1 Late on 7 November 2004, or very early the next morning, Bill Ho ('Ho') and the applicants, Dang Khoa Nguyen ('Khoa') and Dang Quang Nguyen ('Quang'), went to a flat in Carlton, where seven young people were asleep or watching television. While they were there Ho pulled out a hand gun, shot Chau Minh Nguyen ('Chau Minh') and then killed Hieu Trung Luu ('Hieu Trung'). Each of the three men were convicted of the murder of Hieu Trung and the attempted murder of Chau Minh.

2 Khoa and Quang now seek leave to appeal against their convictions.

3 On 18 December 2009, the Court quashed Quang's convictions for murder and attempted murder and ordered that verdicts of acquittal be entered in respect thereof, with reasons to be handed down at a later date. The reasons that follow apply to both Quang and Khoa.

4 The Crown case against Khoa and Quang was that they had accompanied Ho to the flat to collect a drug debt from Mau Duong ('Mau'). Ho was armed with a gun and Quang was carrying a Samurai sword.

5 The victim of the count of attempted murder, Chau Minh, did not live permanently in the flat, but was intending to stay the night until about 1:00am when he had to go to work. He was lying asleep on the floor against a wall when someone stood on his feet and he was woken up. Ho then shot Chau Minh, who lost consciousness. Very shortly after the first gunshot there was a second. Hieu Trung, who was lying on the bed, stood up after the first shot and was then shot in the head. Hieu Trung died as a result of that gunshot wound.

6 After the second shot the three men left and, as they were leaving, one of them warned those present not to call the police or ambulance. The witnesses did not agree about who gave this warning.

7 The Crown alleged that the applicants were guilty of murder and attempted murder on one of three bases:

(a) either before the men went to the flat, or while they were in the flat, Ho, Khoa and Quang agreed or reached an understanding that the collection of the drug debt would, if necessary, involve killing or infliction of very serious injury. Neither Khoa nor Quang withdrew from that agreement before the offences occurred ('acting in concert case');

(b) either before the men went to the flat or while they were there, Khoa and Quang agreed, or had an understanding with Ho, that violence (not amounting to the infliction of death or serious injury) could be used to collect the debt and foresaw the possibility that a person might be killed or really seriously injured. They continued to participate in Ho's criminal conduct on that basis.[1] ('extended common purpose case'); or

(c) although neither (a) or (b) applied, while Khoa and Quang were present at the flat they intentionally encouraged or assisted Ho to kill or seriously injure both victims. Alternatively they encouraged or assisted him to kill Hieu Trung after Chau Minh was shot ('aiding or abetting case').

8 During the trial there was discussion between counsel and the judge about the basis on which Khoa and Quang might be convicted of manslaughter, rather than murder. I refer to this below.[2] During his closing address counsel for the Crown referred to the possibility that the men might be convicted of unlawful and dangerous act manslaughter but did not explain how the evidence could give rise to accessorial liability on any of these three bases.

9 The defence case for both Khoa and Quang was that they had not made an agreement or reached an understanding with Ho before they went to the flat that the collection of the drug debt would, if necessary, involve murder or infliction of very serious injury or would involve the use of violence. Neither of them knew that Ho was going to the flat to collect a drug debt. They simply got a lift with him and stopped off at the flat on their way to the casino. They were drunk or had been drinking, were not aware that Ho had a gun with him and were not carrying any weapons themselves.

10 It was also said that there was nothing about the behaviour of the men while they were in the flat that provided a basis for a finding that they had then agreed or reached an understanding with Ho that someone should be killed or seriously injured or that violence should be used to recover the debt. Ho's production of the gun and the shootings were entirely unexpected. Further, although the men were present in the flat when the attempted murder and murder occurred, there was nothing that they did or said that encouraged or assisted Ho to commit the offences. The room was dark when the gun was produced. The attempted murder occurred very shortly after Ho produced the gun and in the short time between the two shootings the men did not aid and abet Ho to kill Hieu Trung.

11 In support of the claim that Khoa was not liable for murder or attempted murder, Khoa's counsel relied on Ho's evidence that the drug debt was owed to him (i.e. Ho), and not to Khoa, and that Khoa knew nothing about the debt. He also relied on the fact that Khoa had pulled Quang away when he was waving the sword at people.

12 In the case of Quang, it was said that although he waved a sword around in the lounge room and inflicted minor cuts on three of the witnesses, he did not do so in pursuance of any agreement with Ho to kill, inflict serious injury or to do violence in order to collect the drug debt. Quang had not taken the sword to the flat to assist Ho. He had found the sword there and was waving it around because he was drunk.

13 Neither Khoa nor Quang gave evidence at the trial. The evidence called by the Crown is discussed in more detail below.

14 The grounds of appeal in relation to Khoa's conviction were as follows:

1. The learned trial judge erred in her directions to the jury concerning the criminal liability of the Applicant for the offence of manslaughter (the alternative offence on Court 1 which alleged the offence of murder of Hieu Trung Luu) by acting in concert.

PARTICULARS

(i) The learned trial judge erred in directing the jury that an element of this alternative offence was that the Applicant and Bill Ho had agreed 'that they would kill intentionally'.

(ii) The learned trial judge erred in failing to direct the jury that an element of this alternative offence was that the Applicant and Bill Ho had agreed to do an act which was an unlawful and dangerous act, which reasonable persons in their position would have realised that, in doing that act, they would be exposing the deceased to an appreciable risk of serious injury and which caused the death of the deceased.

1. The learned trial judge erred in her directions to the jury concerning the elements of the offence of manslaughter (the alternative offence on Court 1 which alleged the offence of murder of Hieu Trung Luu) by acting in concert.

PARTICULARS

(i) The Applicant refers to and repeats the Particulars sub-joined to Ground 1 herein.

1. The learned trial judge erred in her directions to the jury by failing to leave as an alternative offence to Court 1 (the offence of murder of Hieu Trung Luu) the offence of manslaughter by acting in concert on a sound and correct legal basis.

PARTICULARS

(i) The learned trial judge erred in directing the jury that the 'only' basis upon which they could be satisfied that the Applicant had acted in concert for any crimes committed by Bill Ho, including manslaughter, was if the Applicant and Bill Ho had agreed that they would kill.

(ii) The Applicant refers to and repeats Grounds 1 & 2 herein.

1. The learned trial judge erred in her directions to the jury concerning the criminal liability of the Applicant for the offence of manslaughter (the alternative offence on Court 1 which alleged the offence of murder of Hieu Trung Luu) by common purpose.

PARTICULARS

(i) The learned trial judge erred in directing the jury that an element of this alternative offence was that the Applicant and Bill Ho 'contemplated or foresaw the possibility that an intentional killing might occur ...'

1. The learned trial judge erred in her directions to the jury concerning the elements of the offence of manslaughter (the alternative offence on Count 1 which alleged the offence of murder of Hieu Trung Luu) by common purpose.

PARTICULARS

(i) The Applicant refers to and repeats the Particulars sub-joined to Ground 4 herein.

1. The learned trial judge erred in her directions to the jury by failing to leave as an alternative offence to Court 1 (the offence of murder of Hieu Trung Luu) the offence of manslaughter by common purpose on a sound and correct legal basis.

PARTICULARS

(i) The Applicant refers to the repeats Grounds 4 & 5 herein.

1. The verdict of the jury on Count 2 is unreasonable and/or cannot be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice.
2. The verdict of the jury on Court 1 is unreasonable and/or cannot be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice.

15 Quang's grounds of appeal did not assert that her Honour gave an incorrect jury direction. However at the hearing, his counsel was given leave to amend his grounds of appeal to include similar grounds to those argued by counsel for Khoa. The other ground of appeal relied upon by Quang was that the jury verdict was unsafe and unsatisfactory. It was also alleged that the learned trial judge had erred in failing to rule that there was no case to answer in respect of aiding and abetting.

16 I turn first to Quang's claim that his convictions for murder and attempted murder were unsafe and unsatisfactory. In doing so I also refer to evidence relevant to Khoa's conviction. Grounds 7 and 8 of Khoa's grounds of appeal also claimed that the verdicts were unsafe. Although counsel for Khoa did not pursue these grounds at the hearing, they were not formally abandoned.

The men's movements before and after commission of the offences

17 CCTV cameras recorded the movements of the men at the Richmond block of flats where they met, their arrival at the Carlton flats where the killing occurred and Quang's return to the Richmond flats. The CCTV footage played to the jury showed Ho arriving at the Richmond flats where Quang lived at about 11:20pm. About an hour later, the three men were recorded getting into the lift there and leaving the Richmond flats. I have viewed that video. Ho's hand gun is not visible, and nor is Quang apparently carrying a sword. The Crown case was that he had the sword with him and it was up his sleeve. Counsel for the Crown conceded during the hearing of the appeal that the sword was not visible in the CCTV footage and his submissions were made on that basis.

18 There was also CCTV footage of the men entering the foyer of the Carlton flats, getting into the lift on the ground floor and getting out of the lift at level 13. The flat where the offences occurred was on level 12. Again the CCTV footage does not show that Quang was carrying a sword.

19 With the agreement of the parties, a statement made to the police by Lual Abraha and his cross-examination at the committal were read into evidence. Mr Abraha worked as a security guard at the flats where Quang lived. He said he saw Quang doing martial arts moves in the foyer after Quang returned to Richmond and Quang had spoken to him. He could tell by the way Quang spoke that he was drunk. The CCTV footage showed Quang doing martial arts moves at that time.

