CRIMINAL LAW - Sentence - Trial of Bui - Manifest excess - Role of applicant in commission of offences - Leave to appeal refused.

CRIMINAL LAW - Conviction - Trial of Hargrave - Applicant pleaded guilty to assisting an offender and convicted of conspiracy to murder - Whether trial judge erred in failing to order a separate trial for conspiracy to murder - Plea of guilty to assisting an offender taken in presence of jury - Whether guilt to conspiracy to murder can be found where conspiracy contemplated commission of murder by third party - Whether verdict unsafe and unsatisfactory - Leave to appeal refused.

CRIMINAL LAW - Sentence - Trial of Hargrave - Whether insufficient weight given to applicant's ill heath - Parity - Leave to appeal allowed - Appeal allowed - Appellant resentenced.

1 Lanh Ngoc Bui (also known as Luke Bui) ('Bui'), Garry Hargrave ('Hargrave'), Hargrave's sons, Adam and Aaron, Quoc Bui (Bui's brother) and Kevin Ng were jointly presented on counts of murder (Count 1), kidnapping (Count 2) and unlawful imprisonment (Count 3). The victim of these offences was Michael Daou ('Daou').

2 Bui pleaded guilty to the counts of kidnapping and unlawful imprisonment. He was found guilty of murder by a Supreme Court jury.

3 In addition to counts one, two and three, Hargrave and his son, Adam, were presented on a count of conspiracy to murder (Count 4). The intended victim of that count was Kylie McDonald ('McDonald').

4 During the trial, the Crown accepted Hargrave's plea of guilty to the charge of being an accessory after the fact (assisting an offender) to the murder of Daou and the jury was directed to acquit him on Counts 1, 2 and 3. The jury found Hargrave guilty of conspiracy to murder McDonald. Adam Hargrave was convicted of all four counts.

5 Quoc Bui, who was the only accused to give evidence, testified that he had not been present when the events leading to Daou's death occurred. He was acquitted by the jury on Counts 1, 2 and 3. Aaron Hargrave was also acquitted on these counts. Following a no-case submission, the jury was directed to acquit Kevin Ng of murder (Count 1), and he was acquitted by the jury of Counts 2 and 3.

6 On 11 September 2009, the trial judge sentenced Bui to 24 years' imprisonment for murder, six years' imprisonment for kidnapping and four years' imprisonment for unlawful imprisonment. Her Honour directed that one year of the sentence for Count 2, and six months of the sentence for Count 3, be served cumulatively, resulting in a total effective sentence of 25 and a half years. A nonparole period of 20 years was fixed.

7 Hargrave was sentenced to nine years' imprisonment for conspiracy to murder (Count 4) and six years' imprisonment for assisting an offender. The learned sentencing judge directed that two years of the sentence for assisting an offender be served cumulatively upon the sentence for Count 4, making a total effective sentence of 11 years. Her Honour fixed a non-parole period of seven years.

8 Bui now seeks leave to appeal against his conviction for murder, as well as the individual sentences and total effective sentence imposed on him. Hargrave also seeks leave to appeal against his conviction for conspiracy to murder and the sentences imposed on him for that offence and for assisting an offender.

9 The events which gave rise to the trial of both applicants arose out of the death of Daou, which occurred in the following circumstances. Hargrave owned the Logistics Plus Warehouse in Scoresby, from which he conducted a transport and storage company. Bui and Hargrave's son, Adam, were involved in 'drug trafficking, on a fairly significant scale' from that warehouse.[1] It is unclear whether Hargrave had any actual involvement in the drug enterprise.[2] Andrew Johnston ('Johnston') was a 'runner' in the drug selling business, and lived at the warehouse. He was the main Crown witness at the trial.

10 McDonald was a drug user and drug dealer, who had been Johnston's girlfriend in the past. On 17 November 2006, Adam Hargrave asked McDonald to set up a meeting with Daou ― whom he believed was involved in stealing $20,000 worth of ecstasy tablets from him ― so that Adam could get the drugs back.[3] Later that night, McDonald and Daou went to a reserve in Scoresby, as she had arranged. Daou was subsequently taken out of his car at gunpoint, placed into the boot of a second vehicle owned by Melissa Archer ('Archer') (Johnston's girlfriend at the time) and transported back to the Logistics Plus Warehouse, where he was held for several hours and forcibly questioned about the missing ecstasy tablets.[4] Daou was then placed into the boot of his car, where he was allegedly shot in the head by Adam Hargrave. The motor vehicle containing Daou's body was then taken to an area of bushland in Narre Warren, where the car and body were burnt.

11 The main Crown witness was Johnston, who was an eye witness to the events leading to the kidnapping and false imprisonment of Daou and to some of the events which occurred at the warehouse after Daou was taken there. Johnston pleaded guilty to murder on the basis of aiding and abetting, and also to kidnapping and false imprisonment.[5]

12 Johnston's evidence was that after finishing work, Adam Hargrave had told him to stay at the warehouse because he needed Johnston's help to retrieve some stolen ecstasy tablets from Daou. Adam told Johnston to borrow his girlfriend's car. Later, Hargrave, Bui, Quoc Bui, Aaron Hargrave and Kevin Ng arrived at the warehouse. Johnston said that he and Ng went outside for a smoke and when they came back, there was a discussion underway about McDonald meeting Daou at a pre-arranged place so that the drugs could be retrieved. Adam Hargrave and Bui were the main individuals talking. Hargrave said that Daou should not be brought back to the warehouse, while Bui supported him being brought back there. Neither Quoc Bui nor Kevin Ng said anything at the meeting.

13 At the end of that meeting, Johnston said that he understood that Daou would turn up for a drug deal and would be ripped off. His evidence was that 'I thought he was going to get belted, but that was about it.'

14 Johnston said that Hargrave and McDonald then left in Hargrave's car to do a 'dry run' to the place where Daou was to be taken. Later, McDonald went to meet Daou, and Hargrave went home. Johnston said that Ng, Quoc Bui, Aaron Hargrave and Bui went to kidnap Daou. Johnston and Adam Hargrave remained at the warehouse.

15 Later that night, two cars arrived at the warehouse. Archer's car was driven by Bui and Aaron Hargrave was sitting in the back seat. Daou was in the boot of that car. Ng and Quoc Bui were in Daou's car. Johnston said that he saw Daou being taken from the car and also saw Bui, Aaron Hargrave, Quoc Bui and Kevin Ng standing around him and pushing, shoving and arguing with him. He said that Aaron Hargrave had a gun in his hand and that he heard a shot fired. While the men were wrestling with Daou, Adam Hargrave went into the office to remain out of sight, because Daou knew him.

16 Johnston said that Aaron, Bui and Quoc Bui wrestled Daou to a chair and Quoc tied packing tape around his chest and legs. While Aaron, Bui and Quoc were standing around Daou, his pants were pulled down and his pubic hair was set on fire. He was then sprayed with powder from a fire extinguisher. DNA matching that of Daou was recovered from a fire extinguisher which the police removed from the premises some months later. After Daou's hair was set on fire, Ng walked past Daou. He said 'this is not right, this should not be happening' and went into the office. Johnston heard him vomiting.

17 Johnston said he then went into the office and after half an hour, Aaron, Bui and Quoc Bui came into the office and went through Daou's mobile phones. They then went back to Daou. Johnston heard him screaming during the following half hour. Adam Hargrave then went out to speak to Daou while Aaron, Bui and Quoc Bui were still watching. Johnston said that when he walked out of the office, Daou had blood all over him. Johnston said he returned to the office and when he went back into the lounge of the warehouse, Adam told him to clean up the mess. When he walked out of the lounge, Daou was already in the boot of his own car.

18 Johnston described what then happened in the following terms 'Aaron walked over with a gun, gave it to Adam, Adam walked over behind the boot.'

19 At that time, Bui was standing at the entrance to the warehouse near the office. Johnston said he saw Adam walk over to the car and heard the gun go off and then heard sounds of it misfiring. Bui then walked over to Adam 'and they were mucking around' with the gun. Adam took the gun and Johnston heard another shot followed by some further misfires and then a third gunshot. After the final shot, everyone then took their clothes off and threw them away and began cleaning. Aaron remained behind to clean, and Ng and Quoc Bui left. Johnston then travelled with Adam in Daou's car with Daou's body in the boot, followed by Bui, who was driving Archer's car. Bui kept in touch by calling Adam's phone. Daou's car was set on fire at Narre Warren and thoroughly burnt.

20 Johnston and Adam then left Narre Warren with Bui in Archer's car and drove back to the warehouse. Aaron Hargrave was there when they arrived. Shortly after that, Johnston, Aaron and Adam went to the Clarion Hotel where Archer and Adam Hargrave's girlfriend, Theresa, were staying, while Bui went home.

21 The following day, Hargrave, Adam Hargrave, Bui, Archer and Johnston moved drugs from the warehouse to Hargrave's home and removed personal items. The warehouse was cleaned and scrubbed.[6] Johnston, Archer and Adam moved into Hargrave's house. Adam Hargrave left after a couple of weeks and moved into an apartment that his father had arranged for him in the Docklands.

22 McDonald and Archer also gave evidence at the trial. As I explain in more detail below, McDonald had made a number of statements to the police and later conceded that her first and second statements were largely false. At the trial, she was crossexamined about the inconsistencies between her evidence and her prior statements.

23 In her evidence at the trial, she said that after a short discussion in the lounge at the warehouse she was told that she was to be taken for a drive to be shown where the drug deal was going to take place (that is, the dry run). The first time she saw Aaron Hargrave was when she walked back into the car park after the discussion in the warehouse. He greeted her and she thought he had given her a hug and told her that 'everything was going to be OK and that they just wanted their bikkies back'. There was then a discussion between Hargrave and Bui about who was going to drive and where they were going to go.

24 She said that she sat in the middle of the back seat in the car. Aaron was on her right hand side, Bui was driving, Hargrave was in the passenger seat and an Asian male was on her left hand side. Adam and Johnston waited back at the warehouse. After the dry run, McDonald met Daou in a car park in Croydon. They stopped at a McDonald's restaurant, where they were joined by a friend of Daou's, John Feretzanis. They stopped at a service station on the corner and then McDonald and Daou drove to the reserve where the drug deal was to take place. McDonald, Daou and Feretzanis were seen on CCTV security camera footage from the Shell Service Station on the corner of Ferntree Gully Road and Springvale Road.

25 She said that when they got to the reserve, three men came to the car. She was pulled out of it by a young looking, cleanshaven Asian man and a gun was held to her head. She said she did not see Bui, but heard his voice. She was pushed away and ran and hid.

26 McDonald said that although Aaron Hargrave had gone on the dry run, he had not been present during the abduction of Daou from the reserve.

27 During cross-examination by counsel for Aaron Hargrave, McDonald was asked about her statement in her second record of interview with the police. During this interview, she first stated that Aaron and his father were in the lounge room of the warehouse when the conversation took place regarding Daou but later in the interview she retracted her statement that Aaron was present. She confirmed during crossexamination that Aaron was not present for the conversation in the lounge room. During cross-examination, she also confirmed that Aaron was in the car for the dry run.

28 Archer said she had been in a casual relationship with Johnston for about two months when these events occurred, and had occasionally stayed in the Logistics Plus warehouse, where Johnston was living. On 17 November 2006, at about 8:30pm, she drove by herself to the warehouse. The gates were locked, and had to be opened to allow her to drive in. She sat down in the lounge room and watched TV with Adam's girlfriend, Theresa. After a few moments, Johnston and Adam came in and closed the door. Johnston asked Archer to give him her keys. He told her he was going to borrow her car for the night, and that she could take his. He gave her his wallet, which contained about $600, to allow her to buy food and petrol.

29 As Archer and Theresa began to drive out of the car park, Archer saw a big Ford utility truck coming into the driveway. She saw three men inside but did not recognise the men.

30 Archer and Theresa drove around for four hours, stopping occasionally at McDonald's or Safeway. They then received a call from Adam and Johnston, telling them to go to a hotel. They went to a hotel on the corner of Canterbury Road and Springvale Road. The women booked a room and went to sleep.

31 Archer remembered being woken by a phone call from Johnston, in which he said that he was out the front of the hotel. She let Adam Hargrave and Johnston into the room. The door was left open, and Aaron came in to the room a couple of minutes later. Johnston and Adam went to sleep in Archer and Theresa's beds, and Aaron fell asleep in a chair in the corner. Archer woke up at about 6.30am. She left the hotel room in Johnston's car with Aaron and Johnston. They dropped Aaron off at his house and then Johnston dropped Archer off at work.

32 After Archer had finished work, she and Johnston met Adam and Garry Hargrave at a Safeway car park. They all drove to the warehouse, where Archer helped Johnston and Adam pack their clothes into suitcases. She put the suitcases into the cars and onto the back of a white Ford Ute. Archer went to put some things into her own car as well. She gave evidence that all of the doors and the boot were open, and that 'the whole car just absolutely...reeked of bleach.'

33 During cross-examination, Archer was asked about the statement she had made to police on 8 January 2007, in which she had said that when she left for work in the morning, 'Aaron was asleep in the chair in the corner near the bottom of the bed I slept in'. She was asked which statement was a lie. Archer stated that she had inaccurately described the events in her statement, and that the true account was that Aaron had left with her and Johnston in the morning.

34 Dr Noel Woodford, a senior forensic pathologist at the Victorian Institute of Forensic Medicine gave evidence for the Crown about the result of an autopsy he had conducted, which showed that Daou's cause of death was gunshot wounds to the head. Dr Woodford stated that there were findings 'suggestive of at least two gunshot wounds to the head'. He could not categorically state that there were only two gunshot wounds, but there were at least two. Dr Woodford observed two entry wounds and three exit wounds, finding that the victim died of at least two, but possibly more bullet wounds. Two bullets were recovered from the crime scene.

35 The main basis for the Crown case against Bui and his co-accused was that before leaving the warehouse to meet Daou at the reserve, they had agreed to kidnap and detain Daou and to inflict really serious injury on him, whilst foreseeing that their actions could result in his death. On the basis of the evidence which emerged during the trial, it appears that the Crown case was amended to include the assertion that after Daou was brought back to the warehouse, the scope of the original agreement expanded to include killing or inflicting really serious injury on him. In her jury charge, her Honour summarised this aspect of the Crown case as being that even if the original plan had not contemplated inflicting serious injury on Daou, by the time the accused wrestled with Daou and a gun was produced, it was 'within the contemplation' of Bui, Adam and Aaron Hargrave and Quoc Bui (but not Ng, who had by this time withdrawn) 'that the gun [was] going to be used to kill' Daou.

36 In his opening address, the prosecutor also put the Crown case on the alternative basis that each of the accused aided and abetted Adam Hargrave.

37 Bui's defence in relation to the murder was that the violence inflicted on Daou by others went well beyond the original plan to threaten him in order to recover the ecstasy tablets he had taken. At its highest, the plan was to 'rough [Daou] up a bit'. Bui admitted that he had gone on the dry run before Daou was abducted and that he had been present when Daou was put in his car boot and taken to the warehouse. However, he did not admit to participating in a plan to inflict really serious injury on Daou or to torture him to discover the whereabouts of the missing drugs. Bui also denied that, after Daou was brought back to the warehouse, there was any modification of the original agreement.

38 The Crown relied on six intercepted telephone calls between Hargrave and his son, Adam, as postoffence conduct amounting to implied admissions of guilt for the murder of Daou, and as evidence of the conspiracy to murder McDonald.[7] (It will be recalled that Hargrave ultimately pleaded guilty to being an accessory after the fact to murder and the jury were directed to acquit him of murder, kidnapping and unlawful imprisonment.) It was conceded that these calls were not admissible as evidence against Bui in support of Count 1.

The learned trial judge erred in refusing the application that count four (conspiracy to murder) should be severed from the presentment.

