Anda v R

Circumstances in which the charges were brought

1. The applicant, Spiliopoulos and Aginsky all worked in the security industry and had known each other for roughly three years at the time of the relevant events. In July 2018, the three men travelled together to work at a music festival in Byron Bay. Over the course of the trip the applicant paid for various expenses for Aginsky on the understanding that he would be repaid. The total amount due by the end of the trip was in dispute but appears to have been in the order of several hundred dollars. In the weeks following the music festival, the applicant made numerous unsuccessful attempts to recover the loan. The evidence at the trial included pages of text messages from the applicant to Aginsky revealing the applicant's increasing anger with Aginsky, who not only failed to repay his debt (and return a torch he had borrowed) but was ignoring the applicant's communications. At some point Spiliopoulos weighed in, expressing his intention to collect the debt on behalf of the applicant. The evidence at the trial established that Spiliopoulos and the applicant were both large men, considerably larger than Aginsky.
2. In the early hours of 17 September 2018, the applicant and Spiliopoulos attended Aginsky's address to demand repayment of the money and return of the torch. Aginsky was in the garage of his father's unit in Pagewood with his then-girlfriend, Michelle Kelleher. He heard a knock on the garage door. He told Kelleher to wait inside and went outside to meet the applicant and Spiliopoulos.
3. Aginsky's evidence was that, as he left the garage, he was "ambushed" and punched four or five times in the back of the head by Spiliopoulos before being slapped three or four times in the face by the applicant. There was a heated discussion, some of which was inadvertently recorded by Kelleher, following which the three men went upstairs to the unit. Aginsky retrieved the torch and his bank card. All three men then got into the applicant's car and went to an ATM at Maroubra where Aginsky was made to withdraw $500 in cash and hand it to the applicant.
4. The men then returned to Aginsky's address where there was a further interaction outside the building during which Aginsky said he was further assaulted by the applicant and Spiliopoulos. The applicant then spoke briefly with Kelleher before driving away with Spiliopoulos. After the men had left, Kelleher found that the tyres on Aginsky's car had been let down. She dialled 000 and reported the incident.

