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[2002] VSCA 157
Court of Appeal (Vic)
2002-10-02
BUCHANAN, VINCENT and EAMES, JJ.A.
Original judgment source is linked above.
[ 2002] VSCA 157
CRIMINAL LAW - Drug trafficking - Two accused named in one count - One joint enterprise - Buyer and seller dealing with same principal - Interdependent transactions - Verdicts not unsafe or unsatisfactory - Admission of evidence of acts and declarations of others - Independent evidence of pre-concert - Unbalanced charge - Jones v. Dunkel direction - Whether correct - Search warrant - Video film made during execution of warrant - Later use of film by prosecution at trial.
* on the law with respect to an offence committed pursuant to a joint agreement to which Lao and Nguyen were a party;
* with respect to the concept of agency in the context of a joint enterprise involving both Lao and Nguyen;
* that to find guilt against Lao they must be satisfied that the trafficking of Lao and Nguyen were in furtherance of the one criminal enterprise in which they were both joined;
* that if the Crown failed to negate the possibility that Lao and Nguyen were involved in separate businesses, they must acquit.
The eighth ground is that a substantial volume of evidence was wrongly admitted pursuant to the principle of pre-concert described in Tripodi v. R.[1] for no joint enterprise of the kind required had been proved. The ninth ground is that the trial miscarried because the Crown re-cast its case by changing it from one of joint enterprise to the commission of separate offences. Grounds 10 and 11 are that the trial miscarried because the trial judge's charge lacked impartiality and neutrality and failed to adequately put the defence case to the jury. Ground 12 is that the trial judge, having given a Jones v. Dunkel[2] direction with respect to the failure of the police to produce evidence of a number of telephone conversations, erred in his direction to the jury and negated the effect of the direction by comments which he made adverse to Lao. The remaining ground of appeal, ground 13, is that the trial judge erred in holding that the images obtained by the use of a video camera in the execution of the search warrant in Lao's room at the Crown Towers Hotel were lawfully obtained.
"[F]or (the Crown) to be able to satisfy a jury of guilt with respect of Mr Lao, they would have to establish beyond reasonable doubt his participation in the single criminal enterprise in connection with all the other accused throughout the period .... Anything falling short of that raises latent duplicity.... If the Crown contend otherwise then they should not be permitted to proceed on this count."
The prosecutor immediately responded saying, "[W]e do not contend otherwise."
"(2) When more than one offence is charged in the presentment particulars of each offence shall be set out in a separate paragraph called the count."
"His Honour was dealing with a single count, charging three persons jointly with the murder of the deceased. The effect of such an indictment against two or more defendants is to allege a separate offence committed on the same occasion by each defendant and as part of the same transaction. On such a count it is open to the jury when trying a joint charge to which one defendant has pleaded guilty to convict the remaining defendant of committing independently the offence which is the subject matter of the charge, since such a charge is several as well as joint ...."[4]
"The offences charged in the present case were individual charges against each of the brothers. Each is a separate individual who cannot be found guilty unless he personally is shown to have been guilty. The fact that in one count of an indictment it is set out that A and B wounded C does not warrant the conviction of either A or B unless individual guilt is established. It might be established in different ways. A's guilt might be proved by showing that with his own hand he wounded C. A's guilt might be proved by showing that though he did not himself touch C he caused and directed B to do so; or it might be shown that A and B joined together with a common purpose of wounding C so that in effecting that common purpose each was but the accepted agent of the other."[6]
"[W]hen two men are aiding one another in doing physical acts with criminal intent, though the mens rea of the separate offence of each is personal to the individual charged, the physical act of either one of them is in law an actus reus of the separate offence of each. A 'joint offence' of two defendants means no more than that there is this connection between the separate offences of each, so that as against each defendant not only his own physical acts but also those of the other defendant may be relied upon by the prosecution as an actus reus of the offence with which he is charged. This connection between the separate offences of two defendants has from very early times been treated as the justification for charging two defendants in the same indictment and, after the introduction of separate counts in an indictment, for charging them in the same count. To quote Hale: 'If there be several offenders, that commit the same offence, though in law they are several offences in relation to the several offenders, yet they may be joined in one indictment, as if several commit a robbery or burglary or murder.' (Pleas of the Crown, 1778, vol. 2, p.173.)"[7]
In the same vein Street, C.J. in R. v. Fenwick[8] said of an indictment containing one count of rape against two persons:
"It is clear, therefore, I think, that an indictment of this nature may be taken - indeed, in my experience that has been the common practice in cases such as this - as being a joint and several indictment of the accused, where the matters arise out of the one transaction - if it is one act and one entire transaction as this was. In other circumstances, of course, where it is not one transaction and one entire act, different considerations might apply, and then it might be necessary, in some cases, to consider whether the count might not be bad for duplicity; but that problem is not present in this case."[9]
"Thus if the accused is alleged to have gone to one department and picked up a handful of tomatoes, or whatever it may be, it is perfectly legitimate to charge that as a single offence. If the accused spends a substantial time going round the floors picking up a separate article here and another article there, on the authority of Reg. v. Ballysingh those individual articles ought to be charged separately."[12]
"You will see that in order to be guilty as the person charged in a joint criminal enterprise three things are necessary. One, the crime must have been in fact committed by someone. Two, the accused must have known of the criminal purpose and agreed to play a part in carrying it out. Three, the accused must have performed an act or acts for the purpose of carrying out a crime."
"It is not suggested and it is not the Crown case that there were two separate businesses in some way being conducted during this period."
At other points his Honour seemed to say that it was sufficient for the jury to find that the applicants were involved in Tong's business and it was not necessary for the Crown to establish that the applicants engaged in one business of trafficking. He said:
"Of course it is alleged that both accused shared the same common design to traffick in heroin. However, in relation to either accused it is not essential for the Crown to establish that that other accused was also guilty of the same offence."
"To establish the charge against Nguyen it is not necessary to prove that Nguyen was involved in the supply by Lao of heroin to Tong."
"So, it's been very much an identity driven and focused address that I'm delivering to you, because if you look at the words they speak for themselves. They are extraordinarily damning ..."
