Reported Decision : 121 A Crim R 568 New South Wales Court of Criminal Appeal CITATION : R v Giri [2001] NSWCCA 197 FILE NUMBER(S) : CCA 60830/99 HEARING DATE(S) : 26 February 2001 JUDGMENT DATE : 12 June 2001 PARTIES : R v Nitin Giri JUDGMENT OF : Heydon JA at 1; Barr J at 80; Smart AJ at 83 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70061/98 LOWER COURT JUDICIAL Studdert J OFFICER : COUNSEL : Crown: Mr G E Smith Appellant: Mr P Byrne SC SOLICITORS : Crown: S E O'Connor Appellant: Ross Hill and Associates CATCHWORDS : Criminal Law - Judicial instructions to jury - Right to silence of accused - Directions and comments by trial judge to jury on accused's failure to give evidence at trial - Whether contravention of Evidence Act 1995 (NSW), s 20(2) - Where judge directed jury not to consider accused's silence as sign of guilt - Where judge also commented that jury could consider silence of accused when weighing evidence of the Crown - Where accused stood trial for murder - Where accused did not give any evidence at trial - Evidence Act 1995 (NSW), s 20(2) - Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on manslaughter adequate - Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on self-defence adequate - Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on reliability of witnesses adequate - Criminal Law - Appeals - Appeals against conviction - Whether "no substantial miscarriage of justice" - Whether proviso applies under Criminal Appeal Act 1912 (NSW), s 6(1) - D LEGISLATION CITED : Criminal Appeal Act 1912 Evidence Act 1995 Azzopardi v R [2001] HCA 25 R v Bozzola [2001] NSWCCA 8 CASES CITED: Glennon v R (1994) 119 ALR 706 RPS v R (2000) 74 ALJR 449 Saad v R (1987) 78 ALR 667 Wilde v R (1988) 164 CLR 365 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60830/99 HEYDON JA BARR J SMART AJ Tuesday, 12 June 2001 REGINA v Nitin GIRI Criminal Law - Judicial instructions to jury - Right to silence of accused - Directions and comments by trial judge to jury on accused's failure to give evidence at trial - Whether contravention of Evidence Act 1995 (NSW), s 20(2) - Where judge directed jury not to consider accused's silence as sign of guilt - Where judge also commented that jury could consider silence of accused when weighing evidence of the Crown - Where accused stood trial for murder - Where accused did not give any evidence at trial - Evidence Act 1995 (NSW), s 20(2) Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on manslaughter adequate Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on self-defence adequate Criminal Law - Judicial instructions to jury - Murder trial - Whether directions on reliability of witnesses adequate Criminal Law - Appeals - Appeals against conviction - Whether "no substantial miscarriage of justice" - Whether proviso applies under Criminal Appeal Act 1912 (NSW), s 6(1) The appellant and a co-accused were convicted of the murder of Shajedul Haque (the deceased) on 5 September 1999. The death of the deceased resulted from a physical attack upon him, which occurred outside a nightclub on 22 June 1996. Neither the appellant nor the co-accused gave any evidence at trial. The trial judge's instructions to the jury included the direction that the jury could not impute guilt directly from the accused's failure to give evidence at trial and the statement that the accused was not obliged to give evidence. However, the trial judge also made the following comments to the jury: "…you may when judging the value, or the weight of the evidence which has been put forward by the Crown, in seeking to prove its case against the accused, take into account the election by the accused, not to deny or contradict matters in the evidence at this trial, about which the accused could have given direct evidence. … The relevance of the fact that the accused has not given evidence can only go the value, or the weight, which you give the evidence which the Crown witnesses have given." The appellant and the co-accused were found guilty of murder, and the appellant appealed to this Court. Held by Smart AJ (Barr J concurring and Heydon JA disagreeing in part), dismissing the appeal: 1. (Per curiam): The trial judge erred in his instructions to the jury in relation to the use the jury could make of the appellant's failure to give evidence at trial. a. There were no "rare and exceptional" circumstances in which comment by the judge to the jury on the accused's silence was permitted. The evidence of the appellant's involvement in the attack upon the deceased was not "capable of explanation by disclosure of additional facts known only to the accused" [Heydon JA at [29]]. Weissensteiner v R (1993) 178 CLR 217, distinguished. Azzopardi v R; Davies v R [2001] HCA 25, applied. b. The relevant part of the summing-up was on all fours with those considered to be misdirections by reason of contravention of s 20(2) of the Evidence Act by the High Court in Azzopardi v R and Davies v R . The contradiction that the High Court found in those cases between the "comment" to the jury - that the accused's failure to give evidence might be used to assess the weight of the Crown evidence - and the "direction" - that the accused's failure to give evidence cannot be used to infer guilt -, also exists in this summing-up . 2. (Per Smart AJ and Barr J, Heydon JA disagreeing): The proviso in s 6(1) of the Criminal Appeal Act 1912, which allows an appeal to be dismissed on the ground that "no substantial miscarriage of justice has actually occurred", should be applied to this appeal. a. There was no "fundamental error" that caused the proceedings to miscarry so as "hardly to be a trial at all". Wilde v R (1988) 164 CLR 365 and Glennon v R (1994) 119 ALR 706 followed. b. Therefore, the relevant question is whether conviction was "inevitable". Wilde v R (1988) 164 CLR 365 and Glennon v R (1994) 119 ALR 706 followed. c. In this case conviction was inevitable. (i) The focus must be "upon the evidence proving the elements of the offence and the strength of that evidence" (Smart AJ at [8]). As this was a joint criminal enterprise case it was not an essential element of the offence that the appellant kicked the deceased, but only that he struck him. The evidence of such striking and involvement in the criminal enterprise was strong. (ii) Even if the evidence of the appellant kicking the deceased was critical, such evidence was strong. Also, the trial judge was satisfied that the appellant kicked the deceased. (iii) The evidence of the Crown witnesses was sufficiently strong that it needed no prop from the judge in relation to comments on the appellant's silence. 3. (Per curiam): The trial judge's directions on manslaughter were not erroneous nor inadequate. (a) "The purpose of the summing up was to present the nature of the parties' cases and to explain the substantive law" (Heydon JA at [55]). It was not necessary for the jury to be taken to the whole of the evidence. R v Zorad (1990) 19 NSWLR 91 and Criminal Procedure Act 1986 (NSW) applied. The evidence was completed in the trial in under four sitting days and the jury was familiar with the conflicts within the evidence. (b) No objection to the detail of the directions complained of on appeal was made on behalf of the appellant at trial. Hence, leave was required under rule 4 of the Criminal Appeal Rules for this ground of appeal. Such leave should be refused. 4. (Per curiam): The trial judge's directions on self-defence were not erroneous. (a) The directions on self-defence were not erroneous. (b) However, even if the directions on self-defence were misdirections they were not likely to produce a miscarriage of justice. The alleged flaws are so precise that they ought to have been raised with the trial judge, yet they were not. 5. (Per curiam): The trial judge's warnings on the unreliability of three witnesses (Mr Bahbubur, Ms Taria and Mr Diolosa) were not inadequate. (a) The substantive requirements of s 165 of the Evidence Act 1995 (NSW) were complied with. (b) The conduct of the trial suggests that counsel for the appellant at trial perceived the warnings given to be satisfactory. IN THE COURT OF CRIMINAL APPEAL 60830/99 HEYDON JA BARR J SMART AJ Tuesday, 12 June 2001 REGINA v Nitin GIRI JUDGMENT 1 HEYDON JA: Background The appellant was charged with the murder of Shajedul Haque on 22 June 1996. He was tried before Studdert J and a jury jointly with Ivesh Karki. Both the appellant and the co-accused were convicted on 5 September 1999. 2 The events leading to the death of the deceased arose out of an argument at about 2.25am on the dance floor of a nightclub in King's Cross, which led to a fight outside it. The Crown alleged that in that fight the appellant punched the victim and kicked him after he had fallen to the ground. 3 The events underlying the Crown case as accepted by the trial judge were described with characteristic lucidity by the trial judge in his remarks on sentence: "The deceased, Sajedul Haque, was subjected to a violent assault after he left a nightclub in Darlinghurst Road, Kings Cross early on the morning of 22 June 1996. He was knocked to the ground and thereafter he was kicked. According to one witness he was also stomped upon. The deceased sustained severe head injuries and was admitted to St Vincent's Hospital where he was found to be deeply unconscious, a condition from which he never recovered. … In the opinion of Dr Cala all the injuries found were consistent with the deceased having been assaulted, and the evidence established beyond reasonable doubt that the injuries were so caused. The verdict of the jury inculpates both prisoners in their infliction. However Dr Cala was unable to determine what impact or impacts caused the brain damage that led to the death of the deceased. The deceased was a young man twenty-seven years of age who came from Bangladesh. He visited Kings Cross with friends from Bangladesh on the night of 21 June 1996. The party visited the 'Illusions' nightclub and it was here that there was an altercation that involved the deceased and the prisoner Ivesh Karki. It seems that the deceased laughed at the way the prisoner's brother was dancing and exception was taken to this reaction. Later there was a confrontation between the deceased and his friends and the prisoner Ivesh Karki and his companions outside the Kings Cross Hotel where Ivesh Karki and the deceased held on to each other. Later still there was a further confrontation outside the nightclub Illusions and the deceased and his friends were followed into Illusions by both the prisoners and their Nepalese companions. It was when the deceased left Illusions for the second time that the fatal assault occurred. The deceased was followed from Illusions by the prisoners and a number of their companions. There were a number of eye-witness accounts of what then occurred and, not unexpectedly, there were differences in the various accounts of these eye-witnesses. However, it is clear from the jury's verdict that the jury was satisfied beyond reasonable doubt that both prisoners were inculpated in the assault upon the deceased who, as the evidence establishes, was affected by intoxicating liquor at the time. … When interviewed by the police, Ivesh Karki admitted he struck and kicked the deceased, kicking him 'once'. When interviewed by the police, Nitin Giri admitted that he struck the deceased causing him to fall to the ground. He conceded he may have kicked the deceased 'if somebody else has seen me'. Neither prisoner gave evidence at the trial. The eye-witness evidence, as I assess it, proved that both prisoners kicked the deceased after he fell. Rahman Mahbubur said that after the deceased fell down both prisoners kicked him. Darren Diolosa also said that there were two men kicking the deceased on the ground, that each kicked the deceased four times and, from the way they were moving, these men were putting a lot of weight into their kicks. Jim Diamond said that two men kicked the deceased on the ground, one man kicking him once and the other kicking him two or three times. Sheikh Islam said that he saw both prisoners kick the deceased. Daniel Thompson described a frenzied kicking attack and he specifically recalled that 'Ponytail' (that is, Nitin Giri) kicked the deceased. He said that the assault on the deceased ended when the deceased was stomped on the head three times. Simon Page, who had been at an automatic teller machine at a bank, arrived later than his companion Daniel Thompson, but he remembered one, maybe two, men kicking the deceased on the ground. Orapai Taria saw two men kicking the deceased on the ground and each kicked him more than once. Anthony Bayes only saw one man kick the deceased on the ground. Allowing for the discrepancies in the eye-witness versions, I am nevertheless satisfied beyond reasonable doubt on the evidence given at the trial that both prisoners kicked the deceased as he lay upon the ground." 4 The findings of the trial judge were entirely open to him, but there were aspects of the evidence of some of the witnesses which were favourable to the appellant's case. This evidence will be examined below. 5 The Notice of Appeal contained an application for leave to appeal against the sentence of 17 years' penal servitude. No argument was advanced in support of it, and that application should be dismissed. 6 The Amended Grounds of Appeal were as follows: 1. The directions of the learned trial judge regarding the availability of a verdict of manslaughter in the appellant's case were erroneous and inadequate. 2. His Honour the learned trial judge erred in his directions to the jury on the use they could make of the fact that the appellant did not give evidence in the trial proceedings. 