Ton v Regina

Monday, 19 August 2002 REGINA v. NHAT THANG TON JUDGMENT

DOWD J: I agree with the orders proposed by Smart AJ and with his Honour's reasons for those orders.

SMART AJ: Nhat Thang Ton appeals against his convictions of maliciously wounding D J Haines with intent to do grievous bodily harm to him and of maliciously wounding T D Whitton with intent to do grievous bodily harm to him. The appellant was one of four accused who were jointly indicted for these offences. Two of his co-accused, Seng Thai Eang and Thang Minh Huynh were also convicted. The other accused, Garry Lau was acquitted on the direction of the judge. It was not necessary for the jury to consider the alternate counts of malicious wounding. The jury returned their verdicts on 22 November 2000.

On 14 December 2000 the judge sentenced the appellant to imprisonment for 10 years to commence on 26 April 2013, with a non-parole period of 3 years. On 3 November 2000 the appellant had been sentenced for murder to imprisonment for 22 years with a non-parole period of 14 years commencing on 27 April 1999, the date on which he was arrested and charged. He had pleaded guilty on 4 February 2000. The appellant alleges that the judge erroneously admitted certain evidence and erred in his directions to the jury.

About 2 pm on 16 September 1999 the two victims, both inmates at Parklea Prison, were in their cell. The appellant and two accused (Eang and Huynh) also inmates at Parklea allegedly entered the cell of the victims armed with homemade knife type weapons. Both victims were stabbed and required hospitalisation.

When Haines gave evidence he was not in custody. He said that in September 1999 he shared Cell 45 in Unit 1C with his cousin, T D Whitton. On 15 September 1999 in the prison's recreational area called the oval Whitton was approached by an Asian male, who was tall and slim. That male stood over Whitton and demanded a cigarette. Whitton refused to give him one and said "Are you trying to stand over me because all your Asian buddies are here?" The Asian male replied, "Are you racist?" Whitton said, "No, I'm not being racist, you're just trying to stand over me because all your mates are here." The Asian male replied, "Let's go outside, you're being racist." Whitton did not want to fight him. The officers rang the bell and all the men went back to their pod area.

Shortly afterwards Haines and Whitton were sitting in the step area of the pod when another Asian male approached them. He wore glasses and spoke English well. He said to Whitton, "If you're racist I'll fight you." Whitton replied, "No I'm not racist." The Asian male said, "Well if you want to fight, I'll fight you" and then walked away. A second Asian male came up and said to Whitton, "You're racist, you want to fight, I want to fight you." Whitton said, "I don't want to fight you, it had nothing to do with you, the other bloke's lying, I'm not racist." The Asian male with whom they originally had an argument at the oval came over and said to Whitton, "Are you lying?" and then punched Whitton. Five other males started punching and kicking Whitton. Haines walked over and grabbed the shoulders of the tall Asian male with whom they had the original argument and said, "Please give him a fair go". That male responded by punching Haines in the left eye. The four other males then started bashing both the victims. Haines and Whitton were the only Aborigines in this part of the prison.

Haines recognised some of the Asian males as coming from his area, the C1 area of the block, but he did not know their names. As the officers came towards them the fight stopped. Some Islanders told the victims not to say anything. The victims said nothing to the officers but went back to their cell and were watching television. A group of Asian males came into their cell and said, "If yous want to carry on with it we're ready, we're going to stab yous." The tall Asian male said to Haines that he was going to stab him in the eye and kill them if they wanted to fight and carry on with it. That tall Asian male was with two other Asians. One was small with long hair, the other had rough looking hair. They were all from the same unit as the victims.

About 2 pm on 16 September 1999 the victims were in their cell watching television when three Asian males came into the cell. One of them said to Whitton, who was on the bottom bunk, Í hear you want to - you're going to get us when we're not ready," and stabbed Whitton. The tall Asian male told Haines, who was on the top bunk to get off the bed. Haines said, "Don't stab me. You don't have to stab me." That male turned around and hit Haines with the "pen" which he had in his hand. The other two males were hitting Whitton. Haines ran for the cell door and tried to open it but there was someone outside the door holding it closed. Haines was then stabbed in the back twice. Haines said, "Enough's enough, you stabbed me." He hit the wall and fell down. The Asian males said something in a foreign language and walked out. Haines got up. He and Whitton went straight to the Wing office and told the officer that they had to go to the clinic as they had been stabbed. Whitton had fresh blood on his clothing. Haines was holding his back and there was blood on his clothing. They were taken to the gaol clinic and thence by ambulance to hospital.

