure. The offence of manslaughter is complete even if no injury was intended by the accused and even if the accused had not realised that the deceased was being exposed to such a risk of injury. The question is whether a reasonable person in the position of the accused would have realised that one of their group was exposing the deceased to an appreciable risk of serious injury.

96 The next two paragraphs contain what seem to have been the passages to which objection is now taken:

It is important, however, that you do understand that they need to be part of an agreement or understanding, that is, that that is in their mind, that: I am party to an agreement which is the agreement to engage in this fight. But what follows from that is that if it is objectively so, that is, a reasonable person in their position would have realised that one of the group who was armed was exposing the deceased to an appreciable risk of serious injury, the crime of manslaughter is made out.

It will depend at the end of the day upon your assessment of the evidence admissible against each accused as to whether you are satisfied beyond reasonable doubt that the accused you are dealing with was party to an agreement or understanding in the way that I have just set out for you, and that it was within the scope of that agreement that one of the group would do something which was unlawful and dangerous in the way that I have described that to you, and that as a result Nathan Roberts-Nunan met his death, that is manslaughter, if you so find it.^[14]

97 The way in which the Crown both opened and closed its case against Garcia on count 1 was said by counsel to be materially and fundamentally different to the way in which the judge summarised that case. I do not see the matter in that way. Nor, it seems, did counsel who appeared for Garcia at the trial, since he took no exception to this aspect of his Honour’s charge.

98 Contrary to what lies behind the submission advanced before this Court, it was never put by the prosecutor in the course of the trial that anyone taking part in an affray, during which someone happens to be killed, is necessarily guilty of manslaughter. Nor, of course, did the judge put the case that way. To have done so would have been quite wrong.

99 The Crown did not allege that Garcia was guilty of manslaughter merely because he agreed to take part in a fight in which someone happened to be killed. Its case was very different. It argued that Garcia had acted in concert with Smith, and was complicit in the death of Roberts-Nunan, because he had agreed not just to a physical confrontation, such as a fist fight, but one which he knew would involve the use by some members of his group, including Smith, of potentially lethal weapons.

100 In my opinion, there is nothing in the point about an alleged inconsistency between the way in which the prosecution opened and ran its case, and the way in which his Honour summarised that case to the jury.

101 In his written submissions, counsel for Garcia originally argued that there was no evidence that his client had ever been aware that Smith was armed with knives. That submission was entirely incorrect. It was ultimately withdrawn.

102 As previously indicated, Garcia admitted in his record of interview that he had been aware, from the time he was present at Acfold Court, that Smith was armed with a ‘butcher’s knife’. He also admitted that he was aware that others in the group were armed with similar weapons. Indeed, he admitted to having handled a ‘dagger sort of thing’, or ‘knife’, while en route to the Reserve.[15]

103 Counsel for Garcia also levelled criticism at the way in which the Crown put its case on count 2. Although not expressed with any great clarity, that criticism seems to have stemmed from what his Honour said in his charge as to the application of the doctrine of complicity in relation to that count.

104 In his charge to the jury, his Honour said the following:

The position in relation to Count 2 is somewhat different because Count 2, the crime of recklessly causing serious injury, depends upon what intention was in the minds of those who were involved in it. Was it within the scope of the agreement that it was intended that injury would be caused, or some act would be done which would cause injury, when such injury would probably be serious, somebody would probably be seriously injured as a result of the enterprise, and that is what was intended, and that knowing of that probability, that they went on with the enterprise nonetheless. That is simply what we mean by reckless, that is, foreseeing the probability of a particular event, we go on, we are reckless to it, and that is what the crime of recklessly causing serious injury is. So it is intending, as part of the agreement, that something be done, and that it would probably result in serious injury.

It has not been mentioned previously, because it is really a matter for me more than it is a matter for the parties, but if you are not satisfied that there was an agreement, or it was within the scope of the agreement, that serious injury would probably be caused, but that injury would probably be caused, not serious, injury would probably be caused, and although it is common ground that the injury suffered by Mr Stephen Thorneycroft was a serious injury, and nobody would seriously doubt it, it would still be open for you to convict any particular accused who you are then dealing with, with the alternative offence of recklessly causing serious injury [sic], if you concluded that, one, you entertained a reasonable doubt whether as part of the scope of the agreement there was an intention to cause an injury which would probably be a serious injury, as against an agreement that injury would probably be caused. So you see the distinction that is being made between those.

105 His Honour’s reference to ‘recklessly causing serious injury’ as the alternative to count 2 was obviously a misstatement. The jury would inevitably have recognised it as such. They did, after all, acquit on the count of recklessly causing serious injury, and convicted instead of the alternative to which the judge should have referred, namely ‘recklessly causing injury’.

106 The judge later added:

One thing I need to say something about is this: The question has been raised as to what the consequences would be if what Nathan Smith did was completely outside the agreement or understanding of the other accused. There are two aspects of that. The first is that the Crown accept for the purposes of this trial that to the extent that Nathan Smith, when he acted with murderous intent, what he did was outside any agreement or understanding that these accused had committed themselves to. But what is said is that the use of the knife, or it could have potentially been, that is the fact of what occurred, but some other weapon known to be present, was within the scope of the agreement, and that the use of such a weapon carried with it a risk which a reasonable person in the position of the accused would have realised that if one of their number used a weapon, that would expose the deceased to an appreciable risk of serious injury. So it is not that the Crown seeks to say that the agreement is the murderous agreement. They accept that went too far, but what they do say is, the infliction of an injury which was, in the way that I have previously described it to you, unlawful and dangerous, then they were party to such an agreement.

When Nathan Smith used the knife, it does not from the Crown point of view have to be shown that a reasonable person would have realised that he would use the knife to the extent which he used it.

...

What I mean to it communicate by it is this, and I will just make it clear. That if you have a reasonable doubt about any accused, that is, a reasonable doubt that such understanding or arrangement they entered into did not include the use of a weapon, that is, of any kind, then the appropriate verdict would be a verdict of not guilty. And that will depend to a large degree, I suspect, on what you make of the evidence. So it does not have to go as far as murderous, but it does have to go as far as you being satisfied beyond reasonable doubt that the use of the weapon was within the scope of the agreement, and that the use of the weapon was unlawful and dangerous.

107 Counsel for Garcia argued, in a way never spelt out with any precision, that the judge’s directions regarding count 2 were defective because his Honour did not tell the jury that they could not convict Garcia unless satisfied that he was aware that Smith intended to stab Thorneycroft.

108 That submission was supported neither by reference to authority, nor by any argument based on principle. It is by no means obvious why the offence of recklessly causing serious injury, as charged in count 2, should require the Crown to prove that Garcia was aware that Smith intended to stab Thorneycroft. If the Crown were in a position to do so, it would no doubt have charged Garcia with intentionally causing serious injury, and not merely recklessly doing so.

109 The judge made it clear to the jury that Garcia could not be convicted on count 2 unless the Crown established that he intended, as part of the agreement into which he had entered, that something be done by Smith, or some other member of the group, that would probably result in serious injury. By their verdict on count 2, they must have been satisfied that he intended that ‘something be done’ that would probably result in injury, but not that it would probably result in serious injury.

110 In another variant of what eventually became an extraordinarily convoluted submission, counsel for Garcia argued that, having ‘pinned its colours’ to concert as the basis upon which his client should be held complicit in the actions of Smith, the Crown could not succeed in relation to count 1 unless it established not merely that Garcia was aware that Smith was armed with a boning knife, but also that he foresaw the possibility that Smith would, in the course of the affray, stab Roberts-Nunan. A similar argument was advanced in relation to count 2 and the stabbing of Thorneycroft. It was submitted that the evidence fell short of establishing that Garcia had either of these requisite states of mind.

111 Because this argument was taken up and dealt with more fully by counsel for Andreevski, I shall return to it shortly. It is sufficient for present purposes to indicate that I do not find it persuasive.

