Reported Decision : (2002) 130 A Crim R 256 New South Wales Court of Criminal Appeal CITATION : R v LE [2002] NSWCCA 193 FILE NUMBER(S) : CCA 60413/01 HEARING DATE(S) : 6 May 2002 JUDGMENT DATE : 24 May 2002 PARTIES : Anh Tuan LE - Appellant Crown - Respondent JUDGMENT OF : Sheller JA at 1; Levine J at 110; Simpson J at 111 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70046/00 LOWER COURT JUDICIAL McClellan J OFFICER : COUNSEL : M C Ramage QC/CJC Dowd - Appellant P G Ingram - Crown SOLICITORS : Voros and Associates - Appellant S E O'Connor - Crown CATCHWORDS : MANSLAUGHTER - S6(1) of Criminal Appeal Act 1912 - s116 Criminal Procedure Act 1986 - statements read to jury - warning about weight to be given to deposition evidence - dock/court identification - warning about weight to be given to identification - verdict of jury unreasonable - dangerous to allow conviction to stand Criminal Procedure Act 1986 LEGISLATION CITED : Evidence Act 1995 Crimes Act 1900 Criminal Appeal Act 1912 R v R (1989) 18 NSWLR 74 Doney v The Queen (1990) 171 CLR 207 R v Prasard (1979) 23 SASR 161 R v Mendham & Foster (1993) 71 A Crim R 382 M v The Queen (1994) 181 CLR 487 Davies & Cody v The King (1937) 57 CLR 170 Gipp v The Queen (1998) 194 CLR 106 CASES CITED: Jones v The Queen (1997) 191 CLR 439 R v Saxon (1998) 1 VR 503 Alexander v The Queen (1981) 145 CLR 395 Papakosmas v The Queen (1999) 196 CLR 297 Carusi v R (1997) 92 A Crim R 52 Gordon (Bankrupt) Official Trustee in Bankruptcy v Pike (No 1) (Federal Court of Australia, 1 September 1995, unreported) Commonwealth of Australia v McLean (1996) 41 NSWLR 389 R v BD (1997) 94 A Crim R 131 DECISION : 1 Appeal upheld; 2 Verdict of 15 March 2001 quashed; 3 Direct a judgment and verdict of acquittal to be entered. IN THE COURT OF CRIMINAL APPEAL 60413/01 SHELLER JA LEVINE J SIMPSON J R v Anh Tuan LE The appellant was found not guilty of murder but guilty of manslaughter by a jury on 15 March 2001. The appellant was sentenced to a term of six years imprisonment with a non parole period of four years. He appealed against his conviction and against the severity of the sentence. The offence with which the appellant was convicted arose from a fight between two groups of people which included the deceased, his brother and the appellant. The deceased was stabbed with a knife. The appellant did not dispute that he was involved in the fight, had taken up a knife during the fight and that he had run away afterwards. The primary issue at the trial was whether the appellant was the person present who had stabbed the deceased. The appellant could not affirm or deny that he stabbed the deceased. The brother of the deceased was to give evidence at the trial but he left Australia before this could occur. Pursuant to s116 of the Criminal Procedure Act 1986, two statements made by the brother were read to the jury, with the trial judge warning the jury of the weight to be placed on the statements given that they did not have the advantage of seeing the brother give evidence. In summing up to the jury, his Honour also identified the inconsistencies which arose between the two statements, the feelings of dislike between the brother and the appellant and the appellant's inability to cross examine and challenge the truth of the statements. The counsel for the appellant at trial did not object to the statements being admitted because he believed that they would assist in establishing a claim of self defence. The Crown called eleven witnesses, but of those witnesses only one gave evidence which connected the appellant and his knife to the stabbing of the victim. On cross examination the witness identified the person who had the knife as the appellant in the dock. His Honour warned the jury of the caution which must be exercised in relation to court or dock identification evidence on the basis that: - the identification evidence was not given by the witness when he was being examined in chief; - evidence was given by the witness about the knife used by the appellant which appeared inconsistent with the wound inflicted on the deceased; - it may have been difficult for the witness to identify the appellant given that the fight occurred rapidly and involved a great deal of activity; and - the identification was made more than twelve months after the events took place. The evidence of the other Crown witnesses in the area at the time of the stabbing was often incompatible or inconsistent. The principal grounds of appeal were that: - the trial miscarried and the verdict of the jury was unreasonable in all the circumstances; - the trial Judge had dealt inappropriately with the identification evidence and that such evidence should have been rejected or the jury discharged; and - the trial Judge had dealt inappropriately with the statements of the deceased's brother and that the statements should have been withdrawn from the jury's consideration or the jury discharged. HELD (per Sheller JA, Levine and Simpson JJ concurring): 1. M v The Queen (1994) 181 CLR 487 establishes the relevant test to be applied by a court of appeal when determining whether to allow an appeal against conviction pursuant to s6(1) of the Criminal Appeal Act 1912; see Jones v The Queen (1997) 191 CLR 439. 2. Had the identification evidence been led by the Crown and had there been no other identification of the appellant as the person who stabbed the accused the trial Judge may have been justified in discharging the jury: R v Saxon (1998) 1 VR 503 at 513. In this case, the evidence was led by counsel for the appellant and the unexpected identification did not entitle the accused to have the answer taken from the jury or the jury discharged. However, a court or dock identification is of little probative value when made by a witness who has no prior knowledge of the accused. 3. The trial Judge's directions to the jury with regard to the identification evidence was appropriate and as such the Court will not intervene. 4. The probative value of the statements of the brother were significantly reduced because of his non-availability for cross examination: see Papakosmas v The Queen (1999) 196 CLR 297. R v Medham & Foster (1993) 71 A Crim R 382 establishes that when a judge allows deposition evidence a warning must be given to the jury about the caution to be exercised in relation to that evidence. 5. In this case, the warning given by the trial Judge with regard to the statements of the brother were appropriate. 6. The evidence that identified the appellant as the person who stabbed the deceased was the testimony and dock identification of one witness and the untested statements of the deceased's brother. The identification evidence was of little weight in the circumstances in which it was given; see Davies & Cody v The King (1937) 57 CLR 170. The trial Judge also warned the jury that it would be dangerous for them to convict on the statements of the brother if they stood alone uncorroborated. The appellant had established that the conviction was unreasonable and involved a miscarriage of justice. It should be set aside. Legislation: Criminal Procedure Act 1986 Evidence Act 1995 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: R v R (1989) 18 NSWLR 74 Doney v The Queen (1990) 171 CLR 207 R v Prasard (1979) 23 SASR 161 R v Mendham & Foster (1993) 71 A Crim R 382 M v The Queen (1994) 181 CLR 487 Davies & Cody v The King (1937) 57 CLR 170 Gipp v The Queen (1998) 194 CLR 106 Jones v The Queen (1997) 191 CLR 439 R v Saxon (1998) 1 VR 503 Alexander v The Queen (1981) 145 CLR 395 Papakosmas v The Queen (1999) 196 CLR 297 Carusi v R (1997) 92 A Crim R 52 Gordon (Bankrupt) Official Trustee in Bankruptcy v Pike (No 1) (Federal Court of Australia, 1 September 1995, unreported) Commonwealth of Australia v McLean (1996) 41 NSWLR 389 R v BD (1997) 94 A Crim R 131 ORDERS 1. Appeal upheld; 2. Verdict of 15 March 2001 quashed; 3. Direct a judgment and verdict of acquittal to be entered. ********** IN THE COURT OF CRIMINAL APPEAL 60413/01 SHELLER JA LEVINE J SIMPSON J Friday, 24 May 2002 R v Anh Tuan LE Judgment 1 SHELLER JA: Introduction On 26 February 2001 the appellant, Anh Tuan Le, was arraigned before McClellan J and a jury of twelve on a charge that on 23 February 2000 