Accordingly, the prosecutor in his address dilated upon the evidence of the movements of the applicants and of the mobile telephones in the possession of the applicants and others and the telephone numbers contacted by those using the telephones.
"Almost every one of these inferences that I did make in referring you to particular transcripts was taken from the material which was supplied by the prosecution, which is not (sic) properly not available to you but they are inferences or suggestions that as I understand it the prosecution would have put to you if they had decided that they should examine this material with you. And so my purpose in referring to possible inferences my purpose in relating that material to other evidence of movements of various persons was not to endeavour to influence you as to your decision as to how you view the evidence and the conclusions that you derive from that evidence. It was simply an attempt to elucidate the particular transcripts that I considered should be drawn to your attention."
His Honour went on to say that it was for the jury to determine what inferences were to be drawn from the material and
"... any comments that I have made to you were simply an attempt to raise before you the issues as to the fact of this case, and inferences that can be drawn from the type of material that has been presented to you by the prosecution. You are the judges of fact in this case and you are to let no one to take that role away from you."
"[T]here is a danger of the jury being overawed by the judge's views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge's views."
In my opinion that danger was created in the present case and was heightened by the judge's invocation of supporting material which was hidden from the jury.
"... from an apparent identification by the trial judge with one or other party to the litigation ... or again the miscarriage may result from the jury being led to believe from the judge's intervention that he is himself convinced of the guilt of the accused person."
In my opinion such a miscarriage occurred in the present case.
"If you come to the conclusion that the prosecution has deliberately failed to disclose the material recorded in the 200 intercepts or provide it in evidence you would be entitled to conclude that the prosecution believed that the material would provide evidence that would not be helpful to the prosecution case."
"I direct you as a matter of law that failure to call evidence in relation to those 200 recorded conversations will only be relevant if the circumstances indicate to you that the prosecution would reasonably be expected to provide that material or tender summaries and/or transcripts in evidence. To put it another way, before you can make use of any such failure by the prosecution, the failure to provide the material must be without satisfactory explanation in circumstances where an explanation would be expected."
The 200 recorded conversations referred to were telephone conversations intercepted by the National Crime Authority in respect of which summaries or transcripts had been made, which had not been supplied to the prosecutor or the applicants. In my opinion the reference to a deliberate failure to disclose the material, when placed in its context and having regard to the circumstances of the case, was not likely to have produced any injustice.
"My comment to you and this is not a direction in law but simply my comment, is that it is better to rely on the evidence that has been placed before you than to draw whatever conclusions you consider appropriate in the light of the directions that I gave earlier about inferences and circumstantial evidence, rather than attempt to speculate about evidence that has not been placed before you."
The trial judge had earlier told the jury that any comments he might make were in the same position as comments by counsel: the jury could act them or not as they thought fit; the decision as to the facts was one to be made by the jury alone. I think that the trial judge's statement, which was clearly identified as a comment rather than a direction as to the law, was not likely to have caused the jury to disregard the judge's earlier directions as to the use they might make of the absence of evidence of telephone conversations.
"(1) In executing a warrant in relation to premises, the executing officer or a constable assisting may: (a) for a purpose incidental to the execution of the warrant; or ... take photographs (including video recordings) of the premises or of things at the premises."
Section 3K provides that if it is not practicable to examine or process things found at the premises in order to determine whether they are things that may be seized under the warrant, the things may be moved to another place to carry out the examination or processing. If things are so moved to another place, the occupier of the premises is entitled to be present when the examination or processing takes place.
those prescribed by s.3K. In effect the argument was that the subsequent analysis and use of film made during the search was impliedly prohibited by the Act.
and 11 of the application for leave to appeal against conviction by the applicant Lao and grounds 6, 7, 8 and 9 of the application for leave to appeal by the applicant Nguyen have been made out. I would therefore allow both appeals against conviction. However, as I do not consider that the remaining argued grounds have been established, the proper consequence would be, in my opinion, that the conviction of each should be set aside and retrials ordered.
"the carrying on of a trade or business in dealing in drugs or, at the least, a commercial activity in relation to the transmission of drugs from source to consumer.[20]
...
That inference can be drawn from evidence of a sufficient number of transactions by way of sale, delivery or otherwise through the accused, together with such other evidence as will entitle the jury to reach the conclusion that the accused was engaged in the disposition or transmission of proscribed drugs to the extent necessary to establish that those transactions were on a regular and commercial basis during the period of the alleged offence.[21]"
Not only was it necessary in that situation, the argument proceeded, before either could be convicted, for the prosecutor to establish on evidence admissible against the particular applicant that both had been engaged in the same trafficking "business", or "commercial activity" but also to establish that they had entered into an agreement or understanding with each other as to their respective involvements in it. These requirements arose, it was said, from the joinder of the allegations made against them in a single count, the manner in which the Crown case against each was formulated and the conduct of a joint trial justified, and the fashion in which the matter was presented before the jury. It was also relevant in this context, it was claimed, that their asserted involvement in a joint enterprise provided the basis upon which the prosecution had successfully sought to rely upon evidence of the acts and declarations of other alleged participants in the joint activity as being incriminatory of the respective applicants.
"The Director of Public Prosecutions for the State of Victoria who prosecutes in this behalf for Her Majesty the Queen by Mark William Pedley, a person duly appointed to be a Crown Prosecutor for the State of Victoria, Presents that between about the 7th day of April 1999 and the 3rd day of August 1999 at Melbourne in the State of Victoria and other diverse places, Vinh Lac Lao, Hung Than Nguyen with Ko Kon Tong and other persons did, contrary to sub-section 71(1) of the Drugs, Poisons and Controlled Substances Act 1981, without being authorized by or licensed under the Act or the regulations thereunder to do so, traffick in a drug of dependence, namely Diacetylmorphine (Heroin). This trafficking was in relation to a quantity of that drug of dependence that was not less than the commercial quantity applicable to that drug of dependence."