On 19 September 1999 Haines was shown a number of photographs by police and he selected four of them. Number 3 was a photograph of one of the males (Huynh) who stabbed Haines. He did not remember which male stabbed him on the second occasion. Number 8 was a photograph of one of the males (Ton) who was in Haines' cell at the time he was stabbed. Number 12 was a photograph of the male (Eang) who said Whitton was a racist. He also was in the cell. Photograph 6 was of Lau, but he did not enter the cell.

Haines saw the male in photograph 3 (Huynh) enter the cell, pull out a knife and stab Whitton on the bottom bunk of the bed. The male in photograph 8 (Ton) helped Huynh. Ton also hit Whitton. Haines was not sure if Ton had a knife. Haines said that the male in photograph 12 (Eang) attacked him.

Haines now has a 30 cm. scar on his back and two other scars. He received a black eye and bruising to the face. Haines described the weapon he was stabbed with as a grey pen with a black tip. The other weapon was made of a glass bottle.

About 3 pm on 16 September 1999 Detectives Beeche and Monk saw what appeared to be blood smeared on the inside of the door of the cell of the victims, covering most of the lower portion of the door. There was blood in pools on the floor of the cell, mainly near the door.

About 3.35 pm in the compound area near the clinic inside the gaol in an open grassed area with gardens and on the edge of a flower bed, secreted in the grass, a homemade knife with a glass blade was found. The knife consisted of a toilet brush which was wrapped in a sock and tied up with some tape. The blade was made up of broken glass. There was evidence that between Cell 45 and where the Wing officers sit there was a common room which had a window which gave access to the compound area. It was possible for items to be passed from the common room through the window into the compound area. While inmates from cell blocks 1A and 1C were brought back into the units for a muster call about 1.45 pm the inmates from cell blocks 1B and 1D were brought back from the oval but allowed to stay in the compound area.

About 4.47 pm, in a plain green plastic bag in a vegetable drawer in the bottom of a refrigerator in the common room in Unit 1B a length of stainless steel sharpened to a point at one end was found. It was about 25 mm wide, 17 cm long and about 1 mm thick. It was bemt about halfway along its length and had a red substance on it. There was evidence that it was possible for items to be passed out the common room window of Unit 1C to the common room in Unit 1B.

About 2 pm Officer Mitchell saw a blood trail from the clinic to Unit 1C. About 2.05 pm or a couple of minutes later Officers Flatley and Yarnton walked into Unit 1C and saw a blood trail. Two prisoners were mopping up the blood.

When Whitton was called to give evidence he told the court that he did not wish to give evidence. He had made a statement to the police, but claimed he had no recollection of doing so. He declined to say whether a signature at the bottom of a statement in a police notebook was or was not his signature. Leave was given to the Crown to cross-examine Whitton. He asserted that he had no recollection of the statements he allegedly made to the police and no recollection of the events of 15 and 16 September 1999. He said that he did not recall being in Westmead Hospital and receiving treatment there. He gave no useful evidence. At the time of being called to give evidence Whitton was still in gaol, albeit not Parklea Gaol.

A presumptive blood test was conducted on a green T-shirt located in Huynh's cell and blood was detected on it. Huynh denied having any knowledge of how the blood came to be on the shirt. A pair of red, blue and white socks was found in Huynh's cell. A presumptive blood test was conducted on a pair of white socks in the appellant's cell, the police having previously examined his head, hands and the clothes he was wearing. Blood was detected on one of the socks. The appellant declined to answer any questions. The police also entered and examined Eang's cell. Sgt Bradley conducted a presumptive blood test on a pair of green socks and two yellow and green sponges. Blood was found on the socks. Eang admitted wearing those socks that day. Det Monk asked Eang, "Can you tell me how the blood got on them?" Eang replied, "I don't know, there was blood everywhere on the floor." Eang denied any knowledge of the stabbing.

The Analyst's certificate showed that Haines had the same profile as the DNA recovered from the white socks of Ton, the green socks of Eang and the blue, red and white socks of Huynh and that the DNA recovered from the metal object (one of the "knives" used) in its major component had the same profile as that of Whitton.