at Cabramatta he murdered Tuan Quoc Nguyen. He pleaded not guilty. On 15 March 2001 the jury returned with a verdict of not guilty of murder but guilty of manslaughter. The appellant was sentenced to a term of six years imprisonment commencing on 17 March 2000 with a non-parole period of four years commencing on that date. He has appealed against his conviction and seeks leave to appeal against the severity of his sentence. Factual Background 2 On 23 February 2000 at about 10.30 am or shortly before in Arthur Street, Cabramatta or the near vicinity a fight broke out between two groups of people which included the deceased, Tuan Quoc Nguyen, and his brother, Phat Quoc Nguyen, and the appellant. There were other persons nearby who may or may not have taken part in the fight. At some point during the fight the deceased fell to the ground and police were called. When they arrived the deceased was lying on his back with his head in the lap of a female person. There was blood on his clothing around the upper stomach region. He was white in the face and not breathing properly. On his arrival at Liverpool Hospital he was found to be dead. A medical examination revealed that the only injury was a 1 cm wound in his left anterior chest. A post-mortem revealed a single stab wound on the left side of the front of the chest below the left nipple. The wound in the skin was approximately 2 cms long. Looking at the wound the upper outer corner was rather blunt and the lower corner was rather sharp which suggested that whatever weapon caused the wound would probably have had one sharp side and one blunt side as in a typical knife. The depth of the wound was estimated to be between 10 and 12 cms. A metal pipe was found at the scene and a knife in a garbage bin in a lane way nearby. 3 The appellant gave evidence. He did not dispute that he was in the area at the time of the fight, that he had been involved in an altercation with the deceased's brother, Phat Nguyen, the previous day and was involved in a fight with the deceased on this particular occasion, that he had taken up and used a knife during the fight and that he had afterwards run away from the scene. The principal issue at the trial was whether the appellant was the person present who had stabbed the deceased. In his evidence he said that he was throughout the whole incident in a state of terror and "flailing" the knife around to keep the people away from him. He gave the following evidence in chief: "Q. So, is it possible, though not likely, that you actually did stab, cause the deadly wound, to Phat's brother as far as you are concerned? A. I'm not sure. It is possible that my weapon came in contact with someone but it happened very quickly, so I don't remember." 4 A knife was tendered and became exhibit 1. The appellant said that that was possibly a knife that Phat had, "It could be similar. It could be bigger than this one. I'm not sure." Asked in cross-examination: "When the deceased fell down, you were there with a knife?" the appellant responded: "Yes I was there, but I cannot deny or admit that I was responsible." Witnesses 5 Apart from police officers and doctors, the Crown called eleven witnesses: Randi Obrenovic Benjamin Cameron Banks Tania Leanne Murrell Rebecca Martinez Joshua Martinez Steven Richard Dobbin Guy Gordon Kersake Toan Trieu Tu Domenico Carzo Bernice Lee Bunny Gregory Lombardie 6 Of these witnesses, only Mr Banks gave evidence which connected the appellant and his knife to the stabbing of the victim. Bernice Bunny referred to the "main bloke", taller than any other Asian, about six feet, short black hair and black tracksuit pants, and said: "I saw him actually stab him with a knife." The Crown reopened its case to lead evidence about the height of the appellant which was said to be 180 cms or 6 feet tall. Phat Nguyen 7 In his opening to the jury the Crown Prosecutor said: "Probably the most important witness, as far as the Crown is concerned, is the brother of the deceased, that is Phat Quoc Nguyen. He had known the accused since about September 1999, indeed, at some stage they lived together in the same residence. He will tell you that on the day of the incident he walked into Arthur Street at about 10.30 in the morning. He was in the company of his brother, the deceased, and he saw the accused and another man and they were near a restaurant in Arthur Street. This other man, according to Phat Quoc Nguyen, was the same man who had been in the company of the accused the previous day when there was an incident; in fact this was an incident at an amusement parlour. What happened on 23 February was this: The deceased called out to the accused. He said words to this effect, 'Come, I want to talk' and the accused responded, he said, 'Wait there.' The accused then walked off to a nearby – it looked like a garden bed or some sort of place that had plants there and from there he produced a knife and he produced some cloth. What happened then was that the accused then ran at the deceased and at Phat Quoc Nguyen who were together. Thereafter the accused's companion dragged the deceased's brother to the gutter, attacked him there and while that was taking place on the roadway, the accused swung a knife at the deceased. That is the allegation. Following that the deceased ran over to the footpath and then collapsed. The accused yelled out, 'Run' and both he and his companion fled the scene. That is the version that is given by the brother of the deceased." 8 On the third day of the trial, Wednesday 28 February 2001, the Crown Prosecutor made the following announcement when the trial was called on: "There is another development in relation to Mr Phat Nguyen. Mr Phat Nguyen was here at sometime on Monday; not at 10 o'clock but thereafter. I am told that he was not here yesterday. I am told today that in fact he flew out of the country about 8.30 in the morning. He has apparently gone on holidays and is expected back, on a return flight, sometime in May, so it appears that he has disappeared. I have told my friend that. Where we go from there is an interesting question." 9 After discussion about how the evidence was to proceed that morning, the Crown Prosecutor said that in relation to Phat Nguyen he proposed to call Detective Davis to explain his absence and that he had left Australia. He continued: "The other aspect of that is the consideration of whether his statement should be tendered pursuant to section 112 [sic] of the Criminal Procedure Act, he being a person absent from Australia. I do not know what my friend's attitude to that is. I would certainly like to know." 10 The parties agreed that the section appropriately to be called in aid was s116 of that Act on the assumption that the written statement was a "prescribed written statement" within the meaning of subs (1). Section 116 (2) provides that: "Except in so far as the court otherwise orders, a prescribed written statement may be admitted as evidence for the prosecution at the trial of the accused person on proof on oath that the person who made the statement: (a) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person's life, or (b) is absent from Australia." 11 The appellant's counsel responded by saying that he wanted some time to think about it but that his "present thoughts are that that is probably an area which I will not object to". He said he did not have any instructions but that it was a dramatic development and he wanted lengthy conferences and wanted to "explain the situation". Counsel for the appellant wanted evidence to be called that the witness had left, or as he put it, "skipped" the country. Detective Senior Constable Davis gave evidence that he had made inquiries and was told that Phat Nguyen had left the country on the previous morning. He had not mentioned to the detective senior constable that he was going. He was booked to come back on 5 or 6 May 2001. The detective senior constable identified a statement made by Phat Nguyen which had been tendered at the committal proceedings. That was a statement of 23 February 2000 (Phat Nguyen's first statement). 