The Crown case at trial

1. The indictment on which the accused were arraigned was as follows: "On 9 December 2019, the Director of Public Prosecutions on behalf of Her Majesty charges that: ABRAHAM JUNIOR ANDA PAUL SPILIOPOULOS 1. on 17 September 2018, at Pagewood in the State of New South Wales, while in the company of each other detained Warren Aginsky without his consent and with intent to obtain an advantage, namely financial, and immediately before the detaining actual bodily harm was occasioned to Warren Aginsky S 86(3) Crimes Act 1900 AND the Director of Public Prosecutions FURTHER CHARGES in the ALTERNATIVE that: ABRAHAM JUNIOR ANDA PAUL SPILIOPOULOS 2. on 17 September 2018, at Pagewood in the State of New South Wales, while in the company of each other detained Warren Aginsky without his consent and with intent to obtain an advantage, namely financial. S 86(2)(a) Crimes Act 1900 AND the Director of Public Prosecutions FURTHER CHARGES in the ALTERNATIVE that: ABRAHAM JUNIOR ANDA PAUL SPILIOPOULOS 3. on 17 September 2018, at Pagewood in the State of New South Wales, did assault Warren Aginsky, thereby occasioning actual bodily harm to him while in the company of each other. S 59(2) Crimes Act 1900
2. As the case was left to the jury, the Crown relied on joint criminal enterprise in relation to counts one and two but not in relation to count three. I have not been able to locate any explicit discussion of that fact in opening addresses or during the course of the trial (until the discussion of a question asked by the jury immediately after they were sent out to deliberate). However, I am satisfied from my review of the material before this court that that was the understanding of all parties.
3. The joint criminal enterprise specified by the Crown was an agreement to detain the complainant for financial advantage (to recover the loan). After the evidence had concluded and before the parties began their closing addresses, the judge asked counsel to assist him in determining what directions needed to be given to the jury. The transcript reveals that emails were sent to the judge's associate to that end. That correspondence was not marked for identification and is not before this court. However, it may be inferred that it was common ground that there should be a direction as to joint criminal enterprise. The trial judge included a definition of that principle in a document he prepared for the purpose of his summing up setting out the elements of the offences together with definitions of some key terms (MFI #14). The definition of joint criminal enterprise included in that document was the generic direction recommended in the Criminal Trial Courts Bench Book published by the Judicial Commission at [2-750]. The judge provided MFI #14 to the parties for discussion and they agreed that a direction should be given in those terms. Copies of the document were provided to the jury just before the commencement of closing addresses.
4. The trial judge appears to have provided further copies of that document (perhaps amending some typographical errors) to the jury during his summing up. His Honour took the jury through the document, dealing with each defined term as it arose by reference to the elements of the offences. The last item was the definition of joint criminal enterprise. The judge directed the jury that the Crown's case for counts one and two was that "this was a joint criminal enterprise" and that the accused were "in agreement to carry out a particular enterprise" which was "to detain without consent to obtain a financial advantage in each other's company and (beforehand) occasion actual bodily harm". No issue was taken by any party as to the appropriateness of giving such a direction or the correctness of its terms. No such point is taken in the appeal.
5. At one point in the summing up, his Honour spoke in terms suggesting that the joint criminal enterprise extended to count three. However, as will appear from what follows, that was later corrected. During discussion in the absence of the jury as to how their question should be answered, the Crown prosecutor confirmed that he had conducted the case "on the basis of joint criminal enterprise to detain". He expressly disavowed reliance on any extended joint criminal enterprise and expressed a concern that reliance on any form of complicit liability to support count three would be "overreach" and might "create a problem". It is clear that the prosecutor was there referring to the risk of unfairness to Spiliopoulos if the jury was not satisfied that he committed any act of assault. That exchange put the Crown's position beyond doubt; count three did not rest on any joint criminal enterprise, it charged a separate offence against each accused. At no stage was there any objection to the matter proceeding in that way or any suggestion that it was inconsistent with either party's understanding of the case against him.
6. Ultimately, with the agreement of all parties, the judge answered the jury's question in terms including a direction that the Crown relied on joint criminal enterprise to support counts one and two but not count three. The applicant's written submissions in the appeal (at par 45) acknowledge that count three was not based on any principle seeking to visit criminal liability on either accused for a physical act of the other.