112 Finally, in relation to Garcia, in what was essentially yet a further variant of the submissions made under the general rubric of ground 3A, it was argued under ground 3B that the verdicts on counts 1 and 2 were unsafe and unsatisfactory.[16] The basis for that submission seemed to be that, once the case was opened and run on the basis of acing in concert, convictions on those counts could not be sustained.

113 It was also argued that the Crown had failed to exclude as a reasonable possibility the hypothesis that Garcia had been nothing more than a bystander at the moment that Smith stabbed Thorneycroft and Roberts-Nunan.

114 Counsel further submitted that Garcia could not, as a matter of law, have been convicted of counts 1 and 2 on the basis of concert because, first, it was not open to the jury to find that he had been any more than a mere bystander; secondly, that concert required proof that he had been party to an agreement with Smith to stab Thorneycroft and Roberts-Nunan specifically; and thirdly, that the only way that Garcia’s guilt could have been established on the evidence was through the doctrine of ‘extended common purpose’. Yet that doctrine had been specifically eschewed by the Crown.

115 Once again, because there is considerable overlap between these latter submissions put forward on behalf of Garcia, and those advanced on behalf of Andreevski, I shall deal with both sets of arguments after I have set out in some detail how, before this Court, Andreevski put his case.

Andreevski – conviction appeal – ground 1

116 Ground 1 took the following form:

The verdicts on counts 1 and 2 are unreasonable or cannot be supported having regard to the evidence; and in particular it was not open to the jury to be satisfied beyond reasonable doubt that [Andreevski] was complicit in either the unlawful and dangerous act that caused the deceased’s death or the act which caused serious injury to Mr Thorneycroft.

117 The submissions advanced in support of ground 1 involved several distinct steps.

118 First, in relation to the conviction on the count of manslaughter, it was argued, as it had been on behalf of Garcia, that the Crown had failed to negate the possibility that Andreevski had been no more than a bystander at the Reserve, and could not therefore be liable for any of Smith’s actions. It was noted in that regard that, unlike Garcia who had admitted to police that he was at all times aware that Smith was in possession of a knife, Andreevski had made no such admissions.

119 Secondly, counsel submitted that, given that there was no evidence that Andreevski was aware of Smith’s possession of a boning knife, the Crown, having nonetheless chosen to present its case against him on the basis of concert, was required to prove that Smith’s actions did not depart from their common design.[17] The Crown, it was submitted, had been unable to do so.

120 Thirdly, it was submitted that once the Crown put its case on the basis of acting in concert, and specifically eschewed any reliance upon extended common purpose, it was obliged to establish, inter alia, that Andreevski and Smith had come to an arrangement or understanding that Smith should stab Roberts-Nunan. Counsel submitted that Osland v The Queen[18] supported that proposition. He further submitted that, self-evidently, there was insufficient evidence to support that particular finding.

121 Fourthly, it was submitted that even if the Crown had put its case on the basis of extended common purpose, it would necessarily have failed. That was because there was insufficient evidence to enable the jury to find that Smith’s actions in stabbing Roberts-Nunan were foreseen by Andreevski.

122 Fifthly, counsel submitted that Andreevski’s conviction of manslaughter was inconsistent with the principles discussed by the House of Lords in R v Powell; R v English.[19]

123 Sixthly, it was submitted that the verdict on that count was inconsistent with the principles stated by the House of Lords in R v Rahman.[20]

124 In relation to Andreevski’s conviction on count 2, it was submitted that the verdict could not stand, for essentially the same reasons.

125 In addition, it was submitted that Andreevski’s acquittal of recklessly causing serious injury added additional weight to the argument that his conviction on count 1 could not stand. By their verdict on count 2, the jury were not satisfied that Andreevski foresaw the probability that Smith’s actions might result in serious injury to Thorneycroft. Equally, so it was submitted, they could not have been satisfied that a reasonable person in Andreevski’s position would have contemplated that there was an appreciable risk of serious injury being caused to Roberts-Nunan.

126 Counsel submitted that the case against Andreevski, based as it was upon the doctrine of acting in concert, could only succeed if the Crown established an arrangement or understanding between his client and Smith to stab Roberts-Nunan and Thorneycroft. Indeed, counsel went further and submitted that the arrangement or understanding had to be so specific as to amount to Smith stabbing those victims with one or other of the boning knives in his possession.

127 It was submitted that if the arrangement or understanding had to be as specific as that for which counsel contended, neither Garcia or Andreevski could be convicted of manslaughter or recklessly causing injury. The question for this Court then is whether counsel’s submission as to the narrow purview of the law relating to acting in concert should be accepted.[21]

128 Before turning to the authorities, it is necessary to say something further about the facts of the present case and, in particular, the evidence as to what Garcia and Andreevski each knew about what other members of their group had in mind when they arrived at the Reserve.

129 A substantial body of evidence was led at the trial regarding the arrangement or understanding between Garcia and Andreevski, and Smith, as to what was to occur during the course of the confrontation. There was a good deal of evidence to indicate that each of them was well aware of the fact that members of their group were heavily armed, and understood that these weapons were not for show.[22]

130 For example, Timothy Lutze said that when he returned home to Acfold Court, everyone else was there and he telephoned Garcia asking him to join them. He said that there was laid out in the front yard a variety of weapons including a machete, a piece of steel and a number of baseball bats. He said that both Garcia and Andreevski were present at the house when these weapons were openly displayed.

131 Darko Jozic said that, while at Acfold Court, he saw a number of weapons brought out from a garage or shed, including a baseball bat, a machete and a knife. These were laid out on the footpath next to the fence in front of the house. In evidence in chief, Jozic said that both Garcia and Andreevski were present when the weapons were displayed. However, under cross-examination he accepted that he could not specifically recall whether Andreevski was actually there at that time.

132 Joseph Ferraro said that Andreevski was at the house when he arrived. He said that he saw Smith holding a butcher’s knife at the front of the house. He said that Garcia was in possession of one of the petrol bombs which had been assembled on behalf of the group. Vucak was seen holding a machete case. Ferraro said that in his car, in which Andreevski was a passenger, he, Ferraro, was in possession of a baseball bat, as was Mladen Mrnjaus. He also said that he saw a tyre lever under Andreevski’s feet, on the floor of the car, after they had driven to the farm once the affray was over.

133 Marko Zizic said that he arrived at Lutze’s house at the same time as Andreevski. He said that he was speaking to Andreevski and Jozic outside the premises, and that he saw Smith come out of the house carrying a pouch containing two knives on a belt. He saw petrol bombs removed from the garage, as well as several baseball bats and a machete. He said that he also recalled having possibly seen a hammer, and a crowbar. He said that the various weapons were placed initially in the driveway, and then put into various cars. He said that when the cars pulled up near the Reserve he saw something metal, which he described as about 40 centimetres in length, passed to Andreevski. He originally thought that it was a machete, but he could no longer be certain of that. He said that after the affray Andreevski handed back the implement, whatever it was, and said something about having used it to damage a car.

134 Mladen Mrnjaus said that he saw machetes, baseball bats and tyre levers displayed inside the fence of Lutze’s house. He saw Smith armed with two butcher’s knives in a case. He saw Andreevski carrying a tyre lever whilst driving towards the Reserve.

135 Tomislav Stevanja said that he thought he saw Garcia and Andreevski at the house when various weapons, including machetes and baseball bats, were laid out.

136 In his record of interview, Garcia admitted having driven to the Reserve in company with Smith. Lutze’s evidence was that those in that car were ‘pumping each other up’, and that the sentiment expressed was that ‘we were going to bash them’. Garcia said to police that before the attack upon Roberts-Nunan, one of the men, Jovan (the person who broke his baseball bat over Roberts-Nunan’s head) had signified that it was his intention to use the bat in the course of the fight. Garcia also admitted that he had handled an implement picked up at a BP service station on route to the Reserve, which he described as a ‘knife’ or ‘dagger sort of thing’. He admitted that after arriving at the Reserve, he accompanied others in running across the field towards Roberts-Nunan, and that he did so with the intention of fighting Roberts-Nunan and his group. Finally, he admitted that he had been present, within a few metres of the incident, at the precise moment that Smith had stabbed both Roberts-Nunan and Thorneycroft.