"[T]he mere circumstance that two persons are charged jointly with committing the one offence does not mean that they both have to be convicted on the basis of pre-concert, nor does it mean that one or both of them cannot be convicted if the evidence discloses a discrete basis for attributing criminal responsibility to each. The presentment filed in this case is sometimes called a "joint presentment", but that only means that, within the rules of practice, it is permissible for two persons to be named in the one count. In reality the presentment means that each of the offences charged is an individual charge laid against each accused. As Lord Morris of Borth-y-Gest said in R. v. Merriman [1973] A.C. 584 at 592: 'The fact that in one count of an indictment it is set out that A and B wounded C does not warrant the conviction of either A or B unless individual guilt is established. It might be established in different ways. A's guilt might be proved by showing that with his own hand he wounded C. A's guilt might be proved by showing that though he did not himself touch C he caused and directed B to do so: or it might be shown that A and B joined together with a common purpose of wounding C so that in effecting that common purpose each was but the accepted agent of the other.'"[26]
"The Crown will be asserting that it is self-evident that Tong was an entrepreneur who was still in the ordering of heroin for the delivery in Melbourne. This involved him in dealing with the supplier. The supplier was Lao. The Crown will be asserting that it is self-evident that Tong required buyers for the heroin that he was arranging to procure. He had a principal buyer who paid substantial amounts of money to both Tong and his subordinates. The supplier the Crown says was Lao. The purchaser was Nguyen. Nguyen needed supply, Lao needed purchase. But that is where they come together, but the fact that they come together through intermediaries is hardly unique within the world of business."
"[T]he prosecution allegation is that those other key players and these two accused are already in a working business relationship; they are all in business together. No introductions are necessary between them, they all know each other or at least need each other to stay in this business. Now in the case of these two accused they don't personally know each other at all, they don't even speak the same foreign language. They regularly are at least [a] hemisphere apart, north and south, Hong Kong and Melbourne but they need each other like a plant needs rain, like a human needs oxygen, like a pie needs sauce. Business is business no matter what the business is. A commercial wholesale buyer needs a supplier and a commercial supplier needs a wholesale buyer. In essence that's who the Crown says these two men are: a supplier and a buyer."[28]
"The prosecution evidence, taken at its highest, established that both Lao and Nguyen acted and spoke in ways that were consistent with a shared common intention to criminally involve themselves in the promotion of the business of trafficking in heroin being conducted by Tong and others - not merely to act as the supplier thereto (Lao), or to be the buyer therefrom (Nguyen). The evidence showed that both applicants acted in regular consultation with Tong and others in respect of the conduct of the business of trafficking heroin - for the benefit of the better conduct of that business, in which they were jointly engaged and through which each hoped to separately financially benefit. Conversely, there was evidence establishing that Tong, Vuong and Ong acted and spoke in ways that were consistent with their shared intention to criminally involve themselves in the regular trafficking activities undertaken with both Lao and Nguyen in furtherance of their joint enterprise, for the benefit of all."
We note that the emphasis here is placed upon "the promotion of the business being conducted by Tong and others", although the alleged involvement of the applicants was obviously for their separate purposes and their relationships with the business were different.
"· Nguyen was the only purchaser who actually received heroin from the business during the offence period (consignments one and two). * Nguyen was the only prospective purchaser who had actually provided pre-payment for delivery of part of the third consignment and had placed an order for supply. * Nguyen's profit was to be derived from his personal on-selling of a portion of the delivered heroin, whilst the remainder of the heroin was provided to others, unknown, who had provided capital to him for its purchase. The particular features of the core relationship elevated the position of Nguyen vis à vis Tong and others beyond being merely a remote and disjunctive commercial buyer. There was evidence that established that Nguyen had, by his conduct, been taken into the trafficking group as the preferred buyer - a loose group in which each individual intended to make personal commission profit, and where each individual acknowledged a potential financial liability and risk associated with their involvement. On several occasions, the parties (Ong, Vuong, Nguyen, Tran) remarked that their joint involvement was akin to a brotherhood - with a level of fraternal trust and commitment founded thereon. The disjoined 'buyer' characterisation was considerably modified by the reality of the evidence before the jury. Tong once characterised it thus: 'It's inside people delivering to inside people'. Nguyen's receipt of poor quality heroin from the first consignment resulted in complaints to him from third parties, and returns of the product to Nguyen. Nguyen reported these developments to Ong describing the heroin as 'ours' being 'out', in contrast to higher grade heroin supplied by others. Nguyen did not, however, demand a refund of monies previously advanced. On the contrary, in the same conversation Ong asked Nguyen to provide additional capital ($10,000) and Nguyen undertook to do so, if he was able. The pure independent 'buyer/seller' dichotomy was subordinate to a more consensual and co-operative on-going criminal association. Evidence established that Nguyen was prepared - on several occasions - to provide substantial capital to Ong and Tong at short notice at all hours of the day. Nguyen thereby provided a cash lifeline to those involved in the business - reference never being made to repayment, assuredly in consequence of the expectation that preferred buyer status would result in priority access to the heroin when it eventually became available. Nguyen was aware of the involvement of persons with whom Tong must deal in order to supply heroin into