Pursuant to the Evidence Act 1995 the judge allowed the statement of Thomas Whitton given to the police between 12.50 am and 1.55 am on 17 September 1999 to be read to the jury. Whitton stated that he had been at Parklea Gaol since 8 August 1999. On the Saturday or Sunday prior to 16 September 1999 his cousin, Haines, came and stayed in his cell. Whitton detailed the incident on 15 September 1999. He, Haines and the people from C Wing were at the oval playing pool. Eang asked for a cigarette. Whitton refused. There was a terse and abusive exchange After 2 pm they went back to the compound. Eang pushed Whitton and punched him. Eang, Ton, Huynh and Jimmy Doc joined in as well as another man. Haines, helped Whitton. A prison officer broke up the fight.

Whitton told the police that about 2.10 pm on the following day (16 September) he and Haines were watching television in their cell. Huynh, Eang and Ton entered, Someone closed the door from the outside. Whitton gave this account: "Eang: What, are you going to get us, are you, when we're not ready?

Huynh: We heard that you were talking to someone about it and they said that you were going to get us when we weren't ready.

Thang (Huynh) pulled out a metal blade, it was full metal, it was about seven to eight centimetres long and about two millimetres thick. It was about as wide as the tips of my two fingers, and was silver coloured. He had it in his right hand with his thumb on the bottom. Ton said something in Chinese. Then Thang (Huynh) stabbed me in the left thigh on the side. Then in the left side of my chest under my left nipple, then in my left biceps. Each time he stabbed me he went in about 2 to 5 centimetres. I felt the others punching me and holding me down. Eang stabbed me in the stomach, I think it was with something sharp, I didn't see what it was. I also saw Ton stab me but I didn't see what he had, and I don't remember where he stabbed me … Eang asked Derek to come down from the top bunk. As soon as he did Eang gabbed him by the shoulders and Ton stabbed him in the left side of the back with the same blade. We both said we were bleeding and asked them to stop. Then they stopped and Thang (Huynh) said 'Open the door, open the door,' The door opened and they walked out. We ran to the unit office and told the unit screws we were stabbed. We walked down to the clinic and they took us to hospital where I was operated on. I've known the blokes that stabbed me since I went to Parklea on 8 August 1999 …" 22. The judge warned the jury to scrutinise what Whitton said with care, pointing out that there was a threshold problem as to how much credibility could be attached to what he said to the police. The judge also reminded the jury that Whitton had left the accused with no opportunity to cross-examine him about the contents of the statement. He told the jury that it would be dangerous to convict any of the accused on the basis of Whitton's statement.

23. Dr A Thakorial said that when Haines was brought into the Emergency Department of Westmead Hospital on 16 September 1999 he had reduced air entry into his left chest and low blood pressure. He had two wounds to the back of his body at the mid-thoracic level. Haines underwent surgery with blood being drained from his left chest. He also received a blood transfusion. He remained in hospital for about seven days.

24. Dr V Malka confirmed that Whitton was also brought into the Emergency Department of Westmead Hospital on 16 September 1999. He had sustained a stab wound to the lower left chest, a stab wound to the left arm and a stab wound to the left thigh. His injuries were repaired and he was discharged on 17 September 1999.

25. No fingerprints were found on either the knife or the refrigerator.

The Appellant's case 26. He gave evidence that as at 16 September 1999 he had been housed at Parklea for nearly five months. On 16 September 1999 after the 2 pm muster he went straight to his cell, Cell 40 in Wing 1C. He was by himself watching television. He became aware of the stabbing after all the inmates were locked in their cells. He could hear other inmates talking through the windows. The appellant said that he knew Haines and Whitton only by face prior to 16 September 1999. He had only spoken to them by way of casual greetings and he was not involved in stabbing them. He knew nothing about that incident or the incident on the previous day. He was involved in neither. He explained the spot of blood found on one of his socks by reference to their being blood all over the hallway. He became aware that something had happened and he went over to the other side of the wing to see Fotau, his fellow sweeper about the dinners which were due about 3 pm. He went to the common room which is near the wing office. He did not speak to Fotau because an officer rushed them into their cells for a lock up.

27. Appeal Ground 1 reads: "The trial miscarried.
28. It is alleged that this flows partly as a result of some evidence incorrectly admitted in the trial and partly as a result of some erroneous directions. As they are separately addressed in later grounds I will deal only with the evidence point under this ground.