137 The evidence, therefore, made it clear that Garcia and Andreevski were two of a gang of young men who gathered together at Acfold Court for the purpose of taking part in a prearranged fight with others. While at Acfold Court, a number of weapons were produced and openly displayed. These included knives, baseball bats, tyre levers, and even Molotov cocktails.

138 The question whether Andreevski was specifically aware of the presence of particular weapons was a matter left to be determined by the jury. Having regard to the body of evidence briefly summarised above, it was well open to them to so find.

139 With regard to what took place at the Reserve, the evidence was that Andreevski was one of some 14 young men who had driven there in three separate cars. The drivers of those vehicles, as well as two of the other members of the group, sensibly decided not to take any further part in the planned affray. Sadly for Garcia and Andreevski, they did not join in that decision. Instead, they accompanied Smith, and a number of others, in racing across the oval, a distance of more than 100 metres. In the circumstances of this case, by their presence, they supported the attack upon Roberts-Nunan and Thorneycroft. A number of those in their group, including Smith, were armed. In a telling comment, Andreevski described the event to the police as having been like a scene from ‘The Last Samurai’.

140 Turning then to counsel’s submissions as to the law regarding acting in concert, the first case cited was the decision of the English Court of Criminal Appeal in R v Anderson; R v Morris.[23] In that case, the two accused, Anderson and Morris, were each charged with murder. After an incident involving Anderson’s wife and a man named Welch, the accused went in search of him. Anderson was armed with a knife. However, Morris told police that he was not aware of that fact. The two men located Welch and there was a fight. Welch died as a result of stab wounds that Anderson inflicted upon him. Throughout the fight, Morris stood behind Anderson, and did nothing to assist him. There was evidence that Anderson repeatedly called on Morris for assistance, but that Morris refused to help.

141 The trial judge directed the jury in the following terms:

If you think there was a common design to attack Welch but it is not proved, in the case of Morris, that he had any intention to kill or cause grievous bodily harm, but that Anderson, without the knowledge of Morris, had a knife, took it from the flat and at some time formed the intention to kill or cause grievous bodily harm to Welch and did kill him—an act outside the common design to which Morris is proved to have been a party—then you would or could on the evidence find it proved that Anderson committed murder and Morris would be liable to be convicted of manslaughter provided you are satisfied that he took part in the attack or fight with Welch.^[24]

142 The jury convicted Anderson of murder, and Morris of manslaughter.

143 Lord Parker CJ delivered the judgment of the Court of Appeal. Anderson was granted a new trial on grounds that are not presently relevant. Morris, too, had his conviction quashed. However, in his case, it was ordered that a judgment and verdict of acquittal be entered.

144 In explaining why the Court adopted that course, Lord Parker accepted as correct the following submission advanced on behalf of Morris:

[W]here two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act... [I]t is for the jury in every case to decide whether what was done was part of the joint enterprise, or went beyond it and was in fact an act unauthorised by that joint enterprise.^[25]

145 His Lordship went on to say:

It seems to this court that to say that adventurers are guilty of manslaughter when 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.

Mr Caulfield, [who appeared for the Crown] in his attractive argument, points to the fact that it would seem to be illogical that, if two people had formed a common design to do an unlawful act and death resulted by an unforeseen consequence, they should be held, as they would undoubtedly be held, guilty of manslaughter; whereas if one of them in those circumstances had in a moment of passion decided to kill, they would be acquitted altogether. The law, of course, is not completely logical, but there is nothing really illogical in such a result, in that it could well be said as a matter, of common sense that in the latter circumstances the death resulted or was caused by the sudden action of the adventurer who decided to kill and killed. Considered as a matter of causation there may well be an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors. Looked at in that way, there is really nothing illogical in the result to which Mr Caulfield points.^[26]

146 Counsel for Andreevski next referred to the decision of the House of Lords in R v Powell; R v English.[27] These were two separate and unrelated appeals, heard together, in which the issue of ‘joint enterprise’ arose in the context of a charge of murder.

147 In the first of those two cases, the accused Powell, together with a man named Daniels and a third man, called at the home of the deceased (a dealer in cannabis). As soon as the deceased opened the door, one member of the group, who could not be identified, shot him. He died shortly afterwards.

148 The three accused were all charged with murder on the basis of what was described as ‘joint enterprise’. At the trial, Powell gave evidence. He claimed that he was present at the scene of the shooting, but only in order to purchase cannabis. Daniels did not give evidence. However, it was submitted on his behalf that he had been unaware of the presence of the gun until it was used. It was further submitted that Powell had fired the fatal shot.

149 Both Powell and Daniels were convicted of murder. The Court of Appeal dismissed their appeals.

150 In the second of the two cases, English and a man known as Weddle were each convicted of the murder of a police office on the basis of ‘joint enterprise’. English was aged only 15 at the time. The two accused had attacked the deceased with what were described as wooden posts. The Crown case was that English was present when Weddle produced a knife and stabbed the deceased. The defence case, so far as English was concerned, was that he had fled the scene before the deceased was stabbed.

151 The House of Lords dismissed Powell’s appeal. In so doing, their Lordships observed that it was sufficient to found a conviction for murder for a secondary party to have realised that, in the course of the joint enterprise, the primary party might kill with intent to do so, or with intent to cause grievous bodily harm. The evidence in the particular case supported that conclusion.

152 Their Lordships reached a different outcome in relation to English’s appeal. There, they held that where one party departed completely from the concerted action of a common design by forming an intent to kill involving the use of a weapon, and acted in a way that no party to the common design could have suspected, the other party was guilty neither of murder nor of manslaughter. The trial judge’s charge had been deficient because it had not been brought home to the jury that if they entertained a doubt as to whether English foresaw as a possibility that Weddle might use a knife during the course of the attack, then he would be entitled to a complete acquittal. That was because the unforeseen use of the knife would take the killing outside the scope of the joint enterprise.

153 The decision of the House of Lords in Rahman[28] was the third and last of the English cases relied upon by counsel for Andreevski. In that case, a man known as ‘C’ was attacked by a group of men, including the four appellants, all of whom were armed with various blunt weapons. C was assaulted with those weapons. He collapsed to the ground, and was then kicked to the head and body. He subsequently died. It was only later discovered that the actual cause of death was several stab wounds that he had sustained.

154 At their trial for murder, the Crown could not establish which of the accused had inflicted the fatal wounds. Each accused gave evidence that he had joined in the attack upon C intending, at most, to cause him serious harm, but without having any idea that anyone else involved in the assault intended to stab him.

155 The trial judge directed the jury that they could only convict a particular accused of murder if they were satisfied that that accused had realised that one or more of the attackers might produce and use a knife, with the intention of either killing C or causing him really serious injury. The judge went on to say that if the jury concluded that the stabbing was ‘in a different league’ from the type of assault that had been agreed upon, none of the accused would be responsible in any way for C’s death.

156 The appellants were all convicted of murder. Their appeals to the Court of Appeal were dismissed. So too were their appeals to the House of Lords.