Counts one and two

1. The evidence clearly established that the purpose of the visit was to collect Aginsky's debt to the applicant. Aginsky gave evidence that he received a text message from Spiliopoulos at 12:30 am saying "we're coming to your house to collect the money". The Crown case in relation to counts one and two was that Aginsky was forced, against his will, to go along with the applicant and Spiliopoulos to the bank, that he did not intend to repay the money to the applicant that night and that he was overborne by the force of the initial assault, following which he was confused and fearful, complying with their demands only out of a desire that the whole ordeal be over. The case advanced for the accused in relation to those counts was essentially that Aginsky went willingly to the ATM in order to withdraw cash to repay his debt to the applicant. Having regard to the acquittal of both men on those counts, it seems likely that the jury accepted the defence argument and acquitted on those counts because they entertained a doubt as to the element of consent.
2. Aginsky's evidence-in-chief to support count three was as follows: "I heard two, three knocks on the door. I told Michelle, "Just wait in here", 'cause I had a feeling it might've been Paul and Abraham, but I wasn't sure. So I'd left my phone in the garage. I'd walked outside barefoot with only a shirt and shoes. Paul had ambushed me from behind and he had punched me about four to five times in the back of the head and Abraham had met me from the front on, from the front view, and he had slapped me about three to four times in my face and my head had hit the wall."
3. Aginsky said he did not see Spiliopoulos clearly before he was hit because he saw the applicant walking towards him from the front. He said that, before the punching and slapping, the applicant demanded his money. He said he told the men he would go upstairs and get his card but the applicant insisted on coming with him. It was then that the applicant slapped him with an open palm on the left side of the face as a result of which he said his head hit the wall and he became dazed and confused. In cross-examination, it was put to Aginsky by counsel for the applicant that the applicant did slap him "but only twice". Counsel for the co-accused, Spiliopoulos, put that he had not punched him and that the applicant had not subsequently struck him across the face "at all". He disagreed.
4. During this time, Kelleher remained inside the garage with all doors shut. She did not see the alleged assaults but said she heard the sound of slapping. She later realised that she had inadvertently recorded some of the exchange between the applicant and Aginsky. That recording and an agreed transcript were tendered by the Crown in the trial. It recorded both accused verbally abusing the complainant and the complainant saying "ok, I will, I will get you your money now…". The assault was said to have occurred shortly before that recording was made.
5. The Crown also relied on the call to triple 0 made by Kelleher (during which Aginsky gave the operator a short account of what he said had occurred) as evidence of the complaint. Kelleher also took a number of photographs of Aginsky's injuries after he returned from the bank.
6. The applicant gave evidence. In his evidence in chief he made no mention of having slapped the complainant. The prosecutor warned trial defence counsel as a matter of fairness that he would make a point about that omission in his closing address, the applicant's counsel having put to the complainant in cross-examination that the applicant did slap him "but only twice". Counsel for the applicant indicated that that proposition had been put to the complainant due to error or a misunderstanding on his part as to the applicant's instructions. He initially proposed that he should lead further evidence on that issue. However, the issue was resolved in cross-examination when the applicant admitted in response to a question from the Crown prosecutor that he did slap the complainant once or twice to the left side of the face. The principal argument in defence of count three was that the jury would not be satisfied that the applicant's slaps caused actual bodily harm to Aginsky. The Crown's case was that the slaps were inflicted with enough force to cause Aginsky's head to hit the wall, resulting in bruising and swelling.
7. Spiliopoulos did not give evidence. However, a transcript of his interview with police was in evidence. In that interview, consistently with what was put by his counsel in cross-examination, he denied having punched the complainant and denied seeing the applicant hit him. In closing address, his counsel argued that the complainant was an unreliable witness. He also relied on the absence of medical evidence of actual bodily harm to the back of Aginsky's head, arguing that the injury Aginsky claimed to have received from Spiliopoulos did not exist either in the medical records or in the photos taken by Kelleher.
8. There was some force in those submissions. The Crown case included medical evidence from Dr Susan Hertzberg, who had reviewed Aginsky's medical records at the request of police. Dr Hertzberg gave evidence that at the time of Aginsky's presentation he had complained of pain in the left temporal region. Upon examination, staff had found small swelling over the right parietal region and moderate swelling over the left temporal area and left maxilla, with no apparent bruising in that area. She stated that a CT scan indicated no apparent fracture or bleeding. In cross-examination, Dr Hertzberg noted that in the photos of Aginsky's injuries taken by Kelleher it was difficult to see any signs of trauma. She agreed that she could see no evidence of trauma in the photo depicting the back of Aginsky's head.
9. There was also evidence from Detective Senior Constable Andrew Boje, the officer in charge of the matter, who saw Aginsky in hospital after the incident. He reported seeing slight red marks on his forehead and partial swelling to the forehead. However, his evidence was silent as to any injury to the back of the head.