During the trial evidence was admitted that the DNA recovered from the white socks taken from Ton's cell was the same as that of Haines. This profile occurs in fewer than 1 in 10 billion individuals in the general population. It was submitted that this evidence had no probative value because the prosecution could not establish that it proved the appellant's presence in the cell where an assault took place. There was abundant other evidence that the appellant's blood was on floors on which others walked, that is, the hallways or corridors. The appellant submitted that this evidence was intractably neutral. Haines said that he went to the wing office, trailing blood and that he was losing a lot of blood at the time. He said there was a fair bit of blood around. Officer Mitchell also saw a blood trail. Officer Yarnton saw Fotau and Scandala mopping up the blood.

At pp20-21 of the transcript of 14 November 2000 it seemed to be accepted by both the Crown Prosecutor and the judge that the DNA evidence did not advance the Crown case as the blood on the appellant's socks could be consistent with just walking through the area. However, when the Crown tendered the analyst's certificates they were admitted without objection (T.53 of 16/11/00). No reference was made in the summing-upon to blood on the white socks found in the appellant's cell being that of Haines. At SU16 the judge said that he need not trouble the jury with the scientific evidence. As the evidence in question did not advance the Crown case it should not have been admitted. However, the point is, in the context of the present case, one of no moment and I would refuse leave to rely upon it.

Appeal Ground 2 reads: "The trial judge erred in giving "character" directions to the jury concerning the accused."

At SU8-9 the judge said: "Well now that brings me to a direction I give you as to the subject generally of 'bad character.' By definition, all the witnesses., other than the official witnesses in this case, have or had bad character. The primary direction I give you there is this - that does not mean that these men are not entitled to a fair trial. You must not conclude that because they were locked up in a prison that they must necessarily lie. That does not follow at all. You are entitled to bear in mind their particular geography at the time when you are assessing the credibility of what they have to say. I think it was Mr D'Arbon that referred to the curious environment out there at Parklea - it is another place. It is a world of 'dogs' and 'screws' et cetera. It must have been quite a surprise and an experience for you to go there. But the word 'culture' has been used. It, perhaps, may not have been the best word to use but it is a different world out there and you would need, when you are examining the evidence of any of these prisoners you would need to do it with great caution. You would need to do it, in effect, with a grain of salt. Have a very careful look at what they say and that applies to both the alleged victims and the three Accused. It is open to you to accept every word they say or to reject every word they say. All I am cautioning you to do is to bear in mind the prison culture. You would need to give a careful scrutiny to the evidence of all the prisoners and ex-prisoners. Experience has shown, and this particularly perhaps applies to the evidence of gaol informants, you have read about people who come forward and say 'Yes, Neddy Smith confessed to fourteen murders to me, et cetera, but you have got to bear in mind with someone like that, it invariably is part of some sort of deal. They may be facing charges themselves, the Crown might give them immunity from prosecution and the like. So I would invite you then to scrutinise all the evidence carefully. … … When I was talking about the prison environment I should have added this, that everyone is entitled to the same rights and subject to the same duties under the law, whether you are inside a prison or residing down at Darling Point, everyone is entitled to, in the vernacular 'a fair go'."

The appellant pointed out that neither during the prosecution case nor in his evidence did he raise character. The jury knew only that either he must have done something wrong to be detained in custody or that he was being held in custody pending his trial. The appellant submitted that the judge should not have said that all the witnesses other than the official witnesses "have or had bad character". The appellant not having raised character, his character was irrelevant. It was submitted that the jury had no assistance as to how they should use such information. The appellant submitted that the remark, "You are entitled to bear in mind their particular geography at the time when you are assessing the credibility of what they have to say" minimised the judge's other remarks as to the right to a fair trial and suggested that some different approach to the norm was appropriate to a person such as the appellant charged with an offence alleged to have been committed within a prison. Coupled with the judge's other remarks they cast doubt on the appellant's credibility. The appellant complained that in similar vein were the judge's comments, "but it is a different world out there and you would need, when you are examining the evidence of any of these prisoners you would need to do it with great caution. You would need to do it, in effect, with a grain of salt', and "Have a very careful look at what they say and that applies to both the alleged victims and the three accused."