157 Nonetheless, counsel for Andreevski relied upon the following passage from the speech of Lord Brown, which cited with approval an extract from an earlier judgment of the Court of Appeal in R v Hyde:[29]

If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A’s act is to be regarded as fundamentally different from anything foreseen by B.^[30]

158 Counsel also referred to the following statement of principle from the speech of Lord Scott:

[I]f parties join together in an enterprise to inflict serious bodily harm on some victim, bodily harm of a degree that makes the death of the victim a foreseeably possible consequence, and if the victim is killed in the carrying out of this joint enterprise, there is no doubt but that he, or she, who struck the killing blow is guilty of murder regardless of whether there was an intent to kill ... and it seems to me just that the secondary party too should be held guilty. It seems to me beside the point that the secondary party may not have known the killer to have been carrying the weapon actually used to effect the killing and I do not understand how his criminality can be held to depend on whether the killing stroke was effected by the club the killer was known to have carried or by the knife that he was not known to have carried. It would, of course, be necessary that the killing stroke should have been an act within the scope of the joint enterprise on which the parties had embarked but if parties embark on a punishment exercise that carries with it the foreseeable possibility of death of the victim, the instruments used for that purpose seem to me of much less importance than the purpose itself.^[31]

159 I will deal first with R v Anderson; R v Morris.[32] In my opinion, that case provides no support for counsel’s submission that Andreevski’s conviction for manslaughter cannot stand. Morris played a minor, and almost inconsequential, role in the attack upon Welch. It was entirely possible that Anderson’s use of a knife was beyond the scope of the common design. The decision that Morris ought to have been acquitted, rather than convicted of manslaughter, was therefore entirely explicable.[33]

160 Of course the facts of R v Anderson; R v Morris were a far cry from those of the present case. Garcia was well aware that Smith was armed with a knife. And while there was no direct evidence that Andreevski knew of that fact, at least until Smith began brandishing a knife shortly before he stabbed both Thorneycroft and Roberts-Nunan, Andreevski was certainly aware that some members of his group were armed with weapons of the most lethal kind.[34] He must, as a matter of practical reality, have contemplated that those weapons might be used in the course of the attack.

161 Turning then to R v Powell; R v English,[35] I do not consider that the verdicts on counts 1 and 2 in the present case are inconsistent with the principles applied by the House of Lords in that case.

162 Garcia knew of Smith having been armed with boning knives. In the particular circumstances of this case, their use was not outside the scope of the joint venture. And although Andreevski may not have been aware that Smith was in possession of boning knives, at least until moments before those weapons were used, his knowledge of weapons of a like nature being brought to the Reserve renders him liable for Smith’s actions.

163 Finally, turning to Rahman[36] and the passages from their Lordships’ speeches upon which counsel relied, I do not accept that they provide any support for the contention that the convictions on counts 1 and 2 cannot stand.

164 Lord Brown’s formulation of the test for joint enterprise was predicated upon the accused having no knowledge whatever of the existence of a weapon of the kind that was used to kill the deceased. That, of itself, distinguishes Garcia’s situation from anything contained his Lordship’s analysis.

165 As regards Andreevski, the situation is essentially the same. Lord Brown made it clear that an accused will not be excused from liability on the basis of ‘joint enterprise’ unless what occurred involved the use of a weapon that was ‘more lethal’ than any that the accused contemplated might be carried. That was not Andreevski’s situation. As I have said, he was well aware that various members of his group were armed with an array of weapons, many of them as lethal as the knives that Smith carried. That, too, serves to distinguish Andreevski’s case from the example put forward by Lord Brown as to the limits of the doctrine of joint enterprise. It prevents him from asserting that the stabbing of Roberts-Nunan and Thorneycroft was ‘fundamentally different from anything [that he had] foreseen’.

166 Furthermore, in Rahman all four accused were charged with murder. That is not this case. The Crown did not assume the burden of establishing as against either Garcia or Andreevski any intent to kill, or to cause really serious injury. As is obvious, the mens rea required for manslaughter differs fundamentally from that required for murder. So far as mens rea is concerned, manslaughter requires nothing more than an intention to commit an unlawful act.

167 Of course, in order to prove manslaughter, the Crown had to establish an additional element. It had to prove that the ‘unlawful act’ upon which it relied was relevantly ‘dangerous’. However, that additional requirement had nothing to do with the mens rea of the offence. The element of dangerousness is met if the Crown can establish that the ‘unlawful act’, viewed objectively, created an appreciable risk of serious injury.[37]

168 I shall return to the significance of this point shortly. I will first deal with the remaining two cases upon which counsel for Andreevski relied; Markby,[38] and Osland.[39]

169 Markby concerned two men, Markby and Holden, both of whom were convicted of murder. The evidence was that the two accused met the deceased, a man named Syrch, pursuant to an arrangement whereby they were to sell him drugs. At Holden’s suggestion, Markby brought along a dismantled rifle.

170 The case for the Crown was that Markby and Holden intended all along to rob Syrch, and then to kill him. As Markby spoke to Syrch, Holden shot him once in the head. The two men then drove Syrch away. In the course of the drive, several more shots were fired into Syrch’s head.

171 The trial judge directed the jury that Markby could only be convicted of the lesser offence of manslaughter if Holden was also found of guilty of that offence rather than murder. Markby appealed against his conviction, but the New South Wales Court of Criminal Appeal dismissed his appeal.

172 The High Court overturned Markby’s conviction, in part because the trial judge’s direction to the jury that Markby could only be convicted of manslaughter if Holden was also convicted of that offence was erroneous.

173 Gibbs ACJ, with whom the other members of the Court agreed, said:

It was erroneous to tell the jury that the applicant could be found guilty of manslaughter only if Holden also was guilty of manslaughter and not of murder. When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed: Reg v Lovesey. If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter: Reg v Smith; Reg v Betty; Reg v Lovesey. The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only. In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. 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: Reg v Anderson; Reg v Morris. If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter: Varley v The Queen.^[40]

174 It was submitted on behalf of Andreevski that the sentence in that passage that spoke of the principal assailant having ‘gone completely beyond the scope of the common design’ should be applied to the facts of the present case, rendering him innocent of manslaughter. One difficulty with that submission is that it was never suggested that Markby was not complicit in the killing of Syrch, only that he might be guilty of manslaughter, and not murder. That is exactly the position taken by the Crown in charging Andreevski with manslaughter, and not murder.

175 Contrary to counsel’s submission, I regard the reasoning in Markby as support for the proposition that, in the case of Andreevski, a verdict of guilty of manslaughter was properly available to the jury. The trial judge took the same view. In rejecting a no case submission made on behalf of Andreevski his Honour specifically relied upon Markby.[41] He treated Markby as authority for the proposition that a conviction for manslaughter was legally available in circumstances where one of two parties to an agreement to commit an offence involving the use of violence suddenly, and unexpectedly, formed the intent to kill or cause really serious injury, while the other never intended to go beyond simply causing injury. In my opinion, his Honour was correct to view Markby in that way.

176 The last of the cases relied upon on behalf of Andreevski was Osland.[42] However, counsel focused attention not upon the judgment as a whole, but upon the judgment of McHugh J which, he submitted, showed that, in his Honour’s view, given that the case against Mrs Osland had been put on the basis of concert, the

arrangement or understanding that she had allegedly reached with her son had to encompass the very ‘acts’ which constituted the actus reus of the offence.^[43]

177 It is important, however, to consider that proposition, upon which counsel based his submission, in context. McHugh J went on to say the following:

Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.^[44]

178 Two comments may be made about the sentence commencing ‘[o]nce the parties have agreed to do the acts ...’. First, McHugh J was the only member of the Court, in the majority, who attempted to formulate a broad-ranging definition of acting in concert.[45] Secondly, Mrs Osland and her son, David, were both charged with murder. That meant that the Crown had to establish that each of them had the requisite mens rea for that offence (or perhaps, at the very least, that Mrs Osland could be brought within the doctrine of ‘extended common purpose’).[46] That is not this case.

179 In my respectful opinion, McHugh J’s observation that acting in concert requires agreement to perform ‘the act’ that results in death is no doubt both correct as a general proposition, and entirely apposite to a case where both offenders are charged with murder and the Crown must therefore prove the requisite mens rea against each of them. Once again, however, that is not this case.

180 I should say something briefly about the history, and current status, of the doctrine of acting in concert as applied in this State.

181 For many years, that doctrine was reasonably straightforward. It was given clear expression by Smith J in his classic formulation in R v Lowery & King (No 2),[47] which the trial judge used as the basis of his charge in the present case.

182 More recently, there have been glosses placed upon the doctrine which have given rise to some difficulty. Part of the problem seems to lie in the nomenclature used to encompass what are related, but distinct, forms of complicity.