The jury question

1. The note from the jury which came shortly after they were sent on verdict addressed a timetabling issue and continued: "Also, we would like some clarity on the issue of joint criminal enterprise. Specifically, does joint criminal enterprise mean if one is guilty the other is also guilty? Is joint criminal enterprise the same thing as in company?"
2. The trial judge invited counsel to address him as to how those questions should be answered. The discussion that followed explored the verdicts that were available based on the evidence, including what the trial judge termed "the Anda situation" (a reference to the fact that Spiliopoulos had denied any assault whereas the applicant had admitted slapping the complainant once or twice). In short, and without purporting to summarise the whole of the relevant exchange (which continued overnight and included an exchange of emails that are not in evidence), counsel for the applicant submitted that there could not be different verdicts on count three as between the two accused. He said: "I say that because it's an 'in company' offence they're either both guilty or they're both not guilty. That's what I say."
3. In response to a further question from the judge, he said: "It's an element of the offences. So it's an element of each of the offences on the indictment and, as such, must be proved beyond reasonable doubt."
4. However, he accepted (as did the Crown and counsel for Spiliopoulos) that the answer should note the distinction between counts one and two on the one hand, which were based on joint criminal enterprise, and count three on the other hand, "whereby in company is the basis for count 3, not joint criminal enterprise." The judge was careful to ascertain counsel's agreement that the answer to the jury's questions should draw that distinction.
5. The judge did not accept the submission that, because count three included the element that each accused was in company of the other, they were either both guilty or both not guilty. His Honour's answer to the jury's questions included the following further directions: "As to your second question, 'Is joint criminal enterprise the same thing as in company?' the short answer is not necessarily. Having regard to the facts and circumstances alleged in the Crown case as to each count, there is significant overlap between the concepts of joint criminal enterprise and in company. Whilst interrelated, they can be different. In the present case, the concept of joint criminal enterprise, as I have described, is relied upon with respect to count 1 and, if necessary, the first alternative, count 2. It is not, however, relied upon in respect of the second alternative, count 3. Insofar as that count is concerned, the essential elements 1, 2, 3 and 4 must be made out to your satisfaction with respect to each accused beyond reasonable doubt. Insofar as element 4 ['in company of each other'] is concerned, reliance is placed on the definition of 'in company' as provided to you in MFI 14. You will remember that is the elements document and I have there recited the four elements on count 3, and the definition on that document for 'in company', which I have given you on the back page is: 'The alleged offender is in the company of another person or persons. A person is in company if he is present at the time of the offence and is willing to assist in the commission of the offence if called to do so. The person must share a common purpose for the commission of the offence. The mere presence of another person at the scene of the commission of an offence without more is not sufficient to make that person criminally liable as being in company. Mere coincidence is not enough.' The other thing I just wanted to say is it may be appropriate that you could find different verdicts on the counts if there is a rational and logical reason to do so based on the evidence."
6. Following those further directions, the jury continued their deliberations. They reached their verdicts later that day.