3. The directions given by the learned trial judge on the issue of self-defence were erroneous. 4. The learned trial judge failed to give the jury an adequate warning regarding the unreliability of the witnesses Mahbubur, Taria and Diolosa. 7 It is convenient to take these grounds out of order and commence, as the appellant's counsel did in oral argument, with Ground 2. It was Ground 2 to which the bulk of attention was directed in argument. Ground 2: direction on failure of accused to give evidence The forensic problem 8 The appeal was initially argued on 26 February 2001, but counsel for the appellant pointed out that, after argument on 20 and 21 November 2000, judgment stood reserved in the High Court in an appeal in Azzopardi v R and in a special leave application in Davis v R. He said that it was possible that the High Court might throw light on the correctness of the trial judge's directions contained in ground 2. The appellant's counsel accepted that in all the circumstances it was appropriate for this Court not to deliver judgment until the High Court had delivered judgment. He said that all of the arguments which the appellant would be putting on all grounds of appeal were new trial points. He said: "I think it is realistic to concede, on the appellant's behalf, that this is a case where, perhaps realistically, the most favourable verdict that might be expected in all the circumstances is a verdict of guilty of manslaughter …. [His] position at the moment … should be, perhaps, considered in that light. He has been and he was on bail for that period of three years or certainly all but a couple of months of it from the time of the trial to the time of his arrest. So that his sentence goes around from September 1999. I simply point that out, that it is not one of those cases where his continued detention is greater than otherwise." The last words have not been correctly transcribed. Counsel's point was that the case was not one where success for the appellant would automatically result in his release without any risk of being imprisoned in relation to this charge in future. Accordingly, counsel was indicating that there was no hardship likely to flow to the appellant from awaiting the judgments of the High Court. 9 The High Court delivered judgment on 3 May 2001: Azzopardi v R [2001] HCA 25. The appellant's counsel supplied some written submissions about the decision on 9 May 2001. The Crown did the same on 14 May 2001. Both of these sets of submissions were helpful. 10 The trial judge directed the jury as follows: "An accused person may always give evidence at his trial, but he is not obliged to do so. It is of fundamental importance that the Crown has to prove, beyond reasonable doubt, that the accused is guilty of the offence with which he has been charged and the accused does not bear any onus. He is, as I have already told you, presumed to be innocent unless and until the Crown has proved that he is guilty. The accused is entitled to elect to say nothing and to make the Crown prove his guilt. You will remember the evidence that the police have given, as to the caution conveyed to each accused at the time when he was being questioned. The accused was informed that he was not obliged to answer the questions asked by the police officer. That is the law. A person who is questioned by police, has the right to remain silent. That is a right that exists, even when he is on trial. That is a right he brings with him into the Courtroom. You will remember earlier directions I gave you in the course of this trial, about this right of silence. That right is retained at trial and it is a right which the accused has exercised. Just because the accused has exercised the right that belongs to every citizen, you must not conclude that he has elected not to give evidence because he is guilty of the offence charged. Such a conclusion, from the exercise of the right to remain silent, would be altogether wrong. His silence must not be viewed, by you, as an admission of guilt. He may fear, for instance, that he would not be able to follow cross examination adequately, in the strange circumstances of a courtroom, or he may fear he may be confused by it. The accused may be content to rely upon what he perceives to be weaknesses in the case for the prosecution. There may be other good reasons for an accused person to decide not to give evidence and you must not speculate, in the case of either accused, as to why he has decided not to give evidence. However, you may when judging the value, or the weight of the evidence which has been put forward by the Crown, in seeking to prove its case against the accused, take into account the election by the accused, not to deny or contradict matters in the evidence at this trial, about which the accused could have given direct evidence. … The relevance of the fact that the accused has not given evidence can only go to the value, or the weight, which you give to the evidence which the Crown witnesses have given." 11 The appellant complains of the third last and last sentences in particular. 12 The Evidence Act 1995, s 20(2), provides: "The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned." 13 The appellant pointed out that the last sentence quoted from the summing up was to the same effect as two parts of the summing up held by the High Court (Gaudron ACJ, Gummow, Kirby and Hayne JJ) in RPS v R (2000) 74 ALJR 449 at [36] and [40] to be defective. The relevant parts in the summing up in that case were: "In the present, case, however, the Crown asks you when judging the value of, the weight of, the evidence which has been put forward by the Crown as establishing its case against the accused, to take into account the accused's election not to deny or to contradict the matters about which he could have given direct evidence from his own personal knowledge. That is indeed a circumstance which you are entitled to consider in this case. That is, the fact that the accused has elected not to contradict the evidence given by [the complainant's mother] as to his alleged admission - if you construe it as such - and he has been content to rely upon that very brief statement in answer to the detailed allegations made by the complainant." 14 The trial judge in this case summed up in a manner which was common before the decision in RPS v R. In fairness to the trial judge, it must be borne in mind that his summing up was delivered on 13 and 14 September 1999, before RPS v R was decided on 3 February 2000. Counsel for the appellant did not submit that the summing up complained of failed to comply with principles stated in High Court decisions earlier than RPS v R on the appropriate direction to be given when an accused person did not testify. 15 In Azzopardi v R [2001] HCA 25 the impugned passage in the summing up was as follows ([71]): "However, members of the jury, when assessing the value of the evidence presented by the Crown, you are entitled to take into account the fact that the accused did not deny or contradict evidence about matters which were within his personal knowledge and of which he could have given direct evidence from his personal knowledge. This is because, members of the jury, you may think that it is logic and common-sense that, where only two persons are involved in some particular thing - the complainant and/or a witness and the accused - so that there are only two persons able to give evidence about the particular thing, and where the complainant's evidence or the witness' evidence is left undenied or uncontradicted by the accused, any doubt which may have been cast upon that witness's evidence may be more readily discounted and that witness's evidence may be more readily accepted as the truth." 16 In Davis v R the impugned part of the summing up was ([80]): "Now the only effect that his failure to give evidence may have on you is this. His failure to give evidence here may affect the value or weight that you give to the evidence of some or all of the witnesses who have testified in the trial if you think the accused was in a position to himself give evidence about the matter. His failure cannot be treated as an admission. His failure go give evidence. But it may enable you to give, to help you to evaluate the weight of other evidence in the case, that he has not given evidence. I do not want to be more specific than that, because it is a matter for you, but let me give you an example that is not related to this case to show you what I mean. If the case was one of speeding, and a police officer got in the witness box and said he was doing 100 kilometres an hour in a 60 kilometre area, and the accused, although the defendant, although he pleaded not guilty, did not testify, the judge hearing the case might say, well he has not gone into the box and contradicted that. He could have. But to put it another way, to give you the converse situation, if the defendant had gone into the witness box and said, no that's not true, I've got a very good speedometer in my car and I was only doing 60, it would make it - those two different situations would make the magistrate's evaluation of the policeman's evidence either more difficult or easier. It is not an easy concept I know that. The accused has remained in the dock as is his right. You cannot treat that as an admission of guilt. But the fact that he has not given testimony may assist you when you come to evaluating the other evidence in the case." 17 The majority of the High Court (Gaudron, Gummow, Kirby and Hayne JJ - the same judges as those who formed the majority in RPS v R) held that each of these passages constituted a misdirection. As to the first, they said ([74]-[76]): "If the impugned passage had stood alone, there could be no doubt that it was a comment on the failure of the appellant to give evidence which contravened the prohibition in s 20(2). Standing alone, it can be seen only as suggesting to the jury that the fact that the accused did not give evidence was a reason to accept the prosecution's contention that he was guilty. That is, standing alone, it suggested to the jury that the accused did not give evidence because he was, or believed he was, guilty of the offence charged. The impugned passage, however, did not stand alone. It was given in the context of the earlier directions given by the trial judge, which explicitly warned the jury against thinking that the accused decided not to give evidence because he was or believed himself to be guilty of the offence In that context, the passage was, at best, confusing and contradictory of the earlier directions. And given that the prohibition in s 20(2) is not to be given a narrow construction [ RPS (2000) 199 CLR 620 at 629-630 [20] per Gaudron ACJ, Gummow, Kirby and Hayne JJ], it must be concluded that the passage contravened s 20(2) by suggesting that the accused did not give evidence because he was guilty of the offence charged. It cannot be said in the circumstances of this case that the misdirection did not deprive the appellant of a chance of acquittal. The jury may have been affected in their assessment of the case against the appellant, which depended so much on the evidence given by the man whom he was alleged to have solicited to murder the victim. That being so this is not a case in which the proviso can be applied." 18 As to the second, the High Court majority said ([81]-[83]): "The evidence adduced by the prosecution consisted not only of the direct evidence of the complainant but also other evidence, from her mother and from the doctor, of facts and circumstances which supported the account the complainant gave. If the complainant was unable to give evidence and the prosecution case had been founded only upon evidence of the otherwise unexplained departure of the complainant from the applicant's house and return to her own house, coupled with clinical observations of the complainant's physical condition consistent with her having been sexually assaulted, it might be said that the case was one in which a Weissensteiner comment could have been made. That would be so because facts which would explain or contradict the inference otherwise to be drawn from the facts we have described would be peculiarly within the knowledge of the applicant in whose care the complainant had been left before this otherwise unexplained journey occurred and these otherwise unexplained clinical signs were observed. But that was not the way in which the prosecution put its case at the trial of the applicant. That case included direct evidence, from the complainant, of what the applicant was alleged to have done. That is reason enough to conclude that no Weissensteiner direction should have been given. If the complainant were accepted as a credible witness, the accused could not have given evidence of any additional fact that might have explained or contradicted her account. In any event, however, not only was there no occasion to make a Weissensteiner comment, the use which the trial judge said that the jury might make of the accused not having given evidence went well beyond the limited use which Weissensteiner permits. And it went beyond that which s 20(2) would permit if a comment were appropriate. The instruction which the trial judge gave about the failure of the accused to give evidence was, therefore, a misdirection. Standing alone, we would find that the impugned direction contravened s 20(2). Again, as in the case of Azzopardi , the comment has to be understood in the context of other directions given by the trial judge. Even so, for the reasons given in the case of Azzopardi , the comment infringed s 20(2) of the Evidence Act . The case against the appellant was overwhelming. That a nine year old child should, late at night, walk seven kilometres along a gravel road to return to her own home suggests very strongly that something untoward has occurred to her. The doctor's evidence of his observations, and the complainant's mother's evidence of her own observations, were such that the verdicts which the jury returned against the applicant were inevitable. The misdirection identified was one which, in the end, was in the unusual circumstances of this case not such as to deprive the applicant of a real chance of acquittal. In the circumstances, being not persuaded that there has been a miscarriage of justice, we would refuse special leave to appeal." The conflicting evidence about the fight 19 It is relevant to the arguments of the parties, both on the satisfactoriness of the trial judge's directions about the appellant's failure to testify, and on the question of whether the proviso can be applied, to consider certain aspects of the evidence against the appellant. 