183 In McAuliffe,[48] the High Court focused upon what it termed ‘joint criminal enterprise’. In a passage that is often cited, the Court said:

The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime.^[49]

184 Subsequently, some of the observations in McAuliffe have been said to be confusing.[50]

185 In R v Tangye,[51] Hunt CJ at CL sought to address the various problems that he saw arising out of the use of terms such as ‘common purpose’ and ‘joint criminal enterprise’. In his reasons for judgment, he distinguished between what he termed a ‘straightforward joint criminal enterprise’ (by which he appeared to mean what in Victoria would be called ‘acting in concert’), and the ‘extended concept of common purpose’. He did so in order to make it clear that the wider liability encompassed within the latter doctrine should only rarely be invoked. His Honour said:

The Crown needs to rely upon a straightforward joint criminal enterprise only where — as in the present case — it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, and it is a pity that in many trials no heed is taken of what has been said.^[52]

186 Recently, in R v Nguyen,[53] the High Court returned to the subject of acting in concert. The case was unusual in a number of respects. It arose out of an incident that occurred in the early hours of the morning when the respondent, Dang Quang Nguyen, accompanied two other men, Dang Khoa Nguyen and Bill Ho, to a flat in Carlton. The Crown alleged that the three men had gone to the flat to collect a debt owed to either Bill Ho or Dang Khoa Nguyen by a man named Mau Duong. Mau Duong was not at the flat when the three men entered.

187 There were seven young people in the flat. Some were asleep and some were watching television. The three co-offenders repeatedly asked where Mau Duong was, but were given no answers. The respondent went into the lounge room waving a sword about, wounding two or three of the occupants. There was an issue at the trial as to whether he had brought the sword with him to the flat or had picked it up there. There was no doubt, however, about the fact that Bill Ho had brought a pistol with him. Ho fired two shots. The first injured a man named Chau Minh Nguyen, and the second killed a man named Hieu Trung Luu.

188 All three of the men who entered the flat were convicted of the murder of Hieu Trung Luu and of the attempted murder of Chau Minh Nguyen. The respondent appealed against his convictions. The Court of Appeal allowed the appeal, quashed both convictions, and directed that judgment and verdicts of acquittal be entered. Essentially, it concluded that a jury, acting reasonably, must have had a reasonable doubt as to the respondent’s guilt.

189 Somewhat unusually, the Crown appealed to the High Court against that acquittal. The respondent cross-appealed on the basis that, irrespective of whether the acquittal should stand, the Court of Appeal had erred in failing to hold that the trial judge had misdirected the jury with respect to complicity.

190 The High Court allowed both the appeal and the cross-appeal. It held that there was evidence that would have permitted the jury to conclude that all three men had gone to the flat searching for Mau Duong in order to recover payment of a debt; that at some point, whether before or after arriving at the flat, the respondent had armed himself with a sword intending to use it to enforce the demands made by the three men for information; that the respondent used the sword in a way that showed his willingness to injure those in the flat; and that Ho had produced a revolver before the first shooting and attempted to intimidate those in the room (which, in the circumstances, must have been witnessed by the respondent).

191 The question then became, what level of violence did the respondent either agree would be used, or foresee might be used? The High Court held that on the particular facts of that case, it had been open to the jury to conclude that based upon the respondent’s actions, he either agreed to the use of deadly force, or at least contemplated that it might be used. Accordingly, it was open to the jury to conclude that he was complicit in both the murder, and attempted murder.

192 Importantly, for present purposes, the Court observed that if the respondent was party to an agreement to commit some lesser assault than one intended to kill, or contemplated the possibility of an assault of that kind only, it would have been open to the jury to return a verdict of manslaughter in respect of the count of murder.

193 Of course, in such circumstances, there would have to be an acquittal on the count of attempted murder, given that that offence requires an actual intent to kill. The High Court held that the trial judge had erred in failing to leave manslaughter as an available verdict against the respondent, even if Bill Ho was plainly guilty of murder.

194 It is important to note that in Nguyen, the trial was conducted on the basis that the respondent was complicit in the crimes committed by Bill Ho in any one of three separate ways. The case was put on the basis of (1) acting in concert, (2) extended common purpose, or (3) aiding and abetting.

195 The High Court seemingly had no difficulty with the proposition that, in a case of concert, the actual perpetrator of the killing might be guilty of murder, while anyone else who agreed to participate in the general attack might be guilty of manslaughter only. The question in such circumstances was simply whether the particular accused said to be complicit with the principal offender was party to an understanding or arrangement with that principal offender, to commit an unlawful and dangerous act. The trial judge ought, on that basis, to have left manslaughter to the jury as a possible verdict. Accordingly, a new trial was ordered.

196 In my opinion, the approach taken in Nguyen runs counter to the submissions advanced on behalf of Garcia and Andreevski. The case against them was that they had acted in concert with Smith in the commission of an unlawful and dangerous act. The argument that they could not be complicit in either the death of Roberts-Nunan or the injury to Thorneycroft because it could not be proved that they had agreed with Smith that he should stab one or both of those men with one of the knives that he was carrying, was said to find some support from the judgment of McHugh J in Osland[54] to which I have referred. However, it is particularly difficult to sustain that argument in the face of the reasoning in Nguyen.

197 Often, particular conduct can be characterised in different ways. As Nguyen demonstrates, it is by no means uncommon for the Crown to present its case in the alternative by, for example, arguing concert, aiding and abetting and, on occasion, extended common purpose.

198 According to Garcia and Andreevski, the Crown, having elected to put its case as one of acting in concert, could not as a matter of law have succeeded on the count of manslaughter. That was because concert required proof that they had entered into a narrow and specific agreement with Smith to stab Thorneycroft and Roberts-Nunan. The evidence could not sustain the existence of any such agreement. According to the defence, the only way in which Garcia and Andreevski could have been convicted of any offence arising out of the death of Roberts-Nunan, was by recourse to the doctrine of extended common purpose. Yet the Crown had specifically eschewed that doctrine.

199 In my opinion, the Crown’s decision not to rely upon extended common purpose in this case was entirely correct. Normally, that doctrine, when applied, results in the party said to be complicit being convicted of precisely the same offence as the perpetrator of the killing, and not some different and lesser offence.[55] The Crown, having elected to charge Garcia and Andreevski with manslaughter, and not murder, would have been hard pressed, in the face of existing authority, to utilise the doctrine of extended common purpose.

200 It is worth noting that recently in Clayton v The Queen; Hartwick v The Queen; Hartwick v The Queen,[56] the High Court reviewed the authorities dealing with extended common purpose. It concluded[57] that the principles established in McAuliffe[58] and Gillard[59] should not be disturbed.

201 The facts in Clayton provide a useful illustration of just how difficult it can be to distinguish between the various forms of complicity under which an accused can be liable for the acts of another. That case involved an altercation between the three appellants and two victims, one of whom was stabbed to death. The evidence was that each of the appellants had armed themselves with weapons varying from metal and wooden poles to a large carving knife. The attack upon their victims lasted some 30 to 40 minutes. The deceased was severely beaten and stabbed a number of times. As is often the case, the Crown was unable to prove which of the appellants had inflicted the fatal wound.

202 The case was conducted on the basis of ‘joint enterprise’ (in essence, acting in concert), extended common purpose, and aiding and abetting. The appellants were all convicted of murder. The majority judgment noted that there were three principal issues in the case:

(a) What did the particular accused agree was to happen when they went to the victims’ house?

(b) What did the particular accused foresee was possible? and

(c) What did the particular accused do at the house, if anything, to aid and abet whoever it was who had fatally assaulted the deceased?

203 In relation to acting in concert, the Court held that in order to obtain a conviction for murder, the Crown had been required to establish that the particular accused whose case was under consideration had agreed with one or both of the others to cause at least really serious injury to the deceased.

204 With regard to extended common purpose, the Crown would have had to establish that the particular accused whose case was under consideration had agreed with one or both of the others to assault the deceased to some lesser degree, but had foreseen the possibility that death or really serious injury might intentionally be inflicted on the deceased in the course of that assault.