Submissions on appeal

1. The applicant's grounds of appeal are: "1. The verdict of guilty on count three is inconsistent with the acquittal by the jury of the applicant's co-accused, Paul Spiliopoulos, and as a consequence there has been a substantial miscarriage of justice. 2. The learned judge erred in directing the jury, in the particular circumstances of this case, that it may be appropriate for different verdicts to be reached for each of the accused in respect of count three on the indictment."
2. The applicant accepted that, if ground one failed, ground two would fall away.
3. The test for determining a ground of inconsistent verdicts is as stated in Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35 at 367. The applicant in such a case: "…[M]ust satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
4. The Crown submitted that there was no inconsistency. It was contended that the trial proceeded on the basis that the charge against each accused on count three did not refer to a single assault; rather the charge against each was based on a separate actus reus and had to be considered separately. The Crown accordingly submitted that there was no inconsistency in acquitting Spiliopoulos on count three on the basis that the jury entertained a reasonable doubt as to whether any assault by him (the alleged punching in the back of the head) in fact took place and nonetheless finding that Spiliopoulos was "in company" with the applicant for the purposes of the assault committed by the applicant (the alleged slaps that caused actual bodily harm by causing the complainant's head to hit the wall.
5. One submission put by the applicant can be disposed of quickly. The inconsistency complained of is between the two verdicts on count three. However, the applicant's written submissions at par 44 sought also to draw support from the verdicts of not guilty in respect of counts one and two. That argument fell outside the scope of the notice of appeal and in any event must be rejected. The argument was that the jury's "unwillingness to accept the complainant's evidence" on other counts (requiring proof of different elements) "flowed onto" the jury's consideration of count three.
6. That reflects a misconception as to the proper approach to the assessment of evidence by a jury. As reflected in a standard direction routinely given in jury trials, juries are not required to accept or reject the whole of a witness's evidence. They are entitled to accept some parts and reject others. In the present trial, regardless of the jury's assessment of the complainant's reliability, there was a rational basis for finding counts one and two not proved but count three proved, which was the element of consent in counts one and two. The existence of a reasonable doubt as to the state of mind in which the complainant accompanied the two men to the bank does not undermine his credibility about being assaulted.
7. The principal argument put by the applicant is more difficult to unravel. He submitted that the "crucial question" in the appeal is the meaning of the phrase "in the company of" in s 59(2). That section creates an aggravated form of the offence of assault occasioning actual bodily harm if the offence is committed "in the company of another person or persons".
8. The applicant relied on the fact that an allegation that an offence is committed "in the company of another person" requires proof that the other person shares a common purpose with the accused. The submissions addressed the principles and authorities concerning that requirement at length, beginning with the South Australian decision of R v Brougham (1986) SASR 187 at 191 (King CJ) and citing a number of decisions of this Court in which that decision has been applied. It is convenient to refer only to the last of those as it discusses all the others: R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 159. That decision relevantly holds that a requirement that an offence be committed "in the company" of another requires the physical presence of the other person and that the accused and the other person must share a common purpose (here, to detain for financial advantage). Participation in the common purpose without being physically present (for example, as a look-out or as an accessory before the fact) is not enough. Similarly, physical presence without sharing the common purpose is not enough.
9. The central contention said by the applicant to follow from that principle was that, "there's an inconsistency between [the jury] having arrived at the view that Mr Spiliopoulos was not guilty of anything with the fact that they go on to convict Mr Anda of an 'in company' offence".
10. If I have understood the argument correctly, it may be distilled as follows. The Crown case in support of count three was "short and intertwined"; it alleged that both men participated in the assault. It made no sense to speak of two separate assaults when the evidence proved a single, combined attack on the complainant.
11. In that context, the applicant acknowledged and indeed embraced the fact that the Crown did not rely on joint criminal enterprise for count three. The argument seemed to be that, because the Crown did not rely on joint criminal enterprise, the Crown must be alleging an assault in which both men actually participated in the company of each other (written submissions at par 45). It followed (so the argument continued at par 46) that, as the jury acquitted the co-accused, they must have "rejected the Crown evidence and found [the co-accused] to be in no way criminally responsible for the assault as per count three" and that, in light of the acquittal, the co-accused was "effectively in the category of a person who is present only at the material time" (from which it would follow that, in the case against the applicant, the "in company" element could not be met).