20 The appellant pointed to evidence in a statement of Mr Diolosa given to the police on 23 June 1996, which was read through and then agreed to be correct, that the appellant did not kick the deceased on the ground, that the other co-accused did, and that the appellant tried to stop him doing so. In oral evidence in chief he said both the appellant and the co-accused kicked the deceased. In cross-examination he could not explain why he told the police that only one person was kicking the deceased. He also suggested it was the co-accused who pushed the appellant, not the other way around. He said: "I am not 100 percent sure of what happened that time ago". He agreed it was far more difficult for him to recall at the trial, on 2 September 1999, what he saw on 22 June 1996, than it was while he was speaking to the police on 23 June 1996. He then said he was confident that what he said on 23 June 1996 was more accurate than what he would say on 2 September 1999. He accepted that what he said to the police was what in fact happened. He said that while he was trying to recall things in the witness box it was possible that he could have got them muddled up. His cross-examination concluded: "Q. You have confused some of the things you can recall with some people? A. That's right. Q. And this was a very short incident? A. That's right. Q. And at the time you were employed as a security guard? A. That's right. Q. I take it from the distance you were standing, these things weren't exactly clear to you? A. No. That's right. Q. But you can remember the distinctive actions, if I could put it that way? Do you understand what I mean by that? A. Yes. Q. You remember the actions that stood out that these people were doing? A. I could see what was happening. I just couldn't see their faces. I couldn't give a description of their faces, so -- Q. But the distinctive things you saw happening were: You saw kicking? A. Yes. Q. You saw someone trying to push that person away? A. Yes. Q. Then you saw them run off? A. That's right. Q. At different times? A. That's right. Q. And you saw somebody fall to the ground? A. Before, yes." In re-examination he changed his evidence again by identifying the appellant as the person who kicked the deceased on the ground and stomped on him. 21 Mr Page was another witness who in his statement to the police, given in 1997, said he had seen one man give the deceased one kick while he was on the ground. He said that kick "did not appear to be very hard". In chief he said he remembered one man, "possibly two", kicking the deceased on the ground. 22 Ms Taria agreed that in her statement to the police and in the committal proceedings she said that only one person kicked the deceased on the ground and that others were trying to stop the fight. However, at the trial she said she saw two people kicking, each more than once, and one person stomping once or twice. She failed to come up to proof in identifying the co-accused as doing various things. However, her final answer in cross-examination amounted to a withdrawal of her evidence about two people doing the kicking. This was almost immediately changed back again in the last question in re-examination. 23 Mr Bayes saw the deceased being kicked by one man while another tried to stop him. He was not able to offer a clear description of either of them. 24 The Crown referred to those parts of the evidence of Mr Diolosa, Mr Page and Ms Taria which favoured its case, but also referred to other witnesses as well. 25 Mr Mahbubur gave evidence in large measure through an interpreter, and what appears on the transcript is hard to understand. His oral evidence was that two men were kicking the deceased, or "two or three people". His police statement said "a group of about ten males" kicked the deceased. He said he did not give to the police the number "ten". He said: "I mention for the three or four, a couple, like this, that come for the Jewel [i.e. the deceased]". He had been struck himself, and the cross-examination established differences between his evidence as recorded at the committal hearing and at the trial on whether he had lost consciousness. 26 Mr Islam said both the co-accused and the appellant kicked the deceased. In cross-examination he said he could only see their backs. 27 Mr Thompson said "six or so" - "a whole group" - "just really started a really frenzied kicking attack on the guy". All but two moved away, and one of them stomped on the deceased. He expressed some difficulty in recollection. He agreed that it could "possibly" be very difficult to "realise whose feet were doing what". The appellant's contentions 28 Counsel for the appellant submitted: "The trial directions considered by the High Court in Azzopardi and Davis were not, it is submitted, relevantly distinguishable from those given in the trial of the appellant. The directions given in the appellant's trial were, impermissibly, in terms which invited the jury to conclude that the Crown case was stronger by reason of the failure of the appellant to give evidence. In those circumstances it is submitted that the conclusions should be reached that the jury were misdirected in the appellant's case. In the particular circumstances of the appellant's case, the jury may have been affected in their assessment of the case against the appellant by considerations deriving from the failure of the appellant to give evidence in the trial proceedings. The case against the appellant was not so overwhelming that it could be said that the verdict which the jury returned against the appellant was inevitable. The appellant has not had a trial according to law and it cannot be said that the proviso to the Criminal Appeal Act should be applied. In those circumstances it is submitted that the appeal should be upheld and that there should be a retrial of the appellant." "Weissensteiner comment"? 29 One matter can be cleared out of the way at the outset. The present appeal is not a case where what the High Court called a "Weissensteiner comment" could have been made. The majority in Azzopardi v R said that a "Weissensteiner comment" could only be made where facts additional to those proved by witnesses who were called explaining or contradicting the inferences otherwise to be drawn from the Crown case were peculiarly within the accused's knowledge. The High Court said in Azzopardi v R ([68]): "It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. Once that is appreciated, the supposed tension between Weissensteiner and RPS disappears. In Weissensteiner , the comment related to the absence of evidence of additional facts peculiarly within the knowledge of the accused; in RPS , there was no question of any additional fact known only to the accused merely the failure to contradict aspects of the prosecution case." The justices were using the word "comment" in contradistinction to "direction". They explained the distinction as follows (at [49]-[50]). A "direction" warns a jury against drawing impermissible conclusions; it tells the jury how they may not reason towards a conclusion of guilt; the jury is obliged to follow it. A "comment" tells the jury how they may reason towards guilt; it may be ignored; the jury may be told that they should ignore it. The impugned passages are all "comments" in the sense in which the High Court majority was using that expression. The question is whether the "rare and exceptional" circumstances in which comment is permitted exist. That is, can it be said the evidence of the appellant's involvement in the fight is "capable of explanation by disclosure of additional facts known only to the accused"? The Crown submitted: "it was reasonable for the jury to expect the appellant to give evidence, as although he admitted to police in his ERISP he hit the deceased on the jaw in self defence, a claim not supported by the eye-witnesses, he also made a partial admission that he had kicked the deceased on the ground. He also claimed that he had withdrawn from the fight as soon as he punched the deceased. In these circumstances, a Weissensteiner direction may be appropriate." A reference was then made to the observations of Gaudron J in delivering the court's ruling rejecting an application for special leave to appeal in Fernando v R (20 February 2000). That citation does not offer support for the submission. 30 The Crown's reference to a "partial admission" is a reference to the following part of the ERISP: "Q. Nitin, I suggest to you that you were seen by other people present near Hungry Jack's, that you kicked the Bangladeshi man on the ground as well. What do you have to say about that? A. Me, I kicked? Q. Yeah. A. I don't remember I kick him, no. Q. You don't remember. A. No, I don't remember, because the thing is, as I hit, struck a blow to him --- Q. Yes. A. --- I feel that is too much for him because he was over drunk, but if I have kicked him I'm sure I'm not kicked him in his face; if I have kicked him, because I felt pity on him when he fell down, you know. Q. You felt pretty --- A. Pity on him, like, I felt so much --- Q. You pitied him? A. Yeah. Q. So it, it, would it be fair to say that you may have kicked him but you don't remember kicking him? A. Yeah. Q. Is that right? A. Yeah. Maybe I have kicked him because if somebody else has seen me it means I actually have been kicked." 31 The Crown's submission was advanced before the majority in Azzopardi v R explained the narrow circumstances in which a Weissensteiner comment could be made, but it was also repeated afterwards. Any evidence from the appellant in this case that he withdrew as soon as he punched the deceased would not have been evidence of an additional fact explaining or contradicting inferences to be drawn from the evidence of others, but a direct denial of the primary evidence of some of the Crown witnesses (namely those mentioned in the testimony, summarised, above, of the witnesses to whom the Crown made particular reference), and a piece of evidence corroborating the primary evidence of some of the others (namely those mentioned in the testimony, summarised above, of the witnesses to whom the appellant made particular reference). And any evidence from the appellant denying that he kicked the deceased on the ground would have been in the same category. In general, it will be remembered, the appellant's counsel contended that the evidence, or at least some of it, showed that after punching the deceased, the appellant withdrew from the fight, did not kick the deceased on the ground, and attempted to stop the fight. 32 In its most recent submission the Crown said that the circumstances of the appellant's withdrawal were "matters 'peculiarly within the mind' of the appellant". This is not so. Whether he withdrew was a matter on which all observers at the scene who gave evidence could speak: some supported the conclusion that he did not, some supported the conclusion that he did. And what his mental state was in withdrawing (if he withdrew) was not a matter peculiarly within his mind but could be inferred from the evidence of those witnesses supportive of the view that he withdrew. 33 The Crown also submitted that the appellant's contention in his ERISP that he had tried to stop the co-accused was not supported by any other evidence, and accordingly "any support for his contention of withdrawal must come from him and it would be additional to the evidence already given". That submission overlooks parts of the evidence of Mr Diolosa, Ms Taria and Mr Bayes, each of whom offered some support for the proposition that the appellant did not kick the deceased, but tried to stop the co-accused kicking the deceased, and parts of the evidence of Mr Page, to the effect that only one man was kicking the deceased. This case is thus outside the Weissensteiner boundaries as marked out in Azzopardi v R. Is the appellant's challenge sound? 34 The field of law to which this ground of appeal relates has been notoriously difficult ever since statutory changes in the late 19th Century made it possible for the accused to testify. The High Court in Azzopardi v R has in a sense made a fresh start by explaining what some have thought to be contradictions between Weissensteiner v R and RPS v R. It is only desirable for an intermediate appellate court to seek to explain, gloss or amplify a High Court decision of that kind where it is strictly necessary to do so in order to decide an appeal. It is not necessary to do so here because the challenge advanced by the appellant is made out for two reasons. 