Melbourne. The numerous reported delays in the expected delivery of heroin throughout June until early August made it self-evident that Tong was not in ultimate control of the timeframe for supply. For example, on 6th June at 11.43 p.m., Ong in conversation with Nguyen claimed to have just met with Tong. Heroin that had been expected to arrive on 5th June had failed to appear. Ong told Nguyen that he had told Tong to 'hurry up the other side ... to see what's happening.' Nguyen replied 'Try your best man, otherwise we'll be dead'. When the second consignment of heroin did finally arrive on 12th June, physical delivery of the whole consignment was made to Nguyen by Ong and Vuong at a home in Footscray. Nguyen had previously indicated a preparedness to take delivery of 'the lot' or at least 'ten'. The price ultimately paid by Nguyen was close to one million dollars - but only $35,000 was said to have been received from him in advance of delivery. There was evidence before the jury which revealed Nguyen as being part of the group of Tong and others, rather than being separate and remote therefrom. On 8th July, Ong spoke with Tran (the individual who ultimately played a role in the receipt of the third heroin consignment). Within the context of discussing the continuing indebtedness of Nguyen, Ong remarked 'our work is done on trust ... nobody else except us as brothers.' Previously, Vuong had informed Tong that, in consequence of their arrest on 12th June 1999, she had instructed 'them' to put it away where it was said to be safe. There was evidence that the applicant, Nguyen, was the individual who had taken custody of the whole consignment of heroin from Vuong and Ong, and who had, by the time of Vuong's comment to Tong spoken to Vuong. Tong, in a telephone conversation on 14th June, informed an unidentified caller about the events of 12th June and described the individual who had taken custody of the heroin as only 'the junior worker'. Tong continued, saying that 'the junior worker (a Vietnamese guy) came (yesterday)'. (Tong had already been visited by Nguyen by the time of this call, and had by then received in excess of $300,000 in cash from 'the junior worker'). Both Vuong and Tong's evaluation of Nguyen's role and responsibilities - receiving directions from Vuong as to storage, and being described merely as a 'junior worker' for Tong - serves to illuminate the reality of the more fraternal and contributory criminal role played by Nguyen. Whilst he was a preferred buyer collecting and delivering large amounts of cash, he was also actively involved in the business in which Tong and others were engaged. This was to continue. Ultimately, he was to receive a key to the Crown Tower's lifts to enable easier access to Tong. The commercial relationship involving Nguyen and Tong and others is further illuminated by evidence of later conversations that make clear that this was not merely an arm's length commercial transaction between persons unpossessed of a common design to traffic, as alleged. Two weeks after the delivery of heroin on 12th June, very substantial amounts of money had been received by Tong from Nguyen (in excess of $900,000). However, some monies remained outstanding and Vuong and Ong spoke with Nguyen regarding the overdue balance. Whilst Nguyen acknowledged the debt, he sought a reduction in price saying 'Okay, as brother and sister, let's sit down to have a talk. I've helped him. In turn, he'd help me back.' Shortly afterwards, Vuong said 'You haven't known me for a long time, but you know I love you as a brother, then you have to love me as a return, right?' Vuong ultimately resignedly remarked 'If you don't want to pay, we've to put up with it.' Vuong and Nguyen then spoke about the need for greater organization on the next occasion. Vuong stated, among other things, that in addition to safeguarding the boss (Tong) she needed to take care for Nguyen's safety so that 'nothing will happen.' If this was done, 'everyone will become rich, you understand'. Nguyen suggested that, in future, a storage place for the heroin should be found with restricted access thereto. Ong agreed and Vuong remarked that no one would know of the location, 'except you who go there'. The conversation continued in this vein over some time, providing evidence from which the jury could properly conclude that this was a joint criminal venture, founded upon mutual friendship and trust with shared expectations of ongoing profit. Vuong referred to them being 'in business together' with the need to replan - a sentiment endorsed by Nguyen. There was evidence before the jury that tended to confirm that Nguyen's continuing trafficking involvement with Tong and others had relevance to the speed, and extent to which that business could continue to develop. On 4th July a long conversation was monitored by listening device in Tong's room. Ong, Vuong and Nguyen spoke for some time. Referring to Tong, Ong observed that 'he trusted in us with one million dollars ... In return, we've to trust him'. Vuong, referring to Nguyen still owing some money, stated that Tong should have already departed that night 'to have a talk about another round, if you'd settled with him. He's waiting, waiting, waiting.' Later, in response to Nguyen's enquiry as to the price of the next consignment, Vuong replied that Tong would let Nguyen know 'after he's had a talk'. In his defensive reply, Nguyen stated that 'in the end, among us, I was left to take care of handling the stuff and collecting money on my own'. Vuong later remarked, 'If I could turn up physically, I'd do the same job as you're doing. I'd make the same profit as you.' And so, within this conversation, * Nguyen's financial liability in respect of receipt of the second consignment of heroin was merged with that of both Ong and Vuong. * Nguyen's failure to provide funds was linked to Tong's delay in returning to Hong Kong to negotiate a further importation. * The price to be charged by Tong to Nguyen was said to be dependent upon Tong's discussions with others. * Nguyen's role was explainable in terms of Vuong being unable to perform it. There was evidence before the jury that established the ongoing interdependence between Nguyen and Tong and others engaged in trafficking. On 12th July, Nguyen spoke with Ong, Vuong and Tong. Upon Tong enquiring whether Nguyen was then 'working', Nguyen replied 'Yeah. I work, if you work'. Vuong stressed the need for Nguyen to keep them advised regarding his whereabouts, irrespective of whether he was in debt, or whether he was in possession of money. Nguyen stressed the need for them to be very careful - or 'we'll be fucking dead meat'."