12. Developing what I understood to be the same point in oral submissions, counsel for the applicant said: "But ultimately I'm really directing the Court's attention to whatever the jury found in respect of the other ...(break in recording).. when it comes to the 'in company' aspect which is an essential element because it's incorporated into the charge unlike of course counts 1 and 2 they don't have this man even if they took the view that he assaulted and clearly on the face it must have arrived at some view of that type he's not in company because the other person present has been ruled out as being either actively involved in the assault altogether as claimed by Mr Aginsky or on the face of it there doesn't seem to be any willingness to accept that he was present and willing to assist if required to do so, he appears to be put in a position where he is present."
13. If I have understood the submission correctly, it was that, even if the jury took the view that the applicant committed a physical act of assault, they ought to have acquitted him ("they don't have this man") because the Crown could not prove an essential element of the offence ("he's not in company because the other person present has been ruled out"). The proposition appears to be that, because it was an element of the offence that each accused was in the company of the other with a shared purpose, it must follow from the acquittal of the co-accused that the applicant did not commit the offence in the company of that person.
14. The argument confuses two distinct doctrines. An allegation of joint criminal enterprise is an allegation against two or more persons that each has embarked upon a common purpose to commit a particular offence. It provides a basis for holding one person criminally responsible for the acts of another. An allegation that an offence was committed by a person "in the company of" another does not extend criminal liability for the acts of the person charged to the person with whom he is alleged to have been in company. It is not a species of complicit or extended liability; it is simply an additional element that makes an individual offence more serious (often termed "a circumstance of aggravation"). That distinction was recognised in NSW Law Reform Commission, Complicity (Report No 129), (Dec 2010) at 2.74-2.76.
15. The Crown case in the present matter may have been unduly complicated by at least two aspects of its presentation which contributed to the potential for confusion around the issue of common purpose. First, the foundational offence for the joint criminal enterprise was the specially aggravated form of the offence of kidnapping, one of the elements of which (for each accused) was that it was committed in the company of another person. That required the judge to direct the jury that, in each case, the Crown had to prove that the relevant other person shared a common purpose for the commission of the offence with the relevant accused. There was an obvious overlap, and potential for confusion, between that element and the Crown's reliance on the doctrine of joint criminal enterprise. That required the judge to direct the jury that the Crown had to prove the two accused had reached an understanding or agreement to commit a particular offence together. The risk of confusion arose from the fact that each doctrine or element required proof of a similar matter (an agreement or common purpose) but to quite different effect. At the risk of repetition, proof of the alleged joint criminal enterprise served to extend liability for the acts of one accused to another. Counts one and two were accordingly properly framed as joint counts. Conversely, proof of the element of "in company" relied upon as a circumstance of aggravation against one accused did not serve to extend liability to the other, only to aggravate the seriousness of the offence of the one.
16. The second matter that complicated the presentation of the Crown case was the decision to rely on joint criminal enterprise for counts one and two but not for count three. Of course, the decision as to what charges will proceed is entirely a matter for the Director of Public Prosecutions. I do not intend any criticism of that office on that account; only to note that the difference in the way the different counts were put was not apparent on the face of the indictment and tended to add to the risk of confusion arising from the factual overlap between the joint criminal enterprise and the circumstance of aggravation relied upon on each count.
17. That is perhaps a long way of explaining that the applicant's confusion is understandable. But the fact remains that his argument proceeds on a misconception. The meaning of the phrase "in the company of" in s 59(2) of the Crimes Act is not the "crucial question" in determining the appeal. Being an element of aggravation as against each accused severally rather than a basis for extending liability as between them jointly, the acquittal of one offender of an offence that included that element was not inconsistent with the conviction of the other.
18. To put the matter another way (in more practical terms), it was open to the jury to find that the applicant assaulted (slapped) the complainant while in the company of Spiliopoulos in that Spiliopoulos was present at the time and willing to assist in the assault if called upon to do so. Absent an allegation of joint criminal enterprise, a verdict on that basis would not be inconsistent with the acquittal of Spiliopoulos. It was open to the jury to be satisfied beyond reasonable doubt that Spiliopoulos was present at the time the applicant was assaulting the complainant and willing to assist in the commission of the assault if called upon to do so but, when considering the separate charge against Spiliopoulos, to entertain a doubt as to whether he did punch the complainant or as to whether, if he did, that act caused actual bodily harm.
19. For those reasons, I would reject ground one. As conceded by the applicant, it follows that ground two falls away.