35 First, the parts of the summing up criticised in this case are very similar to the offending parts of the summings up in RPS v R, Azzopardi v R and Davis v R. This is not surprising, in view of the use before RPS v R by trial judges of standard form directions to be modified to suit the needs of particular cases. There are differences between the background and context of the respective summings up, but they are not such as to alter the essential similarity of the passages impugned in those three cases and in this. Further, the contradiction which, according to the High Court majority in Azzopardi v R, existed between the impugned parts of each summing up in the two cases it was considering and earlier parts stressing that the accused had a right not to testify is paralleled by the summing up delivered by the trial judge in this case. 36 Secondly, it is necessary to consider a Crown submission that while, in the light of RPS v R at [40] and [43] the third last of the sentences quoted from the trial judge's summing up "may be erroneous", he "immediately balanced the [third last] sentence and the whole direction with the [second last] sentence which were words contained in the sixth para of the trial judge's direction in RPS, which the majority expressly approved at para 40." However, the High Court in RPS v R did not consider that the summing up in that case was cured by the words in the "sixth para" to which the Crown points, and the same conclusion must follow here in relation to the second last sentence. The proviso 37 The Crown contended to this Court that even if this Court considered that the point raised by ground 2 should be decided in favour of the appellant, the appeal should nonetheless be dismissed on the ground that "no substantial miscarriage of justice has actually occurred": Criminal Appeal Act 1912 (NSW) s 6(1). The Crown submitted: "Even if it is considered that his Honour's directions were erroneous, it is submitted that they do not cause a miscarriage of justice and the proviso should be applied. Gaudron J's ruling on the Special Leave Application in Fernando supports this submission. This is a case where the jury would have reached the same verdict, even if the error had not occurred: Wilde v The Queen (1988) 164 CLR 365; Glennon v The Queen (1994) 68 ALJR 209; Saad v The Queen (1987) 70 ALR 667 at 668, 670. The appellant admitted that he had punched the deceased in the jaw and that he had fallen to the ground. A number of eyewitnesses testified that after the deceased fell to the ground, two men, clearly the appellant and his co-accused, Karki, both kicked him as he lay on the ground. These witnesses were: Rahman Mahbubur; Darren Diolosa; Jack Diamond; Sheikh Islam; Daniel Thompson; and Orepai Taria. In addition, Simon Page remembered one, maybe two men kicking the deceased on the ground. In addition, the medical evidence supported the Crown case that the deceased died as a result of blunt trauma caused to him. In addition, the appellant submitted that he may have kicked the deceased: ERISP QA 336-340; and that he may have got the blood spots on his pants when he kicked the deceased." 38 In Wilde v R (1988) 164 CLR 365 at 371-2 Brennan, Dawson and Toohey JJ said: "As the prosecution case was so strong and the defence was so weak, the authorities which are customarily cited when it is sought to challenge the application of the proviso were insufficient to found an attack upon the judgment of the Court of Criminal Appeal. Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen [(1955) 93 CLR 493 at 514] or "a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey [(1978) 140 CLR 364 at 376]. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen [(1977) 137 CLR 517 at 524]; Reg v Storey [(1978) 140 CLR at 376]; Gallagher v The Queen [(1986) 160 CLR 392 at 412-413]. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen [(1955) 93 CLR 493 at 414]. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case." 39 In Saad v R (1987) 78 ALR 667 at 668 Mason CJ, Deane and Dawson JJ said the question was whether a misdirection on onus of proof "deprived the applicant of any real chance of acquittal which he might otherwise have possessed." 40 In Glennon v R (1994) 119 ALR 706 at 710-712 Mason CJ, Brennan and Toohey JJ said: " The applicant's arguments The applicant contended that the Court of Criminal Appeal was in error in applying the proviso in the circumstances of this case. First, the applicant argued that the nature of the trial judge's error was so fundamental as to depart from the essential requirements of a fair trial. In such circumstances, according to the applicant, there is no room for application of the proviso because there has been no proper trial of the case and so a miscarriage of justice has occurred. In this respect, the applicant relied on the judgment of Brennan, Dawson and Toohey JJ in Wilde v R [(1988) 164 CLR 365 at 372-3. See also Quartermaine v R (1980) 143 CLR 595 at 600-1; 30 ALR 616 at 620 per Gibbs J (with whom Stephen and Murphy JJ agreed)]. In the alternative, the applicant argued that the trial judge's error was such that it cannot be said that, had the misdirection not occurred, the jury must inevitably have reached the same verdict. Here the applicant relied on Driscoll v R [(1977) 137 CLR 517; 15 ALR 47], Maric v R [(1978) 52 ALJR 631; 20 ALR 513] and Mraz v R [(1955) 93 CLR 493]. The applicant also contended that, as an application of the second approach to the proviso, 'the proviso will not be applied where the error relates to the means by which, and the manner in which, the credibility of the accused is to be assessed by the jury'. The two approaches to the proviso outlined above have been accepted by this court in the cases relied upon by the applicant and are not challenged in this case. The question is whether, in the circumstances of the present case, it was erroneous to apply the proviso. Fundamental error According to the approach of the majority in Wilde [(1988) 164 CLR at 373; 76 ALR at 575], the proviso cannot be applied 'when the proceedings … have so far miscarried as hardly to be a trial at all'. But that is a particular situation arising only 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings'. In such a case the accused 'has not had a proper trial and … there has been a substantial miscarriage of justice'. [ibid] But the majority stressed that there is no mechanical formula or rigid test to be applied to determine whether an irregularity is of this nature; each case will depend on its own circumstances [ibid] and, in determining the question, it will be appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error. [ibid at CLR 374] In the circumstances of this case, it cannot be said that the trial judge's misdirection on the applicant's right to silence was 'so fundamental' that the trial was 'hardly a trial at all'. Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde . In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity. We would reject the applicant's submissions in so far as they are based on this approach to the proviso. That brings us to a consideration of the applicant's argument, namely, that it cannot be said that, in the absence of the misdirection, the jury would inevitably have convicted the applicant. Was conviction inevitable? In order to apply the proviso where there has been a misdirection by the trial judge that is not fundamental in the sense discussed above, the Court of Criminal Appeal must be satisfied that, in the absence of the misdirection, the jury would inevitably have reached the same verdict. [ Domican v R (1992) 173 CLR 555 at 565-6; 106 ALR 203; Wilde (1988) 164 CLR at 371-2 per Brennan, Dawson and Toohey JJ; Quartermaine (1980) 143 CLR at 600 per Gibbs J; Driscoll (1977) 137 CLR at 542-3 per Gibbs J (with whom Mason and Jacobs JJ agreed)] This is so even if the case against the accused is otherwise a strong one. [ Domican (1992) 173 CLR at 566] In the present case, in relation to the allegations by Palmieri against the applicant, the applicant's defence was a denial of the allegations coupled with the evidence of his cousin, Dickason, to the effect that she was present in the room at the time the offence was said to have occurred Against this was the evidence of Palmieri that the assaults had occurred. Unlike the position in relation to the Behnk allegations, there was no independent evidence tending to cast doubt on the applicant's defence. On this count, it was a contest, in essence, between the applicant's evidence (and Dickason's) and the evidence of Palmieri. In those circumstances, the applicant's credibility was of central importance to his defence, and the trial judge's misdirection certainly went to the issue of the accused's credibility and veracity. Given this, it is, in our view, not possible to say that, in the absence of the trial judge's erroneous direction on the applicant's silence, the jury would inevitably have reached the same conclusion, namely, a verdict of guilty. It is significant that the jury acquitted the applicant on counts involving two of the young people. This fact demonstrates that, in relation to some charges, the jury accepted the applicant's defence at least to the extent of finding a reasonable doubt as to his guilt. In those circumstances, it is possible that, had the trial judge not misdirected them as to the applicant's veracity, the jury might have accepted the applicant's testimony in relation to the Palmieri incident and acquitted him on that count. Accordingly, the applicant 'lost a chance which was fairly open to him of being acquitted'. [ Mraz (1955) 93 CLR at 514 per Fullager J; Wilde (1988) 164 CLR at 371; 76 ALR at 574] This means that there was a substantial miscarriage of justice so as to preclude the application of the proviso. Thus, in applying the proviso in these circumstances, the Court of Criminal Appeal erred, and its decision should be set aside and the applicant's conviction in relation to the Palmieri allegations should be quashed. In reaching this conclusion, we should not be taken as accepting the applicant's submissions that the proviso will never be applied where the misdirection goes to the accused's credibility. The assessment of whether the proviso should be applied depends on the circumstances of each case, and it would not be appropriate to lay down such an absolute rule as that contended for by the applicant." 41 While the right to silence of an accused person is a fundamental right, not every misdirection about the right to silence will be such a fundamental irregularity that no proper trial should be regarded as having taken place: R v Bozzola [2001] NSWCCA 8 at [60] per James J (Giles JA and Hulme J concurring). This case cannot be regarded as one in which there was a "fundamental error" in which "the proceedings … have so far miscarried as hardly to be a trial at all". The question rather is whether conviction was "inevitable". 42 The evidence about the fight given in the witness box was given three years and three months later. Many if not all of the witnesses had given statements to the police, some very soon after the night in question, and had given evidence at the committal proceedings. The events on the night in question seem to have blown up quite suddenly to the perception of some witnesses, and without any warning at all to the perception of others. The opportunities for clear observation were not ideal. The Crown witnesses offered a considerable disparity of observation and recollection, both when witness was compared with witness, and when particular parts of what one particular witness said was compared with other parts of what that particular witness said. The case against the appellant was far from being weak, but he could point to the fact that some parts of the evidence of some witnesses were favourable to him in the sense of being capable of creating a reasonable doubt. On any view the case against the co-accused, who had expressly admitted kicking the deceased, was stronger. The kicking issue may not have been in law an essential element of the Crown's case at trial, but it loomed large in the proceedings as they were actually conducted before the jury. If it could have been proved that the appellant kicked the deceased, the Crown's chances of proving the mental states it alleged against him would have been significantly increased. The Crown before this Court correctly highlighted the evidence about kicking as a central part of its contentions in relation to the proviso. 43 The Crown could and did point to the strength of its case. It was a case of sufficient strength to appeal to the trial judge. The Crown also pointed out that several of the witnesses whose evidence told against the appellant were not cross-examined to suggest that they were wrong. That may indicate that the appellant's advisers were experiencing a sense that his case was weak; or it may indicate sound tactical judgment. By itself it does not demonstrate that the Crown would inevitably have succeeded. 