"Lao was fully aware that Tong's ability to arrange the ongoing supply of heroin to Melbourne depended upon the procurement and provision of funding from third parties whose liquidity, in turn, depended upon the state of the market within Melbourne. There was evidence wherefrom the jury could properly conclude that, from the outset, Lao's role as an ongoing supplier to Tong into Melbourne was linked to, and dependant upon * Tong's capacity to forward, or at least guarantee, funds to Lao; Which was, in turn, understood by both Lao and Tong, to be linked to and dependant upon * The liquidity of third parties Which was, in turn linked to and dependant upon * The local market performance and sales returns for heroin previously supplied by Lao. A number of intercepted telephone conversations confirm the interrelationship between Lao's ongoing trafficking activities with Tong, and the progress of the local trafficking of heroin previously supplied by Lao to Tong. It was the prosecution case that Lao, who was then in Hong Kong, telephoned Tong on 5th May and made enquiry as to whether 'it was viable' recently. Tong reported that it was 'more or less the same' - echoing the frustrations expressed by Vuong to him regarding the quality of heroin that had been supplied by Lao on 1st May. In response to Lao's enquiry as to whether Tong was in a position to help Lao organise 'it that week', Tong replied that 'His (referring to an unnamed third party) ... current situation is still just fair. The news is not good.' On 8th May, Lao called Tong again and asked how things were. Tong replied 'tied up like a crab', 'completely stagnant', 'it cannot move'. On 13th May, Lao called Tong. He immediately asked 'is it convenient lately?'. Tong replied 'more or less the same' (the exact words that he had used to Lao on 5th May). Lao asked whether Tong had organised 'that matter' for him. Tong replied 'that side, not yet, as I have said, it is now remaining stagnant. Always asking for taking back.' Lao replied 'Fuck'. Later, when discussing what assistance Tong might be able to provide to Lao, Tong stated 'I will try to be as quickly as possible. I have already kept pressing them frequently, but everything is stagnant.' On 16th May Lao telephoned Tong and asked 'What's up with them?' Tong replied 'there isn't any loss or gain. It's about the same .... He/she all the time ... just put it there and it does not move.... Stopped and remaining stationary completely. It is not viable. The people are playing various tricks.... It would be organised, if it could be organised.... But there is no way to do it, so what can be done?' Lao replied 'If I knew earlier, I should have given it to someone else... Obviously losing money, you are aware of it.' On 22nd May Lao telephoned Tong and again asked 'Is it okay lately?' Tong replied 'It's the same'. Lao asked again, later 'Is it viable lately?' Tong again replied, as before, 'It's more or less the same'. There was evidence of considerable 'hands on' personal organisational involvement, superintendence and concern demonstrated by Lao which evidenced his joint agreement and interaction with Tong and others to traffick in heroin as alleged - beyond the asserted role of a remote, disinterested commercial supplier. There was evidence that showed that Lao personally attended upon Tong in Melbourne in May, July and August. Those attendances were all linked to the supply of heroin into Melbourne. The attendance in July/August was justified by Lao in terms of an endeavour to 'avoid any problem' - (problems having been encountered in June 1999 when Lao remained in Hong Kong). There was evidence which showed that Tong consulted with Lao regarding strategies for the trafficking of heroin to be delivered to Melbourne, and that Tong, Vuong and Ong all appreciated the necessity and relevance for such consultation to occur. There was evidence that confirmed that local trafficking plans, previously made by Tong, Ong, Vuong and Tran were changed after personal consultation between Lao and Tong. There was evidence that Tong felt compelled to provide updated information to Lao in relation to trafficking related events occurring in Melbourne - on occasions, secrecy being safeguarded by his wife being despatched to Hong Kong to do so face to face. There was evidence that Tong supplied Lao with a mobile telephone - previously procured in a false name - upon Lao's arrival into Melbourne in July. There was evidence that Tong directed Lao as to which Crown Towers room should be obtained upon Lao's return to Melbourne on 3rd August 1999. There was evidence that Lao was fully aware of the involvement of Vuong and Ong - at least in so far as their role within the trafficking of heroin in Melbourne. Lao directed Tong to 'hurry up and take tight control' of his side on 3rd June at a time when the delivery of the second consignment was thought imminent. Similarly, there was evidence that Lao directed Tong to make contact with his local associates in July in order that they might be prepared for receipt of a further consignment of heroin. There was evidence that Lao was concerned for the safety of 'the friends' or 'subordinates', Vuong and Ong after the events of 12th June, 1999. There was evidence that Lao suggested that Tong should 'slip away' after the events of 12th June - but that Tong should inform Lao of his whereabouts in order that he (Lao) might 'report back'. There was evidence that Lao had direct links with the courier, Sharon Ly (Man Chai) who took delivery of heroin in Sydney in June 1999. The evidentiary linkage commenced in April 1999. Sharon Ly was said to be the daughter of Ong and was linked to Ong's estranged wife. There was evidence that Sharon Ly (in Sydney) received directions concerning the collection and delivery of heroin both from Lao (in Hong Kong) and from Ong (in Melbourne). There was evidence that Lao endeavoured to make contact with the courier, Sharon Ly, after the events of 12th June 1999. Lao furthermore directed Tong to make contact with Sharon Ly. Both were found in possession of her mobile telephone number - Lao's version of the number being encrypted, Tong's being obliterated."
"[A]ll of those who participated in the joint enterprise knowing that it was one producing cannabis for sale are guilty of the crime of trafficking. The one who planted and cultivated the crop would plainly be guilty. The guilt of the others depends upon proof in the case of each one that he or she knew the true purpose of the enterprise. Such a joint enterprise may exist between persons who carry out their part of the common design without knowing the part played by others or precisely by whom, when or where the other parts are to be carried out. The master criminal who organises others to perform different parts of a crime may well keep the details of that organising to himself. Yet all those who know the criminal purpose and perform their assigned role in it are guilty of the crime if it be committed. You will see that in order to be guilty as the person engaged in a joint criminal enterprise three things are necessary. One, the crime must have been in fact committed by someone. Two, the accused must have known of the criminal purpose and agreed to play a part in carrying it out. Three, the accused must have performed an act or acts for the purpose of carrying out a crime. The common design alleged in this trial is as stated in the presentment, to traffic in heroin throughout the period and at the places stated in the single count. It is alleged to be an ongoing business conducted by Tong and others. And you have been told that refers to Vuong and Ong during the whole or almost all of the period from 7 April to 3 December. Before you can convict either of these accused you must be satisfied beyond reasonable doubt that that accused shared with Tong and/or Vuong and/or Ong a common design to commit the offence of trafficking in heroin, as I shall shortly define it to you. Of course it is alleged that both accused shared the same common design to traffic in heroin. However, in relation to either accused it is not essential for the Crown to establish that that other accused was also guilty of the same offence. It is open to you, as judges of the facts in this trial, to convict one accused and to acquit the other accused."[30]
Turning to the prosecution allegation against Lao, he instructed the jury:
"The Crown case is that Mr Lao agreed to supply heroin to Mr Tong and knowing that it was to be supplied for the purpose of its distribution, its on-selling in Melbourne. And thirdly, the accused must have performed an act or acts for the purpose of carrying out the crime. And the Crown here alleges that those act or acts were of course the supply for onward sale of the heroin that has been referred to in these proceedings."[31]