40 Counsel for Bui submitted that the intercepted telephone calls which were played to the jury as evidence against Garry and Adam Hargrave, but were inadmissible against Bui, were so prejudicial to Bui that their effect could not be overcome by a jury direction. Accordingly, her Honour's failure to sever the presentment had resulted in an unfair trial of Bui.[8]

41 There were three phone calls which were said to have been particularly prejudicial to Bui. The first of these calls was made on 4 January,[9] the same day that The Age newspaper contained a report of Daou's murder, which featured a 'photofit' image of an alleged offender based on information given to the police by McDonald. The phone call included the following exchange between Adam and Garry Hargrave:

Garry: The photo fit pictures, they're lookin' for the person. They're lookin' for.

Adam: Yeah, that was on the news.

Garry: Yeah, pretty similar to, ah, our mate.

Adam: Yeah, some wing-nut...

Wing nut's gonna lose it when I go an' talk to him in a second.

Garry: About what?

Adam: Ah, about ah, something last night.

Garry: About that?

Adam: Yeah, something to do with that.

Garry: With her?

Adam: Well, that girl I don't think will be around. I reckon she's gonna have to be on holiday, for sure.

Garry: Okay.

42 Counsel for Bui argued that the jury would have understood the references in this conversation to 'some wing nut' as references to him. Counsel submitted that 'wing nut' was one of Bui's nicknames, along with Nookie and Luke. Bui also relied on the fact that a call was made to him by Adam Hargrave approximately 10 minutes after this conversation,[10] in which Adam told Bui that he wanted to meet him because 'I've got a problem'. It was said that this would have led the jury to conclude that he was the person mentioned in call 1413. This subsequent call was not admitted in evidence against Bui.

43 The second call began by Hargrave telling Adam to turn on his radio. The relevant contents of that call were as follows:[11]

Adam: He's saying, that girl has to go...

Adam: Yeah, he said man you have to make sure, that they get rid of this girl an' you can't do it an' you've got to be somewhere away, so they wont - can't get you - because you're the only link at the moment. If they don't do something about it. (Inaudible). I don't think they realise.

...

Adam: And he's away. I was talking to one of Luke's bosses yesterday an' he was talkin' about these Cambodian brothers in Sydney who run everything and pop Lebbo's.

Garry: Mm'mm.

Adam: He said they did - they do murders and shit all the time, he said and all of a sudden all the witnesses will get knocked and the murder's basically dropped. And I was talking to Matty and he goes I know who whose [sic] them cunts are, they're evil cunts. He said, why do you think they get dropped. Without witnesses to the crime they've got nothing.

Garry: They've got nothing. Without that they're fucked.

Adam: But she can talk to whoever she wants - if they weren't there, it's doesn't matter what she told her friend.

Garry: No.

Adam: So I'm thinking, you grab Luke an' you tell 'im Kylie's going' round an' saying that you were there that night, didn't ya.

Garry: He was.

Adam: No, no. You grab Luke, you pull him aside and you go man you need to do something right fucking now. Kylie's goin' round saying that you were there, and you need to say to Luke, 'Do you realise if Adam goes away this business (inaudible) it's not gonna happen at all.'

Garry: It's like, yeah -

Adam: You need to grab them an' you need to explain that to them so they understand the urgency about it. 'Cause they're all just sitting' there, thinkin' oh, point to Adam, because nothin' - we're right.

Garry: They can't just say nothin'.

Adam: No.

Garry: If they won't, they may never (inaudible) by yourselves.

Adam: No, but as I'm saying is you need to grab him an' just say to him, you make it up an' just say, Kylie going round an' saying your name now.

Garry: So who did I hear it from?

Adam: (Inaudible) ... said it to you. An' you say to Luke, 'She needs to go now.'

Garry: I'm not gonna - I'm just gonna say, if he says who said - I'm not gonna tell you who said it. I'm tellin' you it's been said.

Adam: Yeah. Alright, so, you can just say to him - Luke ya understand, without you, this business doesn't happen, an' with this girl floatin' around - she can put us all away.

Garry: So where they gonna put her?

Adam: Grab her, they can take her away somewhere. They'll never find it again. They can do that.

Garry: (Inaudible). They better do better than they did last time. I tell ya (inaudible)

44 It was submitted that this evidence would have been prejudicial to Bui, because it indicated that Garry and Adam Hargrave believed that he was prepared to 'get rid of' another person.

45 In a telephone call between Garry and Adam Hargrave on 8 January 2007, there was a discussion about an unnamed person having to go on a business trip.[12]

46 The third telephone call, which was said to have been highly prejudicial to Bui, occurred on the following day and included the following exchange:[13]

Adam: Hey, that business trip's gonna cost me paper.

Garry: How much?

Adam: Prob'ly about thirty.

Garry: Mate that's better than the other alternative.

Adam: Yeah, I know. Um -

Garry: (In background to U/K person: Stay there.) (Inaudible)

Adam: They-they-they.

Garry: (In background to U/K person: Whoa-Whoa.)

Adam: Know where to go already too.

Garry: (In background to U/K person: Whoa-Whoa. Stay there.) Hang on. You're not doin' nothin', though, are ya?

Adam: Nah.

Garry: You're gonna be with me, yeah?

Adam: Yep.

Garry: An' it's gonna happen, this weekend?

Adam: Could happen any day.

Garry: Have they found her?

Adam: Sorry? Yep.

Garry: Have they found -

Adam: Yep.

Garry: They can't find the body, yeah? Cannot find the body.

Adam: They're thinkin' it doesn't matter.

Garry: They've - nah, they can't -

Adam: No, but there's no voice. There's other people around.

Garry: What do ya mean?

Adam: There's other people there. So it's either one or all. An' if it's one they're gonna know - if it's all, ya know what I mean?

Garry: Fuckin' hell. Be another investigation.

Adam: Sorry?

Garry: Be another investigation.

Adam: Who is?

Garry: If they found the body.

Adam: What?

Garry: I'll talk to ya mate today. I'll be there this afternoon.

Adam: It's not as easy as ya think. Trust me.

Garry: No, I know but - I don't want this to fuck up like the other one, ya know?

Adam: Yeah. Alright.

Garry: See ya.

47 Bui's counsel contended that 'ya mate' was clearly a reference to Bui, that this and the other two calls showed that Adam and Garry Hargrave believed that Bui was capable of and prepared to be involved in murder, and also that he had previously been involved in a similar incident, which the jury would infer was a reference to Daou's murder.

48 Bui relied on R v Alexander and McKenzie[14] in support of his submission that the prejudice suffered by him as a result of the admission of the phone calls as evidence against Adam and Garry Hargrave could not be overcome by a jury direction that this evidence was not admissible against him.

49 Under Rule 2 of Schedule 6 of the Crimes Act 1958 (Vic):[15]

Charges for any offences may be joined in the same presentment if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character.[16]

50 Bui's counsel did not, and probably could not, have argued that this Rule was inapplicable.[17]

51 Although it is for the prosecutor to decide whether counts against a single accused should be joined in the same presentment, or whether more than one coaccused should be presented for trial at the same time,[18] the trial judge had a discretion to order that the count should be tried separately because its inclusion in the presentment would prejudice Bui in the conduct of his defence.[19]

52 An important factor to be taken into account in the exercise of that discretion was whether the evidence called in support of the count alleging the conspiracy by Hargrave and Adam was cross-admissible against Bui. As I have said, the phone calls relied upon as evidence of the conspiracy were not admissible against Bui.

53 There was extensive discussion between her Honour and counsel for Bui as to whether Count 4 should be severed.[20] However, her Honour did not give any formal ruling on the application for severance. It would have been better for her Honour to have done so. In Baini v The Queen,[21] the Chief Justice recently criticised a similar failure to give reasons for failing to sever a count from a presentment.[22] Such a ruling would have clarified the weight which her Honour gave to the various factors she was required to consider in exercising her discretion to order severance of Count 4.[23]

54 However, as the Full Court observed in Demirok:[24]

When the judge's exercise of his discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how in the end it was conducted. This circumstance means that any review of the judge's discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge's decision aside and substitute a different view of its own unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was made on correct grounds and was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge's discretion miscarried, but simply that because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage.

55 Demirok referred to the need to show a 'miscarriage of justice' before the judgment would be set aside on appeal. However, in Baini v The Queen, Ashley JA[25] explained that the essential question to be considered in an appeal based on failure to sever was whether this had resulted in a substantial miscarriage of justice, in the sense that the applicant had been deprived of a fair trial.[26]

56 It follows that the critical question for decision is whether her Honour's failure to order severance resulted in a substantial miscarriage of justice because:

the deliberations of the jury may [have been] influenced by the presence of what they might perceive as powerful but which would, nevertheless, be inadmissible material in the case of the particular accused, or in which the position of the particular accused might be adversely affected by unwarranted exposure to the prejudicial impact of such material.[27]

57 I do not consider that the phone calls admitted in evidence against Adam and Garry Hargrave were such powerful evidence of Bui's involvement in the murder of Daou that they were likely to have resulted in the jury ignoring her Honour's direction that the phone calls were inadmissible against Bui.

58 The case is not comparable with Alexander,[28] on which counsel for Bui relied. The circumstances of that case were as follows. McKenzie, who was the girlfriend of the co-accused Alexander, was jointly tried with him on counts alleging that Alexander, a music teacher, had committed various sexual offences against a girl who was one of his pupils. It was alleged that McKenzie had participated in some of this sexual activity. At the trial, evidence was admitted of sexually suggestive conversations which Alexander was said to have had with five other pupils, which were similar to conversations he allegedly had had with the complainant. In some of the conversations, he admitted having sex with the complainant and directly implicated McKenzie in the offending. This Court held that McKenzie should not have been jointly tried with Alexander, because the inadmissible hearsay evidence against McKenzie about her involvement in the offending had the potential to swamp her defence and its highly prejudicial nature could not be overcome by judicial direction.

59 In this case, even if the jury had concluded that the reference in the phone calls was to Bui, the calls themselves did not indicate that he was prepared to participate in a murder. In the only call in which 'Luke' was mentioned by name, Adam and Garry Hargrave discussed how to persuade him that McDonald represented a danger. Adam told Hargrave to say 'Luke ya understand, without you, this business doesn't happen, an' with this girl floatin' around - she can put us all away.' The calls did not indicate that Bui had agreed to do something about McDonald. Further, in a call between Adam Hargrave and Bui on 28 December 2006, when Adam told Bui that a girl was 'talkin' and tellin' people a story' and 'was saying everything', Bui response was to 'just leave it' and that 'you can't stop rumours.'[29]

60 During closing addresses, both the prosecutor and defence counsel told the jury that phone calls which had been admitted in evidence against Adam and Garry Hargrave were not admissible against Bui. The learned trial judge specifically instructed the jury that these telephone calls were not admissible against him as postoffence conduct indicating consciousness of guilt of murder. After telling the jury that the calls were not admissible against Hargrave in relation to the murder count, because they had been directed to acquit him on that count, her Honour said:

The same applies in respect of Ngoc Bui. Whilst he is a participant on some of the calls, they are not relied upon in any way as demonstrating any form of implied admission of responsibility for the crime of Michael Daou and cannot, and must not, be used by you in that way.

61 Later, her Honour discussed the use of these calls in relation to the conspiracy count against Adam and Garry Hargrave. She said:

Now the Crown says this is admissible against Garry and Adam Hargrave, and there is a reference in there to Ngoc Bui. I will remind you again, these calls have nothing to do with Ngoc Bui. They are not admissible in any way against him, they are not something you should consider at all when dealing with the case in relation to Ngoc Bui.

62 As has frequently been said, the criminal justice system is based on the assumption that a jury will comply with the directions given to them.[30] The fact that the jury acquitted a number of the co-accused shows that they had careful regard to her Honour's directions. In my opinion, the jury directions were sufficient to ensure that the jury would not misuse evidence relevant to Daou's alleged murder by Adam Hargrave or to the alleged conspiracy by Adam and Garry Hargrave to murder McDonald, in determining whether Bui was guilty of Count one. The evidence of the phone calls was not overwhelming evidence of Bui's guilt, as was the case in Alexander.

63 There is nothing in her Honour's decision that Count 4 should not be severed which suggests error. Nor, having regard to the conduct of the trial, is there any basis for concluding that the risk of prejudice caused by the failure to sever was worse than that contemplated at the time when her Honour declined to order severance of Count 4.

(2) The learned trial judge erred in directing the jury that -

2.1 the applicant's pleas of guilty to kidnap and false imprisonment of Michael Daou; and

2.2 the applicant's admission of participating in a 'dry run' prior to the kidnapping of Michael Daou; and

2.3 the applicant's call charge records of phone contact between him and Adam Hargrave following the murder of Michael Daou; and

2.4 the applicant's admission that he directed Adam Hargrave and Andrew Johnston to the area where the body of Michael Daou was burnt;

were each and all capable of corroborating the evidence of the accomplice Andrew Johnston.

66 Each of these factors were identified as corroborative evidence in a document provided to the jury entitled 'evidence relied upon by Crown as capable of amounting to corroboration of Andrew Johnston'.

67 The Crown led evidence of the call charge records between the relevant parties, and evidence as to the mobile phone towers and the location from which the phone calls were made. In relation to the murder of Daou, the Crown relied upon the call charge records which indicated mobile phone contact between Bui's phone and the phone of Adam Hargrave as the phones travelled between Rocco Drive, Scoresby, and Narre Warren East where Daou's body was located. The last call made on Daou's phone was at 12:43am. The call charge records also showed that Johnston called Archer at 5:39am, the time that Johnston, Adam and Aaron were said to have arrived at the Clarion Hotel. The Crown submitted that the call charge records confirmed the relationship between the men and the contacts between Bui and the other participants in the abduction.

68 In respect of Count 2 (kidnapping), the Crown relied upon the call charge records as indicating a significant amount of mobile phone contact between Adam Hargrave's phone and the phone of McDonald prior to McDonald coming to the warehouse. There was continuing telephone contact between McDonald and Adam through the early hours of the morning. The Crown submitted that the amount of mobile phone contact supported the suggestion that McDonald was told to stay in contact with Adam as she was setting up Daou to lure him to the meeting place that had been selected on the dry run.

69 Bui contended that none of these items were capable of amounting to corroboration of Johnston's evidence with respect to the murder count against him. Relying on R v Rayner,[31] Bui argued that these items did not make Johnston's account of the circumstances of Daou's murder (and Bui involvement in it) more probable, and that the identification of these matters by the trial judge 'impermissibly bolstered' Johnston's credibility.

70 Bui submitted that the other accused in respect of whom Johnston's evidence was uncorroborated (that is, Kevin Ng, Quoc Bui and Aaron Hargrave) were acquitted and that her Honour's misdirection on corroboration had deprived him of the chance of an acquittal that was reasonably open to him.

71 In my view, ground 2 is not made out. I would accept the Crown's submission that the ground reflects the incorrect assumption that evidence is only corroborative if it is capable of proving that the accused committed the crime of murder. That misapprehension was exposed in R v Kuster,[32] where this Court said that:

Whether evidence amounts to corroboration is governed by the fundamental principle that it must be evidence - independent of the witness to be corroborated - which tends to confirm the evidence of that witness that the crime was committed and that the accused committed the crime. This principle has from time to time been misconceived as requiring the corroboration evidence itself to be probative of the fact that the accused committed the crime. Vincent JA in R v Taylor[33] noted that there has been a 'remarkable persistence of the misconception' that evidence relied upon as corroboration 'must itself be probative of guilt'. The present argument rests upon this very fallacy.

In BRS v R,[34] Brennan CJ observed that: '[I]t is sufficient to constitute corroboration that the evidence should strengthen the evidence to be corroborated as to a fact on which proof of guilt depends'. The essential quality of corroborative evidence is that it must independently 'confirm', 'support' or 'strengthen' the evidence to be corroborated, by rendering that 'other evidence more probable.' It does so by providing support, from a separate and more trustworthy source, for the truth and reliability of the evidence to be corroborated. Hence there is no distinction for the purposes of corroboration between evidence which itself tends to implicate the accused in the commission of the offence charged and evidence which is capable of supporting the evidence of the witness to be corroborated. Evidence may be corroborative even though it may itself be regarded either as consistent with innocence or as equivocal. It is for the jury to determine whether it is corroborative.