20 In cross-examination at the committal Mr Abraha was asked about his statement that he could tell that Quang was drunk from the way he talked. He answered '[e]very time he come he talked to me as a tenant. I talk to him too and then he just say how are you and you know how to do the martial arts. And he show me the actions'. The witness was then asked whether this happened every time. He responded '[y]es, sometimes'. Mr Abraha later said '[l]ook like a drunk, I'm not quite sure he is drunk because I'm not close to him because you have a different for me and for him, they have a mirror so he looks drunk'. He agreed that Quang did not smell of alcohol.

21 Yakup Guclukol, who was a tenant in the Carlton block of flats, also gave a statement to police which was read out in court and gave evidence at the committal.

22 Mr Guclukol got into the lift with the three men at the Carlton flats and noticed 'the smell of alcohol'. In cross-examination at the committal he agreed with counsel that there was an 'aggressive smell of alcohol'. He described the man with the shorter black hair (probably Khoa) as being 'wobbly' and said that he 'could not stand straight' and on those bases, he believed that he was more intoxicated than the others were. He disagreed with counsel's suggestion that 'all three were wobbly on their feet to some extent'. He said that he had not observed 'any weapons or anything like that'.

23 As I have said, the Crown case was that the men went together to the Carlton flat to collect a drug debt. Mau was not present at the flat at the time of the shooting, but the Crown called him to give evidence about previous drug transactions he had entered into with Ho and Khoa. His evidence implicated Khoa, but not Quang, in those transactions.

24 In his evidence-in-chief, Mau said that he knew Khoa prior to the shootings and had his phone number stored in his mobile phone. Mau obtained the first package of heroin in this series of transactions after meeting Khoa in the Four Seasons restaurant. Khoa told him to wait in front of the restaurant and instructed Ho by phone to deliver the heroin to Mau. After Mau had completed selling the package of heroin, he met Khoa at the restaurant but gave the money from the sale to Ho. To obtain the second package of heroin, he rang Khoa's mobile phone and was told that he would call Ho and that the heroin would be delivered to the flat in Carlton. The heroin was delivered to the Carlton flat, when Mau was not there. He said that his phone indicated that he had received a call on the night of the shootings from the same phone on which he had previously been contacting Khoa.

25 In cross-examination by counsel for Khoa, he said that the transactions had occurred the other way round. The first package was delivered to the Carlton flat and the second package was picked up at the Four Seasons restaurant, where he met Khoa face to face. Mau said that Ho (not Khoa) handled the money and the drugs, and that after the first transaction he was told to deal exclusively with Ho.

26 It was put to him by counsel for Khoa that in sworn evidence given at an earlier trial he had said that Ho was the person with whom he had dealt. Later in his evidence Mau apparently accepted that he had not met Khoa face to face in either of the two transactions. When cross-examined by counsel for Ho, Mau said that he had obtained heroin on three occasions and paid for it on two occasions.

27 Mau described the process of picking up a new package of heroin. Mau would call the mobile phone number he had been given while in front of the Four Seasons and Ho would come out to pick up the money for the last package and give him the new package. After selling the first package of heroin which had been delivered to the Carlton flat, he went to the Four Seasons and paid Ho. On the second and third occasions when he had called the mobile number, Ho had come out and given him the heroin. A girl named Linh then told him to deal with Ho in future transactions. Despite this instruction, he did not agree with counsel that Ho was 'the person, in fact, who was answering the phone ... on all occasions'.

28 In re-examination, Mau said that he spoke to Khoa on each occasion he picked up a package of heroin and made a payment. Although he had been told to deal with Ho and not Khoa, he continued to call Khoa on this number because he did not have Ho's phone number. On the phone, Khoa would tell Mau that he would call Ho to come and see him.

29 The Crown introduced phone records to show a number of calls had been made between Mau's phone number and Khoa's phone number, including a call the day after the offences occurred.

30 Ho gave evidence at the trial of the three men. In his evidence-in-chief, Ho said that he had been selling drugs in October and November 2004 before the offences occurred. He said that Khoa, whom he had known for nearly 10 years, told him that Mau wanted an ounce of heroin on credit and that Mau might call him. He described his previous drug transactions with Mau, before the transaction for which money was owed.

31 He said that Mau was introduced to him by Khoa. In telephone calls between Mau and him, Mau would address Ho as 'Khoa' and not as Ho. Ho said that 'I went along with it, obviously because in the drug trade you don't really want your name to be - I guess - said over the phone'. He said that Mau owed him approximately $5,000 for the one ounce of heroin he had sold to him.

32 In cross-examination by Khoa's counsel, Ho said he himself had entered into the drug transaction with Mau for which money was owed. He said that when Mau had called him in the two weeks prior to the shooting, Mau addressed him as Khoa. He said:

When Mau called me the first time he said, 'Hello, Anh Khoa', Anh means just brother, like he's older, and I went along with it because normally you don't call someone by the name if you are, I guess, doing a drug deal or if you are after drugs.

33 Later, in cross-examination by the Crown, he said:

I remembered the first call, he did mention Khoa's name, but after that he just pretty much 'hello', no names were used, I guess, after that.

...

I guess after that, 'cos you don't normally use names on the phone when you are, I guess, dealing drugs so a - a lot of the times I guess he might have just called and thought I was Khoa.

34 Ho then said that phone records which had been exhibited as listing telephone calls between Mau and Khoa were actually between Mau and himself.

35 Ho agreed with counsel for the Crown that Mau thought that he was speaking with Khoa. This was despite counsel's earlier suggestion that the difference between Ho's 'broad Australian accent' and Khoa's manner of speaking would have made obvious to a caller that it was actually Ho and not Khoa speaking on the phone. Ho said that he pretended to be Khoa because he was worried about police surveillance. He also had a number of mobile phones and SIM cards.

36 Counsel for the Crown then asked questions relating to a transaction in which Ho delivered heroin to Mau on 'credit' which appeared to be directed to proving that Khoa had a greater role in the transactions than Ho said. Counsel asked Ho whether he was concerned about delivering heroin on 'credit' to a stranger without performing any 'credit checks' and given Ho's cautious nature, whether he thought Mau might have been 'wire tapped'. Ho said he was not concerned because Mau had a 'long background of drug dealing', was known in the drug syndicate and was a friend of Khoa's. He asked whether Mau was shocked to see Ho deliver the heroin instead of Khoa, whom he thought he had been speaking with on the phone. Ho said that Mau was not shocked. Counsel then suggested that it was Khoa and not Ho who had been speaking with Mau. Ho denied this, maintaining that Mau had been speaking with him on the phone.

37 Ho agreed with counsel for the Crown that it was a coincidence that Khoa, who had introduced him to Mau, was at the party on the night that he had been looking for Mau. He said he did not tell Khoa that he was going to collect money from Mau because he intended to collect the money alone and it was 'none of his business'.

38 In cross-examination by counsel for Khoa, Ho said that he told Quang he needed to see a friend to 'get some money' and that he wasn't sure whether Khoa heard this.

Bill Ho's evidence regarding the circumstances of the offences

39 I have already referred to Ho's evidence about his drug transactions with Mau. In his evidence-in-chief, Ho denied that there was any agreement between the men to go to the flat to collect the drug debt and said he had concealed the gun when he got into the car. He said that he had shot the victims accidentally.

40 Ho said that he met the applicants at about 11:30pm at a birthday party held in the Richmond flats. The applicants decided to go to the casino, but because they were too drunk to drive there themselves, Ho offered them a lift. He left the applicants to get his car and once in the car, concealed the gun located in the car under his belt.

41 The reasons he gave for concealing the gun were that 'I was trying to call Mau all evening and couldn't get hold of him I thought that I will go see him in Carlton to see or to collect my money' and 'to scare Mau because when he didn't pick up the phone I just thought he was hiding from me'. After picking up the applicants at the front of the building, he told them that before going to the casino, he was 'going to go to Carlton to see a friend [to] grab some money' and the applicants acquiesced. On arriving at the Carlton flat, Ho parked the car and said 'I'll be quick, I'll just go upstairs'. Quang then said that he needed to use the toilet and the three of them went up to the flat together. Except for Ho's gun, none of the three was carrying any weapons. They initially went up to the thirteenth floor in the lift, but found the flat Ho was looking for on the floor below.

42 Ho said they had been let into the Carlton flat by Tien Manh Pham ('Tien Manh').[3] The three men entered the flat, with Quang heading directly to the toilet. Ho asked Tien Manh where Mau was, following Tien Manh into the lounge room. Khoa was behind him towards the door of the lounge room.

43 Once in the lounge room, Tien Manh informed Ho that Mau did not live there and then began trying to call Mau on his mobile phone. He could not get through to Mau and showed Ho the number which he was dialling, which was the same number that Ho had been trying earlier in the evening. Ho was upset because Mau had previously got him to drop off drugs at the flat and Ho thought that was where he lived.

44 The conversation between Ho and Tien Manh about Mau's whereabouts lasted for about a minute. Ho had thought people in the flat were hiding Mau so he pulled out the gun. He played with the 'barrel ... the circle thing ... to scare the people in the house'. He then said 'I closed it and that's when I stood up and took aim on the wall'. He said:

I thought if I pulled it out they would see the gun and get scared and tell me where Mau was, and pretty much ... there was no response, I guess, and I thought of taking a shot at the wall and there was someone laying down near the wall and I shot above his head but at the wall, just to scare them.

... [A]fter that it looked like it hit the person lying down and I was really scared ... not long after I remember seeing a shadow come across to me on my right and I turned around and at that point the gun went off and I was, I remember seeing, seeing him fall down and, I don't know, I was just - after that I don't know what I was thinking, I was just shocked, really everything slowed down and I just - and then I remember seeing Quang run up to him to see if he was all right and checked his pulse and he looked up to me and goes, 'I think he's dead'. When he said that I was scared and I didn't know what to do, and then I think during that time I remembered hearing Khoa, I don't know if it was before the shot or after the shot, saying that, 'I'm going' or, 'I'm leaving' or something like that and I said to Quang, 'Let's just go' and then we left.