44 "Inevitability" is a high standard. Each juror may have said: "The Crown witnesses differ among themselves as to what happened, and there is some evidence, including evidence which came into existence just after the killing, that only one man killed the deceased, and that the appellant tried to stop him being kicked. The judge said that in judging the value of weight of the Crown evidence, I could take into account Giri's failure to give evidence. If he had denied what they said, I would have given their evidence less weight; since he did not deny it, I give it more weight. His failure to deny it removes any reasonable doubt about their evidence." The possibility of that reasoning having been employed, when coupled with the unclearness of the evidence having the result of leaving it less than certain where the truth lay, suggests that it cannot be concluded that the jury would inevitably have convicted the appellant if correctly directed. If the jury had been correctly directed, they may have had a reasonable doubt about whether the appellant kicked the deceased and a reasonable doubt about whether he tried to stop the co-accused kicking the deceased. In turn, in consequence of these doubts, the jury may have concluded that the Crown's failure to convince them beyond reasonable doubt that the accused had kicked the deceased, and that he had not tried to stop the fight, left open the reasonable possibility that if he abstained from kicking it was not because he had no chance to do so, and if he tried to prevent the kicking it was not because he thought it was time to flee. Rather, the jury may have concluded that they thought it was reasonably possible that the mental states alleged against the appellant by the Crown did not exist. That is, the evidence may have caused the jury to have a reasonable doubt about whether the appellant shared a common intention of causing death or grievous bodily harm, and whether he contemplated the intentional infliction of grievous bodily harm as a possible incident in the joint criminal enterprise. Accordingly the proviso does not apply. 45 Ground 1: erroneous manslaughter directions? The appellant advanced three criticisms of the trial judge's directions. 46 The first criticism was put as follows: "If the jury were not satisfied beyond reasonable doubt that the appellant had in fact kicked the deceased after the initial punch (and there was, it is submitted, a basis in the evidence for them not to be) the appellant's mere presence was insufficient to prove his participation in the alleged joint criminal enterprise relied on by the Crown. The jury were not directed to this effect. The absence of directions in these terms meant that the defence case was not fully left to the jury for their determination." 47 That criticism fails in view of the following parts of the trial judge's summing up: "The Crown has to prove that the accused, the case against whom you are considering, was responsible for causing the death of the deceased. You cannot convict the accused of murder or manslaughter unless you are satisfied that the death of the deceased was caused by an act or acts for which the accused, whose case you are considering, was responsible. Here the Crown relies upon the concept of joint criminal enterprise. I must now give you directions about this. You see, it is apparent, from Dr Cala's evidence, that he could not determine what blow or blows, or kick or kicks, caused the fatal brain damage. How then is the accused to be held responsible for having caused the fatal injury? The Crown says by reference to the concept of joint criminal enterprise. That, now, is a concept about which I am going to give you some directions. The law is, members of the jury, that where two or more people carry out a joint criminal enterprise each is responsible for the act or acts of the other, or others in carrying out that enterprise. It is for the Crown to prove both the existence of the joint criminal enterprise and the participation in it by the accused. Liability does not extend to something done which was foreign to that enterprise. Liability does not extend to something not contemplated as a possible incident of that enterprise. Liability does not extend to something that happens after the enterprise is completed. Liability does not apply to a person who has withdrawn from the enterprise in respect of something that is done after he has withdrawn." 48 The trial judge said a little later: "The mere presence of a person at the time when the crime is committed, coupled with a readiness to help, if required, can suffice to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. 49 The second criticism of the trial judge's manslaughter directions advanced by the appellant was as follows: "As well as explaining the basis of the case on the murder charge, it was, it is submitted, necessary to explain to the jury the possible interpretation of the appellant's conduct amounting to manslaughter and not murder: Gilbert v R [2000] 177 ALR 88 at paras [16-17], [96], [101]." 50 The Crown pointed out that Gilbert v R was a case in which the trial judge had instructed the jury that manslaughter was not available as an alternative verdict to murder. That cannot be said of the trial judge in the present case. He said: "Suppose two men decide to attack another but do not intend to cause death, or grievous bodily harm to that other. Suppose further however that during the course of the attack, one of the men only forms an intent to kill the victim, or to cause him grievous bodily harm and strikes the fatal blow with that intention. That man may be convicted of murder, assuming for the purposes of example only, that his blow was proved to cause the death. So too though may the second man be convicted of murder, if he had in mind that the intentional infliction of grievous bodily harm by the first man, was a possible incident of the joint criminal enterprise. If however the second man never entertained any intention to cause grievous bodily harm and did not contemplate, as a possibility, that the first man might intentionally cause grievous bodily harm, then the second man would not be guilty of murder but he may be convicted of manslaughter. The reason why, in the circumstances outlined, the principal assailant is guilty of murder and the other participant is guilty of manslaughter, is that the former had an actual intention to kill and the latter never intended, or contemplated the possibility that death, or grievous bodily harm, would be caused to the victim and if there had been no departure from the common purpose, with which the men set out at the outset, the death of the victim, would only have rendered those two men guilty of manslaughter. To prove the crime of manslaughter, the Crown is not required to prove that the perpetrator acted with intent to kill, or to cause grievous bodily harm. Manslaughter is committed where death is caused by an unlawful and dangerous act. An act is dangerous, if viewed objectively, it is such that a reasonable person would realise that it would subject the victim to an appreciable risk of serious injury. I will give you further directions concerning this concept of joint criminal enterprise, when I am considering the cases against each accused separately. So I am going to come back to it. It is a difficult concept, I appreciate and I will give you what assistance I can." 51 The trial judge fulfilled that promise in relation to the co-accused: "If, in the case of Karki, the Crown has failed to prove the crime of murder, you would have to consider the alternative crime of manslaughter, about which I said something to you earlier. If the Crown has proved that the accused joined in a joint criminal enterprise that had, as its object, an unlawful assault upon the deceased, and that the deceased was punched and kicked, sustaining the injuries that caused his death, but the Crown has not proved that it was intended, in that enterprise, that death or really serious bodily injury would be caused, and if the Crown has not proved that Karki contemplated that the intentional infliction of grievous bodily harm by somebody in that enterprise was a possible incident of it, then you may nevertheless convict the accused of manslaughter. You may do so if you consider that the relevant acts that caused death were dangerous, in the sense that I defined earlier; that is to say, that, viewed objectively, they were such that a reasonable person would realise they would subject the victim to an appreciable risk of serious injury." 52 The trial judge fulfilled the promise in relation to the appellant as well: "If, in the case against Nitin Giri, the Crown has failed to prove the crime of murder, then, just as with Ivesh Karki, you would have to consider the alternative crime of manslaughter. If the Crown has proved that the accused joined in a joint criminal enterprise that had, as its object, an unlawful assault upon the deceased, and that the deceased was punched and kicked sustaining the injuries that caused his death, but the Crown has not proved that it was intended in that enterprise that death or grievous bodily harm would be occasioned, and the Crown has not proved that the accused contemplated, as an alternative, that the intentional infliction of grievous bodily harm by one of the other participants was a possible incident of the joint criminal enterprise, then you may convict the accused of manslaughter. You may do so if you consider that the relevant acts that caused death were dangerous in the sense that I defined earlier for you." 53 After requests for re-directions, the trial judge said: "The Crown here, let me remind you, submits that the actions it has proved the accused did, if you find that the accused punched and kicked him as he lay on the ground, evidence that he must have intended, as indicated by the manner of his participation in doing those things, that in the joint criminal enterprise, grievous bodily harm would be occasioned to the deceased. You remember Mr Watson's vigorous submissions to the contrary. They are for you to evaluate. If in the case against Nitin Giri, the Crown has failed to prove the crime of murder, you would have to consider the alternative crime of manslaughter. If the Crown has proved that Nitin Giri joined in a joint criminal enterprise that had as its object, an unlawful assault upon the deceased and that the deceased was punched and kicked sustaining the injuries that caused his death but the Crown has not proved against Nitin Giri, the requisite intent for murder that I have just been discussing with you, then you may convict the accused of manslaughter. You may do so if you consider that the relevant acts that caused death were dangerous, in the sense that I spoke of on Monday. That is to say, that viewing those acts objectively, they were such that a reasonable person would realise that they would subject the deceased to an appreciable risk of serious injury. That's the way in which you would come to consider the alternative of manslaughter in the case of Nitin Giri. Turning to Ivesh Karki, the considerations are really the same but it won't hurt if I go over them again, although it is repetitive. The issues are not easy to comprehend. For the accused, Ivesh Karki, to be convicted of murder, you would have to be satisfied, beyond reasonable doubt, of his participation in a joint criminal enterprise. As to that you must be satisfied that Ivesh Karki, either shared a common intention with the other participants of causing death, or grievous bodily harm, or he contemplated that the intentional infliction of grievous bodily harm by one or other of the participants, was a possible incident in the joint criminal enterprise. The Crown here submits against Ivesh Karki, that the actions it has proved he did, if you find that he kicked the deceased and stomped on the deceased, evidence that he must have intended, as indicated by the manner of his participation in the joint criminal enterprise, grievous bodily harm would be occasioned to the deceased. You will remember that's the way the Crown puts the case. You will remember Mr Cusack's submissions to the contrary. As Mr Cusack submitted and I'm not going to review all his submissions for you at this point but you remember his submissions that you would not be satisfied of the participation, by his client, in the events that occurred in the manner in which certain of the eye witnesses said he participated. If, in the case against Ivesh Karki, the Crown has failed to prove the crime of murder, then again you would have to consider this alternative crime of manslaughter. If the Crown has proved that Ivesh Karki joined in a joint criminal enterprise that had as its object, an unlawful assault upon the deceased and that the deceased was punched and kicked sustaining, in consequence, the injuries that caused his death but the Crown has not proved against Ivesh Karki the requisite intention for murder that I have just been taking you through, then you may convict the accused of manslaughter. You may do so if you consider that the relevant acts that caused death were dangerous in the sense that I have defined for you. You appreciate, of course, that you have to consider the case against each accused separately. In that separate consideration you must direct your attention, as I trust my instructions have made clear, to whether the Crown has proved that the particular accused, whose case you are considering, had the requisite intent for the crime of murder, in one or other of the two ways I have explained to you. You have to consider all the evidence that bears upon that issue, in the particular case you are considering, including the ERISP and the extent of the active participation, as you find it to have been, in any assault you may find to be proved. Bear in mind always, the onus of proof lying upon the Crown. You may arrive at a different verdict in the case of one accused, than in the case of another. The separate questions you will be asked, reflect that this is so. I suppose it follows, members of the jury, that the short answer to the last question that you asked, is yes but it's a short answer that I can only give, alerting you to those instructions that I have just given you. You look at each case separately. You have to be satisfied, on the evidence available against the particular accused, whether the Crown has proved beyond reasonable doubt the crime of murder, whether if it has not, it has proved beyond reasonable doubt, the crime of manslaughter. " 54 The third criticism advanced by the appellant was as follows: "account should also be taken of the fact that his Honour did not summarise what are contended to be vital aspects of the evidence supporting a verdict of manslaughter. For example, when summarising the evidence of the witness Diolosa, his Honour did not refer to Mr Diolosa's evidence that: (i) he had told the police that there was one man kicking the deceased who was 6ft 5" (the man Karki) and; (ii) he had told the police (T75.35) that he had seen a man with a ponytail (the appellant) move in front of the man doing the kicking and push him away towards the bank (T70). His Honour also failed to refer to the evidence of the witness Thompson (T170) that the appellant was not involved in the final stomping of the deceased and further that when the man Karki stomped on the victim, the appellant looked agitated and said 'Let's go'. His Honour summarised the Crown's submissions in his directions (SU49) and re-directions (SU86). His Honour did not on either of those occasions summarise the defence case on joint enterprise, saying only 'Mr Watson, of course submitted to the contrary' (SU49) and 'you remember Mr Watson's vigorous submissions to the contrary' (SU86)." 