Typically, it is the evidence to be corroborated which will establish the commission of the crime and the accused's involvement. The corroborative evidence need only render that account more probable in some material particular. The corroborative evidence, 'standing alone', need not establish the commission of the crime or the accused's involvement in it.[35]

72 It must be accepted that the items of evidence relied on as corroboration in this case are capable of being explained in a manner which does not implicate Bui in murder. However, Bui's admission that he participated in the 'dry run' before Daou was kidnapped and his pleas of guilty to kidnapping and false imprisonment make it more probable that he was part of a joint enterprise to inflict really serious injury on the victim. He did not contest that he was present throughout the period Daou was present at the warehouse.

73 The same can be said of Bui's involvement in disposal of Daou's body. This does not prove that he engaged in a plan to inflict really serious injury on the victim, or aided and abetted Adam Hargrave in murdering the victim, but is evidence from Bui's own mouth which makes it more probable that this was the case. Standing alone, the evidence of phone contact between Bui and Adam Hargrave might have been too equivocal to corroborate Johnston's evidence. However, when associated with the other evidence, it also had some corroborative effect.

74 Thus, her Honour correctly directed the jury that these matters could be regarded as corroboration of Johnston's evidence.[36] For these reasons, I would reject ground 2.

the learned trial judge erred in directing the jury that the applicant's admission that he directed Adam Hargrave and Andrew Johnston to the area where the body of Michael Daou was burnt was post offence conduct capable of being used as evidence of the applicant's consciousness of guilt for the murder of Michael Daou.

76 Her Honour gave detailed jury directions as to the manner in which the jury could use the evidence of post-offence conduct. The jury were handed a list of the postoffence conduct relied upon by the Crown in the case of each accused. The document, to which her Honour referred in her oral directions, said that:

The only matter of post offence conduct which the Crown argues you should consider in relation to implied admissions of responsibility for the murder of Michael Daou against Ngoc Bui is:

the burning of the body of Michael Daou.

In relation to the next person, Ngoc Bui, the only matter of postoffence conduct, which the Crown submit is evidence of the consciousness of guilt, against Ngoc Bui is what I have listed as Item 10, the burning of the body of Michael Daou.

78 Her Honour told the jury that if they were satisfied that the only reasonable explanation for Bui's post-offence conduct was that the accused had committed the crime, they could use it as an implied admission of responsibility for Daou's murder. She reminded the jury that the Crown case was that this was 'done in an attempt [to] destroy forensic evidence, to impede and hinder the investigation and prosecution' of Daou's murder.

79 Her Honour referred in her directions to the defence argument that although Bui admitted to guiding Adam Hargrave to a place to dispose of the body, the only evidence that he was involved in the actual burning of the body was that of Johnston. Her Honour also alluded to Bui's plea of guilty to kidnapping and false imprisonment and to the defence argument that Bui's admission that he had guided Adam Hargrave to the location where the body was burned simply indicated that he was prepared to assist Adam Hargrave in dumping the body, because of his fear that he would be suspected of involvement in the murder, even though he had not participated in it.

80 Bui relied on the statement of this Court in R v Ciantar[37] that where 'postoffence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt'. It was contended that the evidence relating to Bui's conduct was 'intractably neutral'. It could not be properly regarded as evidence of his guilt of murder, because it was equally consistent with his knowledge that the victim had died and his admission of guilt to the victim's kidnapping and false imprisonment.

81 In my opinion, the argument is really an attempt to revive the proposition rejected by this Court in Ciantar.[38] In that case, a Full Bench held that the mere fact that a person's post offence conduct may be attributable to his or her knowledge of having committed a lesser offence than the offence of which it is said to demonstrate consciousness of guilt, does not preclude that conduct being left to the jury as evidence of guilt. The Court said the following:

With respect we are not persuaded that it is either necessary or desirable so to restrict the circumstances in which a jury may find evidence of postoffence conduct to be probative of guilt of a specific offence as opposed to a lesser included offence or other offences on a multiplecount presentment[39] or, as in the present case, other offences disclosed by the evidence. The interrelationship between evidence of consciousness of guilt and other evidence is inherently more complex than that, and the permutations and combinations of facts in which it may fall to be applied are infinitely variable. As Winneke P in effect observed in R v Burrows,[40] exclusionary rules of the kind propounded in Heyes[41] unnecessarily confine trial judges where post-offence conduct may be relevant and probative.[42]

Of course, there will be circumstances in which post-offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple-count presentment or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed.

But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing.

Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused's words and conduct before and during the killing and forensic evidence, may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent.[43] And comparable reasoning is equally applicable in trials for other offences.[44]

82 Although the Court said that 'intractably neutral' conduct should not be left to the jury as evidence capable of demonstrating consciousness of guilt, it was accepted that:

where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such a consciousness of guilt, the postoffence conduct should be left to the jury to determine whether it has that effect. Similarly, where evidence of consciousness of guilt, which although by itself is equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.[45]

83 I do not consider that Bui's admission that he was involved in directing Adam Hargrave to the place where Daou's body was to be concealed was 'intractably neutral', in the sense described in Ciantar. That admission had to be examined in the context of the other circumstantial evidence of Bui's involvement in the events of 17 November, including his admission of guilt to involvement in Daou's abduction and the evidence that he was present at the warehouse when Daou was being questioned.

84 If the jury accepted that Bui had helped to burn Daou's body, as Johnston asserted, and had not simply guided Adam to the place where this was done, the burning of Daou's car and the incineration of his body would have been an extreme step to avoid detection for Bui's involvement solely in the kidnapping and unlawful imprisonment. Moreover, even if the jury considered that he had merely guided the men to a place where the body would be left, I consider that her Honour correctly left it to the jury to determine whether Bui's conduct in assisting the concealment of Daou's body tended to show a consciousness of guilt of murder.

The learned trial judge erred in directing the jury that they could find the applicant [Bui] guilty of the murder of Michael Daou on the basis that he aided and abetted Adam Hargrave.

at the time of the conduct alleged by the Crown to constitute the applicant's aiding and abetting it was not open to find that Michael Daou was still alive.

87 As I have said, the Crown opening alleged that all of the accused were guilty of murder, because they had entered into a joint agreement to kidnap and detain Daou to force him to divulge the whereabouts of the stolen ecstasy tablets and that, either in the original plan or subsequently, they had contemplated that really serious injury might be inflicted on him. As a second string to his bow, the prosecutor also said that the five accused could be found guilty on the basis that they had aided and abetted Adam Hargrave in shooting the victim. The prosecutor said:

There is another way that the Crown says the accused are guilty, the Crown says the deceased was shot in the head by Adam Hargrave, and at the time he shot him in the head he was aided and abetted by each of the other five ... they were present throughout, they assisted Adam Hargrave by encouraging him and assisting him.

88 Although the prosecutor's final address was somewhat ambiguous, it arguably articulated the Crown's aiding and abetting case against Bui in a more limited way. The prosecutor said the following:

So Aaron and Luke [Bui] are clearly aiding and abetting Adam who inflicts the fatal shots in the sense that they are present, they assist him by handing him the gun, fixing when it misfires twice and facilitating what was effectively the execution of Michael Daou.

89 That part of the prosecutor's final address must be considered in light of the defence contention at trial that Johnston was lying in his evidence that Aaron Hargrave handed the gun to Adam and Bui fiddled with it. The prosecutor's statement may well have meant only that if Johnston's evidence on this matter were accepted, Bui could be found to have encouraged Adam to kill the victim before or at the time that he was put into the boot of the car. This would have been consistent with the way in which the Crown case was originally opened. However, late in the trial, counsel for Bui submitted that this limited the Crown aiding and abetting case against Bui to the assistance Bui gave Adam in helping to fix the gun after it misfired. Likewise, it was said that the Crown case against Aaron Hargrave was that he aided and abetted Adam Hargrave by handing him the gun. The prosecutor did not disagree with that contention.

90 In her jury charge, the learned trial judge first said the following:

the Crown in this case have put their case in two alternative ways in respect of the count of murder. Firstly, they have put it that there was a single plan to kidnap and detain or falsely imprison Michael Daou and to inflict really serious injury upon Michael Daou for the purposes, all together, of regaining the ecstasy tablets that had been taken from Mr Ferguson, and to obtain information in respect of rival drug syndicates that were dealing in the area. ...

The second way they put it is that Adam Hargrave has fired the handgun with an intent to kill Michael Daou and that he was aided and abetted by Aaron Hargrave and Ngoc Bui.

91 Her Honour initially directed the jury in relation to the aiding and abetting case as follows:

Aiding and abetting. Both Aaron Hargrave and Ngoc Bui have been charged with the offence of murder. However, it has not been alleged in respect of the alternative way in which the Crown argue its case, that is, that they were aiding and abetting Adam Hargrave, not been argued that either of them personally committed the acts that make up the offence. Instead the prosecution has alleged that both of them committed murder by assisting or encouraging Adam Hargrave to commit that offence. I must, therefore, direct you about when a person will be held responsible for assisting or encouraging someone else to commit an offence.

The law says that if someone aids or abets another person to commit an offence, that they will be equally guilty of that offence, regardless of the fact that they did not commit the crime themselves. So this is one of the other situations in which the law holds a person responsible for the actions of other people. So as that occurs in respect to acting in concert, it also applies in respect of aiding and abetting.

In order to find either Aaron Hargrave or Ngoc Bui guilty of committing murder by aiding and abetting, there are three elements, each of which the prosecution must prove beyond reasonable doubt. I will list them for you and then explain each one.

The first element that the prosecution must prove is that someone committed the offence of murder. That person is alleged to be Adam Hargrave. The second element that the prosecution must prove is that the accused knew of or believed in the essential circumstances needed to establish murder.

The third element that the prosecution must prove is that the accused intentionally assisted or encouraged the principal offender, being Adam Hargrave, to commit murder.

Before you can find Aaron Hargrave or Ngoc Bui guilty of murder by aiding and abetting you must be satisfied that all of these elements have been proven beyond reasonable doubt.

92 After telling the jury that they had to be satisfied that Adam Hargrave had murdered Daou by shooting him, her Honour further explained that:

for this second element to be met Aaron Hargrave and Ngoc Bui must have known or believed that Adam Hargrave intended to kill Michael Daou. For this element to be satisfied you must find that Aaron Hargrave and Ngoc Bui, or Ngoc Bui, or both, actually knew of or believed in all of these circumstances at the time that he, in the case of Aaron Hargrave, is alleged to have handed the firearm to [Adam] Hargrave,[46] and in the case of Ngoc Bui, when he helped him to unjam the firearm after he had already fired it into the boot of the car where Michael Daou was located.[47]

93 After discussing Johnston's evidence, and the attack on it by defence counsel, her Honour said that:

The third element that the Crown must prove is that the accused intentionally assisted or encouraged the principal offender to commit the crime of murder. In this case it is alleged that Aaron Hargrave and Ngoc Bui did this by what is called aiding and abetting. A person aids or abets, it is a lovely old expression, isn't it, abets, aids and abets the principal offender, being Adam Hargrave in this case, if that person either intentionally helps him to commit the offence, or intentionally encourages him by words or presence to commit the offence, or intentionally conveys to him by words or presence and behaviour that he supports the commission of the offence.

A person can aid and abet an offence by words, action, or both. However, in most cases he needs to do something more than simply be present when the offence occurs. He needs to say or do something that assists or encourages the principal offender to commit that crime.

This means that to have aided and abetted by conveying support for the commission of the offence the accused must have done more than simply agreed with what the principal was doing. You must find that he communicated or attempted to communicate his support to the principal offender in a way, and I will take out the words 'principal offender' and I will use 'Adam Hargrave', because that is what you have to be satisfied of, right? You must find that he communicated or attempted to communicate his support to Adam Hargrave in a way that Adam Hargrave could have been aware of, and that he indicated his willingness to assist Adam Hargrave if required...

In respect of Ngoc Bui, the Crown say Ngoc Bui has demonstrated his support for Adam Hargrave and his actions by walking over to him and assisting him to unjam the gun that was misfiring. The description given by Andrew Johnston was that they were both mucking around with the gun after it had misfired, and that the next he saw the gun it was in Adam's hands immediately after and he heard it fire again. That is the evidence that the Crown relies upon as demonstrating support and encouragement for the actions of Adam Hargrave in shooting Michael Daou.[48]

You do not have to be satisfied that Aaron Hargrave or Ngoc Bui, that their words or actions caused Adam Hargrave to commit the crime. A person can assist or encourage someone to commit an offence, even if that other person already intended to commit that offence.

You also do not need to be satisfied that Adam Hargrave was actually assisted or encouraged by either Aaron Hargrave or Ngoc Bui's behaviour. As long as Adam Hargrave and/or Ngoc Bui, or both, endeavoured to assist and encourage in circumstances in which Adam Hargrave could potentially have been assisted or encouraged, then if that is so, that element would be met.

However, you must be satisfied that Aaron Hargrave and Ngoc Bui intentionally aided or abetted the commission of this offence of murder. That is, you must be satisfied that by doing what he did, in relation to the particular accused, either Aaron Hargrave or Ngoc Bui intended to help, encourage or convey support to Adam Hargrave to commit that offence.

This does not mean you have to find that Adam Hargrave or Ngoc Bui intended that Michael Daou would die, it will be sufficient if you find that Aaron Hargrave or Ngoc Bui, or both, intended to assist or encourage the principal offender to commit the conduct that ultimately caused that result.

I am not going to put any arguments to you in respect of this, the Crown have put forward why they say that you should be satisfied it is encouragement. The defence have not put any particular arguments to you because they say this conduct just did not happen. So there is nothing they can put to you, because they say this is just not true, this is a figment of Andrew Johnston's imagination, he has made this up, so the first thing that you really have to be satisfied of is did this occur, did, in the case of Aaron Hargrave, he actually have a gun that he handed to Adam Hargrave?

In respect of Ngoc Bui, did he actually do anything to assist in the unjamming of that gun? Did that occur? Did that exist? That is really the fundamental issue in respect of this charge that you need to look at, because the defence have said to you Andrew Johnston is just making this up, he is telling lies.

So to summarise it. Before you can find Adam Hargrave or Ngoc Bui guilty of committing murder by aiding and abetting the prosecution must prove to you beyond reasonable doubt in respect of each accused person, firstly, that Adam Hargrave committed the murder of Michael Daou. Secondly, that Aaron Hargrave or Ngoc Bui, or both, whoever you are considering, knew of or believed in the essential circumstances needed to establish murder, and three, that Aaron Hargrave or Ngoc Bui intentionally assisted or encouraged Adam Hargrave to commit murder by either helping him, encouraging him or conveying their support.

94 In the earlier part of these directions, her Honour directed the jury on the broader way in which the Crown put its aiding and abetting case. The later part of her directions could have been taken as limiting the Crown's aiding and abetting case to the actions of Bui in walking over to Adam Hargrave and assisting him to unjam the gun that was misfiring. Following this part of the charge, Bui's counsel submitted that if Daou was killed by the first shot, Bui could not be guilty of murder on the basis that he had aided and abetted Adam by attempting to fix the gun after it misfired. However, Bui's counsel did not put it to the judge that the jury should be told that they could not convict Bui on the basis of aiding and abetting.

In relation to aiding and abetting someone, you cannot aid and abet someone to do a crime that is already complete. So, if the Crown have not satisfied you in respect of this, that Michael Daou was still alive at the time, if you find that Johnston's version of the evidence is correct, if the Crown have not satisfied you beyond a reasonable doubt that Michael Daou was still alive when Ngoc Bui allegedly fiddled with the gun and gave it back to, or it was taken back by Adam Hargrave, then you could not find him guilty of aiding and abetting, because you cannot murder someone who is dead.

96 On appeal, counsel for Bui raised the same issue that was addressed by defence counsel at the trial. It was argued that Bui could not have been found guilty on the basis that he had aided and abetted Adam Hargrave by fiddling with the gun and then handing it back, unless Daou was alive after Adam fired the first shot. Because the forensic evidence at trial did not establish which gunshot killed the victim and the jury could not be satisfied that he was alive following the first gunshot, it was not open to the jury to convict him on the basis that he aided and abetted Adam Hargrave in shooting the victim. Since some members of the jury might have found Bui guilty on the basis that he had aided and abetted Adam Hargrave by attempting to fix the misfiring gun, and that view could not be sustained, Bui's conviction must be set aside.