45 Ho said that the time that elapsed between the first and second shot was 'a couple of seconds'. Ho said that he did not mean to harm Hieu Trung or Chau Minh and that 'I was just there that night just really to scare them and get [my] money back, and no, I never wanted it to turn out like it did'.

46 Ho did not recall when he first saw Quang with the sword. His counsel said that it had been suggested by Chau Minh that Khoa was seated on the speakers next to the television when the first shot was fired. Ho said that Khoa was not there and that he did not have any conversation with Khoa before the first shot.

47 In cross-examination by counsel for Quang, Ho agreed that Quang was a simple man and not very smart. He said that he did not tell Quang he had a gun before entering the flats and did not show him the gun. He agreed with counsel's description of Quang as being 'quite drunk' by the time they left the party.

48 Counsel for Quang asked Ho whether he was so preoccupied with his conversation with Tien Manh that he did not see the sword in the flat. He answered, 'I could have seen the sword, the first time I saw it, it was either in the flat or as we were walking out. I can't really say because, yes, I was busy talking to [Tien] Manh about Mau'.

49 Counsel for the Crown put to Ho that Chau Minh, Viet Tran, Tien Manh and Kathleen Quach all said that the sword was produced before the first shot. He also asked Ho whether he had heard Khoa saying anything to Quang about not using the sword. Ho replied:

To be honest I was in a position where I wasn't, I wasn't zoned into what's really happening, I was just trying to get this message across to Manh ... And yes, I do remember there was yelling, I mean it wasn't like quiet, it was, there was yelling and maybe screaming, but hearing all that I was basically focussed on Manh, because Manh is - I know Manh, that's why - the rest of the occupants, to be honest, when I walked in I didn't even know how many was there, to be honest.

COUNSEL: I suggest that it would be impossible not to see that sword being waved around that night?

HO: Like I said, I think I did see the sword, yes, like I'm not saying I didn't see a sword or ---

COUNSEL: You saw what was happening with the sword, didn't you?

HO: No, not how the witnesses explained and that, no.

COUNSEL: I see?

HO: Not all of that, no.

COUNSEL: You didn't see Manh - you were dealing with Manh?

HO: I was talking to - yes.

COUNSEL: You didn't see him cut with the sword on the neck?

HO: No.

COUNSEL: You didn't see Quang approach him with the sword?

HO: No, no.

51 In answer to a question in cross-examination by counsel for Khoa, Ho agreed that Khoa was 'very drunk' and not 'making much sense in anything he said', and recalled him 'stumbling' as he walked. Ho said that he never told Khoa that he had a gun and that once they were in the flat, he did not hear Khoa saying anything to anyone. Khoa did not make eye contact with him, nod to him or make any indication to him 'to do anything at all'.

52 In relation to what was said after he fired the second shot, Ho said that:

after Quang checked for his pulse, he said, 'What are we going to do?' I think I said, 'Let's get rid of the body', or something like that, and - I don't know exactly what was said but I think it was a lot of yelling at each other or stuff like that. It was just like a, it was like a panic situation where I can't really remember what was said.

53 Khoa said 'I'm going', which was the only thing he had said in the flat.

54 When Ho and Quang left the flat, Ho said he did not know where Khoa was. At Ho's suggestion, they used the stairwells to avoid the cameras in the lift. He said:

me and Quang went downstairs, running down the stairwells and yeah, and at that time I saw - actually I saw the Samurai - I saw Quang carry a Samurai at the lift, and I said, 'Where did you get that from?', and he told me he got it inside the house, and as we were running down the stairwells Quang kept yelling at me. Going, 'Why did you shoot him? Why did you shoot him?', stuff like that, and I told him it was an accident and we got downstairs ...

we went to the car and inside the car there was a lot of yelling and screaming, I guess, about what happened, and Quang kept going to me, oh, he was upset, we were just in the hysterical, like we were just, yeah.

56 Ho assumed that Khoa had already left and then drove Quang home to his Richmond flat. This was when the CCTV footage showed Quang performing martial arts moves in the foyer after his return.

57 Ho said that the next day, he tried to call Mau to find out 'what happened to the people in the flat' but could not get through to him.

58 Ho also admitted in cross-examination by the Crown that his interest in the people from the flat was not the only reason he called Mau the day after the shootings. He said 'I was looking for the money, apologise, I don't know'. The following exchange then took place:

COUNSEL: Apologise for what?

HO: Not apologise, just - really just to call him to find out what's going on, like, what happened with everybody, what happened, who got hurt. It was in my mind.

COUNSEL: You knew what happened?

HO: I thought that they died but I wanted to ring up to find out.

COUNSEL: Thought they died, you were talking about - you wanted to dump the bodies?

HO: That came out, but I didn't want to do it, it was just a, I guess, something I just said out because I was scared. I didn't - I mean, I didn't really want to go ahead and dump the body but it was just saying, it came out when I was scared when I said it.

COUNSEL: And you wanted the money?

HO: No, I wanted to ring up, yes, ring up Mau to say what happened, what happened to, I guess, the two, two of his friends.

COUNSEL: And you wanted the money?

HO: No, and - I was going to ring him up, yes, and to say, like, 'look what happened', because I wanted the money he owed me.

COUNSEL: You said before one of the reasons you rang him was you wanted the money?

HO: Yes, yes.

COUNSEL: See, this money was so important to you and/or Khoa that the next day you're still ringing up demanding the money?

HO: When I said the money, you make it sound - what I meant was to ring up Mau and find out, like, basically find out what happened to his friends.

59 The three men were let into the flat by either Hung Manh Nguyen ('Hung Manh'), who lived there, or Tien Manh, each of whom gave evidence that they had opened the door. Ho said that Tien Manh had let them into the flat.[4] Kathleen Quach, who was visiting the flat with Viet Tran and had not met the men before, said that they had been let in by Tien Manh. The following people were present at the scene and were called as witnesses by the Crown:

• Hung Manh;
• Tien Manh;
• Kathleen Quach;
• Chau Minh; and
• Viet Tran.

60 Hung Manh gave his evidence through an interpreter. He said that he had opened the door to let the three men into the flat and did not see them carrying any weapons at that stage. Ho, whom he had met once before, asked for Mau. Since he was not Mau's friend and could not help locate him, he returned to the lounge room. After a while, the three men came into the lounge room with Tien Manh, who attempted to call Mau.

61 Hung Manh said that Quang was waving the sword at people and asking for the whereabouts of Mau. He and the others were scared of being hit by the sword, which he had not seen before, so they stayed close to the wall.

62 Shortly afterwards Hung Manh heard a gunshot. Less than a minute after the first gunshot, Hung Manh heard a second gunshot and saw Hieu Trung fall onto the table. The three men walked past him, with Ho carrying the gun. On their way out, one of them said words to the effect of '[d]on't tell anyone this'. Later on at the police station, a wound was discovered on Hung Manh's neck. He could not recall how he had sustained the injury.

63 In cross-examination by counsel for Quang, Hung Manh said that he did not see where Quang obtained the sword and maintained this despite counsel's suggestion that it came from a bedroom which Hung Manh was not accustomed to entering.

64 In cross-examination by counsel for Khoa, Hung Manh said that he would not have let the three men inside the flat if he had seen them carrying any weapons. He said it was dark in the room, but there was light from the room and light streaming in from outside.

65 Tien Manh had gone to bed in another room when he heard a knock on the door. He got up and opened the security door, but did not look to see who it was as he was not fully awake and expected it to be a friend, who had left earlier, returning to the flat. He returned to the bedroom and after one or two minutes heard screaming and arguing from the lounge room.

66 On entering the lounge room, Tien Manh saw the three offenders. Ho was yelling 'where's Mau?' Later in his evidence-in-chief Tien Manh said twice that 'the men were asking where's Mau'.

67 Quang was swinging a sword that Tien Manh had never seen before from side to side. At this stage, no one had been hit by the sword but it had come close to Hung Manh. Tien Manh then told Ho to calm down, informing Ho that Mau did not live there. He tried to contact Mau by phone.

68 Quang then approached Tien Manh with the sword, placing it against his neck. Quang giggled and then made a stabbing motion with the sword. Tien Manh tried to avoid the sword by moving backwards but the sword cut him on the neck. He then fell backwards, covering his head.

69 Tien Manh heard two gun shots, which were fired about one or two seconds apart. He did not see who fired the shots as he had kept his head down after being cut by the sword but managed to see Ho crouching down. After the shots were fired, he heard someone he thought was Ho saying 'Dee. Dee', which is Vietnamese for 'Go. Go'. They stayed for between 30 seconds and a minute before leaving.

70 When cross-examined by counsel for Quang, Tien Manh denied he knew that there was a Samurai sword in the flat. Tien Manh agreed with answers he had previously given in one of the previous trials in which he described Quang as 'behaving the way a drunken person behaves' and 'just having a laugh at the whole incident'.

71 In re-examination by counsel for the Crown, he said that Quang had 'acted just strange' and '[l]ike a crazy person would'.

72 In her evidence-in-chief Kathleen Quach said she was watching television in the lounge room when she heard a knock on the door. The three men came in after Tien Manh opened the door.

