16 The deficiencies in this, regrettably not overcome by more ample applications by counsel for the appellants or intervention by the Crown, were in my view quite stark.
17 The Crown put the matter to the jury at least in part, if not largely, on the basis that there was pre-concert between the appellants in that they went to the Blackmarket Café with the understanding or arrangement that the three victims would there be murdered, and that the wounding of the fourth victim came about as an incident of that joint enterprise for which they were also criminally responsible. No doubt this course was taken because it might have been that the evidence did not establish to the jury's satisfaction which of the appellants shot which of the victims or, possibly, that each of the appellants shot one or more of the victims. It was therefore important, as the request for a re-direction acknowledged, that the jury be satisfied as to the pre-concert and that the murders were the subject of the understanding or arrangement. But more was needed. The jury had weeks of evidence before it. General directions about joint criminal enterprise, at the end of some days of summation of the evidence, were inadequate. It was necessary that the jury be assisted as to how the notion of a joint criminal enterprise could apply on the evidence led before it, and on what evidence might be available on which it could find that there had been the necessary understanding or arrangement. It was also necessary that the jury be assisted as to how the notion of joint criminal enterprise was material to their finding of guilt or innocence in a way better than general directions above.
18 In R v Zorad (1990) 19 NSWLR 91 at 105 this Court said -
"A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resumé of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence: Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497 at 522-523; Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 323; 57 WN (NSW) 20 at 24 and Alford v Magee (1952) 85 CLR 437 at 466. This is a rule which appears increasingly to be ignored by trial judges. It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witness before turning to the next witness and so on. The idea of a summing-up is to present for the jury the issues of fact which they have to determine."
19 What happened in this case, at best, was equivalent to the non-compliance to which the Court there referred. The evidence was gone through chronologically, and a general direction as to joint criminal enterprise was given. The relationship between the two, and the relationship between the evidence and the notion of joint criminal enterprise central to the Crown case as presented, were not dealt with. On the contrary, the directions as to joint criminal enterprise and the examples given may well have served to confuse the jury, leaving it to say that it was all very well to have an example concerning, for example, a bank robbery, but what was meant to be the joint criminal enterprise in its case, what was the evidence material to finding it , and in particular what did it mean for finding one of the appellants guilty but not the other or finding them both guilty.
20 The Crown submitted on appeal that the Crown case had been that the joint enterprise need only have commenced at or immediately prior to the shootings, and that it was not necessary to have evidence of a prior understanding or arrangement. It submitted that if the jury was satisfied that the appellants were in the basement together then they must have been acting to achieve the same purpose, namely to kill or inflict grievous bodily harm on the victims. Perhaps the case could have been put to the jury in that way, and there was at least a hint of it in the Crown's address. But that made it all the more important to explain the relevance and application of the notion of joint criminal enterprise. To the extent that the Crown case was left to the jury in the manner for which the Crown contended on appeal, there can only have been greater prospect of confusion in that the jury would not know what it was meant to do with that notion.
21 The deficiency in the summing-up is such that in my opinion the convictions can not stand, because the appellants did not have a trial according to law. It is unnecessary to deal with the other grounds of appeal.
22 Counsel for the appellant Mr Harrison properly acknowledged that he could not submit that there should be a verdict of acquittal, and that there should be a new trial. Counsel for the appellant Mr Georgiou, to whose position there were other relevant considerations, submitted that there should be a verdict of acquittal.
23 The charges are serious, and in these cases a new trial should be ordered unless the evidence was insufficient to support a conviction or any conviction would inevitably be set aside as unreasonable or unsupportable. The contrary was not submitted. On behalf of Mr Georgiou it was submitted that there was effectively no independent evidence of a prior understanding or arrangement, and that so far as one might have been found from the presence of the two appellants in the basement there was insufficient evidence to establish beyond reasonable doubt that Mr Georgiou was in the basement at the time of the shootings. The most direct evidence suggesting that Mr Georgiou was in the basement, that of Miss Konz, was said to be unreliable for a number of reasons, but it was said that even if it were accepted it could not lead beyond reasonable doubt to the conclusion that Mr Georgiou was in the basement.
24 I do not think that pays sufficient regard either to the evidence of Miss Konz or to the evidence as a whole. There was evidence of prior possession by Mr Georgiou of the two guns used in the shootings. There was sound evidence that Mr Harrison had been in the basement, particularly through DNA from one of the victims and a gunshot wound which Mr Harrison had incurred, and the evidence of Miss Konz had Mr Harrison and Mr Georgiou running from the direction of the door to the basement out of the Blackmarket Café with Mr Harrison holding a gun and apparently covering the back of Mr Giorgiou. There were descriptions of two men who then drove away at high speed in Mr Georgiou's car. One was undoubtedly Mr Harrison, because he was later found in the car. From the descriptions, it could be found that the other was Mr Georgiou. The two guns, recalling that they were guns shown to have been in the prior possession of Mr Georgiou, were thrown from the car as it drove away. There was evidence concerning telephone calls which assisted to place Mr Georgiou in the vicinity of the Blackmarket Café at the time of the shootings. There was evidence of flight by Mr Giorgiou capable of affording evidence of consciousness of guilt.
25 Approaching the matter on the basis outlined by the High Court in M v The Queen (1994) 181 CLR 487, in my view it was open for the jury to be satisfied beyond reasonable doubt that Mr Giorgiou was guilty.
26 I propose the following orders in each of the appeals -
(1) Appeal allowed.
(2) Conviction and sentence quashed.
(3) Order that there be a new trial.
27 SULLY J: I entirely agree.
28 GREG JAMES J: As I do also.