97 Ground 4 fails. I take that view for three reasons. First, I consider that her Honour's directions would have been understood by the jury as requiring them to consider all of the applicant's conduct from the time the deceased was falsely imprisoned, when deciding whether he was complicit on the basis of aiding and abetting.

98 Secondly, even if the jury, or some members of it, had thought that they could only have regard to the applicant's conduct in fiddling with the gun and giving it back to Adam when considering whether Bui was guilty of aiding and abetting, there is no reasonable possibility that any member of the jury could have convicted Bui on that basis. Whether Bui's complicity as an aider of abettor was considered on a broad or a narrow basis, the trial judge's jury direction was not productive of any miscarriage of justice. I am fortified in that view by the fact that Bui's counsel did not ask the judge to direct the jury that they could not convict him on the basis of aiding and abetting because there was a reasonable doubt as to whether Daou was alive after Bui fiddled with the gun.

99 Thirdly, even I am wrong on either of these alternatives, I would apply the proviso, because I do not consider that there was any substantial miscarriage of justice.

100 As I have said, the original Crown case against Bui was either that Bui and Adam Hargrave agreed to kidnap and detain Daou and contemplated that really serious injury might be inflicted on him, or that he had aided and abetted Adam Hargrave in shooting the victim. On the evidence, the jury (or some members of it) may not have been satisfied beyond reasonable doubt that, at the time when the plan was made to recover the ecstasy tablets from Daou, Bui and Adam Hargrave planned to inflict really serious injury on him.

101 However, as her Honour made clear, the jury could find Bui guilty if they were satisfied that the scope of the original plan altered after Daou was brought back to the warehouse. Johnston's evidence was that Daou was strapped to a chair, had his pubic hair burned, and powder from a fire extinguisher sprayed on him. Johnston also gave evidence that while he was in the office, he had heard Daou screaming, and that when he came out of the office, he saw Daou covered with blood. That evidence would have permitted the jury to find that after Daou was brought to the warehouse, the original plan had escalated to the point where Adam and Bui had agreed to inflict really serious injury on him. On that view of the facts, Bui's acts of assistance and encouragement began well before he attempted to fix the misfiring gun and the Crown's aiding and abetting case against Bui was really subsumed in the joint agreement case.

102 The jury (or some members of it) might also have found Bui guilty of aiding and abetting Adam Hargrave to commit the murder, because they were satisfied beyond reasonable doubt that Bui could 'be reasonably seen as intentionally adopting and contributing to' what took place in his presence.[49]

103 On the basis of Johnston's evidence, it would have been open to the jury to find that Bui's assistance or encouragement to Adam Hargrave to murder Daou began well before Adam actually fired the gun. Johnston's evidence was that Bui's acts went beyond mere presence at the scene. He said that Aaron had a gun in his hand while Daou was being restrained and he heard a shot being fired. He also said that he saw Bui among the group which wrestled the victim to the chair to which he was tied, that Bui was present when Daou was assaulted and was loaded into the boot of the car and that Bui was standing nearby when the gun was handed to Adam.

104 In that respect, the circumstances of this case are similar to those in R v Debs & Roberts,[50] where two men who were about to conduct an armed robbery were accused of shooting and killing two policemen. One version of the Crown case was that each accused was guilty of murder because he had aided and abetted the other accused in firing the shot which killed the victim. Counsel for Debs argued that he could not be found guilty on that basis because he might have fired a shot after the victim had already been killed by the fatal shot fired by his co-accused Roberts. The Court of Appeal rejected that argument. Vincent JA (with whom Winneke P and Warren CJ agreed) said that:

The Director submitted in response that this complaint and, for that matter, all of the grounds relating to his Honour's instructions concerning aiding and abetting and common purpose are artificial in the extreme. The artificiality, it was contended, is even more apparent when it is appreciated that the arguments assume the presence of each of the accused at the scene and that each of them fired shots. I agree.

Given that both were present and firing their weapons, as the Director argued before us, the evidence of commitment to the criminal enterprise was very powerful. If Silk was still alive at the time that Debs first fired, Debs would clearly be an aider and abettor. If Debs killed Silk then he would certainly have aided Roberts. If Silk had already died, then Debs in a graphic fashion could be seen to have demonstrated his existing commitment to the enterprise, particularly if they concluded, as they were entitled to do, that he also fired at Miller.[51]

105 Whilst Bui did not fire at Daou, it would be equally artificial in this case to limit the act of aiding and abetting to Bui's attempt to correct the misfiring gun immediately before it was fired and to ignore his involvement in the preceding events, including the assault on Daou. Bui's conduct well before the gun was fired would have been a sufficient basis for the jury to infer that Bui had intentionally adopted and contributed to what occurred in his presence.

106 The fact that the gun was fired after Daou was dead would not have precluded the jury from drawing such an inference. In R v Clarke and Wilton,[52] the Full Court held that a jury could properly infer from the conduct of two accused after they had killed a child that they had previously had a common purpose to correct and silence the child by cruel beatings.[53] There is more recent authority to the effect that subsequent acts can provide the basis for an inference that a person was aiding and abetting an offender at an earlier stage of the events which resulted in the commission of the offence.[54] Thus, even if, contrary to my view, her Honour's jury direction confined the aiding and abetting case to Bui's act in fiddling with the misfiring gun, it did not result in any miscarriage of justice.

107 Because counsel for the Crown apparently accepted the proposition put forward by the defence, her Honour was prevailed upon to give the direction about aiding and abetting which is described above. A hypothetical juror who took the view that this was the only basis on which Bui could be found guilty of aiding and abetting would have had to have been satisfied that Daou was still alive when the shot was fired. But there was no evidence on which a juror could have found beyond reasonable doubt that Daou was still alive when the shot was fired. In such circumstances, no juror who followed her Honour's direction could have found Bui guilty of aiding and abetting Adam Hargrave.

108 Further, such a juror would also have had to reject Johnston's evidence about Bui's acts of encouragement and assistance prior to the shooting, but to accept his evidence that Bui fiddled with the gun and handed it to Adam Hargrave, who then fired the fatal shot. It is completely unrealistic to suppose that a member of the jury would have engaged in this process of reasoning.

109 It follows that a juror who had accepted Johnston's version of events beyond reasonable doubt, would have had to find that Bui was complicit in the murder, either because Bui had agreed with Adam Hargrave to kill or inflict really serious injury on Daou, or because he had encouraged or assisted him to murder Daou before Bui fiddled with the gun. Hence, no miscarriage of justice occurred, even if it is assumed that her Honour gave an incorrect jury direction.

110 Finally, even if the views expressed above are incorrect, I consider that it is appropriate for this Court to apply the proviso in s 568(1) of the Crimes Act 1958 (Vic).[55]

111 In Weiss v The Queen,[56] the High Court held that in deciding whether there has been a substantial miscarriage of justice, an appellate court must assess the evidence and, after making due allowance for the natural limitations which confront an appellate court, decide whether it has been proven beyond reasonable doubt that the accused was guilty of the offence on which the jury returned its guilty verdict.[57] I have examined the whole of the evidence in the case. As the High Court said in Weiss, the fact that the jury returned a guilty verdict must be taken into account in the appellate court's assessment of the whole record of trial.[58] Having regard to all of the matters discussed above and to the jury verdict, I do not consider that there was a substantial miscarriage of justice.

113 Ground 5 alleges that that the jury's verdict is unreasonable or cannot be supported having regard to the evidence. The particulars of that ground state that Aaron Hargrave's acquittal removed a step in the process of reasoning that was essential to Bui's conviction 'on the basis of extended common purpose'. I note that this Court has emphasised that where a complaint is made that a verdict is inconsistent with an acquittal on another count, it should be the subject of a discrete ground, rather than raised under the ground that the verdict is unsafe and unsatisfactory.[59]

114 Counsel for Bui referred to Johnston's evidence that Aaron Hargrave had produced a gun when Daou was brought back to the warehouse, had been part of the group which had tied the victim to the chair and assaulted him and had given Adam Hargrave the gun used to shoot Daou. Counsel submitted that this evidence was indispensable in establishing the Crown case that the scope of the agreement escalated over time. Counsel contended that it was not open to the jury to reject Johnston's evidence about Aaron Hargrave's participation in the crime and nonetheless find that the scope of the joint enterprise escalated in the manner advanced by the Crown. He therefore submitted that Bui's conviction was factually inconsistent with the acquittal of Aaron Hargrave, because the two verdicts could not logically be reconciled.

115 Bui must have been found guilty by the jury either on the basis that he and Adam Hargrave entered into a joint enterprise to kidnap and detain or falsely imprison Daou and to inflict really serious injury upon him, or on the basis that he aided and abetted Adam Hargrave by encouraging or assisting him to murder Daou. The fact that other co-accused, including Aaron Hargrave, were acquitted, did not create any legal barrier to the conviction of Bui, on either of these bases.

116 The question we must consider is whether Aaron Hargrave's acquittal on murder was factually inconsistent with the jury verdict that Bui was guilty of that offence and whether on the whole of the evidence, it was reasonably open to a properly instructed jury to be satisfied beyond reasonable doubt that Bui was guilty of murder.[60]

117 In their joint judgment in MacKenzie v The Queen,[61] Gaudron, Gummow and Kirby JJ said that the test for determining whether verdicts are factually inconsistent is one of logic and reasonableness.[62] An appellant who alleged factual inconsistency bore the onus of showing that 'no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion'.[63] Their Honours said that the respect accorded by the law to the function of the jury made courts reluctant to accept that verdicts were factually inconsistent:

If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.[64]

118 An apparent inconsistency might simply reflect the jury's obedience to the trial judge's direction to consider each count separately and the failure of the jury to be satisfied beyond reasonable doubt of the facts relied upon by the Crown to prove a particular offence.

a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty.[65] More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.[66] It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.[67] It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'[68]

120 The jury would have been entitled to reject McDonald's evidence that Aaron Hargrave had gone on the dry run, before Daou was taken to the warehouse. That evidence is set out at [23] to [27] above.

121 As I have said, McDonald made a number of prior inconsistent statements to the police which were put to her in cross-examination. She was first contacted by the police the day after the murder and agreed to go to the St Kilda Police Station. She told Adam Hargrave that the police wished to speak with her and they met to discuss her statement. She made a statement to the police at 5:50am on Sunday, 19 November 2006, which she later conceded in crossexamination by Aaron Hargrave's counsel contained lies. During this first interview, she invented a person named 'Jess' whom she claimed to have met at a nightclub and to have been making arrangements with her to sell her a large quantity of ecstasy tablets. She did not mention Garry or Adam Hargrave at all.

122 She later repeated her statement about arrangements to sell 'Jess' 550 ecstasy tablets in a formal record of interview. On Monday, 20 November 2006, she made another statement which she signed at 2.24 am, after going back to the scene of the incident with the police. In that interview, she said she had received a call from a man with a 'deep woggy voice' who asked her if she knew anyone in the area that had been 'done over by Michael Daou'. In cross-examination, she conceded that this statement contained numerous lies and that the man with the 'woggy voice' was fictitious.

123 On 5 December 2006, McDonald was interviewed by the police again because her statement did not accord with her phone records, and a fresh statement was taken. The interview commenced at 6:22pm. After a break, she signed a new statement in the early hours of the following morning. In that record of interview, she said that on the 'dry run', there was a person driving the car, another person in the front seat, and a person on either side of her in the back. She said that she did not know the person on her left side. She stated that the person on her right-hand side was Aaron Hargrave.

124 In her signed statement, she mentioned that Aaron Hargrave had been at the warehouse on 17 November and had given her a hug. She also made the following remarks:

When I got to the warehouse the gates were closed so I did a U-turn and went and parked on the first side street on the left after the warehouse coming back down towards Ferntree Gully Road. I got out of the car, started walking up towards the warehouse, Adam was walking with [Johnston] and with the guy I didn't know towards me. He said 'Kylie is that you', I said 'yep'. He asked if I was alone and I said 'yes'. We then walked in through the gate into the car park.

125 McDonald also described being introduced by Adam to his boss, Luke, and another Asian male.

126 On 15 January 2007, McDonald made another statement to the police regarding her involvement in the drug industry, and some threatening phone calls she had received from Johnston and Adam.

127 Her evidence at the trial was broadly consistent with the statement that she made on 5 and 6 December 2006. As I have said, her evidence was that Aaron was not present during the conversation at the warehouse before Daou was abducted but that he went on the dry run.

128 It was put to her in cross-examination by counsel for Aaron Hargrave that this was inconsistent with an earlier statement in which she had not said that Aaron went on the dry run. It was also put to her that she had co-operated with the police because she had been told by police that she may be charged, and was warned of the possible consequences of making false statements. It was not until a long way through the next second interview that she had said that Aaron was present on the dry run, in response to police suggestions to that effect.

129 The trial judge warned the jury about McDonald's evidence in the following terms:

Defence counsel submitted, that you could not rely on Kylie McDonald's evidence against any of the accused, because she is not a witness of truth and that, she has been manipulated by the police, into providing a final version of the events, that is just not true. You have heard almost all defence counsel, I think I exclude Mr Shirrefs from this, but almost all defence counsel, refer at some length to her admitted lies, that she told to the police in her initial record of interview and her first two statements in November of 2006...

The other defence counsel said to you, and I exclude Mr Toohey again, that you have to be exceptionally careful in relation to Kylie McDonald, because of the following reasons, and I will start [sic] them again. Because she is not, they submit to you, a witness of truth. That she is a person who has been manipulated by the police into providing a final version of the events that occurred that night, which is just plainly not true.

Counsel referred at some length to her admitted lies that she told the police in her initial record of interview and her first two statements in November of 2006. They also referred you, and you will recall this, it was played again during the final address, in fact, of Mr Saunders. They referred you to part of that interview, in which she agreed, in that part that was being played, that she was not telling the entire truth, and other parts that were read to her, because the DVD was not capable of being played. That also reminded you of her excessive drug taking around that time, the issues that it would create with her memory and her heavy drug trafficking.

It is submitted that, that makes her a dangerous witness upon which to rely, and the effect of all of this evidence about Kylie McDonald is, that you must approach her evidence about any of the accused men with special care, and you must have regard to the warning I am about to now give you. It is dangerous to convict an accused on the unsupported evidence of a witness who is affected by this combination of factors....

But I will repeat that warning. It is dangerous to convict an accused on the unsupported evidence of a witness who is affected by this combination of factors, being the factors to which I have just referred. This does not mean that you cannot convict an accused on the basis of Kylie McDonald's evidence. You may convict an accused, but you should not do so, unless you have subjected the evidence to close and careful security, and after such scrutiny, you are satisfied of its truth and are satisfied that, it is safe to convict upon it despite its unreliable source.

In considering the safeness of convicting on Kylie McDonald's evidence, you should have regard to any supporting evidence led in this trial. By supporting evidence, I mean evidence from a source that is independent of Kylie McDonald, that is not from her testimony in this court, that tends to show the truth of Kylie McDonald's evidence of the accused's guilt.

130 Her Honour also drew the jury's attention to the lack of corroboration of Johnston's evidence about Aaron Hargrave's involvement. She said:

Counsel for Quoc Bui, Kevin Ng and Adam Hargrave[69] submitted that the evidence in respects of their clients in relation to Andrew Johnston was uncorroborated and you should, accordingly, exercise great care before you could act upon the uncorroborated evidence of the accomplice, Johnston, reminding you that it is dangerous to convict on the uncorroborated evidence of an accomplice. They urged you to remember, all counsel, that he is the only person that puts them at the warehouse on that night. The only person who puts them in the meeting with Kylie McDonald that night. She certainly did not. They referred to you to the fact that Kylie McDonald at no stage said to you that either Quoc Bui or Kevin Ng were on the dryrun, and the Asian man that she nominated as being the one that held the gun to her head at the kidnapping was not on the dry run either, and was a taller man than Ngoc Bui and wearing a yellow cap.

I remind you that each of their clients in a demonstration in this court were clearly shorter than Ngoc Bui, and she described the person as being taller.