Whether the offence tried was the offence charged on the indictment

1. As already noted, the parties were given leave at the conclusion of the hearing to provide supplementary submissions as to whether there was any departure in the Crown case as left to the jury from the case charged and, if so, whether there was a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).
2. The applicant's submissions, with respect, persisted in the misconception underpinning the substantive submissions in the appeal and, as a result, did not engage with the issue on which further submissions were sought.
3. The difficulty (which is a difficulty for the Crown, not the applicant) is that count three was framed as a joint count whereas, as I have explained, separate allegations as against each accused were left to the jury based on the Crown's contention that there were separate assaults and its disavowal of any joint liability. On the way in which the case was left to the jury, there should have been four counts on the indictment: counts one and two as they appeared and then a separate count of assault occasioning actual bodily harm in company contrary to s 59(2) of the Crimes Act against each accused.
4. The Crown submitted that jointly naming co-accused in a single charge does not require that the co-accused are alleged to have committed the same offence (as distinct from an offence of the same type) or that the charge proceeds only on the basis of joint criminal liability for the one offence. That was said to follow from the fact that the jury's approach to an indictment containing a joint charge is subject to the directions of the trial judge.
5. No authority was cited to support the proposition that offences "of the same type" can be prosecuted in a joint count. Further, that proposition does not sit comfortably with the authorities cited in the Crown's written submissions. The very point on which the Crown has succeeded in resisting the grounds of appeal specified in the notice of appeal is that separate offences were alleged. The trial was conducted, and count three as against each accused left to the jury, on that premise.
6. Accordingly, I consider that there was a defect in the indictment in that the physical element of the offence supposedly charged in a single, joint count was different for each accused.
7. However, for the reasons given in the Crown's supplementary submissions, the defect was technical and did not give rise to a substantial miscarriage of justice. The Crown relied in this context on the decision of the High Court in Mackay v R (1977) 136 CLR 465; [1977] HCA 22 (Mackay). The circumstances of that case were similar to the present case. Two accused were charged together on an indictment alleging that, on a particular date at a particular place, they both committed rape. The Crown case was that the accused had committed separate acts of rape. There was no allegation of joint criminal enterprise.
8. An appeal by one offender to the Queensland Court of Criminal Appeal was dismissed. That Court did not determine whether the indictment was defective because it considered that no substantial miscarriage of justice had occurred. The court accordingly applied the proviso equivalent to that provided for in s 6(1) of the Criminal Appeal Act.
9. By majority (Murphy J dissenting), the High Court refused special leave to appeal. In a joint judgment, Barwick CJ, Gibbs and Mason JJ held (at 470) that the Court of Criminal Appeal: "…[W]as correct in thinking that no substantial miscarriage of justice had occurred. The accused were properly tried together and there was no room for any misapprehension on the part of the jury as to the nature of the Crown case against each. If the indictment was defective the defect was no more than a technicality."
10. While those remarks left open the question whether the indictment was defective, I consider that it was. I would reject the proposition that there is no irregularity in framing a single, joint count as the specification of separate offences against different accused based on separate physical acts. In my view, that proposition is so elementary as to be capable of confirmation without the citation of any authority. As it happens, it finds support in the separate judgments of Jacobs J and Murphy J in Mackay. Jacobs J agreed that special leave should be refused but considered it important to make it clear that, if there were independent rapes alleged against each co-accused, there was an irregularity in the form of the indictment as "a single charge of rape preferred against two persons in a charge that jointly they committed rape": Mackay at 470. His Honour explained, "It is not a charge that each severally committed an independent act of rape. In the latter case two charges, one against each, are the only appropriate form of indictment.": Mackay at 470.
11. I respectfully agree.
12. His Honour continued at 471: "Such an error in the form of the indictment should not occur, but it is quite clear that in the present case there was not any prejudice to the applicant. The trial judge would not conceivably have ordered separate trials of the two accused if separate charges had appeared in the indictment. Very importantly, there was no question of the applicant being charged with two offences - with his own act of penetration on the one occasion and with aiding and abetting his co-accused on another occasion. If that had been maintained by the Crown during the course of the trial or even indirectly suggested in any way to the jury the position would be very different. The jury knew precisely what it had to determine, namely, whether the accused on one occasion committed rape and whether his co-accused on a separate occasion raped the same female, the only association between the two acts being proximity of time and place and other closely related facts leading up to the separate acts. In the fullest sense the defect in the indictment was one of form only to which it was quite appropriate to apply the proviso…"
13. Murphy J went further and would have granted special leave for reasons including that the procedure of conducting a case based on separate rapes on an indictment that alleged a single count of rape was "fundamentally wrong". His Honour said at 473, "There should have been two counts, each naming one of the accused."
14. The same reasoning applies here. As submitted by the Crown, the evidence clearly identified separate assaults by each accused: the punching by the co-accused and the slapping by the applicant. The case against the applicant was clear. It was that he slapped the complainant (which he admitted) and that his act caused actual bodily harm to the complainant (which was the subject of dispute based on the medical and other evidence). The fact that the case was not based on joint criminal enterprise but required proof of the circumstance of aggravation that it was committed in the company of the co-accused was made plain on the judge's written and oral directions.
15. Furthermore, as in Mackay, it is inconceivable that the trial judge would have ordered separate trials had they been sought. The different verdicts put beyond doubt that the jury "knew precisely what it had to determine": Mackay at 471.
16. In all the circumstances, had the applicant raised this point as a ground of appeal, it would have been appropriate to apply the proviso in s 6(1) of the Criminal Appeal Act. As it is, the point having been raised only in supplementary submissions provided at the request of the court, it is enough to say that the applicant's grounds of appeal are not made out. Accordingly, I propose the following orders: 1. To the extent required, grant leave to appeal. 2. Dismiss the appeal.
17. ROTHMAN J: I agree with McCallum JA.
18. IERACE J: I agree with McCallum JA.

Amendments 17 February 2022 - Date of decision amended to correct typographical error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2022