And at the conclusion of his Honour's judgment:
"I am not persuaded that the jury would inevitably have convicted upon the basis of the first limb of the case, since it was classically a case of the kind considered in Mohan and Clough in which the Crown could not prove which of Bao and the appellant fired the fatal shots. Particularly was it necessary to turn to the second limb, and to direct the jury with some precision as to what was required to establish the criminal liability of the appellant as a principal in the second degree, since it was his case that he was there as an accidental participant who had no knowledge of what was to occur, who played no intentional part in the shooting, and who provided no encouragement or assistance."
54 Smart AJ observed that, in his Honour's opinion: "The Crown case has considerable strength".
55 All three members of that Bench of this Court thought that Vinh Phan should be re-tried. I take that to be an indication of the opinion of the Court that the whole of the evidence available to the Crown as against Vinh Phan, if left in the correct way to a jury at trial, was capable of supporting reasonably a verdict of guilty of murder.
56 Secondly, the Crown did in fact move to bring Vinh Phan to re-trial upon a charge of murder. There is nothing that I can see to explain some potentially fatal weakening in the Crown evidence as between the time of the first trial and the time of the acceptance by the Crown of the plea of guilty to the accessorial offence.
57 Thirdly, the Crown placed before Greg James J, in connection with his Honour's sentencing of Vinh Phan upon that plea of guilty, an extensive statement of facts. A copy of that statement was made available at the hearing of the present appeal.
58 This statement makes, to say the very least, interesting reading in the context of the present discussion. The Crown case on the accessorial charge is summarised thus:
"………….. that the offender on a number of occasions deliberately concealed from the police material facts concerning the death of Jimmy JIN with the intention of assisting BAO evade capture and prosecution for the death of Jimmy [sic]."
59 There then follow particulars grouped in numbered paragraphs under the headings: "Pre arrest", and "Post arrest". The particulars refer, speaking broadly, to lies told by Vinh Phan to investigating police. There is one separate particular nominating Vinh Phan's "agreeing to comply with direction from Bao not to tell Dr. LE the true story as to how he received the injury to his forehead".
60 Apart from the foregoing material respecting the accessorial charge, the statement of facts contains a separate section of material dealing with the appellant, and another dealing with Vinh Phan.
61 Neither of these two bodies of material so much as mentions any alleged common unlawful enterprise, joined in by the appellant and by Vinh Phan, to murder Jimmy Jin; or to acquire prohibited firearms from Jimmy Jin; or to accomplish any other specific unlawful objective connected in any way with Jimmy Jin.
62 Neither body of material draws attention to the nature and extent of the very close personal ties that existed at the material times between the appellant and Vinh Phan. There is no indication that the appellant and Vinh Phan had any greater personal ties than those of two people who had just happened to share accommodation at two separate nominated addresses. There is no mention of the undoubted fact that Vinh Phan had from time to time admittedly couriered heroin for the appellant.
63 All of the foregoing considerations paint a picture of Vinh Phan, and of his true relationship with the appellant, that is quite remarkably at odds with the corresponding picture painted at the appellant's trial.
64 There, and as previously herein explained, Vinh Phan's evidence was the back-bone of a Crown case that the appellant was guilty of murder by reason either of his having shot Jimmy Jin or by reason of his having been an adherent to a common unlawful enterprise of which the objective was either the killing of Jimmy Jin, or some other unlawful objective to which the killing was incidental in the requisite legal sense.
65 It is true that at the time of the trial of the appellant the learned presiding Judge and the learned Crown Prosecutor both gave express warnings to the jury of the care with which Vinh Phan's evidence needed close scrutiny before it was accepted as evidence upon the basis of which it would be safe to convict. It remains, nevertheless, the case that the Crown relied upon Vinh Phan's evidence; and invited the jury to accept it to the extent necessary to support a finding of guilt.
66 Much the same thing can be said about Jason Hanser, although his evidence did not have, of itself, the potential importance of Vinh Phan's evidence; and albeit Mr. Hanser was mentioned in the statement of facts only as the person who had bought the yellow Commodore; and who had thereafter driven the appellant and Vinh Phan to and from the laneway in which the shooting took place.