55 The summary of the evidence of Mr Diolosa advanced by the appellant is an incomplete picture of his evidence. He gave a lot of evidence which, if it was accepted, would justify the jury in concluding that he saw two men kicking the deceased on the ground. It is not necessary that a jury be taken to the whole of the evidence: R v Zorad (1990) 19 NSWLR 91 at 105; Criminal Procedure Act 1986, s 99. The fundamental issue for this Court is whether the summing up was an adequate explanation to the jury of the need for them to be satisfied beyond reasonable doubt of the guilt of the appellant on the offences charged on the basis of the evidence of the Crown as tested in cross-examination and in the light of the whole of the evidence in the case. The purpose of the summing up was to present the nature of the parties' cases and to explain the substantive law. The only necessity to repeat any of the evidence arose from the need to highlight the nature of the parties' cases. The evidence was completed in less than four sitting days. The conflicts within the evidence must have been plainly apparent to the jury, who were no doubt appropriately reminded of them by counsel: R v Williams (1999) 104 A Crim R 260 at [37]-[44] per Wood CJ at CL, Spigelman CJ and McInerney J concurring. 56 Further, counsel appearing for the appellant at the trial did not ask for a direction along the lines which it is now said should have been given. I would refuse the leave which Rule 4 of the Criminal Appeal Rules makes necessary. The only re-direction requested related to the circumstances in which the appellant could be found not guilty of manslaughter. The requests were made both by the jury (summing up, pages 73-74) and by counsel (summing up, pages 90-91). The trial judge responded to the jury's request in the manner indicated above, and declined counsel's request. But the requests, and in particular the request from counsel, did not relate to the detail of the evidence. Counsel for the appellant conceded in reply that the terms in which the requests were made were not satisfactory from his point of view. The reality is that what counsel at the trial was requesting was something quite different from what counsel in the appeal was complaining about. 57 The criticisms of the appellant of the trial judge's manslaughter directions are not valid. Ground 3: erroneous directions on self-defence? 58 The appellant's submissions on this subject were put entirely in writing and were not developed orally. 59 The appellant's complaint is that the trial judge erred in saying the following (emphasis added by appellant): "The only evidence given by an eyewitness of any positive act taken by the deceased was when he grabbed hold of Ivesh Karki outside the Kings Cross hotel at a time when Ivesh Karki grabbed hold of him. Nowhere else did any eyewitness observe any act either aggressive or in self-defence by the deceased. " 60 The appellant then referred to various parts of Mr Diamond's evidence to the effect that there was "pushing and shoving" between the persons coming out of the nightclub. The appellant submitted: "The evidence of Mr Diamond was capable of being accepted by the jury as evidence that immediately prior to any assault on the deceased there had been a hostile argument in which the deceased had participated. This, it is submitted, is in direct contradiction to the direction on the evidence as summarised by his Honour to the jury. The direction given was, it is submitted, erroneous and since it concerned a crucial aspect of the appellant's defence, was capable of resulting in a substantial miscarriage of justice. Self-defence was raised by the appellant and left to the jury in relation to both the charge of murder and manslaughter." 61 According to the appellant, the trial judge summarised only incompletely Dr Cala's evidence of bruising to the deceased's hand and arm. The trial judge said: "The only other evidence, that I can recall, that bears upon this, was the evidence of Dr Cala about marks that he saw on the body of the deceased. There were injuries to the hand and the arm. They were consistent with a defensive action. There was bruising on the left hand. He was asked whether that could be consistent with having struck something. He thought probably not, because of their position. They weren't consistent with bruising from a punch. He said if this man had struck somebody with his closed fist, the mark would most likely be over the area of the knuckles, not where he found it. So he didn't think the bruising was consistent with the deceased having been an aggressor. They could possibly have been there; could possibly have been defence bruising." The appellant pointed to the following part of Dr Cala's evidence: "Q. What I am saying to you is, if he struck somebody not with a closed fist but with the open back of the fist, or something of that nature, that bruise could be readily explained? A. It could be." 62 The appellant said: "The evidence of bruising to the deceased's hand and arm was equally consistent with an aggressive action by the deceased." 63 The Crown submitted, first, that while now the appellant was relying on Mr Diamond's evidence, at the trial he criticised it, submitting that what Mr Diamond told the police was different from what he said in evidence. This submission is correct, though it may not go far. 64 Secondly, the Crown pointed out that the trial judge said the following about Mr Diamond: "Jim Diamond was the doorman at the Pink Panther, a nearby establishment to Illusions apparently. He was out at the door, taking in the scenes of Kings Cross, no doubt, when he was attracted by the argument that was going on in a group of four men who came out from Illusions nearby. He said that he saw one man punch the other, who then fell face down, and he said that the bloke who punched him then kicked him once but then another fellow started kicking the man on the ground as well. The first man kicked him once and the second man kicked him two or three times." This summary is not inconsistent with the appellant's contention that the evidence established a "hostile argument in which the deceased had participated". 65 Thirdly, the Crown submitted that the trial judge's summary of Dr Cala's evidence was adequate. It was not entirely complete, but it is difficult to imagine that the failure to give a direction about the point not referred to could possibly have made any difference. 66 Finally, the Crown relied on Rule 4. That posture is justifiable: even if the directions were misdirections, they were not likely to produce any risk of a miscarriage of justice, and their supposed shortcomings relate to so detailed a level of particularity that they ought to have been brought to the trial judge's attention if they were thought to be important; obviously they were not thought to be important against the background of the evidence considered as a whole. 67 The criticisms advanced to the trial judge's self-defence directions are rejected. Ground 4: inadequate warnings on unreliability? 68 The appellant complained that the trial judge failed to give the jury an adequate warning about the unreliability of Mr Mahbubur, Ms Taria and Mr Diolosa. 69 The appellant submitted: "His Honour directed the jury in these terms (SU24): 'I direct you that you just examine the evidence of these witnesses [Mahbubur, Taria, Diolosa, Bayes] very carefully. It is important that you bear in mind that the events of which they have given evidence happened quickly and that people can make genuine mistakes in seeking to recall what was seen, particularly where there may be a number of people involved in the events unfolding before their eyes.' Although his Honour at SU23-24 and SU62 summarised partially defence counsel's submissions on the unreliability of individual witnesses, his Honour's directions did not encompass these submissions. The jury should have been warned of the dangers of convicting on such evidence, the need for caution in determining whether to accept the evidence and the weight to be given to the evidence, including an explanation of the reasons particular to this case as to why the warning was being given. It is submitted that the terms of s 165 specifically state that a warning on unreliability must state that the evidence may be unreliable and the matters that cause it to be unreliable. The jury were not specifically directed to the unreliability of the evidence of the witnesses Diolosa, Page and Taria. Each had earlier stated at committal or in their police statements, that they had only seen one person kicking the deceased, a vitally important issue having regard to the way in which the Crown chose to run its case. In cross-examination, Diolosa agreed that his memory was better at the time of making his police statement than it was now, and that at that time he had made a statement that there was one person kicking (T71.30), and that the person was six foot five inches tall (T70). Although he gave evidence at trial that there were two men kicking the deceased (T64.50), he later accepted that what he had told the police had in fact happened and that he may have been confused in his trial evidence (T75.25). The witness Page agreed that he had told the police that he saw one kick to the body which was not very hard (T225). She agreed that at the committal hearing she had stated that she only saw one person kicking (T225.55) and that when she made her police statement she said there was only one person (T229). Mr Mahbubur denied telling the police that there had been 10 people kicking the deceased, although that was what was recorded in his statement (T45). At trial he stated that men he identified as both the appellant and his co-accused were kicking the deceased. He also stated that he had never said at the committal that he had lost consciousness and then regained consciousness in the course of the assault on the deceased (T115.40). The Crown conceded that he had indeed given this evidence at committal (T115.55). These matters were not brought to the attention of the jury in their proper context. A direction was required that the evidence of these witnesses which claimed that there were two men kicking the deceased may have been unreliable and should be scrutinised with great care. His Honour did not warn the jury that it would be dangerous to convict the appellant of murder on this evidence alone. This was crucial evidence in a case where proof of the Crown case depended on the jury accepting beyond reasonable doubt that the appellant had himself kicked the deceased in order to establish a joint criminal enterprise on the charge of murder. The caution administered by his Honour fell short of a warning of the dangers of convicting the appellant on this evidence. It is submitted that a mere caution falls short of a warning, saying 'too little, too unemphatically' and that a mere caution contains less than a warning requires be said: Crampton v The Queen [2000] HCA 60 (23.11.00) per Gaudron, Gummow, Callinan [JJ] at para 44. Counsel requested a direction on unreliability be given (T292). Rule IV of the Criminal Appeal Rules does not, it is submitted, arise in relation to this ground of appeal." 70 The only additional oral submission was: "The only additional thing I might add to what is already there is this observation that the directions that the learned judge gave, and they are identified at [page] 24 - they were directions like: You heard Mr Watson this and Mr Cusack say that and you will bear this in mind. That is not a form of direction which satisfies the requirements of s 165 of the Evidence Act . What needs to be done is for a judge to add and inform the jury not only of the fact of [unreliability] but the reasons why it might be unreliable." 