The appellant submitted that there could be no dispute that the jury had to closely scrutinise the evidence of the two victims. I agree. There was no Crown case unless the jury accepted Haines as a witness of truth. Whitton had told obvious lies and been an adverse witness. The appellant submitted that as each was a prison informant the jury was required to be given a Pollitt type warning. The judgments in Pollitt v The Queen (1991-1992) 174 CLR 558 stress the importance of the words of the warning being moulded to fit the circumstances of the case. The warning which was given was more than adequate on any view. However, I do not think that either of the victims could be fairly regarded as a prison informer. That term is most frequently used when one prisoner relays a conversation in which another prisoner has admitted his guilt of a serious offence. Haines gave evidence of a violent attack upon himself and Whitton by Ton and his co-accused. It is hard to see what advantage they would gain by giving evidence. Indeed, if they did they would be regarded adversely by other inmates and be liable to be attacked. While Whitton's statement was informative, his subsequent refusal to give evidence shows how real these fears were. McHugh J in Pollitt at p.614 said: "Many years of experience in having prisoners give evidence for and against accused persons has alerted the judiciary to the unreliability of the evidence of serving prisoners. But it is by no means certain that every juror fully appreciates that unreliability which arises not so much because the prisoner has been convicted of serious crime but because the character of that person has been altered for the worse by exposure to the values and culture of prison society."

While Haines was a serving prisoner at the time he made his statements to the police he had ceased to be so when he gave his evidence.

The appellant submitted that it was incorrect for the judge to give a warning couched in the terms he employed in respect of the appellant's evidence. Among other things, the appellant by giving evidence could not hope to advance his interests in the prison system, for example, by advancing his release date so he spent less time in prison.

The appellant relied on the decision of the High Court in Robinson v The Queen 180 CLR 531. At the trial of a rape charge the complainant gave evidence that she had consented to intercourse as a result of the accused's threats. The accused gave evidence that the consent had been freely given. In directing the jury about assessing the credibility of witnesses, the judge said that they should take into account the interest a witness might have in the outcome of the case and that "you might think … that the accused had the greatest interest of all the witnesses … and that therefore you should scrutinise his evidence closely." In its joint judgment the Court said at 535 (citations omitted) "… it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a 'suspect witness' in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as 'suspect witnesses', that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny."

And at 535-6: Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person. Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence of the Crown."

By analogy, the appellant submitted that the directions given by the judge operated unfairly against the accused and undermined the benefit of the presumption of innocence. However, the present case differs significantly from Pollitt. The context is different and nothing the judge said in the present case approached what was said by the trial judge in Pollitt.

The Crown submitted that when the summing-up was read as a whole the judge had sufficiently distinguished between the position of Haines and that of the appellant. The judge had emphasised that they could not convict unless they accepted the evidence of Haines beyond reasonable doubt. The judge also gave a direction in which he set out particular respects in which Haines' evidence was said to be unreliable. The aspects raised matters of detail, for example, the apparent absence of blood underneath the bottom bunk, his denial of knowledge of the particular situation of the emergency button in Cell 45 although he knew that all the cells had buzzers to call the prison officers and the absence of use of the emergency button. The judge mentioned the more important points made in the cross-examination of the Crown witnesses. He simply summarised the appellant's evidence It was relevant in assessing the credibility of the evidence of Haines that the evidence to the contrary also had, according to the judge's direction, to be treated with great caution. Nevertheless, I doubt if this had any effect upon the jury's decision to accept the evidence of Haines beyond reasonable doubt.

As at 16 September 1999 the appellant was on remand albeit on a charge of murder on 25 April 1999. He did not enter his plea of guilty to that charge until 2 February 000. Thus, as at 16 September 1999 the appellant was not serving a sentence. His earlier offences had been relatively minor and had been dealt with by way of fine. Of course, by the time of the trial on the subject offences he was serving a sentence for murder which was backdated to 25 April 1999.

The question arises whether leave should be given to raise this ground. During the trial the jury was taken to Parklea Prison for a view of the various parts of the prison relevant to the events alleged. Mr Tansey, the Assistant Superintendent, showed the judge and jury around. He gave evidence of the prison layout and prison practices and procedures. It is apparent from the transcript and the summing-up that counsel during the course of the case made the jury aware of prison culture and that special practices prevail including not reporting on the actions of other prisoners. This was a case of an attack by one group of prisoners upon another couple of prisoners. All these prisoners were serving sentences of imprisonment. All were evidently persons who were not of good character. Nothing could hide the facts earlier mentioned from the jury. The judge instructed the jury, more than once, that they must be satisfied beyond reasonable doubt that Haines' evidence was true, At the request of counsel for the accused the judge pointed up the criticisms of Haines' evidence but simply summarised the evidence of the appellant. It was the evidence of Haines which was put under the microscope.