12 Later on 28 February 2001 counsel for the appellant said there was no issue that the statement was in a prescribed form. Asked what his attitude was going to be without finalising it, counsel said that he was almost certain that he would not object and not seek the judge's interference through his discretion. He referred to the option of aborting the trial and starting again. Counsel did not believe that the admissibility would be questioned by him. 13 On the fourth day of the trial, 1 March 2001, the Crown Prosecutor advised that there had been some resolution in relation to Phat Nguyen's first statement and it was agreed that the statement could be read to the jury with some deletions. After some agreement had apparently been reached on deletions, his Honour asked if both counsel had considered s137 of the Evidence Act 1995 which provides: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 14 McClellan J expressed the view that the section imposed an obligation on him irrespective of the view of the parties. At that point the judge was told that there was a second statement that was to be read out without deletions. His Honour was concerned that in determining probative value one should bring into account that the evidence was not reliable because the person was not available and had made himself unavailable to be called in the case. The evidence being unreliable would have little probative value and the danger of unfair prejudice to the appellant might be greater than the probative value of the material. His Honour sought assistance. 15 Counsel for the appellant said that he had dearly wanted to cross-examine the maker of the statement. He said: "This trial cannot proceeded without the evidence of this man". and later: "…I spoke to my client because he just does not want to remain in custody all this time; he wants a resolution et cetera, that this trial has gone such as to reveal the truth, which may not repeat as well on a next time (sic). The middle position, that is to admit this material, while it is not as good as what I would have wanted is far better than aborting the trial and starting again, and having the same, perhaps, problem again, and other people disappear. ….. While Phat does make some statements that are against my client, naturally, he also makes some remarkable statements which I think in the law – this is where I must reveal my case but it is not a secret; Mr Crown has been a Crown too long not to be aware of it probably as soon as I would have done – but Phat makes enough concessions in his statement to suggest that my client was come upon suddenly by him, while he is sitting there, and in fact tries to walk away, but his brother calls him on. The matter is thrust upon him." 16 Counsel regarded part of the statement as a concession and noted that in the second statement Phat Nguyen admitted that the copper pipe which was found at the scene had been in the hands of the deceased. Counsel said: "I am in the situation where this case simply cannot go on without Phat Quoc Nguyen." 17 He said: "If I am to choose, on the situation which now has arisen, whether your Honour would abort the trial or let it continue, I submit after a great deal of agonised thought throughout the whole of yesterday that the overwhelming, preferable view is to allow the trial to continue, and to do it in this way, as permitted by the section. Of course, if your Honour were to suggest that you would allow the case to continue without the statement of Phat, that would be a situation which I would oppose. I do not think that is even suggested. I do not think I need to consider that. They are the only two conditions. They are my submissions." 18 Pressed by the trial Judge on what he said about the danger of unfair prejudice to his client, counsel said: "That has to be viewed in the light of the alternative, and that is a repeat trial." 19 His Honour asked whether the prejudice was not the prejudice at the trial before him. Counsel responded that the judge was entitled to take into account the submissions of counsel on instructions. Counsel was anxious to demonstrate that it was not only his client who had a weapon but also the deceased and his brother, Phat Nguyen. Counsel said that he wanted the trial to continue. 20 The trial Judge gave judgment on 2 March 2001. He noted that the whole of Phat Nguyen's first statement was tendered absent one sentence being the third sentence in paragraph 4 and the words "holding the stick" in the fourth line of paragraph 8. His Honour described the circumstances of the tender and said that despite counsel having no objection he would have regard to the discretion available to him under s137 of the Evidence Act. His Honour said: "I have come to the view that the probative value of the material sought to be tendered by the Crown is not outweighed by any danger of unfair prejudice to the defendant. It seems to me from what has been disclosed by counsel for the accused that the evidence will have considerable probative value and, indeed, will undoubtedly feature in the way in which counsel for the accused seeks to put his case. My concern in relation to prejudice relates to the difficulty in directing the jury as to the use which they can make of the material. I am not concerned that the jury is aware that Mr Phat Quoc Nguyen was proposed by the Crown to give evidence but has chosen to absent himself from this trial. That seems to me to raise, reasonably, a number of possibilities as to his motivation in leaving the country. However, I am satisfied, on hearing submissions from the Crown and counsel for the accused, that directions may be suitably framed which will alleviate any unfair prejudice, in the relevant sense, to the accused." Accordingly his Honour allowed the Crown to read the relevant parts of the statements to the jury and by that means to admit it into evidence. 21 Before the statement was read Justice McClellan told the jury that they needed to be careful in the way they dealt with it in forming any view in relation to the ultimate questions in the case because they would not have the advantage of seeing Phat Nguyen and seeing him give evidence in the witness box. Phat Nguyen's first statement of 23 February 2000 as read out was as follows: "This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable for prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true. I am 18 years of age (10/2/1982). I reside at home at 3 Dalmatian Street, Carramar with my girlfriend, her name is Phung Tran. My brother, Tuan Quoc Nguyen, lives at 19 Phelps Street, Cabramatta, by himself. About September 1999 I met a person I know as Anh Tuan Le at the Cabramatta railway station. I told him that he could come over to my house and he did. I was living with my brother at 19 Phelps Street, Cabramatta at the time. Anh Tuan Le stayed with us for about one month then he moved out. Over the month that he stayed with us we didn't hardly talk because we didn't want him to stay with us. My brother and I didn't have a fight with Anh Tuan Le but we just didn't talk or really get on with him. I would describe Anh Tuan Le as being about 23 years old, Vietnamese, about 180 cm tall, thin build, black hair, parted in the middle, untidy, dirty down past his ears. I have seen Anh Tuan Le nearly every day in Cabramatta since he moved out of the house. I have spoken to him a couple of times since he moved out but we still didn't talk much. On Tuesday 22 February 2000 I saw Anh Tuan Le at Time Gone video games store in Railway Parade Cabramatta. I was in the store at about 4pm and I was playing video games. I then saw Anh Tuan Le he walked up to me, he was with another male who was with him today. Anh Tuan Le then stood behind me and then he hit me in the right side of the head and then just kept punching me with his fists. I then started to block his punches and punch back. Then the manager of the store came up and broke us up. Anh Tuan Le then walked outside and said to me, 'Come outside'. I didn't. I just stood in the store for about two minutes and then I started to walk towards the door. Anh Tuan Le then started to run at me and I stepped back inside the shop and he came in after me. Anh Tuan Le then hit me again a number of times and I fell to the ground. The manager of the store then came and split us up again and Anh Tuan Le left the store. I then stood