205 Finally, with regard to aiding and abetting, the Crown would have had to establish that the particular accused whose case was under consideration encouraged or assisted the commission of an assault, knowing that the victim was being assaulted with intent to kill or cause really serious injury.

206 The majority said nothing about the possibility of lesser verdicts of manslaughter being available in relation to those who might not have intended to kill or cause really serious injury, or might not have foreseen the possibility that death or really serious injury might be caused. That was hardly surprising, given the particular facts of the case.

207 It was Kirby J alone who explained why, on the particular facts of that case, manslaughter did not have to be left as an alternative to murder. His Honour said:

As the ambit of liability for murder is expanded by reference to a possibility that the principal offender might inflict really serious harm on the victim, the availability of an alternative verdict of guilty of manslaughter from a jury, acting rationally and honestly, is virtually nil.^[60]

208 Clayton was, of course, yet another case involving both acting in concert and extended common purpose, where each accused had been charged with murder. The difficulty in Clayton was that it could not be proved who had inflicted the fatal wound. It was against that background that the Court restated the principles of complicity as it did, without any particular need to consider whether manslaughter should have been left to the jury as an alternative verdict.

209 Nonetheless, it is instructive to note that the trial judge in Clayton had left manslaughter as an alternative. When the case was dealt with in the Court of Appeal, it was accepted that an accused could be convicted of manslaughter on the basis of acting in concert with the actual perpetrator of the killing, in circumstances where that primary offender was guilty of unlawful and dangerous act manslaughter. However, it was made clear that the actual unlawful and dangerous act had to be within the scope of the arrangement or understanding reached between the parties.

210 The Court of Appeal added:

So, in order to convict on that basis, the jury must be satisfied that the arrangement or understanding expressly or tacitly comprehended that in its carrying out the deceased might be so attacked with a weapon as to create an objectively significant risk of serious injury.^[61]

211 That statement of principle seems to me to be applicable to the present case.

212 In my view, both Clayton and Nguyen demonstrate that an offender alleged to have been complicit with another in the killing of the deceased can be convicted of manslaughter, while the person who actually inflicts the fatal wound is guilty of murder.[62]

213 Extended common purpose might have been invoked in the present case had the Crown elected to charge Garcia and Andreevski, along with Smith, with murder. The fact that the Crown chose instead to charge these two appellants with manslaughter, and opted to rely upon acting in concert in doing so, does not mean

that the only available outcome in this case was an acquittal. On no view was this a case of murder or nothing.

214 Given the objective nature of unlawful and dangerous act manslaughter, it was open to the Crown, in accordance with the law as laid down by this Court in R v Hartwick, Hartwick and Clayton,[63] to prove its case by establishing an agreement on the part of Garcia and Andreevski to take part in a fight, but not just any fight. It had to be one that ‘expressly or tacitly comprehended’ that in the course of that fight, someone ‘might be so attacked with a weapon as to create an objectively significant risk of serious injury’.[64]

215 Once viewed in that light, it becomes clear that there was ample evidence upon which the jury were entitled to convict Garcia and Andreevski of manslaughter. There was nothing unsafe or unsatisfactory about their verdict.

216 For the sake of completeness, I mention that it was argued at trial, though not before this Court, that because Smith had pleaded guilty to having murdered Roberts-Nunan, the Crown could not, as a matter of law, prove any causal link between any unlawful and dangerous act on the part of Andreevski, and the death of Roberts-Nunan.

217 Not surprisingly, the trial judge rejected that argument.[65] His Honour observed that death is always an unintended consequence of the relevant unlawful act in unlawful and dangerous act manslaughter. However, the fact that a consequence is unintended does not mean that it was not brought about or caused by the act in question.

218 As the trial judge said, it is not the law that the existence of murderous intent on the part of one offender precludes a finding as against another that he was involved in the commission of an unlawful and dangerous act. Nor does the sudden emergence of a murderous intent in such a case necessarily, and of itself, break the chain of causation. The question for the jury in this case was whether the unlawful and dangerous act, if that was what they found it to be, was a substantial and operating cause of Roberts-Nunan’s death. By their verdicts, the jury answered that question affirmatively. On the evidence, they were entitled to come to that conclusion.

219 Finally, counsel for Garcia and Andreevski submitted that if the convictions for manslaughter stood, the effect would be that whenever a person is killed in the course of a fight of sufficient seriousness to amount to an affray, anyone taking part in that fight would be guilty, at the very least, of manslaughter.

220 I have already said enough to indicate why that submission should be rejected. Every case must be considered in the light of its own particular facts. This case concerned no mere affray. It was, rather, an affray of extreme violence, involving the use of weapons of a lethal character. On the evidence, both Garcia and Andreevski expressly or tacitly comprehended that, in its carrying out, someone such as Roberts-Nunan might be attacked with a weapon, such that the very fact of the affray created an objectively significant risk of serious injury.

221 Accordingly, Andreevski’s ground 1 insofar as it relates to his conviction for manslaughter must fail. The same is true of Garcia’s grounds 3A and 3B.

Count 2 – The remaining unsafe and unsatisfactory grounds

222 Turning now to Garcia’s grounds 3A and 3B and Andreevski’s ground 1 in respect of count 2, Garcia and Andreevski submitted that their convictions for recklessly causing injury, arising out of Smith’s stabbing of Thorneycroft, were unsafe and unsatisfactory. As with manslaughter, the case against each appellant on that count was put on the basis of acting in concert. It was that fact that gave rise to their respective challenges as to the convictions on count 2.

223 It was submitted on behalf of each appellant that as a consequence of Smith having pleaded guilty to the more serious offence of intentionally causing serious injury, neither Garcia nor Andreevski could, as a matter of law, have acted in concert with him in such a way as to render them liable for the entirely different offence of recklessly causing injury.

224 There was a variant of that submission. It was contended that the combination of verdicts, namely manslaughter in respect of Roberts-Nunan, and acquittal of recklessly causing serious injury in respect of Thorneycroft, meant that the verdicts of recklessly causing injury were themselves unsafe and unsatisfactory.

225 In order to consider that submission, it is first necessary to say something briefly about the elements of both recklessly causing serious injury, and recklessly causing injury.

226 The offence of recklessly causing serious injury requires proof that the offender foresaw the probability that his or her action would cause serious injury to the victim, and went ahead regardless.[66] Recklessness in this sense is not mere carelessness, where the offender fails to appreciate the risk of injury. The offence entails conscious disregard of a risk of serious injury which the offender knows to exist.[67]

227 The offence of recklessly causing injury is identical in all respects, save that the risk that is foreseen is that of injury being caused, rather than serious injury.

228 Turning to the present case, I do not accept that there is any inconsistency between the verdicts on counts 1 and 2. It was open to the jury to find that Garcia and Andreevski, by their participation in the affray, were complicit in the actions of Smith when he injured Thorneycroft, although in Smith’s case serious injury was intended, whereas in Garcia and Andreevski’s case only the probability of injury was foreseen.[68] There was nothing illogical about that result. There was simply a difference in their respective mental states. Nor was there anything illogical about Garcia and Andreevski having been convicted of manslaughter, but acquitted of recklessly causing serious injury.

229 It follows that Garcia’s grounds 3A and 3B and Andreevski’s ground 1, so far as they relate to count 2, must fail.

Andreevski’s ground 2 – directions on complicity

230 Ground 2 complains of the trial judge’s directions to the jury regarding the issue of complicity. That ground was expressed in the following terms:

2. The learned judge erred in his directions on complicity ...; and in particular he erred:
   1. in directing that the prosecution ‘does not have to establish that what was in the mind of the accused was any particular intention to injure’ and that ‘manslaughter is complete even if no injury was intended by the accused’...
   2. in failing to direct that, if the prosecution failed to prove that [Andreevski] agreed or understood that the deceased and Mr Thorneycroft would be stabbed with a knife, he must be acquitted of counts 1 and 2 (and the alternative);
   100. in failing to direct that, if the prosecution failed to prove that the use of a knife to stab another was foreseen by [Andreevski], he must be acquitted of counts 1 and 2 (and the alternative);
   4. in failing to direct that, if the prosecution failed to prove that [Andreevski] was aware of the knife and that the knife was no more lethal than any weapon which [Andreevski] contemplated that Mr Smith or any other participant may have been carrying, [Andreevski] must be acquitted of counts 1 and 2 (and the alternative).