73 The three men walked into the room. Quang, who was carrying a sword, entered first and was followed by Ho and then Khoa. She said that 'the men' were asking for Mau. When asked who said this she said it was the man with the sword (i.e. Quang) and the 'black-haired one' (i.e. Khoa). Tien Manh was looking in vain for Mau's phone number on his mobile phone. As this was happening, Quang went around the room asking the others present where Mau was and Khoa was standing by the door. At one stage Quang pointed at Viet Tran with the sword. She said that Quang was also walking around the room making slashing movements with the sword, but could not recall whether this was before or after the first shot was fired.

74 Kathleen Quach said that 'they', presumably Ho and Tien Manh, began talking louder and louder. Ho then pulled a gun out his pocket and begun spinning the cylinder. She then described the circumstances in which Chau Minh was shot:

[Chau Minh] was laying where the towel is and he had a blanket over him so I think because of the noise going on in the room he woke up, he pulled the blanket over his face.

75 She said that Chau Minh had the blanket 'covered over his head so he pulled it down to see was going on'. Ho then 'closed the gun', turned around and shot Chau Minh.

76 In cross-examination by counsel for Ho, she said that she saw the gun when Ho was squatting down and spinning the cylinder. He was not pointing the gun at anyone at this stage.

77 According to Kathleen Quach, she moved towards the wall after the first shot because she was scared. Hieu Trung woke up and stood on the bed. Ho then turned around and shot Hieu Trung, who fell onto the coffee table. Three or four minutes elapsed between the shots. Quang continued walking around with the sword asking where Mau was. Viet Tran was slashed in the knee, but she could not recall whether this occurred before or after the shot was fired.

78 After the second shot Quang went and checked Hieu Trung's pulse and stated that he was dead. She then heard Ho or Quang say, 'let's just go and dump the body'. Khoa, who was at the door replied 'oh, let's just go'. In cross-examination by counsel for Ho, she said that it was actually Ho that said '[j]ust leave them, let's go. The men left about 10 to 15 minutes after the second shot was fired and before leaving they said 'don't call the police or the ambulance' and 'just, you don't know who we are if anyone ask'. She was uncertain which of the three men made those statements.

79 In cross-examination by counsel for Khoa, she agreed with the answer she gave in a previous proceeding that 10 to 15 seconds elapsed between the first and second gunshot. She also agreed with the statement that she gave to the police that Khoa appeared to be drunk. She said that Khoa had been at the front door of the flat when the second shot was fired.

80 In cross-examination by counsel for Ho, she said that she saw the gun when Ho was squatting down and spinning the cylinder.

81 In cross-examination by counsel for Quang, she agreed that Quang appeared to be drunk and was acting in a 'bizarre manner'. She also agreed that Quang had said 'where did I slash you before? I'm really sorry, I didn't know you guys are just friends'. She also said that nothing was said and no warning given before the second shot was fired. She agreed with counsel that she was not sure who had suggested dumping the body and that she could have been mistaken in stating that the offenders left 10 to 15 minutes after the second shot was fired 'because probably I was scared and for every second that they are still in the room I felt as if it was long'.

82 Chau Minh said that he was sleeping on the floor and woke up because someone stepped on his foot. When he woke up he saw Quang sitting on the bed waving a sword, Ho down on one knee and Khoa sitting on the stereo. Ho was saying to Tien Manh 'find Mau for me'. Tien Manh was pacing up and down at the foot of the bed. Chau Minh then heard Khoa instruct Ho to 'fuck him off' or 'get him off'.

83 Chau Minh said that Ho pulled out the gun, pointed it at him and asked Khoa 'that guy?'. Khoa nodded and Ho then shot Chau Minh in the head. Chau Minh remembered none of the events which occurred after he was shot.

84 Counsel for Khoa put it to Chau Minh that he did not recall what Khoa had said immediately before he was shot and he denied this. He agreed with counsel for Khoa that the period between him being woken up and being shot lasted two to three minutes.

85 In cross-examination by counsel for Ho, Chau Minh said that when he woke up in hospital he could remember nothing for some days, but said that his memory later came back to him.

86 Viet Tran was visiting the flat on the night the shootings occurred. He did not know any of the accused. He recalled the three men walking into the lounge room and asking for Mau, but did not remember who had done so. Quang was carrying a sword. Unlike the other witnesses, Viet Tran said that Ho was holding the gun on entering the lounge room. He recalled hearing Tien Manh inform the three men that Mau was not there and attempting to contact Mau on a mobile phone.

87 Quang then approached Viet Tran, pointing the sword at him and asking his name. Viet Tran left to sit next to Kathleen Quach to comfort her as she was crying, and was then cut by Quang on the chin. The Crown also relied on evidence that there were cuts in his jeans but Viet Tran was not aware of this occurring at the time. Quang then approached Hung Manh, who was sitting on the bed in which Hieu Trung was asleep.

88 Viet Tran heard two or three gunshots. He said that the time between the two shots was very short and that the men left two or three minutes afterwards.

89 In cross-examination by counsel for Khoa, Viet Tran agreed that Khoa had pulled Quang away from him and from Hung Manh after Quang had waved the sword at them.

90 In cross-examination by counsel for Ho, Viet Tran agreed with counsel for Ho that there was no warning before the first shot was fired. Hieu Trung had woken up and asked 'why is it so noisy?' and then stood up and moved towards Ho. It was 'only a matter of seconds' from the time he got up to him being shot.

91 Counsel for Quang submitted that the evidence of Quang's behaviour before the men arrived at the flat, before and after the gun was produced, before the first shot was fired and after the firing of the first shot was insufficient to support his conviction for murder.

92 Counsel submitted that there was no evidence that the men were acting in concert when they went to the flat. He denied that Quang was aware that Ho was collecting a debt owed for drugs when the men went to the flat, or that Quang knew Ho was carrying a gun, prior to its production at the flat. Ho's evidence was that he told the applicants that he was going to see a friend to 'grab some money' but did not tell them that he was collecting a drug debt or carrying a gun.

93 Counsel also submitted that there was insufficient evidence to support the conclusion that his client had brought the sword to the flat, rather than finding it when he got there. Mr Guclukol did not see Quang with the sword when he got into the lift with the men and nor did Tien Manh when he let the men in. Thus there was no basis for finding that the men had an agreement or understanding to kill if necessary or to use violence to collect the debt, before they went to the flat.

94 It was further submitted on behalf of Quang that there was no evidence that the men, after entering the flat, reached an agreement or understanding which would support Quang's liability on the basis of acting in concert or extended common purpose. It was Ho who was asking the occupants of the flat about the whereabouts of Mau. Witnesses described Quang as being drunk and his behaviour as bizarre.

95 Counsel further submitted that there was no evidence as to whether Quang saw the gun before the first shot was fired. Counsel said that his client was either sitting down on the corner of the bed close to the wall or standing near the corner of the bed, and as he was not aware that Ho was carrying a gun, liability could only be founded upon his acts after Ho's production of the gun.

96 Counsel submitted that the period between production of the gun and the first gunshot was very short. The sequence of events was that the gun was produced, the cylinder was rotated and closed and the first shot was fired. He submitted that there was no evidence of what Quang did after the production of the gun and the firing of the first shot.

97 The time between the firing of the first and second gunshot was also very short. Counsel said that the deceased stood up in response to that first shot and took a step forward on the bed and was then shot in his head. The evidence supported the view that only 10 to 15 seconds passed between the shots. A neighbour gave evidence that only seconds passed between the shots. Tien Manh said the shots were one to two seconds apart. Viet Tran said the period in between shots was 'very quick'. Hung said a minute or less passed between the shots. Kathleen Quach said nothing was said and there was no warning before the second shot. At the committal hearing she said there were only seconds between the shots. She repeated this in cross-examination and also conceded that she could not say what Quang was doing.

98 In these circumstances it could not be said that the men had reached any agreement between the first and second shot such as to justify their conviction on the basis of acting in concert or extended common purpose. Although Quang was present when the second shot was fired, the evidence did not permit the jury to draw an inference beyond reasonable doubt that he had encouraged or assisted Ho to fire the second shot.

99 Counsel also submitted that Quang's behaviour after the second shot was insufficient to permit the jury to infer that Quang was criminally liable on the basis of acting in concert or extended common purpose, or that Quang had encouraged or assisted Ho to commit the offences. Although Kathleen Quach initially said the 'guy with the sword' had said 'let's go and dump the body', she was unsure about that in cross-examination. She also said that 'the man with the sword' told them not to call the police or ambulance, but she later said that one of the three men had said it. Even if Quang had made these statements, this could simply have reflected his shock at the killing.

100 Quang's behaviour after the murder might raise a suspicion that he was acting in concert with Ho or was aiding and abetting him, but it was not sufficient of itself to establish beyond reasonable doubt that Quang agreed to the killing or encouraged or assisted Ho to carry it out.

101 The three men left quickly after the second shot. Manh said this was thirty seconds to one minute later. Kathleen Quach said it was 15 minutes later, but later conceded that this might be incorrect.

102 Counsel for the Crown submitted that it was not necessary for the Crown to prove that Quang knew that Ho had brought the gun with him to the flat, or that he had brought the sword with him. In order for Quang to be liable on the basis of acting in concert or extended common purpose, the agreement or understanding between Ho and Quang did not have to be express, but could be inferred from the circumstances in which the offences occurred. The three men had gone to the flat very late at night. Quang's behaviour in using the sword to intimidate people while Ho was trying to locate Mau was sufficient to raise the inference that he had agreed with Ho to kill if necessary to collect the debt or to use violent means to recover it and that he could have foreseen that a murder might occur. Quang left with Ho. His behaviour after the shootings did not suggest that he was horrified by what had occurred and was consistent with the existence of an agreement between the men. Further, the circumstances of the shootings were sufficient to permit a jury to infer that Quang encouraged or assisted Ho to commit the offences.