in the store for a while because I was very dizzy. Then I left the store and walked down Railway Parade towards the park and as I got to the park I saw Anh Tuan Le walking out of the park and the other guy was with him still. I would describe this man as being Vietnamese, 165 cm tall, between 22 to 25 years old, thin build, black hair, his hair is curly, his hair is short. He was wearing blue long sleeve shirt, dark coloured long pants. His skin is dark like mine. The two of them walked through the park and walked back towards Cabramatta past Woolworths. I then walked to the Cabramatta Police Station and reported for bail and then I got a taxi home to Carramar. I caught a train back to Cabramatta about 10.30 pm last night and then walked to 19 Phelps Street, Cabramatta. I stayed at my brother's house with him last night. My brother and I were the only two at his house last night. About 8.30 am this morning my brother Tuan Quoc Nguyen and I left his house in Phelps Street and walked to the shopping centre at Cabramatta and talked to our friends. We walked to John Street and around that area. About 10.30 am my brother and I were walking from Freedom Plaza into Arthur Street, Cabramatta. As we walked down I saw Anh Tuan Le and the other man who was with him yesterday sitting outside the restaurant. They were outside the restaurant on the left as we walked down towards the station. There is a driveway to the carpark next to the restaurant. As we walked down I could see Anh Tuan Le was wearing a green army type coloured long sleeve shirt, dark green long pants. The other man was wearing the same clothes as he had on yesterday when I saw him at the Time Gone video store. My brother and I then walked over towards Anh Tuan Le and the other man outside the restaurant. As we got to the middle of the roadway the two of them got up and they looked like they were going to walk away. My brother then said in a loud voice to Anh Tuan Le, 'Come I want to talk'. Anh said to my brother, 'Wait there'. As he said this Anh walked over to the garden near the building in the carpark. I then saw him reach into the garden and picked up something. He then pulled a knife out of a bit of cloth or something. Anh then started running at my brother and I. The next thing I knew, the other man grabbed hold of my hair from behind and dragged me towards the gutter. He then started hitting me in the face with his fists. I was on the ground trying to protect myself and then after a while I got free from him and ran towards my brother and Anh. I could see that Anh was stabbing my brother, he had a knife in his right hand. The knife or whatever he had in his hand was not like a normal knife, it looked like an operation type knife. Its handle looked clear with the silver blade at the end of it. I'm not sure how long it was. Anh and my brother were standing opposite each other on the roadway facing each other and Anh Tuan Le was swinging his right hand around stabbing my brother in the body. My brother then ran away towards the footpath and Anh chased him. As my brother reached the footpath he fell to the ground. Anh Tuan Le then stopped and turned around and he screamed to the other man, 'Run'. He said this in Vietnamese. The other man and Anh Tuan Le then ran down the laneway into the carpark and ran towards Woolworths. I then ran to my brother and saw blood on the front of his stomach and I lifted his jumper up and saw a cut. He had a cut on the left side of his ribs. I then pressed my hand onto my brother's cut to stop the bleeding and I told people to call an ambulance. A short time later police arrived and then the ambulance arrived and they took my brother away in the ambulance." 22 Phat Nguyen's second statement of 20 July 2000 as read was as follows: "This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence, I shall be liable for prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true. I am 18 years of age. About 4.15 pm on Thursday 20 July 2000 I attended Cabramatta Police Station and spoke with Detective Davis. He showed me a green coloured backpack and a set of keys. These items of property belonged to my brother Tuan Quoc Nguyen and were with him at the time of the incident with Anh Tuan Le. I confirm that the only person involved in the incident which resulted in my brother's death were my brother, Anh Tuan Le, me and the other person who I don't know. The only knife that I saw during the incident was the knife that Le stabbed my brother with. Detective Davis also asked me about a metal pipe that was found at the scene of the incident. I can confirm that this pipe was used by my brother at the time of the incident. I can also confirm that my brother smoked heroin on a daily basis. I am aware that he smoked heroin about three years before his death. My brother never injected heroin." 23 At the close of the Crown case the trial Judge raised the question of whether Phat Nguyen's statements should be withdrawn from the jury. He observed that the statements may have very little probative value. "It cannot be tested. It is made by a person who was, himself, involved in the fracas, a fracas which, on the material otherwise available on the statement, appears to have had a history at least going back to the preceding day and possibly before then, although that is speculation." He regarded it as open to the jury to speculate why Phat Nguyen was not available to give evidence. He sought assistance from counsel. His Honour was concerned about evidence of self-defence. The Crown submitted that the trial Judge "could not exclude the Phat statement", but acknowledged that he had the power to do so. 24 His Honour remarked during the course of submissions that there really was not a respectable self-defence claim made by the accused. The Crown Prosecutor said: "CROWN PROSECUTOR: Your Honour should tell the jury that in assessing the reliability of Phat Nguyen they should take into account the matters your Honour just mentioned; the fact that he absented himself and, secondly, the fact that when he gave his first account to the police it had a significant inaccuracy or omission, in that he made no mention of the fact that the deceased had the pipe. Your Honour should tell the jury that directly. Your Honour should also tell the jury that they may feel, before they can comfortably act upon the account given by Phat Nguyen, they should look for some support in other evidence. HIS HONOUR: What do I do about any speculation they might be engaging in as to why he left? CROWN PROSECUTOR: There are various ways of touching that. Some people say, if you give a direction about it, it tends to emphasise it. Some people say you should just leave it alone completely. In the circumstances of this case, where it is so obvious that there is a number of obvious alternatives as to why he is not here, your Honour should give the jury, when talking about the reliability of his evidence, a positive direction that they are not to associate his disappearance in any way with the accused – that would be wrong – subject to what my friend says. HIS HONOUR: You submit to me, do you, that a direction given by me in those terms would cure any potential difficulty arising from speculation? CROWN PROSECUTOR: I do, because, prima facie, the most obvious reason he disappeared, I would think, is because he was uncomfortable about being here. HIS HONOUR: Putting it bluntly, fearful of the accused. 'Uncomfortable' does not answer the question. He could be uncomfortable for a positive or negative reason. Is not the most likely reason that he is fearful of the accused, rightly or wrongly? CROWN PROSECUTOR: It is certainly up there as a contender. HIS HONOUR: Especially when you have the history of the day before the event, and then you have the day itself. CROWN PROSECUTOR: Yes. The jury should be told not to draw any inference adverse to the accused and that there is no suggestion that his disappearance has anything to do with the accused. I would think that the jury would heed such a warning." 