231 It was submitted in support of this ground that even if Andreevski’s convictions on counts 1 and 2 were not unsafe and unsatisfactory, the trial had nonetheless miscarried because the jury were misdirected as to the principles of complicity, in relation to both counts.

232 I have previously set out the judge’s directions as to acting in concert.[69] I have also previously noted that counsel who appeared at the trial took no exception to those directions. I consider that to be a telling factor in dealing with this ground. I also consider that his Honour’s directions as to complicity were unimpeachable.

233 The judge made it plain that unless the Crown established that Garcia and Andreevski took an active part in the affray, and were not merely bystanders as they claimed to be, they were entitled to be acquitted of manslaughter and recklessly causing serious injury. In summarising the matter in that way, his Honour drew the jury’s attention to one of the critical issues to be resolved in this case.

234 Before this Court, counsel submitted that the judge’s direction to the jury that the Crown did ‘not have to establish that what was in the mind of the accused was any particular intention to injure’, and that ‘manslaughter [was] complete even if no injury was intended by the accused’, were erroneous. Counsel further submitted that in the absence of any such intention having been established, there could be no basis for a finding that Andreevski had agreed to do an act which a reasonable person would have realised exposed Roberts-Nunan to an appreciable risk of serious injury.

235 I reject that submission. There was ample evidence to suggest that Andreevski agreed with Smith, and others, to engage in an unlawful act that, viewed objectively, would be regarded as relevantly dangerous. The issue to be determined was whether a reasonable person in Andreevski’s position would have realised that by his actions, he was exposing another or others to an appreciable risk of serious injury. The trial judge’s directions were sufficient to enable the jury to understand that this was a critical element that had to be resolved.

236 Counsel next submitted that the judge’s directions were deficient because they failed to make it clear that the Crown needed to establish that Andreevski had agreed that Smith would use one of the knives he was carrying to stab one or other of Roberts-Nunan and Thorneycroft.

237 I have already indicated, in dealing with the argument that the verdicts on counts 1 and 2 were unsafe and unsatisfactory, that merely because the Crown chose to put its case on the basis of acting in concert did not mean that it had to prove that Andreevski had agreed with Smith that he, Smith, would stab someone with one or other of the knives he was carrying. The submission that this was indeed a requirement of the doctrine of acting in concert is no stronger in relation to Andreevski’s ground 2 than it was in relation to his ground 1.

238 A third variant of the argument advanced under Andreevski’s ground 2 was that the judge should have directed the jury that they could not convict Andreevski of any offence arising out of the stabbing of Roberts-Nunan and Thorneycroft unless they were satisfied that he foresaw that Smith would use a knife that he was carrying to stab one or other of these men.

239 In my opinion, and for the reasons earlier set out, the doctrine of acting in concert does not operate in that fashion. Andreevski’s liability for manslaughter arose out of the application of an objective test. His liability for recklessly causing injury arose out of his foresight that, by his actions and those of his co-offenders, injury would be caused. It did not turn upon the precise means by which that injury would be inflicted, nor the precise identity of the victim.

240 For these reasons, Andreevski’s complaints regarding the judge’s charge should be rejected.

241 It follows that I would reject Andreevski’s ground 2.

242 It follows that I would dismiss both Garcia’s and Andreevski’s appeals against conviction.[70]

Andreevski’s appeal against sentence

243 As I have previously indicated, Andreevski was sentenced to five years’ imprisonment on count 1, 18 months on count 2, and 18 months on count 3. Six months of the sentence imposed on count 2 was made cumulative on count 1. The sentence on count 3 was made wholly concurrent with the sentences on counts 1 and 2. The total effective sentence was therefore five years and six months’ imprisonment. A non-parole period of three years was fixed.

244 Counsel submitted that each of the individual sentences, the orders for cumulation, and the resulting total effective sentence and non-parole period were manifestly excessive.

245 Counsel further submitted that Andreevski’s role in the offending had been ‘minimal’, and that the various subjective factors present in his case, including his youth, prior good character, evident remorse, and prospects of rehabilitation, had been given insufficient weight.

246 In my view, the individual sentences imposed, the total effective sentence, and the non-parole period were all within range.

247 The judge had to deal with Andreevski for what were three separate, and serious, offences.

248 A sentence of five years for manslaughter where the circumstances of the offending were as serious as those present in this case, and where the accused chose to plead not guilty, can hardly be regarded as manifestly excessive.[71] That is so, even in a case such as the present, where the appellant can rely on mitigating factors such as youth, remorse, and prior good character.

249 The sentence of 18 months on count 2 was also within range. The six months of that sentence cumulated upon count 1 was, in the circumstances, relatively modest.

250 The same can be said of the sentence of 18 months imposed on the affray. I note that counsel for Andreevski sought to raise, during oral argument, a contention that no conviction on count 3 should have been recorded. That would have required an additional ground of appeal against conviction, and the need to overcome the difficulty that Andreevski had pleaded guilty to that count.

251 Counsel, perhaps recognising the size of the hurdle that had to be overcome, then sought to argue that even if it had been open to record a conviction on count 3, it was not appropriate to impose a sentence on that count. He referred in that regard to Pearce v The Queen,[72] and the cautionary note it sounded against double punishment.

252 The Court, having remarked upon the fact that no such ground of appeal had been foreshadowed, refused leave to argue either variant of this point. It further observed that the elements of counts 1 and 2, and count 3, were quite separate and distinct. There was no reason in principle not to record a conviction on count 3. Nor, in the particular circumstances of this case, was there any reason not to impose a sentence upon Andreevski for his involvement in the affray. In any event, any concern about overlap between counts 1 and 2 on the one hand, and count 3 on the other, was adequately met by the fact that the sentence of 18 months imposed on count 3 was concurrent with the sentences imposed on the other counts.

253 I would dismiss Andreevski’s appeal against sentence.

TATE JA:

254 I agree with Weinberg JA.

- - - - -

^[1] The transcript shows that the judge pronounced a sentence of two years’ imprisonment on count 3. However, the return of prisoners, which is the formal record of the Court, shows a sentence of 18 months’ imprisonment, and should be accepted as authoritative.

^[2] The evidence of Darko Jozic suggested that a knife was present on the footpath, although when sentencing Smith and Andreevski his Honour did not so expressly find.

^[3] DPP v Smith [2010] VSC 168, [11].

^[4] [2011] VSCA 254.

^[5] See, generally, Dunne v The Queen [2011] VSCA 387; and Romero v The Queen [2011] VSCA 45; (2011) 206 A Crim R 519.

^[6] DPP (Vic) v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14, 44 [127] (Ashley, Redlich and Weinberg JJA). See, generally, House v The King [1936] HCA 40; (1936) 55 CLR 499.

^[7] DPP v Smith [2010] VSC 168, [34].

^[8] Ground 2 was abandoned by counsel for Garcia at the hearing of the appeal.

^[9] Although the prosecutor did not specifically use that term in his opening address.

^[10] Handlen v The Queen; Paddison v The Queen [2011] HCA 51, [4] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

^[11] Ibid, citing Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, 343 (McHugh J) .

^[12] David Lanham, ‘Accomplices and Constructive Liability’ (1980) 4 Criminal Law Journal 78, 81-5.

^[13] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313.

^[14] Emphasis added.

^[15] Garcia acknowledged that he had contemplated, at the time, that weapons such as those that he observed in the possession of members of the group might be used, though he told police that he believed that they were brought along in case the boys that had them wanted to defend themselves. Counsel accepted, in answer to a question from the Bench, that it could be inferred that Garcia was aware that those who were to be attacked by his group were themselves likely to be armed.

^[16] As to which see M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-5 (Mason CJ, Deane, Dawson and Toohey JJ).