131 Aaron Hargrave's defence was that he was not present when the kidnapping was discussed or the later events occurred. There were only two items of evidence capable of being regarded as corroboration of Johnston's evidence that Aaron Hargrave had, in fact, been involved in the events of the evening. The first was McDonald's evidence that Aaron Hargrave went on the dry run. However, this evidence conflicted with that of Andrew Johnston who said that only McDonald and Hargrave were involved.

132 The second was Archer's evidence that Aaron Hargrave went to the Clarion Hotel with Adam Hargrave and Johnston shortly after the murder. As I have said, there were inconsistencies between Archer's various statements to the police and her evidence at trial. Both the conflict between the evidence of McDonald and Johnston as to Aaron Hargrave's presence on the dry run and the inconsistencies in Archer's evidence were pointed out by Aaron Hargrave's counsel.

133 By contrast, many aspects of Johnston's evidence about the role of Bui in the events of the evening were corroborated. As I have said, Bui pleaded guilty to kidnapping and false imprisonment, and admitted through his counsel that he had participated in the dry run preceding the kidnapping and that he had led Adam Hargrave and Johnston to the area where Daou's body was burned. No similar admissions were made by Aaron Hargrave. In addition, there was no evidence that Aaron Hargrave was involved in the drug trade and Johnston said that he was not. Unlike Bui, he had no motive to murder Daou.

134 Her Honour gave the jury the usual direction that they must determine the guilt of each accused man separately.

135 She also correctly directed the jury that they were not required to accept or reject Johnston's evidence in its entirety, particularly having regard to the fact that he was an accomplice. Having regard to these matters, I consider that it was open to the jury to accept Johnston's evidence about Bui's role in the events of the evening and conclude beyond reasonable doubt that Bui was guilty of murder, whilst not reaching that level of satisfaction about Aaron Hargrave's participation.

Additional ground ― unanimity of factual basis for verdict

136 Bui sought leave to add an additional ground of appeal against conviction, which alleged that the trial judge had erred in failing to direct the jury that they must be unanimous as to the essential facts relied upon in proof of each element constituting the murder count.

137 Her Honour gave the jury the usual direction that they had to reach their verdicts unanimously. She also said that:

What must be proved is not every single fact which the Crown puts before you in support of its case, but each element of the charge that you are considering. You must, therefore, find proven the facts which establish each element of the charge. You will appreciate a distinction exists between evidence which is given in a criminal trial, the whole of the evidence, and the elements of the charge itself. Some aspects of the evidence are given simply to support the arguments which each side presents. But others, have direct significance in terms of the proof of an element. In order for the Crown to succeed, for you to bring in a verdict of guilty against any accused, it must establish each element of the offence and establish it, beyond reasonable doubt.

Accordingly, it must prove the facts upon which the establishment of each such element depends.

138 Counsel for Bui submitted that although the jury had been directed that they could rely on two separate paths of reasoning to convict the accused of murder (agreement to inflict really serious injury and aiding and abetting), the judge should also have directed them that they had to be unanimous as to the factual basis or 'route' by which they reached that conclusion.

139 Counsel contended that because some members of the jury might have been satisfied beyond reasonable doubt that Bui and Adam Hargrave had agreed to inflict really serious injury on the victim and other members of the jury might have been satisfied beyond reasonable doubt that Bui had aided and abetted Adam Hargrave to kill the victim, the factual basis for the conviction was uncertain. He relied on a passage in the judgment of Buchanan JA in Walsh v the Queen,[70] in support of the submission that the jury had to be unanimous as to the route by which they concluded that Bui was guilty of murder.

140 The complaint made by Bui in this case was not that the jury verdict was uncertain because there was a patent or latent ambiguity as to the offence of which he was convicted, as occurred in Trotter v The Queen.[71]

141 In Trotter, the Victorian Court of Criminal Appeal set aside the applicant's conviction for indecent assault, in circumstances where he had been charged with one count of that offence, but the complainant had given evidence of two separate assaults and the prosecution had not specified which of these assaults was relied upon in support of the count. The verdict was held to be uncertain because, although the jury must have been unanimous that the applicant had committed an indecent assault on the boy, it was:

impossible to know whether there was unanimity on the part of the jury in respect of one or other of the two acts of the indecent assault. All members of the jury might have been unanimous on the fact that the applicant had committed an indecent assault on [the complainant], but some members of the jury might have arrived at that conclusion on the basis of the bathroom assault and others on the basis of the bedroom assault. There is no way of knowing which was the act the jury found to be an indecent assault.[72]

142 As the Court pointed out, if the applicant were presented for indecent assault again and the Crown relied on one or other of the two assaults, it would not be clear whether or not the accused could plead autrefois acquit, because of the uncertainty arising from the jury verdict.

143 Walsh was an appeal against conviction on a single count of conspiracy to defraud and three counts of perverting the course of public justice. One of the grounds of appeal alleged that each count was bad for duplicity or tainted by latent uncertainty. Alternatively, it was said that the trial had miscarried because each count alleged more than one discrete act and the jury were not adequately directed on the need for unanimity.

144 Buchanan JA (with whom Ormiston and Phillips JJA agreed) contrasted cases where a charge is duplicitous, because the count alleges more than one offence, or evidence is led of more than one instance of offending in support of a single count and the situation where the evidence provides the jury with more than one route by which to determine guilt.

145 Bui's additional ground of appeal falls into the latter category, because it raises the question of 'whether the jury must be directed to be unanimous, not only in the verdict, but also in the route by which that verdict is reached'.[73]

146 In Walsh, Buchanan JA noted that in considering such a ground:[74]

It is worth recalling the standard direction to the jury that they must be agreed in the result but need not be agreed in the manner in which that result is arrived at. This may be, and commonly is, directed to variations in the evidence when the issues, in the sense of the facts to be proved, are specific and are not in doubt; for in determining those facts one juror may accept one witness and reject another, while another juror may do the opposite. But the principle is of wider application. Thus in Clarke and Johnstone,[75] a murder/manslaughter case[76] in which a number of different possibilities were relied upon by the Crown to establish guilt, the Court of Criminal Appeal said this:

'It is sufficient that the law established by universal practice in this Court permits a jury to reach a verdict in the way the trial judge told the jury here. Homicide trials are a familiar example. The prosecution case of murder or manslaughter is often put in several ways involving different elements. It has never been the law that, before convicting, the jury must all be satisfied of guilt in the one way. The ordinary approach is consistent with the approach of this Court in Power.'[77]

After examining a good many of the cases, we think that there are two currents of authority and the first of these is in cases of murder, manslaughter and the like. In such cases the jury have to consider the whole of the accused's conduct and to decide on the basis of it all and from among a number of different possibilities which of the elements of the offence charged are established to the required standard. The clearest example of the jury's being permitted in such cases to arrive at the result by different routes is to be found where the Crown puts its case in the alternative, being unable to choose between them. It may be alleged that the victim was killed by the accused either personally or by an aide, the evidence leaving it unclear which, and in such a case it is enough if the jury agree that it was one or the other; beyond that, agreement is not required.[79]

That has been so, it seems,[80] since Swindall v Osborne[81] in which the victim was killed by one of two carts, the driver of one inciting the driver of the other to kill the deceased. The conviction of one driver was upheld because, if he was not the principal, he was an accessory, having incited the other: see also, on murder and manslaughter, White,[82] Giannetto[83] (drawing on Thatcher[84]), Serratore[85] and Leivers and Ballinger.[86] In respect of other crimes, see also Du Cros v Lambourne[87] (driving at a speed dangerous to the public when the defendant was either driving himself or, being a passenger, inciting the driver), Gaughan[88] (damage to a motorcar) and Fitzgerald[89] (setting fire to a scooter).

At first the case of true alternatives may seem obvious enough; but if the uncertainty stems from a conflict between witnesses it may well be that individual jurors might arrive at a more definitive result, and not necessarily the same definitive result, depending upon whose evidence is accepted and whose rejected. Nor does the case of true alternatives stand alone; for in Cramp,[90] the accused, who was found guilty of manslaughter, had allowed a teenage girl to drive his car after plying her with drinks and urging her to speed, doing so for more than three hours. The case was presented on the basis that death resulted from the accused's unlawful and dangerous act, or from his gross negligence, or from both. No direction was given that the jury had to be unanimous on the relevant basis of guilt, and the conviction was upheld by the Court of Criminal Appeal in New South Wales. In short, this was said to be because the jury were obliged to consider the whole of the offender's conduct in deciding whether he caused the death by his unlawful and dangerous act or by his gross negligence and that, while the process of reasoning was different, each result rested on substantially the same factual basis. What was different was 'the legal formulation of liability'; the alternative bases of liability 'did not involve materially different issues or consequences', an expression earlier adopted by the Court of Appeal in Queensland in Leivers and Ballinger.[91]

Leivers and Ballinger was a case of murder in which one of the essential issues raised for the jury was whether the appellant knew that the deceased was to be murdered or believed only that he was to get a severe beating (with murder as its probable consequence). As guilt on the first basis necessarily subsumed guilt on the second, there was no need, it was held, to require that the jury be unanimous about the one or the other; but it was otherwise, suggested the President and Moynihan JA (drawing upon the opinion of Lamer, J in Thatcher) 'if the alternate bases of criminal liability...involve materially different issues or consequences'.[92] In the later case of Dally,[93] Smart AJ, speaking for the Court of Criminal Appeal in New South Wales,[94] disagreed with this suggestion,[95] Dally itself being a case of manslaughter consequent upon provocation or alternatively manslaughter by an unlawful and dangerous act ― although once again the court was of opinion that any juror who was satisfied of the first must also have been satisfied of the second.[96] It may be noted that in Boreman,[97] where the Court of Appeal in England considered that a direction for unanimity was needed when there were two possibilities, discrete in time, as to the cause of the victim's death, the court none the less found no miscarriage because on the facts the jury must have been in agreement: contrast Carr[98] in which it seems that such a finding was not open.[99]

148 Buchanan JA then contrasted the approach taken in the New South Wales case of Cramp (discussed in the passage above) with the approach taken in Victoria, in the case where the relevant charge is culpable driving causing death. Because the legislation identifies four separate types of culpable driving, the presentment must specify which types of culpable driving is relied upon.

149 In Beach,[100] which involved a count of culpable driving, the Court of Criminal Appeal did not set aside the guilty verdict because the judge failed to direct the jury that they must be unanimous as to the basis for their guilty verdict. The circumstances in that case showed that the jury must have agreed as to the form of culpability which had led to the victim's death. In obiter, however, the Court said that if this had not been the case, the verdict of guilty could not have been sustained unless the jury had been directed that they had to be unanimous as to the basis on which the accused was convicted.

150 In Walsh, Buchanan JA suggested that the different approaches in Cramp and Beach were probably based on the different legislative provisions creating the relevant offences.

151 His Honour then went on to consider a line of cases concerning offences involving dishonesty, where the prosecution relied on a number of different acts and the jury was invited to convict on the basis of all or any of them. In some of those cases, the failure to direct the jury as to the need to be unanimous on the basis for their verdict succeeded,[101] whilst in others it failed.[102] The factual bases for these differences in result are sometimes difficult to discern. However, the legal principle accepted in these cases distinguished between situations in which the disputed facts were an essential element in proving the offence and those in which the appellate court accepted that they were only a matter of evidence. In the latter line of authority, it was not necessary for the jury to be directed that unanimity was required in the path the jury took to their verdict of guilty.

152 His Honour summarised the separate lines of authority as follows:

it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on 'unanimity' about one or other or more of those bases, at least if they do not 'involve materially different issues or consequences' ...

The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend 'upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence'. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.[103]

153 Counsel for Bui argued that this case fell within the second situation to which Buchanan JA referred, because different acts were relied upon by the Crown as proof of Bui's guilt of murder and members of the jury might not have agreed as to the acts which were the essential ingredient of the crime.

154 Since Walsh was decided, there have been a number of other decisions which have considered the issue raised by this ground of appeal. I turn first to cases in which the alleged offender was charged with murder or manslaughter.

155 In Cittadini v The Queen,[104] the appellant, who was the managing director of an engineering company, was charged with four counts of manslaughter by criminal negligence. The victims were drowned as the result of an engineering defect which caused a yacht keel to fail.

156 The case against the appellant was put on two bases. The first basis was that he knew that the keel had been cut and re-welded when it was being fabricated and had allowed the yacht to be supplied in that condition. The second basis was that he had failed to implement reasonable measures for the supervision of the process of manufacturing the yacht. The Crown case relied on circumstantial evidence in support of the alternative cases. One of the grounds of the appellant's appeal against conviction was that the jury should have been directed that they had to be unanimous as to the basis on which the appellant was convicted.

157 The New South Wales Court of Criminal Appeal held that this ground was not made out because 'the conduct constituting the primary and alternative bases relied on substantially the same facts'.[105] The Crown had relied on the same course of conduct in order to prove either that the appellant actually knew the keel had been cut and rewelded or that he had not put in place any system of quality assurance. The Court said that the factual matrix which the jury had to consider simply put forward 'two different ways of inferring negligence from the same evidence in relation to the process of manufacture'.[106] In those circumstances, it was held that the general rule that it was not necessary for the jury to be unanimous as to how they reasoned to guilt applied.[107] The court also noted that at trial, counsel for the appellant had not sought a direction that the jury had to be unanimous as to the basis on which they found the appellant guilty.

158 In R v Goldman,[108] Goldman was convicted of a count of attempted murder. The Crown case was that the victim had gone to Goldman's flat where he was shot at twice by Goldman. He was able to escape from the flat and run out onto the nature strip outside Goldman's flat before he fell to the ground. There was evidence that he was then shot again at close range and that one bullet hit his face.

159 The victim received two bullet wounds to his face and a third bullet wound to his left upper abdomen. Goldman's defence was that he had acted under duress brought to bear on him by a third man, who was present in the flat when the shooting occurred. On appeal, Goldman argued that the verdict was blatantly duplicitous and uncertain because it was not clear which of the shootings constituted the physical act necessary for proof of attempted murder.

160 Bongiorno AJA (as he then was) delivered the main judgment.[109] His Honour noted that the issue was complicated by the fact that there was 'a temporal and spatial separation between the various acts of firing or attempting to fire the gun'[110] and because the jury would have had to exclude duress in respect of the particular act or acts which they were satisfied Goldman had done with an intention to kill. It was submitted that some members of the jury might have thought duress was negatived in relation to some of the shots which Goldman fired or attempted to fire, whilst other jurors might have been satisfied that it was negatived in respect of different shots.

161 The ground of appeal failed because it was held that there was no live issue which required the trial judge to direct the jury that they had to be satisfied as to the route by which they found the applicant guilty of attempted murder. Bongiorno AJA noted that, unlike the situation in S v R,[111] the accused did not face any prejudice as to the case he had to meet, there were no problems as to the admissibility of evidence relating to either aspect of the Crown case and there were no double jeopardy problems. It was also noted that the accused had not complained about the form of the presentment, having regard to the Crown case and that no exception was taken to the judge's charge.

162 In R v Klamo,[112] the applicant was convicted of manslaughter by unlawful and dangerous act. The Crown case was that the applicant's four week old baby son had died as a result of being shaken by the applicant.

163 The applicant had admitted shaking the baby some days before he died but denied shaking him in the period immediately before the child's death. The Court held that the trial judge should have directed the jury that they must be unanimous as to whether the admitted first shaking or the disputed second shaking was the basis of the conviction.[113]

164 In his reasons, Maxwell P said that this was a case in which a jury could not convict unless they had agreed upon an act which constituted an essential ingredient in the offence. Because the prosecution had relied on, and the judge had left to the jury, separate acts occurring some days apart, each of which was said to be capable of constituting the crime, the jury should have been told that they could not convict the applicant unless they were unanimous as to the act which had resulted in the child's death.

165 Klamo may be contrasted with R v Heaney,[114] where the accused stabbed a woman in the chest and then in the abdomen in the course of a single incident. The Court held that it would be artificial to treat the stabbings as separate offences and that the trial judge was not required to direct the jury that they had to be unanimous as to which act constituted the offence.