25 Counsel for the appellant submitted that the statements of Phat Nguyen should be excluded. It was pointed out that the only real statement as to the accused stabbing the deceased came from that source. The other statement which Mr Banks "threw in" in cross-examination, and to which I shall return, had never previously been made. The Crown indicated that if Phat Nguyen's statement was excluded the Crown would continue with the trial. Counsel for the accused submitted that the trial should end. He submitted not only that the evidence of the statement but also the evidence from the witness Mr Banks should be excluded and that there was no case. As the discussion developed, counsel for the accused submitted that it was both prejudicial to his client if Phat Nguyen's statement remained in evidence and prejudicial if it did not. Combined with this was an argument that Mr Banks' evidence should be excluded because it was unreliable. The question seemed to resolve itself towards excluding Phat Nguyen's statement by use of s137 tempered by concern about the fairness of the trial if this material was excluded. 26 After an adjournment, counsel for the accused said he had received instructions and that his position was as follows: "My first position is that your Honour would remove from the jury Phat's statements and the other two areas of which I spoke, but your Honour has clearly indicated to me that that is not the way your Honour is minded to go, in which case, if your Honour is not minded to remove the other two areas of Banks and Bunny, then my instructions are to ask your Honour to permit the trial to go on as it has up until now." As McClellan J pointed out that was, in other words, with the Phat Nguyen material in. 27 On the following day, counsel for the accused withdrew his concession that the trial Judge had power to remove the Phat Nguyen statement. Asked whether his position was that he wanted the trial to proceed with that material in, counsel said: "That has always been my position, with the exception that when your Honour suggested that you would remove it, and I said I would only make submissions if your Honour were then willing to remove certain other materials, namely, the material which I submitted is straw-like in weight – I didn't use those words -- HIS HONOUR: In any event you now say I can't remove the Phat material, is that right?" Counsel said that that was correct. 28 On 6 March 2001 McClellan J gave judgment in which he rehearsed that counsel for the accused indicated he would seek to have the Phat Nguyen material withdrawn from the jury provided the evidence of the witnesses Mr Banks and Ms Bunny, which in different ways went to the identity of the person who killed the accused, was also withdrawn relying upon s137 of the Evidence Act 1995. His Honour had indicated that he was not persuaded that whatever happened to the Phat Nguyen material he should make any order withdrawing any of the evidence of the witnesses Mr Banks and Ms Bunny from the jury. That morning counsel had confirmed that in the event that the trial Judge made no order in relation to any of the evidence of the witnesses Mr Banks and Ms Bunny he did not seek to have the Phat Nguyen material withdrawn from the jury. 29 His Honour said as follows: "I had previously indicated that I hold considerable reservations in relation to the evidence of the witness, Phat, being given to the jury in the form of his statement. My concern is heightened by the fact that the jury are aware that Phat, apparently voluntarily, left Australia on the morning of the second day of this trial. By this means he ensured that he would not be available to give evidence and be cross-examined in the course of the proceedings. I have a concern as to whether it will be possible to frame directions to the jury which ensure that they do not speculate as to the reason for the absence of Mr Phat and whether, accordingly, his evidence may be misused. However, if I was now to reconsider the approach to that evidence and exercise the power available to me to withdraw material from the jury, I would, of course, be acting contrary to the express wishes of counsel for the accused. The fact that such power is available cannot, in my opinion, be doubted, having regard to the remarks of the Chief Justice in R v R (1989) 18 NSWLR 74 at page 76. In the event that counsel for the accused does not make any application for the Phat material to be withdrawn, I have formed the view that it would not be appropriate for me to make any such order." 30 In R v R, to which the trial Judge referred, the Court of Criminal Appeal answered in the negative the question: "Does a trial judge have the power to direct a verdict of acquittal when the trial judge assesses the evidence is such that a verdict of guilty based upon it would be unsafe and unsatisfactory?". In Doney v The Queen (1990) 171 CLR 207 at 212-213, the High Court said: "The question whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory was adverted to but left unanswered in Whitehorn v The Queen (1983) 152 CLR 657 at 689. There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict: see, for example, Plomp (1963) 110 CLR at 246; Reg v Prasad (1979) 23 SASR 161 at 162; Reg v R (1989) 18 NSWLR 74 at 77. And it may sometimes happen (although it should be but rarely) that evidence is withdrawn because it becomes apparent that, although technically admissible, it has no or insignificant probative value in comparison with its prejudicial effect, with the consequence that, if the remaining evidence will not support a guilty verdict, a verdict of not guilty must be directed: see, as to the discretion to reject technically admissible evidence, R v Christie [1914] AC 545 at 560 ; Harris v Director of Public Prosecutions [1952] AC 694 at 707; Driscoll v The Queen (1977) 137 CLR 517 at 541; Harriman v The Queen (1989) 167 CLR 590 at 619; and, as to the withdrawal of evidence and the subsequent direction of a verdict of not guilty, Reg v R. However, the question raised when, for whatever reason, the evidence will not sustain a verdict of guilty is distinct from that raised in the present case where the evidence of Freeman, if believed, is itself sufficient to sustain the applicant's conviction." 31 At 214-5 their Honours said: "It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty." 32 Thus the stage had been reached in the trial where on two occasions counsel for the appellant had insisted that the statement of Phat Nguyen should remain before the jury except on conditions which his Honour was not prepared to accept, on the face of it with good reason. Application was then made by counsel for the accused for a Prasad direction (R v Prasad (1979) 23 SASR 161) which his Honour refused. He said: "I have considered the position in relation to such a direction but have come to the view that the evidence, which the Crown has led in this case, is such that it would not appropriate for me to give a Prasad direction at this stage of the proceedings." 33 In R v Mendham & Foster (1993) 71 A Crim R 382 Gleeson CJ, with whose judgment Handley JA and Grove J agreed, considered the admissibility (under the repealed s409 of the Crimes Act 1900) of the evidence of a police officer at a committal hearing who was unable to attend the trial because he was ill. His Honour said at 388: "The authorities make it clear that, even if Sergeant Hain's deposition had been admissible under s409, the trial judge should have given the jury an appropriate warning of the approach to be taken of that evidence. His Honour was asked to give such a warning but declined to do so. In Henriques (1991) 93 Cr App R 237 at 242 the Privy Council said: 'When a judge allows deposition evidence to be admitted he should as a matter of course warn the jury that they have neither had the benefit of seeing the deponent nor of hearing his evidence tested in cross-examination and that they must take this into consideration when evaluating the reliability of his evidence. Furthermore as Lord Griffiths said in Scott and Barnes [1989] AC 1242; (1989) 89 Cr App R 153 at 161: 'in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination'. ' The present case involved a good example of the sort of thing to which Lord Griffiths was referring. There was a clear and important conflict between the evidence of Hain and the evidence of Eastwood, relating to the matter of Hain's notebook. This is just the sort of matter that should have been dealt with in the course of an appropriate warning. To like effect was the decision of the Full Court of the Supreme Court of Victoria in Horan [1951] VLR 249." 