This trial was fought on the basis that Ton, Hunyh and Eang never went to the cell of Haines and Whitton as alleged and therefore were not involved in the malicious woundings. There was no doubt that both victims had been savagely attacked.

As well as denying their presence in the cell the accused, including the appellant, relied on the prison culture which included telling lies, in their attack on the credibility of Haines. Inevitably such a strategy and attack had the effect of devaluing the evidence of the accused, including the appellant.

Any jury, without any instruction from the judge, would approach the evidence of the appellant, with some reserve and some care. They had to assess his credibility and counsel for the accused had highlighted the prison culture. In saying the appellant had a bad character the judge was stating the obvious. Nevertheless, it should not have been said. In telling the jury to scrutinise the appellant's evidence with great caution the judge erred but, in the circumstances that error would have had little to no effect. The judge told the jury that just because a person was serving a sentence of imprisonment this did not mean that his evidence was untrue, and that the appellant was entitled to "a fair go."

This is one of those cases where the trial was fought on one basis and an attempt is being made on appeal to re-define the battleground. In the context of the trial, including the way it was fought, counsel for Ton and counsel for the other accused saw no need for further or other directions. Counsel were not slow in letting the judge know what they wanted.

In all the circumstances leave should not be granted to raise this ground. There has been no miscarriage of justice.

Appeal Ground 3 reads: "The trial judge erred in his directions to the jury as to the elements of the offence."

As to the counts of malicious wounding with intent the judge said (SU 4): "But the essential ingredients there that the Crown has to prove is first 'malice' and for present purposes all that means is that what was done was done intentionally. The second ingredient is 'wound'. All that means is a full thickness penetration of the skin. 'With intent to do grievous bodily harm', that simply means with intent to do some really serious form of harm to the victim."

As to the counts of malicious wounding the judge said (SU4-5): "There is an alternative count there of simple 'Malicious Wounding'. The ingredients there, if you are not satisfied about the intent to do really serious bodily harm, if you thought perhaps there was room for a view that it was something intended to be less just to - a mere puncturing of the skin then it would be open to you to look to the alternative count having found 'not guilty' on the first count. It would be open to you to look to the charge of 'Malicious Wounding' and if you are satisfied that there was the intent to do some form of wounding it would be open for you to convict on that charge."

After the jury retired they sent a note to the judge. He explained what the charges involved by reference to the indictment, page one of which contained the charges involving Haines and page 2 the charges involving Whitton. The judge said "Page 1 of the indictment of course relates to the injuries to Derek Haines, page 2 relates to the injuries to Tom Whitton and as to the ingredients of the charges the top charge relates to an allegation of malicious wounding, malicious just means intentional. He intended to wound, and wound simply mean(s) a full thickness skin penetration, and the other ingredient of that charge is an intent to do grievous bodily harm, that means an intent to do really serious bodily harm to the victim and that is the same both on page 1 and page 2 except page 1 is Derek Haines, page 2 is Thomas Whitton. Now if you are not satisfied that the intent was there to do really serious bodily harm then you would go in each matter to the alternative charge which is simply malicious wounding. All that that requires the Crown to prove is that the wounding, that is to say the full thickness skin penetration, was intentional and it does not require anything beyond that as to degree of harm. So the more serious charge, the leading charge on each page is malicious wound with intent to do grievous bodily harm, the alternative if you are not satisfied about an intent to that degree of harm you would then come to consider whether the Crown in your finding has made out the alternative charge of malicious wound under which the Crown simply needs to prove the full thickness skin penetration accompanied by an intent to do just that."

The jury later asked a further question and received this direction "Members of the jury thanks for your additional note as to intent. These crimes charging intent obviously the Crown has got to exclude accident which has not been really litigated in this trial and the time for the intent is the time at which the appropriate blows, if you find so, were delivered in that cell 45. There is no requirement for any extensive planning or discussion about it. It's what is legitimately to be inferred as to what was going on in the minds of the three accused if you find that they were in the cell at the time Now the distinction between the more serious charge and the less serious charge is this, that the more serious charge requires two intents, firstly an intent to wound and secondly an intent for that wounding to proceed to the stage of really serious bodily harm. If you are not satisfied about the second intent, that's the intent to do that degree of harm then you'd go to the alternative charges which require only the one intent, that is the intent to wound to bring about full thickness skin penetration. Well members of the jury I hope that is of some assistance to you, as to the word 'intent' it includes other concepts such as purpose or design, it is not a very technical word but I will leave it to you members of the jury. Do not hesitate to ask if you need anything further by way of assistance."