"At the end of the day it is for you to consider all the evidence that has been placed before you and for you to decide whether or not Mr Lao, if you accept the Crown allegations as to what actually took place and who was speaking and the sufficient facts in the case, whether or not Mr Lao was in a joint enterprise with Tong and others to distribute heroin in Melbourne, or was he in the role of the Toyota factory proprietor in Japan or the dairy supplying the milk bar, whether his role was in fact too remote from the operation that was said to be conducted by Tong and others in Hong Kong.[32]
Now, in this trial the Crown sets out to prove that each accused was engaged in trafficking in the drug in this sense of engaging in a continuous activity of a commercial and systematic kind. In order to do that the Crown must prove that the accused was knowingly concerned in the commercial movement and distribution of the drug from its source overseas to its consumer. The Crown must prove however one more thing. It must prove that the acts of distribution of the drug were not isolated events but were part of a trade in which each accused was engaged. That each accused was not merely one who sometimes sold drugs, but that he was engaged in a continuous activity of a commercial and systematic kind in relation to the drugs during the whole or at least almost the whole of the period, 7 April to 3 August 1999, as alleged by the Crown. This element of the charge must of course be proved beyond reasonable doubt. I have already directed you that the case against each accused is to be considered separately. You are to return separate and independent verdicts with respect to each accused. It is not necessary for the prosecution to establish beyond reasonable doubt that the accused Lao for example, was involved in all aspects of the business carried on by Tong. The Crown case is that Lao is a supplier of heroin to Tong. A supplier who knew and intended that the heroin supplied was to be distributed and sold in Melbourne. The prosecution must establish beyond reasonable doubt that Lao shared that common design with Tong and others to so traffic in heroin, and that he supplied heroin to them and took part in the ongoing business operated by them in furtherance of that intention."[33]
"Nguyen's role is alleged to be the distribution of the supply of heroin provided by Lao and sold on by Tong and others substantially to Nguyen. To establish the charge against Nguyen it is not necessary to prove that Nguyen was involved in the supply by Lao of heroin to Tong. It is sufficient for the Crown to prove its case if it establishes beyond reasonable doubt that Nguyen bought and consequently had possession of the heroin supplied by Lao for the purpose of resale, that he shared a common intent with Tong and others over a substantial part of the alleged period to participate in the continuous business of trafficking in heroin with Tong and others, and that his alleged purchase and possession of heroin were done in furtherance of that common shared intention or purpose."[34]
These instructions were the subject of an objection by counsel for Lao who submitted:
"This case is not whether or not Mr Lao is involved in a business with Tong, Vuong and Ong, and then separately whether Mr Nguyen is involved in a business with Tong, Vuong and Ong. This case is about whether these two people together, with Tong, Vuong and Ong are in the same business.[35]
This case is being put on the basis of a joint offence, one count, one offence, on the basis that these two accused are together in the one business. It must be put on the basis that what is going on between Tong, Vuong and Ong and Nguyen is being done also on the part of Mr Lao because he is party to it all."[36]
After discussion the judge then further instructed the jury:
"It is important that you understand that the Crown in this trial is alleging that there was one single business of trafficking in heroin which was conducted. It is the same business throughout. It is said to operate between the dates given, and it is one operation, one continuing business in which it is alleged that Mr Lao was involved, and it is also alleged that Mr Nguyen is involved in that one single operation. It is not suggested and it is not the Crown case that there were two separate businesses in some way being conducted during this period. That Tong and others were taking part in a single business which involved the trafficking in heroin, and it was a business it was not an industry. Obviously industry is an extremely wide term so it was not as an industry, they are not alleged to be involved in the drug industry as it were but in the one single business being operated in Melbourne by Mr Tong and others."[37]
"The onus is on the prosecution as I have already directed you to establish that they were involved in the one business of trafficking conducted by Tong and others during a substantial part of the alleged period, and by substantial part I mean within a few days or at least certainly approaching 30 April they were so involved and that single business operated by Tong in which the two accused men were allegedly involved was a continuous, ongoing business until the arrests of 3 August. The Crown must establish beyond reasonable doubt the guilt of an accused during substantially the whole period stated in the count."[38]
applicant Nguyen's application for leave to appeal against conviction are explained in his Honour's judgment. As to the remaining grounds of appeal against conviction filed by Lao, I am unable to agree with the conclusions of Buchanan, J.A. and, instead, I agree with the conclusions and reasons of Vincent J.A. I do, however, wish to add some comments of my own on certain of the issues raised in those grounds upon which the court is divided. In doing so, I gratefully adopt the summary of facts and issues set out in the judgment of Buchanan, J.A.
Whether convictions unsafe and unsatisfactory: A joint enterprise is alleged.
"The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party . . .".
"Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission."[58]
"a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count or an indictment".
"the carrying on of a trade or business in dealing in drugs or, at the least, a commercial activity in relation to the transmission of drugs from source to consumer. That inference can be drawn from evidence of a sufficient number of transactions by way of sale, delivery or otherwise through the accused, together with such other evidence as will entitle the jury to reach the conclusion that the accused was engaged in the disposition or transmission of proscribed drugs to the extent necessary to establish that those transactions were on a regular and commercial basis during the period of the alleged offence."
as to the factors which might connect the acts so as to establish the offence on a Giretti basis.
, as one of the unifying factors relevant to bringing a single joint count, is of importance here. In R. v. Associated Northern Collieries[80] Isaacs, J. spoke of acts which had the necessary "concurrence of time, character, direction and result" as to lead to the natural inference that they were done in pursuit of the common purpose.
"[T]he mere circumstance that two persons are charged jointly with committing the one offence does not mean that they both have to be convicted on the basis of pre-concert, nor does it mean that one or both of them cannot be convicted if the evidence discloses a discrete basis for attributing criminal responsibility to each. The presentment filed in this case is sometimes called a "joint presentment", but that only means that, within the rules of practice, it is permissible for two persons to be named in the one count. In reality the presentment means that each of the offences charged is an individual charge laid against each accused. As Lord Morris of Borth-y-Gest said in R. v. Merriman [1973] A.C. 584 at 592: `The fact that in one count of an indictment it is set out that A and B wounded C does not warrant the conviction of either A or B unless individual guilt is established. It might be established in different ways. A's guilt might be proved by showing that with his own hand he wounded C. A's guilt might be proved by showing that though he did not himself touch C he caused and directed B to do so: or it might be shown that A and B joined together with a common purpose of wounding C so that in effecting that common purpose each was but the accepted agent of the other.'"[83]
Admission of evidence of acts and declarations of others
"(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. (4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission."
[4] Above at 720. See also King v. R. [1986] HCA 59; (1986) 161 C.L.R. 423 at 433-4 per Dawson, J.