103 It was also submitted that even if the murder verdict was unsafe and unsatisfactory, the Court was not required to quash the verdict of attempted murder. Counsel for the Crown submitted that the evidence that Khoa instructed Ho to 'fuck [Chau Minh] off' or 'get [Chau Minh] off' could support the verdict of attempted murder as against Quang as well as Khoa.

104 In my opinion, the submissions of counsel for Quang as to the verdict of murder must be accepted. A jury, acting reasonably, must have had a reasonable doubt as to Quang's guilt.[5] There was no evidence that Quang was involved in the trafficking of heroin by Ho and/or Ho and Khoa, or that he knew either of them were doing so. There was no evidence that he knew of the existence of the drug debt or knew that Ho was carrying a gun before they went to the flat. Nor was there sufficient evidence to permit a reasonable jury to find beyond reasonable doubt that Quang went to the flat armed with a 60cm long Samurai sword, in pursuance of an understanding or agreement to use violence in order to collect the drug debt.

105 Although the matter is closer to the line, I also consider that there was insufficient evidence that, after the men arrived at the flat, Quang reached an agreement or understanding with Ho to kill or inflict serious injury if necessary to recover the debt, or to use violence to recover the debt, and that Quang foresaw the possibility that death of serious injury could occur.

106 Quang's behaviour in waving around the sword before the first shot could be regarded as consistent with an agreement or understanding, reached after the men arrived at the flat, to threaten the occupants to discover the whereabouts of Mau. Hung Manh and Kathleen Quach said that Quang was asking for Mau while waving the sword around. However the evidence as to whether Quang continued to seek the whereabouts of Mau after the gun was produced was equivocal and in any case the period before production of the gun and the firing of the first shot was very short. Further, the fact that Quang apologised to Hung Manh and Viet Tran for cutting them with the sword was inconsistent with the existence of an agreement with Ho to use violence to collect the drug debt. In these circumstances I do not consider that there was sufficient evidence to permit a jury to conclude beyond reasonable doubt that Quang could have foreseen the possibility that in the course of using violence to track down Mau someone might be killed or very seriously injured.[6] In addition, both Tien Manh and Kathleen Quach said that Quang was drunk and behaving strangely when he was waving the sword around.

107 The time between the first and second shot was too short to permit an inference to be drawn that during that period, Quang and Ho made an agreement or reached an understanding that if necessary a person would be killed or that violence would be used to collect the debt after the first shot was fired. All of the witnesses, except Kathleen Quach, said that the time between the two gunshots was less than a minute. While Quach initially said it was three or four minutes, she later said that the time between the shots was only a matter of seconds.

108 Quang was present at the shooting but there was no evidence that his behaviour amounted to aiding and abetting Ho in murdering Hieu Trung. R v Lowery (No 2)[7] sets out the principles which make a person liable for aiding and abetting the commission of a crime by another as follows:

Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another - another whom the law calls the principal in the first degree - if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connexion means doing one or other of these three things while aware that the crime is being committed first: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree.[8]

The culpability which attracts the operation of the criminal law to an individual designated as an aider and abettor under those principles arises from the fact of his or her presence at the time that the crime is committed and behaviour whilst there and not by reason of any earlier agreement or arrangement with the perpetrator with respect to it. That situation is separately addressed. Whatever uncertainty may exist with respect to the limits of accessorial liability, it is crystal clear that simply being present at the scene of a crime being committed by another is insufficient to render an individual also guilty. Further, it is not enough that the person alleged to be aiding and abetting is present by reason of curiosity, a high level of interest or even because of the presence of strong approval of the principal's conduct. The justification for rendering the individual liable arises from the contribution that he or she intentionally makes to the commission of the crime. This, of course, can take different forms and these are encompassed by the broad descriptive notions of counselling, procuring, assisting or encouraging the principal offender. It is apparent that quite different questions will be thrown up according to the type of contribution alleged and the circumstances surrounding the particular offence. But whatever the form of contribution, in order to become a party to or participant in the commission of a crime by another, an aider and abettor must do something of a kind that can be reasonably seen as intentionally adopting and contributing to what is taking place in his presence. In this sense, the aider and abettor becomes linked in purpose with the principal actor.[10]

110 In my view the evidence did not justify a finding beyond reasonable doubt that Quang's behaviour at the scene of the crime encouraged or assisted Ho to kill Hieu Trung.

111 The Crown submitted that Quang's behaviour following the shooting of Hieu Trung permitted the jury to draw inferences supporting the Crown case against him. The behaviour of Quang after the shootings might provide some limited support for the Crown case that he had been acting in concert with Ho, or had aided and abetted him to kill Hieu Trung. However the fact that Quang checked the pulse of the victim and may have said that the men should leave, could equally have been attributable to shock and fear about what had happened. The same may be said of Quang's behaviour in using the stairs rather than the lift to avoid CCTV surveillance. In my opinion a reasonable jury could not have convicted Quang of murder on the basis of this evidence.

112 For these reasons I would quash Quang's conviction for murder. It seems to me that the same reasoning must apply to the attempted murder count as well. Even if the jury accepted the evidence that Khoa said to Ho 'get him off' or 'fuck him off' immediately before Ho fired the shot which injured Chau Minh, that evidence would not be sufficient to permit a jury to find beyond reasonable doubt that Quang was an accessory to the attempted murder of Chau Minh.

113 It was not contended that Quang could be retried for murder as an accessory after the fact, rather than on the basis that he was liable because he had acted in concert with Ho or aided and abetted him.[11] In answer to a question from the Bench, counsel for Quang said that it would be open to the court to remit Quang for retrial on manslaughter. The Court has a discretion to quash the applicant's conviction for murder and remit him for trial on the alternative count[12] of manslaughter. [13]

114 Quang could be convicted of manslaughter if it were established that before he went to the flat, or while he was there, he and Ho agreed or understood that Ho would commit an unlawful and dangerous act to recover the drug debt, or that his behaviour at the flat amounted to aiding and abetting Ho to commit that unlawful and dangerous act. The only unlawful and dangerous act committed by Ho which arose on the facts of this case was the act of using his gun to threaten those present in the flat.

115 For the same reasons that I have given in relation to Quang's murder conviction, it would not have been open to a reasonable jury to convict Quang of manslaughter on the basis that before Quang went to the flat he agreed with Ho to commit an unlawful and dangerous act (in this case, use of the gun to threaten those present) in order to recover the drug debt. As I have said, there was no evidence that Quang was aware of the existence of the drug debt or that Ho had a gun with him. Further, it was not until the men arrived at the flat that Ho discovered that Mau was not there.

116 Given the short passage of time between production of the gun, the shooting of Chau Minh and the killing of Hieu Trung, I do not consider there was sufficient evidence to permit a jury to conclude that Quang was criminally liable for manslaughter on the basis that he was acting in concert with Ho to commit the unlawful and dangerous act of threatening the occupants of the flat with a gun to discover the whereabouts of Mau, or that he aided and abetted Ho to do so. For these reasons Quang's convictions for murder and attempted murder should be quashed and verdicts of acquittal entered.[14]

117 As I have said, counsel for Khoa did not press grounds of appeal 6 and 7. I do not consider that the verdicts against Khoa were unsafe and unsatisfactory. On the basis of Mau's evidence it would have been open to a reasonable jury to conclude that the drug debt was owed to Khoa rather than Ho, and/or that Khoa went to the flat to assist Ho to use violence, if necessary to collect the drug debt. In addition the jury would have been entitled to rely on the evidence of Chau Minh that Khoa told Ho to 'fuck him off' or 'get him off' and that Khoa nodded at Ho before Ho shot Chau Minh in the head.

119 In essence, grounds 1 to 6 of Khoa's grounds of appeal allege that her Honour's jury directions deprived Khoa of the chance of conviction for manslaughter, rather than murder.

120 So far as Ho was concerned, her Honour was required by the evidence at the trial to charge the jury on the elements of murder or alternatively manslaughter by unlawful or dangerous act and to relate those elements to the evidence at the trial.[15] Given the three bases for the Crown case against the applicants, her Honour was required to explain the legal doctrines of acting in concert, extended common purpose and aiding and abetting, relate these doctrines to the evidence and explain the principles under which Khoa and/or Quang could be held liable as accessories for the murder committed by Ho.

121 If Ho was convicted of manslaughter, rather than murder, her Honour had to direct the jury about the three bases on which Khoa and/or Quang could be found criminally liable for that offence.

122 The question raised by this appeal is whether her Honour was also required to direct the jury as to the three separate bases on which Khoa and/or Quang could be convicted of manslaughter, instead of murder, even if Ho was convicted of murder. If, as counsel for Khoa contended, she was required to do so by the decisions of the High Court in Gilbert v The Queen[16] and Gillard v The Queen,[17] this was an extraordinarily complicated task. As Ormiston JA observed in R v Makin:[18]

the law as stated in Gilbert ... seems to produce needlessly complicated charges to juries where both they and the accused deserve instructions expressed with clarity and simplicity on the real issues.[19]

123 Before considering whether there was a miscarriage of justice because of an error in her Honour's jury directions, I briefly describe the relevant parts of the directions and the context in which they were given.

124 Her Honour initially told the jury that the Crown case was that Ho was guilty of murder and that Khoa and Quang's liability for that offence was based on three alternatives - acting in concert, acting with a common purpose or aiding and abetting Ho in committing the crime of murder. She said that the Crown case was that if they found that Ho was guilty only of manslaughter, Khoa and Quang's liability for that offence was based on the same three alternatives. She told the jury that she would be directing them later as to the circumstances in which Ho could be found guilty of murder and Khoa and Quang of manslaughter.