166 The principle that the judge does not need to direct the jury that they must be unanimous about the legal basis on which the applicant is found guilty has also been applied in some recent cases outside the context of murder and manslaughter. In Michaels v Western Australia,[115] the appellant was convicted of one count of manufacturing methamphetamine. The Crown case against him was that he was either a party to a joint criminal enterprise or that he did an act for the purpose of enabling or aiding another person to commit the offence. The trial judge directed the jury that it was unnecessary for them to return a unanimous verdict about the basis of the appellant's participation in the offence. McLure JA (with whom Owen and Miller JJA agreed) said that:[116]

Where there are alternative legal formulations of liability which rest on the same or a substantially similar factual foundation and which do not involve materially different issues or consequences, the jury only has to be unanimous in the verdict; it is not necessary that all members of the jury arrive at the same verdict by the same pathway.[117]

167 The court said that this principle applied both to alternative offences and to alternative bases of responsibility for a single offence.

168 In my opinion, this case involves 'alternative legal formulations of liability which rests on the same or a substantially similar factual foundation.' Here the Crown relied on the evidence of Johnston and other circumstantial evidence to prove that Bui was guilty of murder, either because he had agreed with Adam Hargrave to inflict really serious injury on Daou or because he had aided and abetted Adam Hargrave to kill the victim. The alternative bases of criminal liability did not involve materially different issues or consequences.

169 In Walsh, Buchanan JA accepted that where the Crown case was either that the accused killed the victim personally or aided and abetted the killer and the evidence was not clear as to which occurred, 'it is enough if the jury agree that it was one or the other; beyond that, agreement is not required.' Although the Crown did not allege that Bui had personally killed Daou, I do not consider that any different principle should apply in the circumstances of this case.

170 Trotter and Klamo are clearly distinguishable. In both those cases, the Crown relied upon different acts, which were not part of a single course of conduct,[118] to establish an element of the offence.

171 The accused was not prejudiced because there was uncertainty as to the case he had to meet. The principle of autrefois convict would have applied, if the Crown had sought to charge Bui again. No exception was taken to this aspect of the judge's charge.

172 Although the Court would grant leave to add the additional ground, this ground of appeal is not made out.

173 For these reasons, the application for leave to appeal against conviction is refused.

174 As I have said, Bui was sentenced to 24 years' imprisonment for murder, six years' imprisonment for kidnapping and four years' imprisonment for unlawful imprisonment. After orders for cumulation, he received a total effective sentence of 25 and a half years' imprisonment. A non-parole period of 20 years' imprisonment was fixed.

175 Adam Hargrave was sentenced to 26 years' imprisonment for murder, eight years' imprisonment for kidnapping, five years' imprisonment for unlawful imprisonment and 10 years' imprisonment for conspiring to murder McDonald. After orders for cumulation, he received a total effective sentence of 31 years' imprisonment, with a non-parole period of 26 years.

176 Andrew Johnston, who pleaded guilty to all three counts (and also to significant drug trafficking charges) originally received a total effective sentence of 23 years' imprisonment. He appealed to the Court of Appeal and was re-sentenced to a term of 16 years with a minimum of 11 years.[119]

177 Grounds 1 and 2 are, in effect, particulars of ground 4, which alleges that the individual sentences and the total effective sentence were manifestly excessive.

178 Ground 1 alleges that in sentencing Bui for murder, the sentencing judge erred in failing to give sufficient weight to his:

• lower culpability and degree of responsibility compared to Adam Hargrave;
• age;
• prior character; and
• prospects of rehabilitation.

179 Ground 2 alleges that in sentencing Bui for kidnapping and false imprisonment, the sentencing judge failed to give sufficient weight to those matters and also to Bui's pleas of guilty on those counts.

180 In relation to the 24 year sentence of imprisonment for murder, counsel for Bui submitted that her Honour should have given greater weight to Bui's youth (he was 21 years old at the time of offending) and to his very difficult and violent background, which was characterised by violence and exposure to drugs. Her Honour had found that Adam Hargrave was more culpable for the murder than Bui, and a comparison between the 24 year sentence imposed on Bui and the sentence of 26 years' imprisonment imposed on Adam Hargrave indicated that her Honour had not taken sufficient account of the mitigating factors applicable to Bui.

181 In relation to the kidnapping and unlawful imprisonment sentences counts, Bui argued that her Honour had impermissibly reduced the weight to be given to his guilty plea because he had not pleaded guilty to murder. Her Honour said that:

In relation to you, Ngoc Bui, your plea was at an earlier stage and, indeed, you pleaded guilty to those two offences before the jury. Whilst I take it as some indication of remorse, it is not of great significance in terms of the overall criminality in which you were involved. There was no great utilitarian benefit in the plea of guilty, as the issue of murder had to be resolved by the jury and the evidence relating to the kidnap and false imprisonment would have had to have been led in the trial, by way of explanation of the whole of the circumstances. However, you are entitled to a benefit for those pleas and I have, in fact, ensured that that has been taken into account.[120]

182 It was submitted that her Honour was not entitled to reduce the weight given to Bui's remorse for committing these offences or the utilitarian benefit of his guilty pleas to these offences, because he had not pleaded guilty to murder.

183 More generally, Bui argued that the sentences imposed were outside the range of sound discretionary judgement, because they did not reflect the spontaneous nature of the murder, or give sufficient weight to the facts to which I have referred above.

184 The learned sentencing judge found that Daou's murder occurred 'clearly as a result of the desire to recover the drugs and, it must be presumed, some form of revenge and payback for the theft of the drugs'.[121] Although her Honour noted that the murder arose 'relatively spontaneously' and was not preplanned,[122] she concluded that the context in which each of the offences occurred placed them in a 'most serious category'.[123] I agree with that characterisation. The moral culpability of the offenders was very high, because the murder was motivated by greed and the desire to recover stolen drugs.

185 Her Honour said that there was a significant distinction between the position of Johnston on the one hand, and Bui and Adam Hargrave on the other. Both the judge who sentenced Johnston and the Court of Appeal which re-sentenced him[124] considered that he was the least culpable of the three men and Johnston pleaded guilty to all the offences including murder. Her Honour made specific reference to relevant mitigating factors, including Bui's youth, his lack of prior convictions, his extremely troubled background involving domestic violence and drug use, his intelligence, his prospects of rehabilitation and his lesser role compared with Adam Hargrave.[125]

186 The sentence of 24 years' imprisonment imposed for the victim's murder was stern. However, in my opinion it was not outside the range of a sound discretionary judgement.

187 I now turn to the sentences imposed for kidnapping and false imprisonment. Both these offences also involved very serious offending. Although the judge did not sentence Bui on the basis that Daou had been tortured, Daou suffered the terrifying experience of being abducted, loaded into the boot of a car, transported to an unknown destination and subjected to assault and forcible questioning for some hours. It is not surprising that the victim impact statements of his mother, father and brother spoke of the ongoing anguish they have suffered because of their son's death. The knowledge of the pain and fear suffered by Daou in his last hours must have increased his family's trauma and suffering.

188 The maximum sentences for kidnapping and unlawful imprisonment are 25 years and 10 years' imprisonment respectively. In sentencing Bui for these offences, her Honour had regard to the approach taken by the Court of Appeal in resentencing Johnston.[126] Nettle JA (with whom Buchanan and Ashley JJA agreed) said that the sentence which would otherwise have been imposed on Johnston should be discounted because of his co-operation with the police and the risk it entailed. Nettle JA said that the sentences he would have imposed without the informer's discount were 20 years for murder, five years for kidnapping and four years for false imprisonment, but that the sentences for the latter offences would warrant only a small degree of cumulation, having regard to the principle of totality and the need to avoid imposing a crushing sentence.

189 Having regard to the fact that Johnston was less culpable than Bui for those offences, although he was a little older than Bui, I do not consider the sentences of six years' imprisonment for kidnapping and four years' imprisonment for unlawful imprisonment imposed on Bui can be regarded as manifestly excessive.

190 In making orders for cumulation, her Honour gave proper weight to the principle of totality. Only one year of the sentence imposed on Count 2 and six months of the sentence imposed on Count 3 were cumulated on the base sentence.

191 I do not consider that her Honour erred in saying that Bui's guilty pleas were not of great significance in terms of his overall criminality. Her Honour followed that statement by saying that he was entitled to the benefit of his guilty pleas, which she had taken into account. Bui faces a high barrier in attempting to establish that the sentences imposed on him were manifestly excessive. As Bongiorno JA said in Hanks v The Queen:[127]

The term 'manifest excess' is usually used when a ground of appeal alleges that a sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although that error cannot be identified. To succeed on this ground the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.[128]

192 In my opinion, Bui has not satisfied that requirement.

193 It is unnecessary to refer to the third ground of appeal, which was abandoned.[129]

194 For these reasons, I would refuse the application for leave to appeal against sentence.

195 The Crown alleged that the offence of conspiracy to murder (Count 4) was established against Hargrave by six intercepted telephone calls,[130] involving Hargrave and his son, Adam. As King J noted in her charge, '[t]he only relevant evidence in this court [was] the actual recorded calls themselves.'

196 Earlier in the trial, the Crown had also contended that the content of these phone calls was consciousness of guilt evidence from which it could be inferred that Hargrave was guilty of the murder of Daou.

197 Calls 145, 146, 148, 151 and 1480 were described by King J as the 'media calls'. These were conversations between Hargrave and Adam, and Hargrave and his wife Denise, in which they discussed a news story that appeared on 3 January 2007.

198 In calls 145 and 146, made one minute apart at 4:17pm on 3 January 2007, Denise Hargrave called Hargrave and advised him to 'buy today's paper'. In the following call, Hargrave told his son Adam to buy that day's paper. In call 148, at 4:21pm on the same date, Hargrave asked his wife what page the story was on. In call 151, at 4:27pm on the same date, Hargrave and Adam discussed whether there was anything in the paper. Hargrave told Adam: 'She [Denise] said there's...a photo of it out and everything, on the news.' Hargrave and Adam still could not find any reference to what they were looking for in the paper.

199 In call 1480 at 4:30pm, Hargrave called his wife to ask whether the story was in the paper. Denise said she had assumed the story would be in the paper because it was on the television news. Hargrave told her to go to a telephone box in Mooroolbark to call him back. The Crown submitted that these calls were discussions regarding whether there had been publicity about the murder of Daou.

200 In addition to the 'media calls', Garry and Adam Hargrave discussed the publicity surrounding a murder investigation in other telephone conversations on 3 January 2007. In call 1388 at 5:10pm, Hargrave and Adam discussed 'the colours, like asking for help', a reference to the police media release asking for assistance. In call 157 at 6:07pm, Adam told Hargrave that a woman had called Crime Stoppers to discuss the murder. The pair agreed that 'K' was the only woman who could have spoken to Crime Stoppers. The Crown alleged that it could be inferred that 'K' was McDonald.

201 The prosecution placed particular reliance on the three calls set out at [41] to [46] above, as evidence that Adam and Garry Hargrave had con[131]red to kill McDonald.131

202 On 9 January 2007,[132] Adam called Johnston to ask him the name of the boyfriend of 'that person we were talkin' about.' Johnston told him the boyfriend's name was 'maybe Abascal'. McDonald's boyfriend's name was Chris Abascal. In another call later that evening, Adam told Johnston to keep his phone on that evening, and not to get drunk, 'just in case'.[133] The Crown alleged that this was a call to tell Johnston that he needed to be sober and available at short notice, to assist in killing McDonald.

203 These grounds allege that her Honour erred by failing to order a separate trial for Hargrave on the count of conspiracy to murder and by taking his plea of guilty to assisting an offender in the presence of the jury.

204 During the pre-trial discussion between the judge and counsel, there was discussion about whether the telephone calls were admissible as evidence of consciousness of guilt of murder, as well as evidence of the conspiracy count. When counsel for the Crown indicated that he would be willing not to rely on them for the former purpose, the judge indicated that she could direct the jury that the calls could be used only as evidence in support of Count 4.

205 However, it was then submitted that this would not overcome possible prejudice to Adam and Garry Hargrave. Counsel for Hargrave told her Honour that there was insufficient evidence on which his client could be convicted of murder. He submitted that if the calls were admitted as consciousness of guilt in support of the murder count and it later became clear that they should not have been admitted, the prejudice to his client in relation to Count 4 would be incurable. Her Honour commented that it might then end up as a severance issue. She then ruled that the calls were admissible as consciousness of guilt of murder.

206 After Johnston, McDonald and Archer had given evidence, the judge asked counsel for the Crown whether there was sufficient evidence against Hargrave for Counts 1 to 3 to be left to the jury. Counsel for Hargrave again expressed the concern that if evidence of intercepted phone calls or Hargrave's record of interview was relied upon by the Crown as evidence of consciousness of guilt of murder, this would prejudice his client in relation to the conspiracy count.

207 The prosecutor indicated he would not oppose a no case submission on Counts 1, 2 and 3 if Hargrave agreed to plead guilty to the charge of assisting an offender. Hargrave's counsel submitted that this alternative should not be left for the jury's consideration, relying on s 421(4) of the Crimes Act 1958 (Vic). That provision allows a judge to order that the guilt of the person in respect of offences which are alternatives to those on the presentment should not be determined at the trial, if it is in the interests of justice for such an order to be made.

208 Her Honour declined to take that course of action, because she did not consider that Hargrave would be prejudiced by the prosecutor's opening which had indicated that he would be relying on the intercepted phone calls as evidence of consciousness of guilt of murder on Counts 2 and 3. Her Honour took this view because the jury would be told that there was no case for Hargrave to answer on these counts. Hargrave's counsel continued to submit that this would prejudice him in relation to the conspiracy charge, because it was 'a short step' from a man being prepared to assist his son to cover up a murder, to the jury being prepared to accept that he was guilty of conspiring to murder McDonald.

209 Ultimately, her Honour directed the jury that because of insufficient evidence, they should acquit Hargrave on Counts 1 to 3 and he pleaded guilty to the alternative count of assisting an offender.

210 Hargrave now argues that the judge's initial refusal of severance was based on the fact that the evidence of the phone calls might be capable of demonstrating his consciousness of guilt with respect to Counts 1, 2 and 3. In its opening address, the Crown stated that:

The telephone intercepts... not only evidence a consciousness of guilt in his participation in this murder, kidnapping and false imprisonment, but also they evidence the agreement to have Kylie McDonald killed.

211 It is said that Hargrave was prejudiced by these opening remarks made by the Crown. It is argued that once it became clear that the jury would be directed to acquit Hargrave of Counts 1, 2 and 3, her Honour should have ordered a separate trial of Hargrave on Count 4.

212 Furthermore, counsel submits that Hargrave's ability to receive a fair trial on Count 4 was prejudiced by the entering of his guilty plea for assisting an offender in the jury's presence. According to Hargrave, through his guilty plea, he was admitting to assisting the same person with whom he was alleged to have conspired to commit murder. In these circumstances, he argues that the count of assisting an offender should not have been placed before the jury.

213 I have referred at [51] to [56] above to the principles governing an application for severance. At the time of the original presentment, there was a sufficient relationship between Counts 1, 2 and 3 and Count 4 for them to be tried together. If Count 4 had been severed, it would have been necessary on the trial of that count for the Crown to lead evidence about Hargrave's involvement in the murder to explain the reason for the alleged conspiracy to murder Mc Donald. It was not inappropriate for those counts to be tried together.

214 I do not consider that her Honour's failure to sever Count 4 and her refusal to exercise her power under s 321(4) not to take a verdict on the alternative count led to any miscarriage of justice. The defence on the conspiracy count was that the telephone conversations were equivocal. The Crown opening relating to Hargrave's alleged guilt of murder occurred at the beginning of a trial lasting almost three months. Her Honour directed the jury to return verdicts of not guilty on Counts 1, 2 and 3 and told the jury that there was insufficient evidence to sustain the Crown case on these counts.

In relation to Counts 1, 2 and 3, I have determined that there is no case to answer, and you will, as a result, return verdicts in respect of each of those three counts relating to Mr Garry Hargrave, of not guilty...

I have directed you there is not sufficient evidence to consider the murder count, but there was evidence sufficient for [the alternative charge] to be available to you.