[6] Above at 592. And see R. v. Hewitt [1997] 1 V.R. 301 at 307-8 per Winneke, P.
[12] Above at 494. See also R. v. Merriman above at 593 per Lord Morris.
[13] R. v. Giretti (1986) 24 A.Crim.R. 112.
[14] Cf. R. v. Smith (1990) 47 A.Crim.R. 43 at 44 per Hunt, J.
[15] See Ratten v. R. [1974] HCA 35; (1974) 131 C.L.R. 510 at 517 per Barwick, C.J.
[16] (1971) 1 S.A.S.R. 327 at 335.
[17] [1967] VicRp 23; [1967] V.R. 205 at 207.
[18] See R. v. Glennon [2001] VSCA 17 at [58] per Winneke, P. and Ormiston, J.
[19] Jones v. Dunkel, above, at 308 per Kitto, J., at 312 per Menzies, J. and at 320-1 per Windeyer, J.
[20] R. v. Giretti (1986) 24 A.Crim.R. 112 per Ormiston, J. at 134. Crockett, J. in his judgment in that case stated at 118:
"In my opinion, the term 'traffick' does connote a continuing activity. The Shorter Oxford Dictionary includes among the meanings of the verb: 'To carry on or trade in, to bring and sell; to deal in; often with sinister implication.' Such a construction is consistent with such observations as there are in the reported cases. The tenor of the judgment of Anderson J in Falconer v. Pedersen [1974] VicRp 24; [1974] VR 185 (a decision often referred to with approval by appellate courts) is that it is immaterial for the purpose of proof of the offence whether the defendant's conduct was or was not an isolated act. His Honour pointed out that the expression 'traffic' was not to be given a limited meaning: see, too, Holman [1982] VicRp 46; (1982) VR 471; (1982) 4 A Crim R 446."
[22] King v. R. [1986] HCA 59; (1986) 161 C.L.R. 423 per Dawson, J. at 433.
[23] R. v. Darby [1982] HCA 32; (1982) 148 C.L.R. 668.
[24] In that case which involved the cultivation on a farm of a large quantity of cannabis, the prosecution claimed that the project was a joint enterprise with a number of participants performing different roles. Johnstone had assisted in the purchase of the property and had purchased items for use on the farm which he visited from time to time. On his appeal against conviction, the court held (inter alia) that:
"[T]he cardinal issue was the knowledge of the applicant (and the Currans) of the crops' being grown on the land. The case for each party was conducted on the basis that, if such knowledge were proved beyond reasonable doubt, then the possessor of the knowledge was guilty."
[25] R. v. Hewitt [1997] 1 V.R. 301. Somewhat surprisingly, no reference was made to this authority or the principle for which it stands in the court below or in the proceeding before us.
[27] See R. v. Clarke and Johnstone [1986] VicRp 64; [1986] V.R. 643 per Crockett, McGarvie and Southwell, JJ. at 653 where the following passage in Russell on Crime 12th Ed to this effect was cited with approval:
"All the facts of the case must be taken into account so that where it appears that there is a joint enterprise afoot between two (or more) persons in which each has an active part to perform in order to effect the criminal purpose then each participant is equally a principal in the first degree ... So also there may be joint action in cases of stealing and other crimes. In certain circumstances each of the participants may do his part in the absence of the others and even may not know by whom the other parts were executed."
[39] Although the grounds of appeal in the applications for leave to appeal against conviction advanced by Lao and Nguyen are not identical it is convenient to address the grounds advanced by Lao, as the issues advanced on his behalf were essentially the same as those also advanced by counsel for Nguyen.
[40] R. v. Giretti (1986) 24 A. Crim.R. 112, at 118.
[42] Throughout this judgment, whenever I refer to Tong it may be taken, unless otherwise expressed, that I include his cohorts as part of his group.
[48] The doctrine of common purpose is wider than the concept of acting in concert. Parties act in concert when the crime they commit is within the scope of the understanding or arrangement between them: R. v. Lowery and King [No.2] [1972] VicRp 63; [1972] V.R. 560. Common purpose extends liability of those who had entered the agreement or understanding to commit a crime to such further crimes as were unintended but foreseen acts which might arise out of the originally planned crime: Johns v. The Queen [1980] HCA 3; (1980) 143 C.L.R. 108, at 130-131.
[49] R. v. Merriman [1973] A.C. 584 per Lord Morris. In R. v. Dolheguy [2001] VSCA 50 the Crown conducted a murder trial on the basis that the accused, who was present with another offender at the time of the killing, was guilty on one or other of three bases, which Ormiston, J.A. identified as (a) "acting in concert", (b) "common enterprise" and (c) "aiding and abetting". Phillips C.J, with whom Brooking, J.A. agreed, held that the verdict was not unsafe or unsatisfactory, as all three bases of guilt had been established. It is to be noted that in that case there was no challenge to the Crown's presentation of the trial on those alternative bases. It is common for the Crown case to be put on alternative bases, however: R. v. Clarke & Johnstone [1986] VicRp 64; [1986] V.R. 643, is another example, as is R. v. Smith [1995] VicRp 2; [1995] 1 V.R. 10, at 45.
[50] King v. The Queen [1986] HCA 59; (1986) 161 C.L.R. 423, at 433, per Dawson, J.
[52] Initially, in his outline of argument, counsel for Lao acknowledged that a joint enterprise did not require proof of an actual joint "agreement", but might be inferred as having been an unspoken "arrangement or understanding" which the facts demonstrated the parties must have reached (see Miller v. The Queen (1981) 55 A.L.J.R. 23, at 26; Osland v. The Queen [1998] HCA 75; (1998) 197 C.L.R. 316, at 343-344), but counsel thereafter emphasised the need to prove an "agreement" made between each of Lao, Nguyen and Tong (on behalf of his cohorts). In my opinion, that emphasis, which was also the emphasis adopted in submissions to the trial judge, misconceived the basis of an offender's liability on a joint enterprise basis and concentrated attention, inappropriately, on the need for proof of an actual agreement between Lao and Nguyen. An agreement or understanding might be inferred even though the two applicants acted quite independently and separately: see R. v. Minuzzo and Williams [1984] VicRp 34; [1984] V.R. 417, at 430.