34 In summing up to the jury, McClellan reminded them that in the first of Phat Nguyen statements there was no reference to any weapon in the hands of the deceased or Phat Nguyen but that in the second statement he confirmed that the pipe found at the scene of the incident was used by his brother at the time of the incident. His Honour summarised parts of the first statement and read some parts. The trial Judge gave the following warning about Phat Nguyen's evidence. "Ladies and gentlemen, you will also remember the evidence from the deceased's brother, Phat Quoc Nguyen, which was put before you when the Crown Prosecutor read from Mr Phat's statement tendered at committal. It is important that I give you a special warning to be careful as to the weight you give to that evidence. As you know, Mr Phat Quoc Nguyen was not called to give oral evidence because he left Australia on the first Tuesday of the trial and was not expected to return until May. It may be that you have speculated as to why he left Australia, but it is important that you leave any speculation aside and do not attempt to form any view as to why he left the country. Indeed, my direction is that you are bound to put from your minds any speculation as to why Phat Quoc Nguyen left Australia. I also direct you that you should exercise great care before attributing weight to Mr Phat's evidence. He is, of course, the brother of the deceased and was himself engaged in the skirmish in which his brother died. He was also involved in the fight the previous day which he apparently lost. It would appear he did not like the accused. Because he has not given evidence orally, you have not been able to form any assessment of him by observing him in the witness box and hearing him give evidence. More importantly, he has not been cross-examined and, accordingly, the accused has not, through his counsel, been able to challenge the truth of anything said in his statement. For these reasons I direct you that you must exercise great care before attributing weight to his evidence, especially when it conflicts with the evidence of another witness and that, of course, includes the accused. You could, of course, have greater confidence in accepting the evidence where it is corroborated by the evidence of another witness. However, it would be dangerous to convict the accused relying only on the evidence of Mr Phat." 35 As will appear in what I say later there were parts of Phat Nguyen's evidence which were inconsistent with the evidence of any other witness, in particular that he remained and cared for his brother after his brother fell to the ground and did not immediately run away. Mr Banks 36 Benjamin Cameron Banks gave evidence that he arrived in Cabramatta at about 9 am on the morning of the incident. He found himself at what was described as the station end of Arthur Street and noticed a couple of guys run across the road and noticed the fight. The guys were Asian. They ran towards the carpark. They were in their mid-20s. One was wearing thongs, one was wearing thongs, jeans and a checked shirt. One was slim, one was medium. He saw a scuffle, an argument. The people ran across the road to a couple that were standing in the driveway of the carpark. He said, when asked what happened, that it started off as an argument, an exchange of words, and then they started hitting each other, kicking each other. They were hitting and kicking each other and there were weapons involved as well. The people who had the weapons were those that ran across the road. He managed to see a knife and a copper bar. The knife was said to be about 25 or 30 cms in length. He said he had seen who had the knife. He said he had seen the arm swing around and the knife connected to the person's chest. That person fell to the ground in the middle of the driveway to the carpark. He walked towards the person. The fight broke up and the couple actually like split up and ran away. The person who fell to the ground got kicked a couple of times but he could not say by whom. He said that four split up and ran off. He stayed around the scene trying to help. Asked about the knife he said the blade was not a big one. It was not long but a short blade knife. It had a brown handle, the blade was a dirty old sort of colour. The dimensions he gave of the pipe were about 45 cms. He was not able to say anything about a pipe which was exhibit 2. He said the knife, exhibit 1, was the one he had seen. He had seen that knife in the hand of the person who did the stabbing. 37 Mr Banks was cross-examined about his recollection and the four people who ran away. The one who had the knife ran towards the train station. He agreed that the man with the pipe ran through an alleyway into Hughes Street which was in a northerly direction. He was not sure that he had seen the man with the pipe run away up there. Then he gave the following evidence: "Q. You saw these four run away. Some or one ran up Hughes Street. Some or one ran along to the railway station, along Arthur Street. Is that right? A. Yep. Q. And the one who ran along Arthur Street was the person who you say had the knife? A. Yes. Q. Are you quite sure of that? A. Yeah, I'm sure of that. Q. What about the other two people? Where did they run? A. One ran through the alleyway. Q. Which alleyway? A. Towards John Street. Q. You told us one ran up – I am sorry, towards John Street, the other alley way. What about the fourth person? A. Followed him slowly. Q. So, two went along John Street? A. The last one hung around a bit; walking around everywhere. Q. So, two ran along John Street. One ran up – the one with the pipe you say ran up -- A. Yep. Q. --John Street. Was he still carrying the pipe? A. I can't recall. Q. But he was the one who had been using the pipe, you say. That's what you've told us. Do you not recall? Mr Banks, do you recall or not? A. No. Q. These four people who ran away, some were on one side; some were on the other side? A. Yeah. Q. From what you have told us, it seems that the two people on one side were the two who respectively ran one towards the railway station and one up Hughes Street. That was one side, wasn't it? A. Yeah. Q. That's what you have told us, isn't it? A. Yeah. Q. And that's correct? Yes? A. Yeah. Q. And the other two who ran away were on the other side? A. Yes. Q. They are the ones who went up John Street. Now, you were shown by my learned friend, the other person dressed in this crazy costume, a knife. Right? A. Yeah. Q. The truth of the matter is you can't remember now which person on which side held the pipe, can you? A. No. Q. And the truth of the matter is you can't remember now which person on which side had the knife? A. No. I know who had the knife. Q. You know who had the knife. Who was that? A. This guy here (witness indicated). Q. You are pointing to this guy here (indicated). You mean, of course, the accused, do you? A. I know his face. Q. You know his face. So, that's the man who didn't run up Hughes Street, is it? A. No. Q. That's the man who ran to the railway station? A. Ran towards the railway station. Q. You haven't been taking any substances, have you? A. No. Q. You think that's stupid do you? Something that might affect your memory, recollection or understanding. Can you answer that? A. No. Q. What about at the time A. No. Q. You hadn't? A. No. GUMBERT: I have an application, if the jury could leave the Court. It may be that my learned friend will concede." 38 Counsel's application did not relate directly to the identification. He indicated that he wished to cross-examine the witness about his credibility apparently in a context of substance abuse. The Crown Prosecutor responded by saying: "If he simply explores the aspect of him being under the influence of drugs, then I would not treat it as raising the issue of character, if the accused gave evidence. It is really a question of degree." Counsel for the accused said that, the Crown Prosecutor having made his attitude clear, he did not seek any ruling. 