The Queen v Chai [2002] HCA 12

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

THE QUEEN APPELLANT

AND

CHONG MUN CHAI RESPONDENT

The Queen v Chai [2002] HCA 12

14 March 2002

S180/2001

ORDER

1. Appeal allowed. 2. Set aside order of the Court of Criminal Appeal of New South Wales dated 25 August 2000. 3. Remit matter to the Court of Criminal Appeal of New South Wales for further hearing and determination of so much of the respondent's appeal to that Court as has not been determined.

On appeal from the Supreme Court of New South Wales

Representation:

M G Sexton SC, Solicitor-General for the State of New South Wales with R D Ellis and B K Baker for the appellant (instructed by S E O'Connor, Director of Public Prosecutions (New South Wales))

G Nicholson QC with B W Cross for the respondent (instructed by Susan N Goodsell)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v Chai

Criminal law – Manslaughter – Unlawful and dangerous act – Accessorial liability – Requisite mental element – Procurement of assault – Adequacy of directions on nature of assault procured – Directions framed according to issues at trial.

Appeal – Criminal appeal – Criminal law – Grounds of appeal – Duty of court of criminal appeal to determine all matters raised by grounds of appeal.

Crimes Act 1900 (NSW), s 18(1).

1. GLEESON CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ. The issue in this appeal concerns the adequacy of a trial judge's directions to a jury on accessorial liability for manslaughter by procuring an unlawful and dangerous act which results in the unintended death of the victim. 2. The respondent, and a co-accused Shang Hyun Bae, were tried in the Supreme Court of New South Wales before James J and a jury on charges arising out of the deaths of Duck Hwan Kim and Dok Su Kim ("the victims"). Each accused was charged with two counts of murder and, in the alternative, two counts of maliciously inflicting grievous bodily harm. In addition, in relation to each charge of murder, the statutory alternative charge of manslaughter was left to the jury[1]. The respondent, in respect of each victim, was found not guilty of murder but guilty of manslaughter. He appealed against his convictions. 3. In the Court of Criminal Appeal of New South Wales the respondent relied upon six grounds. Ground 2 was that the trial judge's directions as to the elements of manslaughter, including joint enterprise, were erroneous and misleading. In support of that ground two arguments were advanced, but the Court of Criminal Appeal (Mason P, Sperling and Bergin JJ) found it necessary to decide only one of them, which it resolved in the respondent's favour[2]. The Court did not deal with the other argument or the other grounds. It allowed the appeal, quashed the convictions, and ordered a new trial. If that order were to stand, the trial judge at the new trial would not have the benefit of a decision upon the other issues raised by the respondent before the Court of Appeal. At least some of those issues would be likely to arise at a new trial[3]. The Court of Criminal Appeal should have dealt with all grounds likely to affect a new trial. The prosecution appeals to this Court, accepting that, if the appeal is allowed, it will be necessary to remit the matter to the Court of Criminal Appeal to deal with the rest of the respondent's arguments.