Regina v Chai [2000] NSWCCA 320

New South Wales Court of Criminal Appeal

CITATION : Regina v Chai [2000] NSWCCA 320 revised - 29/08/2000 FILE NUMBER(S) : CCA 60550/98 HEARING DATE(S) : 13 July 2000 JUDGMENT DATE : 25 August 2000

PARTIES : Regina v Chong Mun CHAI JUDGMENT OF : Mason P at 1; Sperling J at 1; Bergin J at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70208/97 LOWER COURT JUDICIAL James J OFFICER :

G Nicholson QC/B W Cross (Applicant) COUNSEL : M G Sexton SC (Crown) Susan N Goodsell (Applicant) SOLICITORS : S E O'Connor (Crown) CATCHWORDS : Manslaughter - agreement to assault - unlawful and dangerous act - Crown could not prove which blows caused deaths of two deceased - whether accused procured beating - common purpose - joint criminal enterprise - directions as to elements of manslaughter erroneous and misleading - judge's written directions to jury - summing up - directions as to meaning of assault - D CASES CITED: Osland v The Queen (1998) 197 CLR 361; McAuliffe v The Queen (1995) 183 CLR 108; R v Tangye (1997) 92 ACrimR 545; Giorgianni v The Queen (1985) 156 CLR 473; R v Anderson & Morris [1966] 2 QB 110; Varley v The Queen (1977) 51 ALJR 243; Markby v The Queen (1978) 140 CLR 108; R v Duong (1992) 61 ACrimR 140. DECISION : Appeal allowed; conviction quashed; a new trial ordered.

IN THE COURT OF CRIMINAL APPEAL

CCA60550/98

MASON P SPERLING J BERGIN J

Friday, 25 August 2000 REGINA v Chong Mun CHAI JUDGMENT 1 THE COURT : The appellant, Chong Mun Chai, was indicted on 15 April 1998 in the Supreme Court of New South Wales on four counts: (1) that he murdered Duck Huan Kim, (2) that (in the alternative) he maliciously inflicted grievous bodily harm on that deceased, (3) that he murdered Doh Su Kim, and (4) that (in the alternative) he maliciously inflicted grievous bodily harm on that deceased. The statutory alternative charge of manslaughter by an unlawful and dangerous act went to the jury in relation to each charge of murder. 2 The appellant was found not guilty of murder under counts (1) and (3) but guilty of manslaughter on each count. Accordingly, no verdict was taken on counts (2) and (4). 3 The appellant's co-accused, Shang Hyan Bae, who was tried with him on identical charges, was found not guilty of both murder and manslaughter but guilty of maliciously inflicting grievous bodily harm on each of the deceased. 4 The crown case was that both deceased were beaten up by a group of several men at the Ehwa Karaoke Bar at Kings Cross (which was owned and managed by the appellant), and that they died as a result of the beating. The crown's case was conducted on the basis that it could not prove which blow or blows caused the deaths of the respective deceased or (necessarily) who in the group had delivered the fatal blows. 5 There was no room for serious doubt on the evidence that the deceased were in fact savagely beaten in the confrontation which ensued and received the injuries from which they died. 6 The primary crown case was that the appellant and Mr Bae were active participants in the assault. However, there was an alternative basis, peculiar to the appellant, which did not require proof that the appellant was present and assisting in the beating. This basis asserted that the appellant procured the beating when he telephoned Sang Hoon Lee. The challenge to the directions relates to this aspect of the crown case. 7 Sang Hoon Lee gave evidence that the appellant summoned him and two companions to the bar in the course of a telephone conversation, saying, "The gangsters are here so come here quick". He went on to say in his evidence that, once there, he with others, including the appellant and his co-accused, proceeded to give the deceased a severe beating. This was evidence on which (taken with the other material) it was open to the jury to find that the appellant had procured Mr Lee and his companions to beat up the deceased. On the other hand, it was also open to the jury to find that Mr Lee and his companions were summoned by the appellant to persuade the deceased to leave, if necessary by use of some unspecified degree of force but not involving a beating. 8 In his evidence, the appellant denied summoning Mr Lee and his companions to beat up the deceased or indeed summoning them at all. He also denied any personal involvement in the beatings. There was, however, a scenario which the jury could find - and might have found as the fact - partly by reference to the opening statement by counsel for the appellant which followed the crown prosecutor's opening address. Counsel told the jury that the appellant's case was that the deceased were seen in a vehicle outside the bar, that the appellant made contact with Mr Lee and that the appellant asked Mr Lee to come and tell the men to move on, but that he also told Mr Lee that there was to be no fighting. In the event, the appellant did not give evidence along those lines. He denied any such conversation. But the jury was entitled to reject his denial and to use the opening statement by counsel as evidencing an admission by the appellant that he asked Mr Lee to come and move the men on, but without getting into a fight. (Much time was spent in the appeal exploring a factual issue as to whether counsel's instructions from the appellant permitted such an opening. We incline to the view that they did, but it is unnecessary to resolve this issue in light of what follows.)