216 I do not consider that the opening remarks made in support of the Crown case on Counts 1, 2 and 3 could have influenced the jury's deliberations with respect to Count 4, when the jury had been told there was insufficient evidence on which Hargrave could be convicted of murder.

217 Ground 3 alleges that the learned trial judge erred in ruling that the prosecution could obtain a conviction on Count 4 on the basis of the presentment as framed and in light of the available evidence.

218 The presentment states that Adam and Garry Hargrave between 28 December 2006 and 9 January 2007 'agreed together to pursue a course of conduct which would involve the commission of an offence by them namely the murder of Kylie Rachel McDonald'.[134]

219 The Crown case was that Hargrave agreed with Adam to procure the murder of McDonald by paying an unknown person or persons to kill her. Counsel for Hargrave argued that the presentment should have been framed to reflect such an agreement (that is, an agreement to procure an unknown person to commit a murder).

220 To make out this claim, Hargrave must show that the Crown wrongly obtained a conviction on the basis of a case which was different from that set out in the presentment.

221 I would reject this ground of appeal. In R v Caldwell,[135] where the applicant also argued that his conviction was inconsistent with particulars in the presentment, Weinberg JA said the following:[136]

In a conspiracy case, each accused is entitled to particulars of the persons with whom it is alleged he conspired, and particulars of the scope of the conspiracy alleged. Even where particulars are not sought, it is incumbent upon the prosecutor to provide those particulars in the course of the opening address, at the very latest. The Crown cannot simply open the overt acts of which particulars have been given, leaving it to the end of the evidence to select from among them the conspiracy that seems to be the strongest.[137]

The criminal law is ordinarily concerned with conduct, usually prohibited acts, but sometimes the failure to perform required acts. At common law, conspiracy differs in that the prohibited act is the entry into an unlawful agreement, which need never be implemented.[138] Nothing need be done in pursuit of the agreement. The offence of conspiracy is complete the moment that the offenders have entered into the agreement. Repentance, lack of opportunity and failure are all immaterial, and withdrawal goes to mitigation only.[139]

Accordingly, an overt act performed in implementing that agreement is not an ingredient, or element, of the offence itself. Evidence of overt acts is admissible to prove the existence of the conspiracy, and sometimes to assist in the identification of the participants. However, it must always be borne in mind that particulars of overt acts, and indeed particulars in general, are not elements of the offence.[140]

Because conspiracy focuses primarily upon mind rather than deed, it has long been viewed with 'a degree of circumspection'.[141] It is hardly surprising, therefore, that the law places great emphasis upon the need to identify the conspiracy alleged with reasonable precision right from the very outset of the trial.[142] For the same reason, it is also necessary that the relationship between any given overt act and the conspiracy alleged should itself be spelt out with reasonable clarity.

222 In this case, the presentment specified the identity of the alleged conspirators, the purpose of the conspiracy and the identity of the person whom they were said to have conspired to murder. The scope of the alleged conspiracy was clear, although the person who would perform the murder was not, and could not be, identified. This was not a case in which the Crown relied on particularised overt acts, and then left it to the end of the evidence to select the conspiracy that appeared to be the strongest. In his opening, the prosecutor made it clear that the Crown case was that the two alleged conspirators, Garry and Adam Hargrave, had 'an agreement to have Kylie McDonald killed'. There was no doubt about the identity of the conspirators, or the purpose of the conspiracy, or the identity of the intended victim.

223 Further, under s 323 of the Crimes Act 1958 (Vic) 'a person who aids, abets, counsels or procures the commission of an indictable offence may be tried or indicted and punished as a principal offender'. If the alleged conspiracy was proven, this provision allowed Garry and Adam Hargrave to be tried as principal offenders, even if the actual murder was to be carried out by another person. The reference to the commission of an offence 'by them', that is the murder of McDonald, is apposite to address this situation.

224 Ground 4 alleges that the trial judge erred in directing the jury that Adam and Garry Hargrave could be convicted of the offence of conspiracy to murder, in circumstances where the Crown's evidence suggested at its highest that Hargrave and his son agreed that Ms McDonald would be murdered by someone else and had not agreed to carry out the murder themselves.

225 During the course of the hearing, her Honour raised with counsel the question whether Garry and Adam Hargrave could be guilty of a conspiracy to murder McDonald, where they had agreed that someone else would carry out the murder. She drew the attention of counsel for each of Garry and Adam Hargrave to a passage in the bench notes in the Criminal Charge Book, which states that:

The prosecution must establish that one of the conspirators would commit the principal offence. This element will therefore not be satisfied if the conspiracy envisages that the offence would be committed by a third party.[143]

226 Counsel for each of the men submitted that as a matter of law, an agreement that a third party would be procured to kill McDonald could not provide the basis for the men's conviction of conspiracy to murder.

227 Ultimately, her Honour rejected that submission. She said that:

In this case the prosecution alleged that Garry and Adam Hargrave formed an agreement to murder Kylie McDonald. The means by which this murder was to occur, the Crown submit, was by the employment of a person to murder Kylie McDonald. If you employ someone to commit the crime of murder you are equally guilty of that crime ... As I indicated to you there are times that the law holds you responsible for the actions of another person, and if you find there was a concluded agreement between Garry and Adam Hargrave that they would employ someone to murder Kylie McDonald, that would be one of the times that the law would hold a person responsible for the crime committed. The crime that they are charged with is not the employment of a person to commit the murder, but the agreement that the Crown says they have made to have Kylie McDonald murdered.

228 Her Honour went on to tell the jury that they had to be satisfied that the men had reached a concluded agreement that they would pursue the course of conduct of having McDonald murdered.

229 On appeal, counsel for Hargrave submitted that her Honour was incorrect in rejecting the submission made at trial. In support of that submission, he relied on the passage from the Victorian Criminal Charge Book cited above and on the decision of the Western Australian Court of Criminal Appeal in Ross v the Queen.[144]

230 In my opinion, this ground is not made out. As her Honour correctly directed the jury, a conspiracy arises when two or more persons agree to carry out unlawful acts, in this case the act of murder. The conspiracy is complete once a concluded agreement is reached.[145] Section 321 of the Crimes Act 1958 (Vic) established the statutory offence of conspiracy. That section provides as follows:

(1) Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence.

(2) For a person to be guilty under subsection (1) of conspiracy to commit a particular offence both he and at least one other party to the agreement -

(a) must intend that the offence the subject of the agreement be committed; and

(b) must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time when the conduct constituting the offence is to take place.

231 Counsel for Hargrave submitted that Ross was authority for the proposition that a person could not be convicted of conspiracy, in circumstances where the substantive offence was not to be committed by any party to the conspiracy. No reference was made in that case to a Western Australian provision equivalent to s 323. But in any event, the case is not authority for the proposition for which Hargrave's counsel contended.

232 In Ross, it was alleged that the appellant and two other accused, McNeil and Peel, had conspired together to sell or supply a quantity of heroin to another person, who was in fact an undercover police officer. It was conceded by the Crown that a third party sold or supplied the heroin to the police officer.

233 The Crown relied on s 33(2) of the Misuse of Drugs Act 1981 (WA), which provided that a person who conspired with another to commit an indictable offence was guilty of an indictable offence. Section 6(1) of the Act provided that 'a person who 'sells or supplies...to another, a prohibited drug' commits an indictable offence. The Court noted that this was in effect an invitation to interpret s 33(2) of the Act to include a conspiracy which was not to sell or supply the drug to the consumer but to assist a third party to do so.

234 The Crown submission was rejected on the basis that:

If there was an offence the subject of the agreement it was not the offence of selling or supplying the drug to [the police officer]. The agreement which the parties reached was nothing more than an agreement to assist [the police officer] in being put in contact with somebody who would sell or supply the drug to him.[146]

235 The case for the Crown was never put on the basis that one of the alleged conspirators had supplied the drug to the undercover police officer.

236 The decision in Ross does not assist the applicant because it turned on the interpretation of the particular legislative provision in s 33(2). Further, it was not argued that the accused persons aided and abetted the supplier of the drugs to provide heroin to the undercover policeman. Nor was any reference made to a provision equivalent to s 321 of the Crimes Act 1958.

237 In Rolls v The Queen; Sleiman v The Queen,[147] this Court recently held that s 321 of the Crimes Act 1958 did not require a person who had entered into an agreement to commit a criminal offence to actively participate in the commission of that offence before they could be convicted of conspiracy to commit that offence.[148] In a considered obiter dictum, Weinberg JA said that:

Section 321 does, of course, require proof that the parties have agreed that at least one of their number will participate actively in the implementation of the agreed plan. In other words, it will not be sufficient if the agreement is to be carried out entirely by some third party, with none of the alleged conspirators playing any active role.

In Nirta v The Queen,[149] the Full Court of the Federal Court, sitting on an appeal from the Supreme Court of the Australian Capital Territory, was confronted with a case whereby the agreement reached between the parties did not involve any of them personally performing any of the acts required to achieve the object of the alleged conspiracy. The Court held that, in such circumstances, there could be no conviction for an offence under s 86 of the Crimes Act 1914 (Cth). Jenkinson J said:

A conspiracy to commit an offence is, in my opinion, not committed unless there is an agreement that acts shall be done by a person who, or by several persons each of whom, is party to that agreement ...[150]

Nirta was subsequently criticised by Professor Peter Gillies as being unduly restrictive.[151] He wrote:

It is well established in respect of the substantive criminal law that D may incur liability as a principal where he or she acts through an innocent agent. There seems to be no logical reason why two or more persons cannot incur liability for conspiracy by virtue of an agreement to commit a crime or other unlawful act through an innocent agent, or for that matter through a person who commits this crime or other unlawful act with the knowledge of the circumstances rendering this act a crime or other unlawful act.[152]

In other words, Gillies argued that the requirements of the statute could be met even though none of the parties to the conspiracy was to perform any act in furtherance of it, save through an 'agent', innocent or otherwise.[153]

238 It is not clear that s 321 requires proof that the parties have agreed that at least one of their number will participate actively in the implementation of the agreed plan. The Second Reading Speech for the Bill introducing that section stated that:

the offence of conspiracy...serves the vital purpose of enabling criminal enterprises to be nipped in the bud... It is also invaluable in rendering persons who plan and organize crimes, but take no part in the actual commission of them, liable to prosecution.

239 Clearly, Parliament intended that persons who arrange for a third party to commit a crime (in this case murder) should be liable to prosecution for conspiracy.

240 However, even if s 321 does require one of the parties to the conspiracy to participate actively in the implementation of the plan, this does not mean that one or more parties to the agreement must actually perpetrate the murder. What s 321 requires is that one or more parties to the conspiracy must be involved in the commission of the offence which the accused have allegedly conspired to commit.

241 The relevant offence in this case is the procuring of a person to commit the murder. Both parties to the conspiracy agreed that the murder should be perpetrated through an agent. There was evidence indicating that the agent would be paid by one of them. Section 323 of the Crimes Act 1958 (Vic) (referred to at [223] above) provides that a person who counsels or procures the commission of an indictable offence may be presented and punished as a principal offender. It follows that, in these circumstances, the agreement related to an offence to be committed by Adam and Garry Hargrave, through the medium of their agent.

243 Ground 5 alleges that the verdict on the conspiracy count was unsafe and unsatisfactory in light of the limited evidence against Hargrave.

244 In his closing address at the trial, Hargrave's counsel argued that the conspiracy count against his client had not been made out beyond reasonable doubt and that the Crown's interpretation of the phone calls was simply speculative. It was said that there was no basis for the assertion that the discussion of 'the girl' having to 'be on holiday' meant that the girl should be killed. There were other phone calls between Adam and Garry Hargrave when the same expression was used in its ordinary sense.

245 Counsel also pointed out that McDonald had given evidence at the trial that Hargrave had spoken to her about going on a holiday and had offered her money to do so and that this conversation took place after the murder of Daou. Further, when Johnston was interviewed by the police, he had said that he was not present when any plan was discussed to get rid of McDonald.

246 Defence counsel also argued that no reference had been made in any of the telephone conversations to murdering or killing McDonald, even though reference had been made to such matters in the discussion of the activities of the 'Cambodian brothers in Sydney'. Further, after call 290, when Hargrave talked to Bui about what the girl had been saying, there was no evidence that Hargrave had done anything to follow up what was discussed in that call. The reference in the third call about the cost of the business trip could also be interpreted in a number of different ways.

247 In deciding whether a verdict is unsafe or unsatisfactory, the court must ask itself whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In my opinion, it was open for the jury to convict Hargrave on Count 4, on the basis of the intercepted telephone calls.

248 In reaching that conclusion, I rely on the following:

• the reference in the call on 4 January, the day that The Age contained a report of the murder to, 'that girl' not being around and having to be on holiday;
• the reference in the call on 8 January to 'getting rid of the girl', which was immediately followed by Adam's allusion to 'Cambodian brothers' who 'do murders...all the time' and 'knock' witnesses so that murder charges are dropped;
• the reference in the same call to the need to 'do something' about the fact that McDonald was going around and mentioning his name and the proposed statement to Bui that 'she needs to go now';
• the reference in the same call to the proposition that the girl should be taken away somewhere and that 'they'll never find it again';
• the reference in the call on 9 January to the $30,000 which was to be paid and the later question in that call asking about whether she had been found; and
• the reference in the call made by Adam Hargrave to Johnston on 9 January 2007, in which Adam asked Johnston about the name of an unidentified person's boyfriend, the boyfriend's name being the same as that of McDonald's boyfriend.

249 For these reasons, I would refuse the application for leave to appeal against conviction.

250 Hargrave seeks leave to appeal against the sentence of six years' imprisonment imposed on him for assisting an offender and nine years' imprisonment for conspiracy to murder (Count 4). He also seeks leave to appeal against the total effective sentence of 11 years' imprisonment and the non-parole period of seven years fixed by her Honour.

251 Hargrave's grounds of appeal allege that the sentencing judge failed to have sufficient regard to his ill health, and to the principle of parity.

252 I turn first to ground 1, which complains that her Honour gave insufficient weight to his ill health. This ground is, in effect, a particular of a claim that the sentences imposed were manifestly excessive

253 In her reasons, her Honour set out a detailed history of Hargrave's prostate cancer. She said the following:

In relation to the status of your health as at the time of the plea, that being in May of 2009, Dr Edward Morgan from the Melbourne Assessment Prison gave evidence before me. His role has been your day-to-day medical care, including co-ordinating specialist appointments and managing your daytoday medications, which include hormonal implants, daily tablets, all of which are used to suppress the growth of the cancer. Every three months a PSA of prostate specific antigen test is performed. It is considered a marker of the disease. Your level has remained fairly constant until September or October of 2008 when your levels began rising again. You were placed on additional medication and your prostate levels fell.

Dr Morgan said that he had spoken to your urologist, Mr Jeremy Goad, who expressed surprise that you were doing as well as you were. He said that Mr Goad expected that you would have had a much poorer prognosis because you have basically had a very aggressive form of prostate cancer and that there was always the real risk of the progressive and invasive disease returning.

He referred to the figures given by Dr Rick Milner, as to life expectancy rates in general terms, that persons with a prostate cancer - those being based on studies of men with similar conditions to yours - those statistics were that 97% survive one year, 68% survive five years, 49% 10 years, and 30% 15 years. There is a prospect that you may undergo a further re-section of the prostate which may alleviate some of your symptoms, which include blood in the urine and difficulty in passing urine.

In October 2008, you had a bone scan and a CT scan which showed there had been no metastatic spread beyond the prostate. It was noted in crossexamination that you have the full specialist services of St Vincent's Hospital available to you, and day-to-day care from doctors at the prison, who also liaise with the specialists in an attempt to manage your health as best you can.

Your counsel at the conclusion of your plea hearing on 8 May submitted that he wished to make further submissions in respect of providing up-to-date reports from your specialist and submissions with authorities on the question of the proportion of life remaining and how that impacts upon sentence....

On 1 September a report was presented which had been prepared by your previous specialist, Dr Jeremy Goad. He related your history again and stated that he has not seen you since his last review on 7 September 2006 at the Peter McCallum Cancer Centre. He is however, the Director of Urology at St Vincent's, and your condition is cared for by the registrars at that hospital.