125 The judge then set out the elements of murder, manslaughter by unlawful and dangerous act and attempted murder. She told the jury that counsel for Ho had conceded that the act of shooting was an unlawful and dangerous act.

126 Her Honour then told the jury again that 'it might be open to you to determine in some circumstances that [Khoa] or [Quang] is not guilty of murder, but he is guilty of manslaughter in relation to [Hieu Trung]'s death'. Following that part of the charge her Honour discussed with counsel some written instructions which she intended to give the jury.

127 Initially the written instructions appear to have said that the applicants could be guilty of a crime committed by Ho on the basis of acting in concert, if the prosecution proved beyond reasonable doubt that (1), the crime in question was committed by Ho and (2), there was an understanding or arrangement amounting to an agreement between Khoa or Quang, as the case may be, or both of them, and Ho that if they went to the flat to engage in a collection of a drug debt by violent means and foresaw or contemplated the possibility that death or really serious injury might occur, they would be guilty of the offences committed by Ho.

128 Counsel for Quang submitted that the written instructions should not refer to manslaughter, because 'there is no acting in concert manslaughter ... which is put', that '[i]t's not put that they went there acting in concert to commit the crime of manslaughter' and that it 'wouldn't make any sense' to be put that they 'had a concert agreement ... to commit the crime of manslaughter'. That submission appears to have related solely to the 'acting in concert' limb of the Crown's case against the applicants and not to the extended common purpose and aiding and abetting limbs.

129 After hearing further submissions from counsel, her Honour told the jury that there were three possible bases on which either or both of the applicants could be held guilty of the crimes committed by Ho. She explained the concepts of acting in concert, extended common purpose and aiding and abetting and related these principles to the offences of attempted murder, murder and manslaughter. Having set out the requirements which would have to be satisfied in order to find the applicants guilty of murder if Ho had committed that offence, her Honour went on to consider the basis on which they could be criminally liable if Ho was convicted of manslaughter. She said:

If you find [Ho] not guilty of murder but guilty of manslaughter then the same propositions apply. You could find [Khoa] or [Quang] guilty of manslaughter if the prosecution satisfied you beyond reasonable doubt that before [Hieu Trung] was shot they had reached that unspoken agreement, arrangement or understanding that violence, including an intentional and unlawful and dangerous act, would be used to recover the drug debt of which they were aware, and that [Khoa] or [Quang] was present when the crime was being committed and ready to help, or liable on the basis of the principles of common purpose and the prosecution would have to prove before [Hieu Trung] was shot that [Khoa] or [Quang] had reached a spoken or unspoken agreement, arrangement or understanding with [Ho] that intentional violence would be used to recover the drug debt, and [Khoa] or [Quang] contemplated that that intentional violence might include an unlawful and dangerous act which might possibly occur as a necessary part of carrying out the agreed common purpose. Or you might find that [Khoa] or [Quang] aided and abetted [Ho] in committing the crime of manslaughter. The prosecution would have to prove first of all that that man, [Khoa] or [Quang], was present when [Ho] committed the crime, being in the vicinity so as to be able to help or encourage him if they are inclined to do so, and that [Khoa] or [Quang] intentionally encouraged [Ho] to commit the crime of manslaughter, it might be by being present, in his behaviour or his words, although no words are necessary, provided he intended to encourage [Ho] to commit the crime and did encourage him, or that he communicated to [Ho] that he assented and concurred in the commission of the crime of manslaughter. Again, it might be by his words or his presence or his behaviour, provided he intended to convey his assent or concurrence that way and he knew that [Ho] was doing the acts that constituted the crime of manslaughter, the unlawful and dangerous act, with the necessary intention of doing that act.

130 After her Honour had given these oral directions, counsel for Khoa said that the jury directions were exceedingly complex and were unlikely to be understood by the jury. Her Honour then gave counsel the written instructions which she intended to give the jury and they made various suggestions about the changes which should be made. In particular, counsel for Khoa suggested that it might be preferable to simplify the written instructions by setting out the principles of accessorial liability and not repeating these statements for each crime.

131 Her Honour then modified the written instructions to make it shorter and gave the revised version to counsel. In the course of her discussion with counsel she said that:

the second thing I want to point out to you is that you may not pick up from looking at that at first sight, but I have reflected upon the argument [counsel for Quang] made about the liability for manslaughter arising, the possibility of it rising on the grounds of concert, and I think that extends to common purpose. In relation to that I told the jury that they might, if they concluded that there was an agreement to do violent things that included an unlawful and dangerous act, find the accessories liable on that basis. [Counsel for the Crown] at that stage said in the course of argument, 'Well they would be liable in any event if there was a killing, if the plan was that there be a killing if necessary', and it seemed to me that if I gave them that extra option of [Khoa] or [Quang] being guilty of manslaughter on the grounds of concert or common purpose on the basis of a less serious common purpose or plan, it was just way too confusing and might result in an unfairness to the accused men, and I thought in those circumstances I should say to the jury, as you will see I have said, that to find them guilty of any crime they need to be, on the basis of concert, they need to be satisfied that the agreement was for a killing, to kill - that they would kill if necessary to recover the drug debt. That rules out, that means that if they are not satisfied that there is that common purpose they could not find them guilty of murder, manslaughter or attempted murder. I think to go into any more complexity in that regard may be logically a bit suspect, I have real worries about the notion that you can agree to an unlawful and dangerous act but not be agreeing to a killing and at the same time be liable for manslaughter on the basis of that. It really troubles me and I don't want to go to the jury, unless I am talked out of it, on that basis. I think it is much simpler if they are simply given this analysis that the Crown has put from day one and leave it at that. So you will see that is why in relation to concert I have made that the basic agreement which would found the concert liability, and in relation to common purpose I have made that what has got to be foreseen, because common purpose is a plan to use violence and then foreseeing that an intentional killing might occur, and concert is making the plan that the intentional killing will occur if necessary.

132 Counsel for the Crown then submitted that 'the doctrine of common purpose is, in fact, very similar to a manslaughter position'. By that, counsel presumably meant that if it were shown that the men had agreed to use violence to collect the drug debt and foresaw the possibility that murder might occur they would be guilty of murder on the basis of the doctrine of extended common purpose. In effect, counsel was identifying the overlap between evidence which would prove that the men were guilty of murder on the basis of an extended common purpose and evidence that the men agreed to commit an unlawful and dangerous act, or aided and abetted Ho to commit an unlawful and dangerous act, which would provide the basis for a manslaughter verdict.

I am saying they could be guilty of any one of three crimes if those things that are set out there are proved. In each case it involves either an agreement to kill if necessary to recover a drug debt, or foreseeing that it may be necessary to intentionally kill to recover a drug debt. That's it. I am not going to give them another, I would rather not give them another option and say, 'But if you come to the conclusion that they didn't foresee an intentional killing but you come to the conclusion that they foresaw an unlawful and dangerous act that might have caused a killing then', it is just too convoluted but it still allows for a verdict of manslaughter on either of those bases, just not on the more complicated alternative I suggested to them yesterday.

134 After further discussion with counsel her Honour gave the jury the revised written instructions and withdrew the instructions she had given previously as to the basis on which the men could be found guilty of manslaughter. She then directed the jury as follows:

Before I summarise counsel's addresses to you I am going to take you back to what I said to you yesterday in relation to [Khoa] and [Quang] and how they might be liable for one of the crimes that [Ho] had committed, either of those crimes. You will remember I gave you what would have seemed to you very complicated directions and complex directions about that. I have prepared a document which hopefully sets out in summary what I was saying and which will help you as you move through the process of considering the verdict in relation to each charge and each of the three accused men.

...

Before I just move you through that document I want to say two things, these are important, very important: yesterday I suggested to you that [Khoa] or [Quang], not [Ho], because you remember I took you through the elements of crimes with regard to [Ho], but I suggested that either of those other two accused men could be guilty of manslaughter on the basis of an agreement to an unlawful and dangerous act. So I suggested to you that by applying the law about acting in concert they might be guilty because they agreed to doing an unlawful and dangerous act in the course of recovering a drug debt.

I also suggested that if you did not come to that conclusion that they agreed that, you might come to the conclusion that they agreed to use violence to recover a drug debt and foresaw the possibility that an unlawful and dangerous act might occur. Disregard that. Completely disregard that. Put that out of your mind.

I will now take you through the reasoning process and that is what we have got the document for, and I will tell you that in order for either [Khoa] or [Quang] to be liable for any of the crimes committed by [Ho] on the basis that they acted in concert, they would have to have agreed with [Ho] that they would kill, if necessary, to recover a drug debt. That is, the basis on which you could only be satisfied on that basis that they were guilty of any of the crimes committed by [Ho], including manslaughter, if they had made that agreement. I am going to point that out to you. So it is more simple than I indicated yesterday.

To be guilty of either of the crimes on what we call common purpose, the doctrine of common purpose, if they had agreed to use violence to recover a drug debt, to be guilty on the doctrine of common purpose, they would have to have contemplated or foreseen the possibility that an intentional killing might be a necessary part of recovering the drug debt with violence. So either they agreed to that or they have foreseen that possibility.

That is the first thing, the first point I want to make to you.

The second point is to emphasise that if you are applying the doctrine of common purpose, and that is on one of the pages in the document I have taken you to, in order to come to the conclusion that [Khoa] or [Quang] was liable for one of the crimes because he contemplated that an intentional killing might occur, you would have to be also satisfied that that man foreseeing that possibility, when he foresees that possibility, still stayed in the flat, stayed present ready to help even when though he knew or foresaw the possibility that an intentional killing might occur.

They are the two points I want to emphasise.