39 The cross-examination of Mr Banks continued. Counsel did not directly put to him that his identification of the person who had the knife as the appellant in the dock was wrong. He confirmed that he had said "that my client ran along Arthur Street east towards Railway Parade." He was again shown the knife, exhibit 1, and he said that could be the knife which was earlier identified by him as the knife the appellant had in his hands when the deceased was stabbed. 40 In summing up, his Honour told the jury that he had to give them special directions about the identification evidence and referred to Mr Banks' evidence identifying the accused as having the knife when he had not previously identified the accused. His Honour pointed out that identification evidence had to be approached with special caution and explained the reasons why. His Honour said: "Firstly, the evidence which Mr Banks gave was not given when he was being examined in chief. It was not obtained by the Crown but came in response to a question by Dr Gumbert in cross-examination. Secondly, Mr Banks gave evidence of observing the accused to be the person holding the knife, which he identified as the knife in exhibit 1. Now, it is, of course, a matter for you, but you may have the view, because of the size of the wound on the deceased, a width of 2 centimetres, the knife which is exhibit 1 could not have caused the injury. If you have, that view it may suggest that Mr Banks' evidence identifying the accused as holding the knife which stabbed the deceased may be unreliable. Thirdly, the events which Mr Banks observed occurred during a very short space of time and apparently involved only Asian men. It may be difficult for Mr Banks to identify a particular individual whom he had never previously known during an event which occurred rapidly and involved a great deal of activity. Fourthly, Mr Banks was making his identification more than twelve months after the events took place and only when the accused was in the dock. It will be apparent to you that evidence of identification of the accused as the person committing the crime, when he has obviously been identified by others and is on his trial, should be approached with the greatest of caution. Those are matters which you are bound to consider when deciding whether you will accept the identification evidence in this case as reliable." 41 Later in his summing up following submissions from counsel for the appellant, the trial Judge said: "Ladies and gentlemen, I want to return to a couple of matters that we mentioned before the adjournment. Firstly, you will remember that I was talking to you about the evidence of Mr Banks and I told you that there were a number of reasons why you should be careful. I said: Approach his evidence with great caution. The fourth matter I mentioned to you was that Mr Banks was making his identification more than twelve months after the events took place and only when the accused was in the dock. I went on to say that it would be apparent to you that evidence of the identification of the accused as the person committing the crime, when he has obviously been identified by others and is on his trial, should be approached with great caution. I want to tell you also that not only should you approach that evidence in those circumstances where he has identified the accused in the dock with great caution but in those circumstances you should give it very little weight." 42 Later still, his Honour returned and set out some detail of Mr Banks' evidence by quotation from the transcript. He referred to what he had said earlier about the approach that should be taken and having recited the details said: "I repeat to you again that I have already given you directions in relation to the weight, if any, which you can give to that evidence, being given by the witness in the witness box, the accused being in the dock. You, of course, will also have to look at that evidence in light of other evidence which you have as to where persons ran after the incident occurred." 43 Later again, after submissions from counsel, his Honour read further parts of Mr Banks' evidence. Separately he dealt with evidence about knives and other weapons present at the scene. In the course of that he referred to what Mr Banks said. 44 After the close of the Crown case, counsel for the appellant applied to have Mr Banks' evidence of identification withdrawn from the jury. In the course of the submission his Honour indicated that counsel could assume for the purpose of getting instructions that he was against the submission. The instructions related to the admission of the Phat Nguyen's statements already adverted to. I have already summarised the effect of the judgment of 6 March 2001 in which McClellan J dealt with this question. Other Crown witnesses 45 The evidence of the other witnesses in the area at the time of the stabbing, whose names I have already listed, was – not surprisingly on account of the suddenness and speed of what occurred – often incompatible and inconsistent. 46 Randi Obrenovic did not know the appellant though he had seen him before. He saw the fight after it began. He knew the deceased as Russell and his brother as Brendon. He saw the accused punching Russell and hitting Brendon. Russell was holding a pole. He chased a curly haired man to the railway station. He said the accused ran down this sort of alleyway leading to Woolworths. Russell had a knife. He chased the curly haired man to the railway station. When he returned he saw a knife on the ground. It had a wooden handle "a pointed handle" and was about 30 cms long with a sterling silver blade like a chopping knife. There was "an Asian dude with long hair" who was just watching. He was about 165 cms tall. All the witness saw him do was move the knife with his foot. He saw only the one knife. In cross-examination he said that the man who he thought had stabbed Russell had gone up the laneway to Hughes Street. The other person he chased he thought was about 175 or 180 cms in height. He described the knife as having a brown handle. 47 Rebecca Martinez had come by train to Cabramatta that morning and saw the appellant squatting down in front of a restaurant in Arthur Street with another Asian male. She said he was wearing a cream satin shirt with dark green slacks pants. The shirt was long sleeved. Later she saw the appellant running from where she had seen him first and going in the direction of Woolworths. He was running as if in a panic. He was barefooted. Previously when she saw him he was wearing thongs. He had an object which she could not identify in his hand. Later she saw the deceased lying on the ground. 48 Joshua Martinez was Rebecca's brother and with his sister at the time in question. He knew the appellant and also saw him running into the Woolworths' carpark. He described him as wearing a white, collared shirt and green slacks like pants with black running shoes on and a black bum bag. He did not know who he saw with the appellant but said he had curly hair at the top, short around the sides. Later he saw the appellant run past him, running into the Woolworths' carpark alone. He did not say that the appellant had anything in his hand when he saw him running. 49 Steven Dobbin was working as a locksmith at Raine & Horne on Arthur Street on the morning in question. While he was walking across the road to his vehicle he observed "a lot of screaming and yelling coming from the end of the street" meaning the opposite end of Arthur Street running towards Railway Parade. He saw two Asian men running, one chasing the other and a few more running behind them. They were running towards Railway Parade. He saw the man who was being chased being pushed. "The man being chased turned around quickly and the other man looked like he pushed him". The man being pushed hit the ground and the other man kept running. Subsequently he observed blood starting to appear on the ground. The man he thought pushed the other was around 6 feet tall wearing green trousers, a long sleeved grey shirt and white joggers. He had long black hair. The man who kept running ran on towards the railway station. The other people ran to the man on the ground. He did not see anyone running through either of the laneways leading to Hughes Street to the north or to John Street to the south. He left the scene very quickly. He did not see any weapons. 