The appellant submitted that the directions as to the malicious wounding with intent count were inadequate in that there had to be an intention to injure pursuant to s.5 of the Crimes Act 1900, that is, on the present case with intent to injure some person or persons. It was further submitted that the jury should have been instructed that at the time the act was done the accused not only intended to do the act of injuring but intended that he would cause really serious harm to the victim by his act. The further directions after the jury retired made this clear.

The appellant contended that the judge's final directions, namely, "the more serious charge requires two intents, firstly an intent to wound and secondly an intent for the wounding to proceed to the stage of serious bodily harm" failed to bring home to the jury adequately that the appellant had to have the intent at the time the act was committed of causing serious bodily harm. That was made clear in the further directions.

It was submitted that it was essential for the jury to consider this point as there was no evidence that the appellant (if present) had either used a knife or ever been in possession of one and no evidence that he was aware of knives or other offensive weapons in the possession of the co-accused at the time of entering the cell. The appellant submitted that the judge's remarks that identification was the only real issue and that with the medical analytical reports they would not have much difficulty with the fact that there was either malicious wounding with intent or without intent diverted the jury's attention from examining the evidence on all issues adequately.

The directions given by the judge were neither inadequate nor incorrect. The judge gave his directions by reference to the indictment, a copy of which each juror had. That made it plain that what was being alleged was that on 16 September 1999 at Parklea the appellant maliciously wounded Haines and Whitton with intent to do each of them grievous bodily harm. The jury would have understood from the directions given that in dealing with the malicious wounding counts they had to be satisfied that at the time of the attack the appellant intended to injure each of them and intended to do grievous bodily harm to each of them.

There was no protest from counsel appearing for each of the accused at the trial that identification was the real issue, that is, they did not enter Cell 45. The trial was conducted on that basis. It was the only sensible basis on which the accused could have fought it.

No objection was taken at the trial to the portion of the summing-up in question nor were additional directions sought. Leave should be refused to rely on this point. It is without substance.

The appellant complained that the directions in respect of the malicious wounding count (s.35) were misleading in that the remarks "if you thought perhaps that there was room for the view that it was something intended to be less just - a mere puncturing of the skin then it would be open to you to look at the alternative count" would have left the impression that the second count was only available where they reached the view that only a mere puncturing of the skin was what was intended.

This is not a fair reading of what the judge said. The judge correctly directed the jury as to the elements of malicious wounding and instructed them correctly as to the difference between the count of malicious wounding with intent and malicious wounding. In the passage in question the judge was merely giving the jury an illustration having regard to the facts alleged. Again no point was taken at the trial. The point in question lacks substance. Leave should be refused to rely on this point.

Appeal Ground 4 reads: "The trial judge erred in his directions to the jury on common purpose."

At SU6 the judge said: "Now the next legal direction I give is this - to what the law calls 'common purpose' or 'joint criminal enterprise'. In this context that we are looking at here, it is a fairly simple proposition. If you were satisfied that these were the three men that were there in cell 45 when the stabbing took place it would be open to you to infer there must have been some agreement between them to draw them to that particular venue and it would not matter as to, in effect, who did what and with which and to whom because each man is there. If you come to the conclusion that these three were party to that sort of agreement, it just would not matter who did what particular harm to either of the victims. Each is just as guilty as the one who actually inflicts the particular injury at the time. But what the Crown would need to do is to establish a joint criminal enterprise between the three men and the fact that they participated in it. It need not be a formal agreement. They are not going to sit down and write up a contract as it were. It need not be an express arrangement. Its existence may be inferred from all the circumstances and it need not have been an agreement that was on foot for any particular length of time."

The judge next explained what was meant by drawing inferences. At SU3 on 22 November 2000 the judge, as earlier mentioned, when dealing with intent, said: "These crimes charging intent - obviously the Crown has got to exclude accident which has not been really litigated in the trial and the time for the intent is the time at which the appropriate blows, if you find so, were delivered in that cell 45. There is no requirement for any extensive planning or discussion about it. It's what is legitimately to be inferred as to what was going on in the minds of the three accused if you find that they were in the cell at the time."