Now I will just briefly take you to the document that I have given you and you will see on the front page that I have set out what the prosecution would have to prove in order to prove that [Ho] is guilty of murder of [Hieu Trung], they are the elements of the crime of murder. There are the elements of the crime of manslaughter that the prosecution have to prove. You have to be satisfied of each of those things beyond reasonable doubt. And there are the elements of the crime of attempted murder that you have to be satisfied of each of those things beyond reasonable doubt.

On the next page I have set out the four things the prosecution would have to prove to you beyond reasonable doubt, the four things that you could not even have a one reasonable doubt about before you could find [Quang] or [Khoa] guilty of any one of the crimes on the basis of acting in concert.

I have done the same thing with common purpose. When it is put the way it is by the prosecution, that there is this alternative, if you are not satisfied about the elements that the prosecution has to prove for acting in concert you think about common purpose. Could this man be guilty of this crime applying those principles? I have set them out. They are the things you have to be satisfied with if you are going to consider that, as you must, consider that basis.

Then finally, I have put the things that the Crown must satisfy you about beyond reasonable doubt in relation to aiding and abetting, when you are considering that.

You will see that in the case of acting in concert there has to be, in each case, for each crime, an understanding or arrangement, that is an agreement that they would kill intentionally if necessary to recover a drug debt. You have to be satisfied that they have agreed that before you could find either of the two men guilty of any one of the two crimes on the basis of acting in concert, and that the man then, in accordance with that agreement, was present, helping or ready to help at the scene of the crime.

135 In these jury directions her Honour left open the possibility that the men could be convicted of manslaughter whether Ho was convicted of murder or manslaughter, but said that such a conviction could not be based on the fact that they had acted in concert to commit an unlawful and dangerous act. On the other hand, her Honour left open the possibility that the men could be convicted of manslaughter if the jury found that they had aided and abetted Ho to commit an unlawful and dangerous act.

136 The written directions to which I now turn took the same approach. In her written directions her Honour first set out the bases on which Ho could be found guilty of the murder, or manslaughter of Hieu Trung and the attempted murder of Chau Minh. They went on to provide directions as to the bases on which the applicants could be found guilty for 'any crime committed by Bill Ho'. The directions as to acting in concert, common purpose and aiding and abetting were as follows:

Acting in concert

In order to prove that Khoa Nguyen or Quang Nguyen is guilty of any crime committed by Bill Ho on the basis of acting in concert the prosecution must prove beyond reasonable doubt that:

(1) the crime in question was committed by Bill Ho;

(2) there was an understanding or arrangement amounting to an agreement between Khoa Nguyen or Quang Nguyen as the case may be - or both of them - and Bill Ho - that they would kill intentionally if necessary to recover a drug debt;

(3) Khoa Nguyen or Quang Nguyen was present at the scene of the crime in accordance with that agreement - either helping or being ready to help if called upon; and

(4) Khoa Nguyen or Quang Nguyen did not completely and unconditionally withdraw from the agreement before it was too late to stop the crime and

(i) make it known to Bill Ho that he was withdrawing from the agreement and

(ii) do what he reasonably could by appropriate acts or words to persuade Bill Ho not to continue to commit the crime or, if possible, take action which he could reasonably take to prevent Bill Ho from committing it.

Common purpose

In order to prove that Khoa Nguyen or Quang Nguyen is guilty of any crime committed by Bill Ho on the basis of common purpose the prosecution must prove beyond reasonable doubt that:

(1) the crime in question was committed by Bill Ho;

(2) there was an understanding or arrangement amounting to an agreement between Khoa Nguyen or Quang Nguyen as the case may be - or both of them - and Bill Ho - that they would use violence to recover a drug debt;

(3) Khoa Nguyen or Quang Nguyen contemplated or foresaw the possibility that an intentional killing might occur as a necessary part of carrying out that agreement;

(4) Khoa Nguyen or Quang Nguyen was present at the scene of the crime in accordance with the agreement either helping or being ready to help if called upon - even though he contemplated or foresaw the possibility that an intentional killing might occur as a necessary part of carrying out that agreement; and

(5) Khoa Nguyen or Quang Nguyen did not completely and unconditionally withdraw from the agreement before it was too late to stop the crime and

(i) make it known to Bill Ho that he was withdrawing from the agreement and

(ii) do what he reasonably could by appropriate acts or words to persuade Bill Ho not to continue to commit the crime or, if possible, take action which he could reasonably take to prevent Bill Ho from committing it.

Aiding and abetting

In order to prove that Khoa Nguyen or Quang Nguyen is guilty of any crime committed by Bill Ho on the basis of aiding and abetting the prosecution must prove beyond reasonable doubt that:

(1) the crime in question was committed by Bill Ho;

(2) Khoa Nguyen or Quang Nguyen was present when Bill Ho committed that crime (being 'in the vicinity of the crime so as to be able to help or encourage its commission if he was inclined to do so') and

(3) Khoa Nguyen or Quang Nguyen intentionally:

(a) encouraged Bill Ho to commit that crime (might be by words or presence and behaviour provided he intended to encourage Bill Ho to commit that crime and did encourage him); or

(b) communicated to Bill Ho that he assented and concurred in the commission of that crime (might be communicated by words or presence and behaviour - provided he intended to convey his assent and concurrence that way)

and

(c) Khoa Nguyen or Quang Nguyen knew that Bill Ho was doing the acts which constituted that particular crime - with the necessary intention for that particular crime.

137 Her Honour then summarised counsel's final addresses in considerable detail.

138 Counsel for Khoa submitted that her Honour, in her written instructions, incorrectly told the jury that an element of 'any crime' on which Khoa or Quang could be convicted on the basis that they had acted in concert with Ho, was proof beyond reasonable doubt that the men had agreed that they 'would kill intentionally if necessary to recover a drug debt'. He submitted that there was a similar error in her Honour's directions as to the basis for holding the men criminally liable on the basis of extended common purpose.

139 Neither of these written instructions addressed the basis on which the jury could find that the men were guilty of manslaughter by an unlawful and dangerous act. On the facts of the case the jury could have reached that conclusion, either because Ho did not intend to kill or seriously injure the victim or because even if he had this intention, Khoa and Quang might have thought that Ho intended only to commit the crime of common assault. Counsel submitted that because of this erroneous direction, the jury was left with a choice between convicting the applicants of murder or convicting them of manslaughter on the basis of a 'murderous intent'. It was submitted that this deprived the jury of the choice of convicting the applicants of manslaughter by unlawful and dangerous act.

140 Counsel for the Crown submitted that her Honour's written instructions had, in effect, removed a possible verdict of manslaughter by a dangerous and unlawful act on the basis that the men had acted in concert or in pursuit of a common purpose with Ho. Neither Khoa's or Quang's counsel objected to that course and the jury direction was, in fact, too favourable to the applicants. For that reason, counsel submitted that the appeal should be dismissed.

141 The judge had to direct the jury on the basis on which the applicants could be held liable for offences committed by Ho. The words 'any crime' must be read in that context. Those words were directed at the possibility that Ho might be convicted of either the murder, or manslaughter by unlawful and dangerous act, of Hieu Trung and did not specifically concern the elements of the offences of murder and manslaughter which were set out elsewhere in the jury charge.

142 Her Honour correctly told the jury that in order for either Khoa and/or Quang to be criminally liable for a murder committed by Ho on the basis they had acted in concert, the jury must be satisfied that the men had agreed that they would kill intentionally if necessary to recover a drug debt. (No point was taken on appeal that her Honour did not mention an intent to inflict really serious injury.) Her Honour also correctly said that for the men to be liable for murder on the basis of extended common purpose the jury had to be satisfied that they had agreed or understood that violence would be used to recover the drug debt and that they contemplated or foresaw the possibility that an intentional killing might occur as a necessary part of carrying out that agreement. (In the discussion which follows I refer to these states of mind as 'a murder intention'.)

143 Her Honour fell into error in directing the jury that a murder intention was required if the applicants were to be convicted of manslaughter by an unlawful and dangerous act because they acted in concert with Ho or the principle of extended common purpose applied.

144 This Court is bound by the High Court decisions in Gilbert and Gillard. In Gilbert it was held that if there is evidence on which a person charged with murder could be convicted of manslaughter instead, the jury must be directed that they can return a verdict of manslaughter.[20] The trial judge must do so even if defence counsel makes a forensic decision not to seek the alternative verdict of manslaughter.[21]

145 In my opinion the principle in Gilbert does not require the Court to uphold grounds 1 to 6 of Khoa's grounds of appeal. I take that view for three reasons.

146 First, by requiring proof of a murder intention before Khoa or Quang could be held liable for an unlawful and dangerous act manslaughter committed by Ho, her Honour's jury directions were unduly favourable to the applicants. The direction required them to be acquitted of any offence arising out of the death of Hieu Trung if the jury was not satisfied beyond reasonable doubt that the men had a murder intention.

147 Although the elements of the offence were misstated in the written directions dealing with the applicants' criminal liability for 'any crime committed by Ho', they were correctly stated elsewhere in her jury charge.

148 Secondly, the incorrect jury directions were limited to Khoa or Quang's liability for manslaughter, based on acting in concert or extended common purpose. Her Honour left it open to the jury to find the applicants guilty of manslaughter by aiding and abetting Ho to commit unlawful and dangerous act manslaughter. There was no error in those jury directions.

149 This case has some similarities to the issue considered by this Court in R v Hartwick.[22] In that case the victim was killed by stabbing, in circumstances where it was unclear which of the accused had inflicted the fatal wounds. The primary Crown case was that the accused were guilty of murder because they had agreed to cause really serious injury to the victim. In the alternative, the Crown argued that they had agreed to assault the deceased with weapons and reasonably foresaw that death or really serious injury could be inflicted on the victim, or that two of the accused had aided and abetted the third to inflict the fatal wound. In the alternative, the Crown argued that the three accused could be found guilty of manslaughter on any of those bases.