71 The Crown submitted: "The appellant's counsel asked at T292.47: 'Unreliability is the other direction I will be asking your Honour to give. All the identification evidence in relation to what they actually do. There is no doubt they were there. But the actions of each party, the unreliability of that evidence in view of such a short period of time, such a quick thing. Those kinds of matters. That's all I can think of at the moment.' The direction given as to these witnesses complied with this request and was sufficient. As to the appellant's submission that to comply with s 165 of the Evidence Act , his Honour should have used the word 'unreliable', this is not required by the section. Section 165(4) states: '(4) It is not necessary that a particular form of words be used in giving the warning or information.' Immediately before his Honour gave the warning, he had summarised counsels' criticisms of the reliability of several witnesses and then said: 'Those are the sorts of criticisms, or submissions, made by counsel which, in their submission, impact upon the reliability of the evidence of these witnesses.' As to the requirements under s 165(2), his Honour stated that witnesses may make genuine mistakes in seeking to recall what was seen and listed things happening quickly and the fact that there may have been a number of people involved in the events unfolding before their eyes as reasons for examining the evidence of these witnesses very carefully. It is submitted this complied with the section. The Crown again joins issue with the accuracy of the matters that Mr Diolosa is said to have testified on. It is submitted that the criticism of his Honour in which Crampton v The Queen [2000] HCA 60 is cited in support is unjustified. The comments referred to in Crampton related to the absence of a Longman warning, due to lengthy delay in complaint in a sexual assault trial. They have no application here. It was not necessary that he go as far as suggested." 72 While it is true that the trial judge did not adopt all of defence counsel's criticisms of the relevant witnesses - and it would not have been right to do so, that being a matter for the jury - he did bring them to the jury's attention more fully than the appellant's submission on this ground might suggest. It is convenient to set out the whole of the directions about the evidence of these three witnesses. The trial judge said: "Before I embark upon looking at this evidence with you, I remind you that both Mr Cusack and Mr Watson have voiced criticism of the reliability you would attach to the evidence of the various witnesses, who were in Kings Cross at the time the deceased was injured and probably it is convenient if I just remind you of those criticisms, before we look at the evidence, the criticisms voiced by Mr Watson in his submissions and adopted by Mr Cusack in his submissions. First of all with Mr Mahbubur and for the sake of simplicity we will call him, I think, during the course of this summing up Bablu. That is not to belittle Mr Mahbubur but it is probably easier for everybody, because that is the name he has been referred to by. What Mr Watson says about Bablu is that he has obviously got a difficulty with English. He said he was a very unreliable witness. He submitted there were inconsistencies in his evidence and there were [emphasis added]. … So far as Mrs Taria was concerned, Mr Watson submitted that she was inconsistent as to the number of people she saw kick the deceased. Mr Diolosa, Mr Cusack submitted, was too far away to be able to give any reliable evidence. … Those are the sorts of criticisms, or submissions, made by counsel which, in their submission, impact upon the reliability of the evidence of these witnesses. I direct you that you must examine the evidence of these witnesses very carefully. It is important that you bear in mind that the events of which they have given evidence happened quickly and that people can make genuine mistakes in seeking to recall what was seen, particularly where there may be a number of people involved in the events unfolding before their eyes." Later he said of Mr Bahbubur: "In relation to the witnesses Bablu and Islam, I have been asked to draw to your attention, and I do draw to your attention, the circumstances in which their respective observations were made. Firstly, as to Bablu, that he was knocked down, had to be assisted up by Islam and was then taken across to the other side of the road, to the phone there, where Mr Islam was involved in ringing for the police. Much then of their observations was conducted from the other side of the road, with Islam intent not only upon his observations as to what was happening but also intent, no doubt, about making his telephone call. These are matters that you should have regard to when you are considering what identification they made of those who were involved in the events across the road, where there may have been, depending upon the view you take of it, quite a number of people there gathered. So, they are matters that you should responsibly heed in making your careful assessment of the witnesses' evidence." 73 In my opinion the directions given by the trial judge more than answered the request made by defence counsel, particularly in view of the obvious conflicts between various parts of the testimony of the witnesses. That request was, in context, a very tentative one. There was some discussion of "a direction relating to circumstantial evidence" which counsel who appeared for the appellant at the trial said he wanted. Three requests were made by the judge for a statement of what particular direction was wanted: none was answered. The transcript then records the following exchange: "HIS HONOUR: If there was some particular feature that they had to be satisfied of beyond reasonable doubt on some matter of circumstantial evidence, I would want you to identify that for me. I sometimes think this minute examination just unduly complicates matters frankly. WATSON: I grant I'd rather have less directions than more. HIS HONOUR: I will hear what you say when I finish directing the jury. If you think there is something else they have to be told before they are satisfied beyond reasonable doubt -- WATSON: Unreliability is the other direction I will be asking your Honour to give. All the identification evidence in relation to what they actually do. There is no doubt they were there. But the actions of each party, the unreliability of that evidence, in view of such a short period of time, such a quick thing. Those kinds of matters. That's all I can think of at the moment." 74 Defence counsel appeared to be asking for a s 165(1)(b) direction. He did not ask for a direction conforming to the criteria now stipulated by the appellant as being essential - the "dangers", the "need for caution", the "weight", the "reasons particular to this case as to why the warning was being given". Nor was there a request for a specific statement "that the evidence may be unreliable and the matters that cause it to be unreliable". 75 At the end of the first part of the summing up, counsel for the appellant, on being asked if any further direction was called for, said he knew counsel for the co-accused was going to ask for a further identification direction, and would let him speak first. Counsel for the co-accused asked for specific directions about Mr Bahbubur and Mr Islam and the circumstances in which they made their observations. Counsel for the appellant was then asked again for the directions he wanted. He did not ask for any re-direction about Mr Bahbubur, Ms Taria or Mr Diolosa. 76 In the circumstances the conduct of the trial suggests that the warnings given by the trial judge were perceived, correctly, by the appellant's counsel as satisfactory. The substantive requirements of s 165 were complied with. The manner in which the direction was requested may reveal, as counsel for the appellant submitted in reply, that counsel perceived the issue to be important, though counsel for the appellant also conceded that "the learned Judge might have expected a little more assistance than he got". But the failure to ask for a stronger identification direction, particularly after counsel for the co-accused raised the specific matters he did, suggests that the issue had been satisfactorily dealt with. 77 The appellant's attacks on the trial judge's directions on unreliability are unsound. Grounds 1, 3 and 4: proviso 78 If the proviso cannot be applied in relation to Ground 2, I cannot see how it can be applied, in the circumstances of this case, on the other grounds. Similarly, if it is to be applied on Ground 2, it would be applicable in relation to the other grounds. But in view of the fact that in my opinion Grounds 1, 3 and 4 have not been made out, there is no need to consider the application of the proviso in relation to them. Orders 79 The appellant made no submission that this Court should order an acquittal. Accordingly the appropriate orders I favour are as follows. 1. Order that the appeal against conviction be allowed. 2. Order that there be a new trial. But in consequence of the majority opinion, the order of the court is that the appeal against conviction is dismissed. 80 BARR J: Ground 2 I agree for the reasons given by Heydon JA that the directions given by the trial judge contravened the law as explained in RPS v The Queen [2000] HCA 3 and Azzopardi v The Queen [2001] HCA 25. I agree for the reasons explained by Smart AJ that the proviso should apply. Grounds 1, 3 and 4 81 I agree with Heydon JA. 82 In my opinion the appeal should be dismissed. 83 SMART AJ: The facts and circumstances are set out in the judgment of Heydon JA. I agree that the directions given by the judge as to the view the jury could take of the appellant not giving evidence complied with the law as it was understood by judges of this Court at the date of the summing-up (13 & 14 September 1999) but contravened the law as it was expounded by the High Court in RPS v The Queen (2000) 74 ALJR 449 and Azzopardi v The Queen [2001] HCA 25. I also agree with Heydon JA that this was not a case where a Weissensteiner comment could be made. 84 I disagree with Heydon JA that this is a case in which the proviso should not be applied. I do not disagree with his statement of the principles applicable. My disagreement lies in the application of those principles and his assessment of the evidence and its effect. In my view, having regard to the proven facts and the great strength of the Crown case there has been no substantial miscarriage of justice despite the incorrect direction and comment. 85 This was a joint criminal enterprise case and was so left by the judge to the jury (see SU11-14). At SU21 the judge said: "The Crown invites you, as the jury, to come to the conclusion that the inference is compelling and is the only rational inference, that what occurred was part of a joint enterprise that involved each accused and that that enterprise was one that involved an intention, on the part of each accused, to cause the death of the deceased, or if not his death, then grievous bodily harm to him. That is the fabric, that is the outline of the joint criminal enterprise that you are asked to find. Each accused, through his counsel, strenuously submits to the contrary." 86 At SU 48-48A the judge said: "Turning to the case against Nitin Giri. This accused, you may think, having read or having listened to the ERISP, admitted punching the deceased and did not deny that he may have kicked the deceased when he was on the ground. Whatever violence the Crown has proved that Nitin Giri inflicted, you could not be satisfied that it alone caused the death of the deceased, any more than you could be satisfied that what Ivesh Karki did, alone caused the death of the deceased. So it is that in the case against Nitin Giri, also the Crown depends on the proof of his participation in a joint criminal enterprise and what flows from that. So it is the same case, the nature of the case is the same, that the Crown presents again each of the accused. The accused Nitin Giri can only be convicted of murder, if you are satisfied beyond reasonable doubt, of his participation in that joint criminal enterprise and as to that, you must be satisfied that the accused, either (1), shared a common intention with the other participant, or participants in this enterprise, of causing death or grievous bodily harm to the deceased, or (2) that he contemplated the intentional infliction of grievous bodily harm by another participant, or participants, as being a possible incident in the joint criminal enterprise." 87 These directions and the finding of the appellant guilty do not depend on the jury finding that the appellant kicked the deceased. At SU54 when dealing with the issue of self defence the judge stated that the Crown "must prove that in striking the deceased, if you find that he did, and in kicking the deceased, if you find that he did, Giri did not believe it was necessary for him to do so, in order to defend himself". The striking and the kicking are separate matters. It would be enough if the jury were satisfied beyond reasonable doubt that the appellant having hit the deceased, knocking him to the ground, was present intentionally aiding and encouraging Karki in his kicking of the deceased. Such kicking was obviously intended to inflict grievous bodily harm. The background should not be overlooked. The appellant, referred to as the man with the ponytail, was a prominent member of a group which menaced the deceased before the appellant hit him. 88 The evidence reveals that there was a joint criminal enterprise on foot. It was the appellant who called a halt to the kicking, he judging that it was time to flee. The appellant has not lost a real chance of acquittal. His conviction was inevitable. 