As a result of his citing of your materials, he was able to state that your PSA has slowly increased during 2008 to around 6.7, but with treatment has reduced again to around 3. You have recently had a CT scan of your abdomen and pelvis which were negative for metastatic disease, and you do not require additional therapy at this stage. Dr Goad, provided a further report also dated 31 August 2009 as to your prognosis, which I will quote in full.

The prognosis of this man is difficult to predict. When he presented 10 years ago Garry had a higher grade cancer. Graded as 9 out of 10 in terms of severity. Despite potentially a curative radiotherapy he has confirmed recurrent cancer as shown by the active disease resected at the operation I performed in 2006. The hormone therapy is essentially a palliative measure but can be effective in producing remission for a decade and rarely longer than this.

Remission from hormone therapy is gauged by the PSA level. Excellent remission is shown with a PSA of less than 1. This man showed an initial good response but evidence of failure and development of hormone resistant disease as shown by the rises in the PSA level between 3 and 6.

On the other hand he has not progressed to a metastatic, or secondary sites of disease, cancer, as would usually have been expected. The best guess as to when he would develop secondary disease, in my opinion, would be between two and four years time.

He should have regular imaging perhaps every six months along with a PSA test, and this would aid with timing for additional treatment with chemotherapy. Once again, this treatment is palliative only and has been shown to improve survival by a number of months only, on average. In my opinion Garry is likely to die from his prostate cancer within five to seven years.[154]

254 Her Honour accepted that Hargrave was suffering from a grave illness that might well be terminal within the next five to seven years of his life. She also accepted that his ill health would make life in prison more difficult for him.[155]

255 As her Honour said, Hargrave's guilty plea was at the 'latest possible stage' and, in her view, 'gave no indication of any remorse' on his part. Accordingly, her Honour stated that Hargrave's plea was neither of great utilitarian benefit, in a trial that was almost complete, nor any indicator of remorse.[156]

256 Hargrave's level of moral culpability for the offending was very high. In particular, the conspiracy to murder was a chilling, premeditated and appalling offence. Hargrave contemplated the murder of a young woman, simply to conceal the events of the evening of 17 November.

257 In light of these matters, I do not consider it reasonably arguable that her Honour should have fixed lower individual sentences or a lower total effective sentence because of Hargrave's ill health. However, in my opinion, the non-parole period of seven years' imprisonment fixed by her Honour was manifestly excessive having regard to Hargrave's limited life expectancy.

258 I now turn to the parity ground which relates primarily to the sentence of 9 years' imprisonment imposed on Count four. Adam Hargrave was sentenced to 10 years' imprisonment on that count. Counsel for Hargrave argued that there should have been a greater differential between the sentences imposed on Garry and Adam Hargrave for that offence, because the alleged motivation for Adam's offending was to cover up his involvement in Daou's murder. Hargrave also contends that he should obtain the benefit of his acquittal on Counts 1, 2 and 3. Accordingly, he argues that her Honour gave insufficient weight to the principle of parity.

259 In my opinion, the parity ground is not made out. There was not a great deal of difference between the moral culpability of the two offenders in relation to Count 4. As her Honour noted in her sentencing reasons, at the time Hargrave was arrested, he was 'actively seeking to locate McDonald for the purpose of killing her or having her killed'.[157] Her Honour correctly concluded that this was a 'very serious example of conspiracy to murder'.[158]

260 As her Honour said, Hargrave did nothing to dissuade his son and indeed, actively encouraged him, in his plans to murder a potential witness. Her Honour commented that Hargrave 'took an active part and you were Adam's father - the

older and more experienced voice of reason should have been yours and it was not'.[159] Further, as her Honour found, Hargrave's participation in assisting his son to avoid police detection:

was not limited to one act but was an ongoing series of acts over a period of time, all of which were aimed at impeding or preventing the investigation of this murder and the apprehension of your son.[160]

261 In my view, the judge correctly concluded that despite playing different roles, Hargrave and his son were 'both very culpable' in relation to that offence.[161]

262 In light of my conclusion that the non-parole period was manifestly excessive because of Hargrave's prostrate cancer, I would allow the appeal against sentence. I would re-sentence Hargrave to six years' imprisonment for assisting an offender and nine years' imprisonment for conspiracy to murder (Count 4) and cumulate two years of the sentence imposed on the count of assisting an offender on the sentence imposed on Count 4. This amounts to a total effective sentence of 11 years' imprisonment. I would fix a non-parole period of five years.

263 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that if Hargrave had not pleaded guilty to the count of assisting an offender, I would have sentenced him to a term of eight years' imprisonment for that offence. I would have ordered that three years of the sentence imposed on that count be served cumulatively on the sentence imposed on the count of conspiracy to murder, making a total effective sentence of 12 years' imprisonment, with a non-parole period of 7 years.

264 I have had the advantage of reading in draft the reasons of Neave JA in relation to the applications of Bui and Hargrave. I agree that Bui's applications for leave to appeal against conviction and sentence should both be refused for the reasons given

by Neave JA. I also agree that the application of Hargrave for leave to appeal against conviction should be refused for the reasons given by Neave JA. I also agree that Hargrave's application for leave to appeal against sentence should be granted, the appeal allowed and the applicant resentenced as Neave JA proposes.

[1] R v Adam Hargrave, Charles Hargrave and Lanh Ngoc Bui [2009] VSC 634 ('Reasons') [12].

[7] These telephone calls were transcribed at Exhibit 25: calls 1413, 290, 1788, 1803, 1848 and 1922.

[8] See comments on this matter in Jones & Waghorn v The Queen (1991) 55 A Crim R 159, 164 (Crockett J).

[14] [2002] VSCA 183; (2002) 6 VR 53 ('Alexander').

[15] This schedule has been repealed. See now Criminal Procedure Act 2009 (Vic), s 170.

[16] See also ss 363 and 371 of the Crimes Act 1958 (Vic), which provided for aiders and abettors to an indictable offence to be charged in the same presentment and tried together. These sections have also been repealed.

[17] For the criteria relating to the Rule's application, see, eg, R v McLean [2000] VSCA 217; (2000) 2 VR 118, 128 (Tadgell JA).

[18] R v Demirok [1976] VicRp 19; [1976] VR 244, 250−251 ('Demirok').

[19] Ibid 251. See also the useful summary of relevant principles in R v Iaria and Panozzo [2004] VSC 110, [5]−[6] (Nettle J).

[20] Counsel for Quoc Bui, Aaron Hargrave and Kevin Ng also submitted that the count should be severed.

[21] [2011] VSCA 298.

[23] The principle in House v The King [1936] HCA 40; (1936) 55 CLR 499 applied to her Honour's discretion to order severance of count four in order to ensure a fair trial for Bui.

[24] [1976] VicRp 19; [1976] VR 244, 251 (Young CJ, Lush and Crockett JJ). See the similar comments of the New South Wales Court of Criminal Appeal in R v Dellapatrona and Duffield (1993) 31 NSWLR 123, 137.

[25] With whom Nettle JA and Warren CJ agreed (in separate reasons).

[26] Baini v The Queen [2011] VSCA 298, [59]−[69]. This is the case even where the previous form of the proviso contained in s 568(1) of the Crimes Act 1958 (Vic) applies: see Baini v The Queen [2011] VSCA 298, [57]−[65].

[27] R v Debs; R v Roberts [2005] VSCA 66, [209] (Vincent JA).

[28] [2002] VSCA 183; (2002) 6 VR 53.

[30] R v Halliday [2009] VSCA 195, [81]; Gilbert v The Queen (2001) 201 CLR 414, 425; R v Dupas [2010] HCA 20; (2010) 241 CLR 237, 248.

[31] [1998] 4 VR 818.

[32] [2008] VSCA 261; (2008) 21 VR 407.

[33] [2004] VSCA 98; (2004) 8 VR 213, 228.

[34] [1997] HCA 47; (1997) 191 CLR 275.

[35] R v Kuster [2008] VSCA 261; (2008) 21 VR 407, 411−3 ; see also Doney v R [1990] HCA 51; (1990) 171 CLR 207, 211.

[36] Doney v R [1990] HCA 51; (1990) 171 CLR 207, 211.

[37] [2006] VSCA 263; (2006) 16 VR 26 ('Ciantar').

[39] R v Finnan [2005] VSCA 151.

[40] R v Burrows [2003] VSCA 130; (2003) 140 A Crim R 533, 543.

[41] R v Heyes [2006] VSCA 86; (2006) 12 VR 401.

[42] See also Meko v The Queen [2004] WASCA 159; (2002) 146 A Crim R 131, 148 (Heenan J).

[43] See, eg, R v Burrows [2003] VSCA 130; (2003) 140 A Crim R 533, 539 (Charles JA).

[44] Ciantar [2006] VSCA 263; (2006) 16 VR 26, 47 [64]−[67].

[45] Ibid 48, [72] (footnotes omitted).

[46] Her Honour said 'Aaron', but it is apparent from the context that she meant 'Adam'.

[49] R v Lam [2008] VSCA 109; (2008) 185 A Crim R 453, 478.

[50] [2005] VSCA 66.

[52] [1959] VicRp 84; [1959] VR 645.

[53] Ibid 642 (Herring CJ, O'Bryan and Dean JJ).

[54] See, eg, R v Kitchin [2001] VSCA 66, [20] (Brooking JA).

[55] See now Criminal Procedure Act 2009 (Vic), s 276.

[56] [2005] HCA 81; (2005) 224 CLR 300 ('Weiss').

[59] MG v The Queen [2010] VSCA 97; (2010) 200 A Crim R 433, 446; Svajcer v The Queen (2010) 200 A Crim R 587, 596.

[60] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.

[61] MacKenzie v The Queen (1996) 190 CLR 348.

[62] Dawson and Toohey JJ agreed on this issue.

[63] MacKenzie v The Queen (1996) 190 CLR 348, 366, citing R v Stone (Unreported, England and Wales Court of Criminal Appeal, 13 December 1954, Devlin J).

[64] MacKenzie v The Queen (1996) 190 CLR 348, 367.

[65] R v Irvine [1976] 1 NZLR 96, 99; R v Morgan [1981] 2 NZLR 164, 168−9; R v Cooper (1993) 149 AR 207; Ewaschuk_, Criminal Pleadings and Practice in Canada,_ (1983), requiring that the verdicts be 'so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion': R v Peterson (1996) 106 CCC (3d) 64, 79; cf Hall v Poyser [1845] EngR 363; (1845) 13 M & W 600 [153 ER 251]; Bedford v Crapper [1949] 3 DLR 153.

[66] R v Zundel (1987) 35 DLR (4d) 338, 401−2, applying R v McShannock (1980) 55 CCC (2d) 53, 55−6; cf Mack v Elvy (1916) 16 SR (NSW) 313.

[67] R v Drury (1971) 56 Cr App R 104, 105.

[69] It appears from the context that in referring to Adam Hargrave, her Honour meant Aaron Hargrave.

[70] [2002] VSCA 98; (2002) 131 A Crim R 299 ('Walsh').

[71] (1982) 7 A Crim R 8 ('Trotter'). See also the problem which arose in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 where the accused was charged with being a licensee from whose premises 'a certain person' (whose name was not specified) was seen to be departing on a Sunday. The legislation provided defences if the person had been on the premises for specified purposes. The police had observed about 30 people coming out of the premises and had refused to provide particulars as to which person provided the basis for the charge. The charge was held to be defective because the licensee could not to defend himself, without knowing which of the people the police saw coming out of the premises was relied upon as the basis for the charge.

[72] (1982) 7 A Crim R 8, 18.

[73] Walsh [2002] VSCA 98; (2002) 131 A Crim R 299, 310 [43].

[75] [1986] VicRp 64; [1986] VR 643, 661. See also and compare R v Isaacs (1997) 41 NSWLR 174.

[76] The case did not, in fact, involve manslaughter, but concerned drug trafficking.

[77] [1960] VicRp 60; [1960] VR 373, 374.

[78] [2002] VSCA 98; (2002) 131 A Crim R 299, 311−3.

[80] R v Cramp [1999] NSWCCA 324; (1999) 110 A CrimR 198, 207.

[81] [1846] EngR 506; (1864) 2 Car & K 230.

[82] (1989) 41 A Crim R 237.

[84] (1987) 39 DL.R (4th) 275.

[85] [1999] NSWCCA 377; (1999) 48 NSWLR 101.

[86] [1998] QCA 99; [1999] 1 Qd R 649.

[87] [1907] 1 KB 40.

[88] [1990] Crim LR 880.

[89] [1992] Crim LR 600.

[90] [1999] NSWCCA 324; (1999) 110 A Crim R 198.

[91] [1998] QCA 99; [1999] 1 Qd R 649, 662.

[92] Perhaps Carr [2000] 2 Cr App R 149 should be seen as an example of this.

[93] [2000] NSWCCA 162; (2000) 115 A Crim R 582.

[94] Ibid 591, the practice in New South Wales was said to accord with the practice in Victoria as described in Clarke and Johnstone [1986] VicRp 64; [1986] VR 643, 661.

[97] [1999] EWCA Crim 2273; [2000] 1 All ER 307, especially at 317.

[98] [2000] 2 Cr App R 149, 156−8.

[100] (1994) 75 A Crim R 447.

[101] R v Brown (1984) 79 Cr App R 115; R v Price [1991] Crim LR 465, 466 (although in that case it was held that on the facts there was no doubt as to the basis of the conviction); R v Mitchell [1994] Crim LR 66 (an unlawful harassment case where a number of separate and different acts were alleged to each amount to unlawful harassment. It might more appropriately have been treated as a case raising the question of duplicity.)

[102] R v Agbim (1979) Crim LR 171; R v Hancock, Warner and Michael [1996] 2 Cr App R 554.

[103] (1994) 75 A Crim R 447, 316−7.

[104] [2009] NSWCCA 302.

[108] [2007] VSCA 25.

[109] Maxwell P and Vincent JA agreeing.

[110] [2007] VSCA 25 [68].

[111] [1989] HCA 66; (1989) 168 CLR 266.

[112] (2008) 184 A Crim R 262.

[113] Maxwell P, Vincent JA concurring, Neave JA concurring in separate reasons.

[114] R v Heaney [2009] VSCA 74; (2009) 22 VR 164.

[115] [2009] WASCA 174.

[117] Citing Mouritz v State of Western Australia [2006] WASCA 165, [9]-[17], [28]; R v Leivers [1998] QCA 99; [1999] 1 Qd R 649, 662; R v Cramp [1999] NSWCCA 324; (1999) 30 MVR 9 [65]-[68].

[118] See, eg, R v Heaney [2009] VSCA 74; (2009) 22 VR 164; R v Goldman [2007] VSCA 25.

[119] R v Johnston [2008] VSCA 133, [12].

[124] R v Johnston [2008] VSCA 133, [12].

[127] [2011] VSCA 7.

[129] The ground related to the declaration under s 6AAA of the Sentencing Act 1991 (Vic). It was abandoned in light of the decision in R v Mokbel [2011] VSCA 34, [35].

[130] Calls 1413, 290, 1788, 1803, 1848 and 1922.

[131] These were transcribed at Exhibit 25: calls 1403, 290 and 1803.

[135] [2009] VSCA 41; (2009) 22 VR 93.

[137] R v Mok (1987) 27 A Crim R 438, 441.

[138] R v Meyrick (1930) 21 Cr App R 94.

[139] R v Aspinall (1876) 2 QBD 48.

[140] R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216, 249.

[142] Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317, 333 (Deane J).

[143] Victorian Criminal Charge Book, 6.1.1 [20].

[144] (1987) 29 A Crim R 77 ('Ross').

[145] DPP v Fabriczy [2010] VSCA 334, [14]−[16].

[146] Ross v The Queen (1987) 29 A Crim R 77, 79.

[147] [2011] VSCA 401.

[148] Ibid [23] (Weinberg JA), [76] (Harper JA), (Maxwell P agreeing).

[149] [1983] FCA 330; (1983) 51 ALR 53.

[150] Ibid 64, citing DPP v Nock [1978] AC 979.

[151] Peter Gillies, The Law of Criminal Conspiracy (Federation Press, 2nd ed, 1990).

[153] [2011] VSCA 401, [24]-[27].