[55] R. v. Guy (1991) 57 A. Crim. R. 21, at 25-26; R. v. Pektas [1989] VicRp 21; [1989] V.R. 239.
[57] McAuliffe v. The Queen [1995] HCA 37; (1995) 183 C.L.R. 108, at 113-114.
[59] Johns v. The Queen [1980] HCA 3; (1980) 143 C.L.R. 108
[60] See R. v. Clarke and Johnstone, at 653. As the court there held, at 652, the application of joint enterprise principles might implicate a financier and marketeer of a criminal venture, those being persons who might otherwise remain in the background.
[61] See Weissensteiner v. The Queen [1993] HCA 65; (1993) 178 C.L.R. 217; R. v. Dolheguy, at [82].
[62] R. v. Harkness and Others [2001] VSCA 87, at [30], per Callaway, J.A.
[63] Director of Public Prosecutions v. Merriman [1973] A.C. 584, at 607, and see, at 593, per Lord Morris; see, too, Mackay v. The Queen [1977] HCA 22; (1977) 136 C.L.R. 465, at 470-471, per Jacobs, J.
[64] See R. v. Te [1998] 3 V.R. 566, at 576, per Phillips, J.A., citing Giretti.
[67] [1973] A.C. 584, at 607.
69] Counsel referred, by way of analogy, to R. v. Gerakiteys [1984] HCA 8; (1983) 153 C.L.R. 317, a conspiracy case in which it was held that the Crown, having alleged a conspiracy to defraud a number of insurance companies, proved only that a series of separate conspiracies had been committed, each to defraud only one company, but that case is merely an illustration of the need to look at the scope of the common purpose which is established on the evidence.
[71] At 119. The concept of trafficking involving movement of drugs "from source to consumer" derives from R. v. Holman [1982] VicRp 46; [1982] V.R. 471, at 475, per Lush, J.
[72] See Giretti, at 129, per Ormiston, J.; Weinel v. Fedcheshen [1995] SASC 5216; (1995) 65 S.A.S.R. 156, at 171, per Perry, J. The conclusion reached in the latter case appears to have been disapproved by Kirby, J. in Walsh v. Tattersall, at 108, 111 (but approved in the dissenting judgment of Dawson and Toohey, JJ.), but, as noted by Phillips, J.A. in R. v. Te [1998] 3 V.R. 566, at 577, the decision in Giretti, itself, was not the subject of any adverse comment by the Court (see page 108).
[73] R. v. Hamzy (1994) 74 A. Crim.R. 341, at 348, per Hunt, C.J. at C.L. (whilst I note that Kirby, J., in Walsh v. Tattersall (1996) 188 C.L.R. 77, at 109, doubted the practical value of this statement of the test for determining when it would be appropriate to bring a single charge involving multiple acts, it does, with respect, seem to me to be a useful test in the circumstances of the present case).
[74] Weinel v. Fedcheshen, at 172; R. v. Locchi (1991) 22 N.S.W.L.R. 309, at 312-314.. In Walsh v. Tattersall doubt was cast on the former case, and Kirby, J. held that the single charge (for an offence similar to that in Weinel) was bad for duplicity. Locchi (a case involving the "supply" of drugs) was apparently accepted as an appropriate case for a single count (per Kirby, J. at 108).
80] R. v. Associated Northern Collieries [1911] HCA 73; (1911) 14 C.L.R. 387, at 400, cited in R. v. Minuzzo and Williams, at 430.
[81] In my opinion, it is not essential that Lao and Nguyen committed the offence over an identical period, any more than it was necessary that acts constituting conduct of trafficking continued throughout the entire period of the charge: see R. v. Allen, unreported, Court of Appeal (Callaway, J.A., Southwell and Vincent, A.J.A.), 14 December 1995.
[82] R. v. Hewitt [1997] 1 V.R. 301, at 307-308.
[84] Harkness, at [30]-[32], see too R. v. Storey [1998] 1 V.R. 359 and The Queen v. Olbrich [1999] HCA 54; (1999) 199 C.L.R. 270, at [25].
[85] Tripodi v. The Queen [1961] HCA 22; (1961) 104 C.L.R. 1, at 6-7; Ahern v. The Queen [1988] HCA 39; (1988) 165 C.L.R. 87, at 99.
[88] Ahern, at 100; R. v. Chai (1992) 60 A. Crim. R. 305, at 340.
[89] See the discussion, in the context of a conspiracy count, in R. v. Chai, at 338, and R. v. Minuzzo and Williams, at 430. In a trafficking case, see R. v. Holden [2001] VSCA 63; (2001) 120 A. Crim. R. 240, at 252. In T_ripodi_, at 7, it was accepted that apart from the factors there discussed which made the evidence admissible by reference to common purpose there might be other grounds which independently made the evidence admissible.
[91] King v. The Queen [1986] HCA 59; (1986) 161 C.L.R. 423, at 433, per Dawson, J.
[92] The Queen v. Darby [1982] HCA 32; (1982) 148 C.L.R. 668.
[93] The Queen v. Darby, at 677. Murphy, J., at 685, noted that the same incongruity also frequently arose in joint trials which did not involve a conspiracy count.
[94] King v. The Queen, at 432, per Dawson, J.; R. v. Hewitt, at 308, per Winneke, P.
[95] (1997) 92 A. Crim.R. 545, at 556.
[96] Tangye, at 558, citing Johns, at 130-131, Mills [1986] HCA 71; (1986) 61 A.L.J.R. 59, at 59; McAuliffe, at 113-116.
[97] (1990) 51 A. Crim. R. 25, at 36.
[98] In R. v. Dolheguy, at [58] Phillips, C.J. observed, as to a murder case in which the violence causing death occurred when all accused were present, it was inappropriate in Victoria that the expression "joint criminal enterprise" should be adopted. The relevant legal concept was "acting in concert". The practice in New South Wales is to refer to "carrying out a criminal enterprise" rather than "acting in concert": see Osland v. The Queen, at 343, per McHugh, J., who held that the principles are, nonetheless, identical, whatever term is used.
R
Lao and Nguyen [2002] VSCA 157