89 The Crown did allege that the appellant kicked the deceased. Proof of that fact further strengthened the Crown case but it was not essential to the Crown case that that fact be proved or be proved beyond reasonable doubt. This was appreciated by all at the trial. If proof beyond reasonable doubt of the appellant kicking the deceased had been essential to proof of the appellant's guilt, the parties and the judge would not have spent so much time at the sentence hearing resolving that issue. The judge would have stated that such a finding was implicit in the jury's verdict. The finding by the judge that he was satisfied beyond reasonable doubt that the appellant kicked the deceased was essential to the sentencing exercise as the judge was asked to find that the appellant's criminality was less than that of Karki. 90 In determining whether there has been a substantial miscarriage of justice the focus should be on the evidence proving the elements of the offence and the strength of that evidence. Having considered that evidence I consider it to be overwhelming. The focus should not be on the evidence as to whether the appellant kicked the deceased. Such an approach would not be correct as it was not an essential fact. The events prior to the appellant hitting the deceased and knocking him to the ground and those latter events bespoke the involvement of the appellant in the joint enterprise. 91 If I am wrong in my view as to the approach which should be taken and the evidence as to the appellant kicking the deceased is of critical importance, nevertheless the appellant would inevitably have been convicted on the evidence. 92 Human blood was found on the appellant's jeans. It was not his blood. It could have been the blood of the deceased or the blood of others of the same blood group. The appellant's counsel suggested that it could have been the blood of Mr Islam who had cut his finger and was trying to break up the altercation outside the hotel. That seems a little far fetched. 93 There was compelling evidence that the appellant kicked the deceased. That of Mr Thompson was particularly powerful. The jury requested a transcript of his evidence (SU 66) but not that of any other witness. Counsel for the appellant at the trial conceded that Mr Thompson was a very straightforward sort of person. Counsel's only criticism was that Mr Thompson had made a mistake as to the top being worn by Noggin, a member of the group of Karki and the appellant. It is hard to see how this matters. Mr Thompson's evidence was supported by that of Rahman Mahbubar, Sheikh Islam and Mr Jim Diamond. 94 At the trial the appellant submitted that Mr Mahbubar obviously had difficulty with English and drew attention to inconsistencies in his evidence (SU23). For a deal of the time Mr Islam claimed to see what he was talking about from across the road where he was trying to telephone for the police. He also had difficulties with the English language (SU23A). It should also be noted that Mr Mahbubar was knocked down and had to be assisted up by Islam and taken to the other side of the road. 95 It was submitted that what Mr Diamond told police differed from what he said in evidence (SU23A). The difference seemed to be principally as to the sequence of events. Mr Diamond was clear that the appellant had punched the deceased and then kicked him when he went down. 96 Mr Dilosa's evidence seemed to vary. He said that from the distance where he was standing, the events were not exactly clear to him. He told the police that the appellant did not kick the deceased and tried to stop his co-accused. At the trial in chief and in re-examination he stated that the appellant kicked the deceased. In cross-examination Mr Dilosa thought that what he said to the police was what had happened. His statement to the police was made on the day following the assault. The evidence of Mr Dilosa was also criticised because he was too far away to be able to give any reliable evidence (SU24). 97 Mr Simon Page was a friend of Mr Thompson. Mr Page, who had been at an automatic teller machine at a bank, arrived at the scene a little later than Mr Thompson. It was evident that his scope for observation was less than that of Mr Thompson. In his police statement Mr Page said he had seen one man give the deceased one kick while he was on the ground and that kick "did not appear to be very hard". In his evidence in chief he said he remembered one man, "possibly two" kicking the deceased on the ground. 98 Mrs O Taria was acting as a manager at Hungry Jacks. This is on one side of the Springfield Mall. The fight occurred on the other side of the Mall. She agreed that her vision was obscured. In her evidence in chief she said that she did not know and could not remember how many kicks she saw but it was more than one, and that there were two people who kicked. In cross-examination she agreed that at the committal proceeding she said that there was only one person who was kicking. She explained that as she walked away from the Local Court and really thought about the events which she had seen she realised that she had seen two people. There were two people standing over the body and she saw them kicking the body. 99 She also said "I just saw someone kicking the man lying on the ground, stomp on his head. Three or four time he was doing that". She could not describe the man. She thought that some of the other people around were trying to stop the fight. In re-examination she reaffirmed that stomping took place and that she saw two persons kicking. 100 Mr Anthony Bayes was a drug user and dealer, (mainly heroin) living on the streets in 1996. On the day in question he was using cocaine. He was in prison at the time of the trial. He saw a man grabbed and punched. That man fell to the ground and somebody started kicking this man in the head. He said another man tried to stop that but was chased away by a third man. The man who grabbed the deceased was the man who kicked him. He said he saw only one man kicking the man on the ground. He was not able to offer a reasonable description of the man who did the kicking. He had not told the truth to the police. He did not want to become involved and he did not want to give evidence as it was against his own interests. He feared that he was risking his safety in gaol. (SU62). 101 Counsel for the appellant submitted to the jury that Mr Bayes was the one most likely to be telling them what he actually saw because he did not want to be at the court. Anything he did say was all the more likely to be true because of his reluctance to say anything (SU24). Counsel asked the jury on the basis of Mr Bayes' evidence to find that the appellant was not a party to any joint enterprise and that the appellant sought to intervene and stop the stomping and kicking. The unsatisfactory nature of Mr Bayes' evidence emerges from both his evidence and the summing-up. 102 Three comments need to be made. First, some of the evidence, for example, that of Mr Bayes, was not reliable. Secondly, just because a witness did not see or recall seeing a particular event, that is the appellant kicking the deceased, does not mean that it did not happen. Thirdly, a close reading of the evidence makes it apparent that Mr Thompson's evidence is of value and it is easy to see why the jury wanted a copy of his evidence. 103 The lack of challenge in cross-examination to the evidence of some witnesses who stated that the appellant kicked the deceased is significant. This highlights that at the trial, while the kicking issue was canvassed, it was not seen as crucial. 104 In a case such as the present one where the incident erupted and took place quickly and in a very short period of time in stressful circumstances differences in observation and discrepancies are to be expected. The thrust of the evidence of the important witnesses was clear enough. 105 Given that evidence, the statements by the appellant that he hit the deceased and that that blow caused him to fall to the ground, the appellant's further statement that he may have kicked the deceased but did not remember doing so, his general participation in the fight, his presence, his intentionally aiding and encouraging Karki and his calling off the attack to flee, there is no real chance of the jury attaching any importance to the judge's remarks that the accused not giving evidence could go and only go to the value or weight which they gave to the evidence which the Crown witnesses had given. The evidence of the Crown witnesses needed no prop. 106 The jury were satisfied that the Crown had negatived self defence, that is, that the Crown had established that the appellant did not believe, on reasonable grounds, that it was necessary for him to act as he did in order to defend himself. The issue of self defence arose out of the appellant's response to the police questions. This response was that the deceased wanted to fight and approached him in an aggressive way and fighting pose. The appellant said that he had to hit the deceased because if he had hit the appellant the latter would have fallen on the ground. The appellant said that he hit the deceased who fell down to the ground. He said that all the Nepalese boys kicked the deceased. The appellant stated that he hit the deceased once to defend himself. The jury rejected the appellant's version. His record of interview reveals that he was involved in a joint enterprise. 107 This is an unusual case in that it is possible from reading the evidence and the summing-up to gauge the quality of the evidence. More importantly, the trial judge, who had the opportunity of seeing and hearing all the witnesses, gauging their impact, and noting the way counsel for the appellant approached the witnesses and the evidence, was satisfied beyond reasonable doubt that the appellant kicked the deceased. The eye witness evidence proved that both accused kicked the appellant after he was knocked down and lay on the ground. In so finding the judge stated that he had allowed for the discrepancies in the eye witness versions. The judge's finding is important and reflects the quality and impact of the evidence at the trial. The judge further stated: "Each man participated in what was a savage and cowardly assault upon the unfortunate victim who, after he was knocked to the ground was kicked by each prisoner as he lay defenceless and unconscious. Each prisoner had the requisite intent for murder." 108 I would apply the proviso, that is, I hold that despite the incorrect directions no substantial miscarriage of justice occurred. Accordingly I would reject the challenge to the verdict based on Ground 2. Ground 1 - Manslaughter Directions 109 I agree with what Heydon JA has written. As to the first criticism, I add that at SU13 the judge stated that one way a person may participate in a joint criminal enterprise is, with knowledge that the crime is to be committed, intentionally assisting or encouraging another person to commit the crime. He further explained that the mere presence of a person at the time when the crime is committed, coupled with a readiness to help, if required, can suffice to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. The directions involve the proposition that mere presence is not enough and this would have been understood by the jury. 110 This was in any event not a case of "mere presence". 111 The first criticism fails. 112 As to the second criticism, the passages quoted by Heydon JA from the summing-up demonstrate that the judge adequately explained "the possible interpretation of the appellant's conduct amounting to manslaughter and not murder." The judge adequately explained the relevant general principles and what combination of the facts would amount to murder and what combination would amount to manslaughter. He related the principles to the facts of the cases of Karki and Giri. The directions given were clear and sufficient. 113 As to the third criticism I have nothing to add to what Heydon JA has written. Ground 3 - Directions on self defence 114 I agree with what Heydon JA has written. Ground 4 - Warnings on Unreliability 115 I agree with what Heydon JA has written subject to one caveat. I have considerable reservations whether the evidence in question could fairly be classed as having the potential to be unreliable within the meaning of s 165(1) of the Evidence Act 1995 and required a warning. 116 In many cases events occur quickly and witnesses see them from different perspectives. They may remember different matters. Some witnesses may not recall matters or events which other witnesses saw. That does not make the evidence unreliable. Nor would I regard the evidence of a witness whose evidence at the trial differs in some respects from that given at the committal hearing as necessarily falling into the category of "may be unreliable". It all depends on the details of the particular instance. The difference may relate to minor matters or the witness may have rethought his or her position as a result of a particular fact emerging. Lapse of time is sometimes a factor. Mistakes, misunderstandings, inability to recall matters or lack of observing matters do not necessarily place evidence in the "may be unreliable" category. The evidence of witnesses does not fall into the "may be unreliable" category because they fail to measure up to standards of perfection or near perfection. Of course, if a witness appears to be careless or biased, or trying to protect somebody or withholding matters the evidence could readily fall into the "may be unreliable" category. 117 The appeal against conviction should be dismissed. ********** 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. 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