150 The trial judge directed the jury that the two of the accused could be found guilty of manslaughter because they had acted in concert with the principal offender to cause 'more than trivial injury, but less than really serious injury'.[23] He also directed the jury that they could be criminally liable for manslaughter because they had aided and abetted the principal offender. However he made no reference to the possibility that they could be convicted of manslaughter, rather than murder, under the doctrine of extended common purpose.

151 This Court rejected the argument that the judge's failure to direct the jury on manslaughter based on extended common purpose, had deprived the applicants of a chance of a manslaughter conviction.[24]

152 The main reason that this ground did not succeed was that:

manslaughter by extended common purpose was not more likely to be understood and accepted than manslaughter by concert. The Crown's case was run on the basis that there was an agreement to bash or assault with weapons, and for the reasons already given that meant an agreement to commit an unlawful and dangerous act. Manslaughter by concert was thus the form of manslaughter that was most closely allied to the way in which the case was put. To have left manslaughter by extended common purpose in those circumstances would have added nothing but unnecessary complexity and the possibility of confusion.[25]

153 In this case, the precise basis on which it was said that the men could have been found guilty of manslaughter was much less clear than in R v Hartwick. Neither Crown nor defence counsel identified the way in which the principles of accessorial liability could apply to manslaughter. For that reason it might be argued that R v Hartwick is distinguishable. However, the Court also said that:

In the second place, and assuming for the sake of argument that an agreement to assault with weapons to cause not mere trivial injury was not necessarily an agreement to commit an unlawful and dangerous act, and thus that it had been open to leave manslaughter by extended common purpose to the jury, one can still be confident that it would not have increased the likelihood of the jury returning a verdict of manslaughter as opposed to murder. This was not a case like Gillard where the jury were left with an all or nothing choice between murder and acquittal and therefore in respect of which one cannot exclude the possibility that if an option of manslaughter had been left to the jury they might have taken that option.[26]

154 The rationale for the principle in Gilbert is that a jury confronted with the choice of convicting an accused of murder and acquitting the accused of any offence, may choose the former option. As Callinan J said in that case:

It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of choices offered ... [27]

155 In this case, as in R v Hartwick, the jury was directed that it was open to them to acquit the applicants of murder and convict of manslaughter. For that reason I do not consider that the applicants were deprived of the possibility of a manslaughter conviction by her Honour's erroneous direction on the acting in concert and extended common purpose bases for finding Khoa or Quang guilty of manslaughter.

156 Finally, a judge is only required to direct the jury about the possibility of returning a verdict of manslaughter if there was a 'viable' case of manslaughter to be left to the jury.[28] I doubt whether there was a viable manslaughter case against the men based on acting in concert or extended common purpose.

157 If the jury was not satisfied beyond reasonable doubt that Khoa or Quang knew that Ho took a gun with him to the flat, there would be no evidence permitting their conviction for manslaughter on the basis they had acted in concert with him or were caught by the doctrine of extended common purpose. For the men to be guilty of manslaughter by acting in concert, it would be necessary to construct a hypothetical scenario in which Khoa or Quang knew of the drug debt, and reached an understanding with Ho that an unlawful and dangerous act, other than the use of the gun to threaten the occupants, would be used to collect it. There was no evidence supporting that hypothesis.

158 The other possibility is that the jury might decide that the applicants or either of them agreed with Ho that the gun should be taken to the flat to recover the debt or that violence should be used for that purpose, but did not foresee the possibility that death or serious injury could occur. If the manslaughter case was based on extended common purpose, the jury would then have to differentiate between the commission of an unlawful and dangerous act by use of the gun, and the use of the gun in a way that would make the applicants liable for murder on the basis of extended common purpose. As Kirby J said in Gillard:

the scope of criminal liability, on the footing of common purpose for the acts of the principal offender, is now stated so broadly as to leave little apparent room for an intermediate culpability for an unlawful homicide that does not amount to murder. Finding a clear point of differentiation that would separate murder from manslaughter in such a case (except as an act of mercy on the part of the jury) is not an easy task. If a person, who did not perform the acts causing the homicide and did not actually intend the death of, or grievous bodily harm to the victim, can still be liable for murder on the basis of the 'traditional' or 'extended' common purpose doctrine, it is difficult to identify the case that will somehow fall outside such joint liability, authorising the jury to return a verdict of manslaughter. If, within current doctrine, such a difficulty appears for this Court, it will also present itself to legal advisers, counsel at trial and trial judges in explaining the point of differentiation to the jury which has the responsibility of deciding the issue.[29]

159 As was acknowledged to by this Court in R v Hartwick, 'the judge's charge cannot properly be read independently of the context of the conduct of the trial'.[30] While it was theoretically possible that the men might have been held liable for manslaughter on the basis of acting in concert or extended common purpose, this bore no relationship to the manner in which the trial was conducted. The difficulties created by these hypothetical scenarios are apparent in the discussions between counsel and the Crown in the course of the trial. Counsel for Khoa said that manslaughter by acting in concert was not open on the facts and counsel for the Crown referred to the 'overlap' between liability for murder based on extended common purpose and manslaughter by unlawful and dangerous act. In these circumstances her Honour's decision to (in effect) confine the possibility of manslaughter to liability based on aiding and abetting, was entirely justified.

160 The facts in this case are clearly distinguishable from those in Gilbert where the accused knew when he drove the principal offender and the victim that an assault was intended. Gillard is also distinguishable. In that case the accused knew, at least, that a robbery was planned by the principal offender who was in fact a contract killer. In both those cases there was some evidence which could have permitted the jury to convict the accused of manslaughter by acting in concert or under the extended common purpose doctrine. In this case, by contrast, there was

no evidence permitting inferences to be drawn which would support liability on either of those bases.

161 For these reasons I would dismiss grounds 1 to 6 of Khoa's grounds of appeal.

163 I have had the benefit of reading the reasons of Neave JA in draft and I respectfully agree with those reasons and her Honour's conclusions that:

(a) in respect of Dang Quang Nguyen, as we have previously announced, the convictions for murder and attempted murder should be quashed and verdicts of acquittal entered; and

(b) in respect of Dang Khoa Nguyen, the appeal should be dismissed.

[1] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108, 114; Clayton v The Queen [2006] HCA 58; (2006) 231 ALR 500, 504. For a useful discussion of the distinction between 'traditional' and 'extended' common purpose see Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1, 23 (Kirby J).

[2] See [128]-[133] below.

[3] Although Ho referred to 'Manh' when giving evidence, I presume he was referring to Tien Manh (and not Hung Manh) because it was Tien Manh who used his phone to try to call Mau and Ho names this person 'Manh'.

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

[6] See Clayton v The Queen [2006] HCA 58; (2006) 231 ALR 500, 504.

[7] [1972] VicRp 63; [1972] VR 560.

[9] [2008] VSCA 109.

[10] Ibid [92] (Buchanan, Vincent and Kellam JJA).

[11] In R v Murrell [2001] NSWCCA 179; (2001) 123 A Crim R 54, the New South Wales Court of Criminal Appeal quashed a murder conviction and ordered a new trial generally, on the basis that the applicant could be held guilty of murder as an accessory after the fact. In AJS v The Queen [2007] HCA 27; (2007) 235 CLR 505 the High Court (Gleeson CJ, Hayne, Heydon and Crennan JJ at 515) left open the question whether that approach was correct.

[12] Crimes Act 1958, s 421(1)(a); AJS v The Queen [2007] HCA 27; (2007) 235 CLR 505.

[13] Crimes Act 1958, s 568(2), repealed by Criminal Procedure Act 2009, s 422(4); AJS v The Queen [2007] HCA 27; (2007) 235 CLR 505. See also Kelly v The King [1923] HCA 46; (1923) 32 CLR 509, 516-7; Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115, 125; R v Hanias (1976) 14 SASR 137, 145 (Bray CJ); R v Miller [1951] VicLawRp 49; [1951] VLR 346, 359; R v Murrell [2001] NSWCCA 179; (2001) 123 A Crim R 54, 63 (Wood CJ at CL); R v Phong [2005] VSCA 149; (2005) 12 VR 17, 33 (Charles JA). In R v Hanias, the Supreme Court of South Australia declined to order a new trial because of the 'many unsatisfactory features of evidence' (Bray CJ at 146).

[14] In these circumstances it would be contrary to the interests of justice to order a new trial: King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 427 (Murphy J).

[15] R v Williamson [2000] VSCA 5; (2000) 1 VR 58, 68 (Charles JA). For the direction relating to Ho see T 954-6.

[17] [2003] HCA 64; (2003) 219 CLR 1 ('Gillard').

[18] [2004] VSCA 85; (2004) 8 VR 262.

[21] R v Gill [2005] VSCA 321; (2005) 159 A Crim R 243, 245 (Maxwell P, Charles and Nettle JJA).

[22] (2006) 14 VR 125.

[24] An application for special leave to appeal was refused by the High Court in Clayton v The Queen [2006] HCA 58; (2006) 231 ALR 500.

[25] (2006) 14 VR 125, 148 (Charles, Chernov and Nettle JJA).

[27] (2000) 201 CLR 414, 441. See also Gleeson CJ and Gummow J (at 421).

[28] Gillard [2003] HCA 64; (2003) 219 CLR 1, 6 (Gleeson CJ and Callinan J).

[29] [2003] HCA 64; (2003) 219 CLR 1, 25 (Kirby J) (citations omitted).

[30] [2005] VSCA 264; (2005) 14 VR 125, 146.