^[17] Counsel cited Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108 (‘Markby’) as authority for that proposition.

^[18] [1998] HCA 75; (1998) 197 CLR 316, [72] – [74] (‘Osland’).

^[19] [1999] 1 AC 1.

^[20] [2009] 1 AC 129, [68] (‘Rahman’).

^[21] It should be noted that counsel for Garcia specifically adopted Andreevski’s submissions regarding the authorities said to support this argument.

^[22] Counsel for Andreevski effectively conceded that there was ample evidence to establish that proposition, but argued that what was required in order to establish liability of manslaughter on the basis of concert in the present case was proof that they agreed specifically that Smith would use the knife or knives with which he was armed to stab someone. It was submitted that, put that way, Andreevski could not be convicted since it was not shown that he was aware of the existence of the knives until literally seconds before Smith wielded them.

^[23] [1966] 2 QB 110.

^[24] Ibid 118.

^[25] Ibid 118-119.

^[26] Ibid 120.

^[27] [1999] 1 AC 1.

^[28] [2009] 1 AC 129.

^[29] [1991] 1 QB 134.

^[30] Rahman [2009] 1 AC 129, 165 [68] (emphasis in original).

^[31] Ibid 155 [31].

^[32] [1966] 2 QB 110.

^[33] I note that R v Anderson; R v Morris was cited with apparent approval by the High Court in Varley v The Queen (1976) 12 ALR 347, 353.

^[34] See, generally, the evidence regarding this point at paragraphs [129] – [137] of these reasons for judgment.

^[35] [1999] 1 AC 1.

^[36] [2009] 1 AC 129.

^[37] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313, 332-3; R v Hartwick, Hartwick and Clayton [2005] VSCA 264; (2005) 14 VR 125, 145.

^[38] [1978] HCA 29; (1978) 140 CLR 108.

^[39] [1998] HCA 75; (1998) 197 CLR 316.

^[40] Ibid 112-3 (citations omitted).

^[41] See R v Andreevski [2010] VSC 568.

^[42] [1998] HCA 75; (1998) 197 CLR 316.

^[43] Counsel referred to Osland 342-3, [72] – [74]. His Honour also spoke somewhat equivocally as to whether ‘presence’ was required for concert. That is a matter that still gives rise to difficulty. In R v Lowery & King (No 2) [1972] VicRp 63; [1972] VR 560, Smith J considered that this was an element of concert. See, generally, the discussion in Arafan v The Queen (2010) 206 A Crim R 216, 226-7.

^[44] Osland [1998] HCA 75; (1998) 197 CLR 316, 350 [93] (McHugh J). His Honour’s conclusion that liability under the doctrine of acting in concert is primary, and not derivative, is generally regarded as a correct statement of the law in this country, though the position is otherwise in England.

^[45] David Ross, Ross on Crime (Lawbook, 4^th ed, 2009), 304 [3.5105].

^[46] As to that doctrine, see generally McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108, 114 (‘McAuliffe’); and R v Taufahema [2007] HCA 11; (2007) 228 CLR 232.

^[47] [1972] VicRp 63; [1972] VR 560. Smith J’s formulation has been cited many times with approval. See, eg, R v Jensen and Ward [1980] VicRp 24; [1980] VR 194.

^[48] [1995] HCA 37; (1995) 183 CLR 108.

^[49] Ibid 113. In England, the expression ‘acting in concert’ carries a different meaning. There, it is said to encompass various activities, including aiding, abetting, counselling, inciting, or procuring. Typically, the same or same type of offence is intended by all the parties said to be acting in concert – see Chan Wing-Siu v The Queen [1985] AC 168, 175 (Sir Robin Cooke, delivering the advice of the Privy Council). Self-evidently, liability is derivative rather than primary. See Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Lawbook, 3^rd ed, 2010) 416, citing inter alia CMV Clarkson, ‘Complicity, Powell, and Manslaughter’ [1998] Criminal Law Review 556. In other words, what we in Victoria would call ‘concert’ is viewed in England as nothing more than an application of the ordinary principles of accessorial liability.

^[50] See, eg, Likiardopoulos v The Queen (2010) 208 A Crim R 84. There, this Court observed that the nomenclature used to describe the various ways in which more than one person may be liable as a principal offender for a criminal venture has presented a recurring problem. See also Arafan v The Queen (2010) 206 A Crim R 216, 226-7.

^[51] (1997) 92 A Crim R 545.

^[52] Ibid 556 (citations omitted).

^[53] [2010] HCA 38; (2010) 242 CLR 491.

^[54] [1998] HCA 75; (1998) 197 CLR 316.

^[55] In Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1, 24 [62] (‘Gillard’), Kirby J articulated the rationale for the doctrine in the following terms:

Those who participate in activities highly dangerous to life and limb share equal responsibility for the consequences of the acts that ensue. This is because, as the law's experience shows, particularly when dangerous weapons are involved in a crime scene, whatever the actual and earlier intentions of the secondary offender, the possibility exists that the primary offender will use the weapons, occasioning death or grievous bodily harm to others. The law then tells the secondary offender not to participate because doing so risks equal inculpation in such serious crimes as ensue.

The references to ‘equal’ responsibility and ‘equal’ inculpation are particularly significant.

^[56] [2006] HCA 58; (2006) 231 ALR 500 (‘Clayton’).

^[57] By majority, Kirby J dissenting.

^[58] [1995] HCA 37; (1995) 183 CLR 108.

^[59] [2003] HCA 64; (2003) 219 CLR 1.

^[60] Clayton [2006] HCA 58; (2006) 231 ALR 500, 527 [111].

^[61] R v Hartwick, Hartwick and Clayton [2005] VSCA 264; (2005) 14 VR 125, 145 [40].

^[62] See Croxford the Queen [2011] VSCA 433, where a similar approach was taken by this Court to a case involving aiding and abetting. It was held in that case that there was no reason why the secondary party should not be convicted of manslaughter while the actual perpetrator of the killing was convicted of defensive homicide. The fact that liability for aiding and abetting is derivative, while liability for concert is primary, seems not to be of any consequence.

^[63] [2005] VSCA 264; (2005) 14 VR 125.

^[64] Ibid 145 [40].

^[65] See R v Andreevski [2010] VSC 568.

^[66] DPP (Vic) v Castro [2006] VSCA 197, [13] (Coldrey AJA with whom Callaway AP and Redlich JA agreed); DPP (Vic) v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, 527 [12] (Redlich JA with whom Callaway JA and Coldrey AJA agreed); and Ashdown v The Queen  [2011] VSCA 408 , [18] (Maxwell P).

^[67] See, generally, Ashdown v The Queen  [2011] VSCA 408 , [18] (Maxwell P).

^[68] There is nothing unusual about the notion that an accomplice who instigates or aids in an unlawful or dangerous act which happens to cause death is guilty of manslaughter only, while the perpetrator is guilty of murder. I have already made that point in relation to the discussion of the grounds attacking the manslaughter convictions in the present case. The same principle holds good in relation to non-homicide offences. See, generally, David Lanham ‘Accomplices and Constructive Liability’ [1980] 4 Criminal Law Journal 78, 82; and AP Simester, ‘The mental Element in Complicity’ (2006) 122 Law Quarterly Review 578.

^[69] See paragraphs [93]-[96] and [104]-[106] of these reasons for judgment.

^[70] For the sake of completeness, I note that Garcia’s Written Case also set out a fourth ground of appeal, namely that a miscarriage of justice was occasioned by a cumulation of some or all of the errors pleaded under grounds 1, 2 (abandoned), 3A and 3B. Having made no such findings of error, this ground need not be considered.

^[71] There were no factors such as self-defence or provocation to mitigate the gravity of the offending. See, generally, Va v The Queen [2011] VSCA 426. Moreover, it was not suggested in this case that either limb of Verdins was applicable. Nor could the appellant rely upon intoxication, or any other like-factor that might have lessened his culpability.

^[72] (1998) 194 CLR 610.