67 Fourthly, it is undoubtedly the case that the Crown led the evidence of Vinh Phan, and of Jason Hanser, in a way that must have conveyed to the jury that the Crown, notwithstanding obvious reservations about those witnesses, but especially about Vinh Phan, was putting the two witnesses forward as witnesses whose evidence could be accepted in part only, if that was the view of the jury, but that such part of their evidence as would suffice to support a finding reached beyond reasonable doubt of the appellant's guilt of murder should in fact be accepted.
68 All of the foregoing matters are, I think, apt to make one feel an instinctive discomfort about the way in which the Crown dealt with, in particular Vinh Phan, from the time of his trial and conviction to the time of his being called as a major witness for the Crown at the present appellant's trial.
69 The question now to be decided is whether that instinctive discomfort should harden into a finding by this Court that the appellant's trial was fundamentally flawed in the way now submitted by the appellant.
70 To the contrary are the following considerations.
71 First, Greg James J, before whom the appellant pleaded guilty to the accessorial charge, had no authority to reject, of his own motion, the plea: see Maxwell v The Queen (1996) 184 CLR 501 per Dawson and McHugh JJ at 512.9; 514.1-514.5.
72 Secondly, the appellant was represented at his trial by counsel well experienced in the conduct of defence cases in criminal trials. Counsel did not ask, either after Vinh Phan and Jason Hanser had given their evidence, or at the conclusion of the Crown case, for a discharge of the jury upon the basis that the trial had irredeemably miscarried in the way that is now suggested; or, indeed, in any other way.
73 Thirdly, Vinh Phan, by the time his cross-examination had concluded, had admitted having told lie after lie in interview after interview with investigating police.
74 Fourthly, the jury was told in plain and vigorous terms of Vinh Phan's antecedent history. It suffices to cite the following extract from the closing address of learned counsel for the appellant, (who was, it should be noted, not counsel for the appellant in this Court);
"You see, the Crown posed the question that in fact you could put this proposition that my client fired the three shots while he was sitting in the front seat. There are two shots in the back of the deceased, apart from the shot in the side. What is one going to say, he has leaned all the way around the back, stretching his hand like this and shooting the deceased? This is what the Crown hopes you believe. My submission to you, if you believe that, you will believe in fairies.
In relation to this case, as regards to Vinh, his Honour will give you directions in relation to how you are going to assess his evidence. Vinh, who you heard, was charged with the murder and he was sitting in the back seat. It might have been a logical thing in relation to the situation, but eventually he got a retrial, came up for the murder again, then boy, he was suddenly an accessory after the fact to murder.
On Vinh's evidence, even as he gave it in this trial, how an accessory - you have got to assess - after the fact, you have to assess someone, that is part of the law, that is why there is an accessory after the fact. If you in fact know someone has committed a crime, and you take him into your house so that the police will not get him, you are assisting him.
What did Vinh do to assist? As I understand his evidence, he had a wound to his head. He was taken by the accused home to Atherton Street, and went to the doctor. According to him, he did not know what happened. In relation to that, it is my submission as regards to the joint enterprise and the Crown's other assertion against the accused, he wants a bob each way."
75 Fifthly, the learned trial Judge gave the jury careful warnings about both Vinh Phan and Jason Hanser. It is true that the appellant contends that the warnings were inadequate, a matter that will require further consideration later herein. But it cannot be gainsaid that warnings, in clear and emphatic terms were in fact given.
76 Sixthly, the accused's own case at trial, vouched for by his own oral evidence, was that he had indeed fired a shot, at close range and inside the relevant motor vehicle, into Jimmy Jin; but that his action should not be held to be criminally culpable because it had been done in self-defence. His case in those respects was left to the jury in a way that did not attract an application for redirections.
77 It seems to me that when fair account is taken of the six foregoing considerations, then any initial attraction in the appellant's present argument is clearly outweighed.
78 I would not, therefore, uphold Ground 1 in what I might call its expanded form. As to the different question whether Ground 1 as originally argued in the appellant's written submissions should be upheld, there can be no answer until after the remaining grounds of the conviction appeal have been considered.