The appellant submitted that the jury would have been misled by the judge's directions, "If you were satisfied that there were three men that were there in cell 45 when the stabbing took place it would be open to you to infer that there must have been some agreement between them to draw them to that particular venue and it would not matter as to, in effect, who did what and with which and to whom because each man is there.

It was further submitted that the directions at SU6 (earlier quoted) in so far as they refer to the need to establish "a joint criminal enterprise between the three men and the fact they participated in it" must have left the jury with the clear impression that an agreed attendance at the cell for any purpose during which a stabbing took place by any person was sufficient.

The judge made it clear that before they could convict the jury had to infer an agreement between the three accused to go to and enter the cell and harm Haines and Whitton. This had to be the only rational inference. The judge explained to the jury that they would be entitled to infer the agreement to go to and enter Cell 45 by reason of the presence of the three accused there. It was also implicit in what the judge said that the agreement included harming Haines and Whitton. The judge was speaking in a context where two weapons were taken into the cell and used. The steel weapon had Haines' blood on it. The circumstances pointed overwhelmingly to the three men in the cell having agreed to harm Haines and Whitton by stabbing. In addition there was evidence that the appellant had stabbed Haines and Whitton. As the Crown pointed out the judge said at SU3 of 22 November 2000 that there was no need for any extensive planning or discussion about what they were going to do and that what mattered was what was legitimately to be inferred as going on in the minds of the three accused. A fourth man was holding the cell door closed so Haines and Whitton could not escape the attentions of the appellant. Huynh and Eang.

The Crown further submitted that it was sufficient if the appellant were present in the cell at the time pursuant to the agreement and that it was not necessary that he be aware of the existence in the mind of the principal offender of the intention to cause grievous bodily harm; and on the alternate count of at least an intention to wound as asserted in the appellant's submissions: McAuliffe v The Queen (1995) 183 CLR 108 at 114; R v Tangye (1997) 92 A Crim R 545 at 556-557. In the present case it is not necessary to travel down this path as it was implicit in what the judge said that the jury had to infer an agreement to go to and enter the cell and harm Haines and Whitton by stabbing.

There was no application for any further or other direction. It would have seemed unnecessary in the context. Leave to argue this point must be refused.

Appeal Ground 5 reads: "The trial judge erred in failing to direct or adequately direct the jury pursuant to section 165 of the Evidence Act."

During the summing-up the legal representative for Eang sought a direction under "s.165(2)(b)" of the Evidence Act 1995 with an accompanying explanation that the evidence of Haines could be unreliable. [Section 165(2)(b) is the incorrect reference. I am not sure whether s.165(1)(b) or s.165(1)(e) was meant]. The request was made also as to the absence of any report of the fight of 15 September 1999, the emergency button in the cell and its non-use, the absence of blood under the bed and no-one reporting Haines' black eye.

Subsequently, the judge referred to the criticisms of Haines' evidence which had been raised, namely, the absence of any blood underneath the bottom bunk, the location and non-use of the emergency button, the absence of any record of the fight on 15 September and the black eye and no report about it. The judge also put the case of each accused to the jury in some detail.

Haines and Whitton were not prison informers within s.165(1)(e) of the Evidence Act 1995. Haines and Whitton knew the accused by sight from their time in prison. The judge gave all the directions which were sought. At the end of the summing-up the judge, at the request of the legal representative for Eang, reminded the jury of the earlier warnings he had given as to the use of Whitton's statement. He repeated that Whitton had deprived the accused of the opportunity to test that statement.

After the judge had given his directions there was no application for any further direction or directions from any of the legal representatives of the three accused. I propose that leave to rely on this ground be refused.

As earlier mentioned, the appellant sought to resile from the way in which the case was fought at the trial by relying on points not taken at the trial. There were sound reasons for the appellant, Huynh and Eang conducting the trial as hey did and focussing on the only issue on which they had a remote chance of success, namely, that they did not enter the cell and some other people must have carried out the woundings.

I propose that the appeal against conviction be dismissed. While the Notice of Appeal also embraces an application for leave to appeal against sentence this was not pressed. No submissions were made. I propose that leave to appeal against sentence be refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.