50 Guy Kerslake gave evidence that at about 10 am on 23 February 2000 while in the company of Bernice Bunny he saw a scuffle in what appears to have been Arthur Street, Cabramatta. Four people were involved, all Asian. It was basically just a lot of pushing and shoving and then he saw one of them when they finally got off the road collapsed on the driveway. He saw at least two bread knives and a pole. After the person hit the ground, some of them came back and quickly "grabbed them all up and kicked the pole underneath the car". The pole looked like a copper pipe. He was 100 yards away. He did not see the person in the middle who collapsed "get stabbed or anything". He was shown exhibit 1 which he said did not look anything like the knives he saw. He said the whole incident was "very very very quick". He said that before the fellow collapsed on the ground "all I seen was the back of some Chinese, Asian, I don't know what, they all look the same to me, and all I seen was like, it could even have looked like a punch". Asked whether he had indicated a thrusting motion with his right hand he said "like I said, it could have just been like a kidney punch or something you know, and that knife, the first knife you showed me, I seen the wound when the ambulance got there". He had no idea what the man was wearing. He said that the pole that was kicked under the car was larger and different from exhibit 2. The people who ran back and picked up the knives came through the little alleyway up into John Street. He said that the two men who scooped up the knives ran away down Ingal Way which runs to the south of Arthur Street in the direction of John Street. 51 The witness had put to him a statement that he had made to the police which was as follows: "When they got to the side of the road I saw one of the men with the knives stab the guy that was being pushed. I saw him stab him to the side of the chest. The guy who had been stabbed then fell straight to the ground." 52 Under cross-examination when asked whether it appeared to him that what he saw was a stab he said, "It didn't actually, until the ambulance officer cut his shirt off". 53 The next witness was Toan Trieu Tu who claimed to be a friend of the deceased. He was present and saw the fighting and the "guy" fall down but denied taking part in the fight. Four people were involved in the fighting, all Asian. He saw punching, jumping and kicking. He denied pushing a knife with his foot. It was suggested to him by counsel for the appellant that he, the deceased and "persons in that group, one of whom was the deceased and his brother" had made prior plans to attack the appellant and his friend. The witness denied it. He was asked whether he had concealed a knife in preparation for the attack on a ledge of a nearby air conditioning unit and denied it. The trial was adjourned for the day and the witness was ill the following morning. He returned to the witness box on 1 March 2001. He denied the suggestion put to him in several questions which followed that he had taken part with others in an attack upon the appellant. He agreed that he was a friend of the deceased. 54 On the morning of 23 February 2000 Domenico Carzo went to Cabramatta to see his dentist who practised in Arthur Street. Upon leaving the dentist after half an hour he walked through the lane towards John Street. As he was going into John Street he noticed a person "stretch his arm" and place what looked to be a kitchen knife on a window ledge. He was medium build, looked Asian and was wearing dark trousers. He walked beside Mr Carzo into John Street. The knife was a fixed blade knife like a kitchen sort of knife around 170-200 mm long with a blade about 12-15 mm wide. The handle was black. He saw the person who placed the knife on top of the window ledge in the crowd and saw the police talking to him and after a while taking him away. Mr Carzo was taken to inspect a garbage bin not far from the window ledge and was shown a knife which was not the same as the one he had seen on the window ledge. When he returned to the window ledge the knife was not there. He agreed that the person he saw putting the knife on the ledge had long hair down to his shoulders and was clean-shaven. The witness identified in court the previous witness Mr Tu as the person he had seen putting the knife on the window ledge. He was further examined by the Crown to suggest he had made a mistake in identifying the person who the police were talking to as the person who had put the knife on the ledge. He replied "I didn't make a mistake". 55 Bernice Lee Bunny went at about 10 am on 23 February 2000 to the Cabramatta area with her boyfriend, Mr Kerslake. She found herself at the top of Arthur Street where she saw three men who were fighting and pulled another "guy" over to the car park. She said: "And then all I saw was someone - I think he was the main bloke. He actually – I saw him actually stab him with a knife". By this she meant the person pulled along by the other three men. The main bloke was taller than any other Asian, about six feet she thought. He had black hair and black track suit pants on. In addition to the knife used she saw some knives on the ground and a pipe. They left the knives and ran off. One of the blokes came back and collected all the knives and went up the alleyway. He kicked the pipe under one of the cars. He went up the alleyway and put the knives in the bin. It was the alleyway that led into John Street. The other two men took off up the same laneway. She did not know any of the people. She assisted the man on the ground. She said in cross-examination: "I remember very well the bloke that actually stabbed the man". Clear in her mind was seeing the man scoop up the knives and kick the pipe under the cars. He then went down the laneway to John Street and dumped a knife or knives into a garbage bin. The man she saw with the knife had short hair and was taller than any Asian she had ever seen. She was pretty sure that the man who did the stabbing came back for the knife. She said that after the bloke was stabbed this other bloke hit him with the pipe as he was going down. Another Asian bloke was kicking him. She was asked about the laneway going to Hughes Street and said: "He didn't go up Hughes". She definitely did not see anyone going up the laneway to Hughes Street. 56 Gregory Lombardi was in the Cabramatta area on 23 February 2000. He saw a friend of his in Freedom Plaza Cabramatta and was talking to him. He then saw a short Asian man with long dark hair past his shoulders in the company of a thin blonde Caucasian girl. The Asian man stopped and talked to a short fair-haired Australian man just outside a variety store in John Street. The Australian man said: "What did you do?" It was then put to Mr Lombardi that he heard the Asian man say: "I hit him once in the ribcage". Mr Lombardi said that was a mistake. The speaker did not say: "I hit him in the ribcage", he said: "He hit him in the ribcage". At that stage he was about four feet away from the Asian man. He saw the Asian man move his right arm in a forward motion with his right hand closed like he was stabbing somebody. He indicated by putting his closed fist towards the middle of his own stomach. The Australian man said: "You must have got him in the right spot". The Asian man did not reply and walked off with the Caucasian girl. Later in Arthur Street he saw a lot of police officers one of whom told him there had been a fight. He told them of the conversation he had overheard. He described the man. He did not recall saying that he had heard the man say "I stabbed him once below the ribcage". He indicated a man who was there and saw a policeman go and speak to him. Mr Lombardi was shown the statements he had signed in which the word "I" so appeared. He was cross-examined extensively on the change he made. In cross-examination by the Crown, the witness agreed that at the time of the conversation he was unaware there had been a stabbing. When he became aware of the stabbing he jumped to certain conclusions. That coloured his recollection to some extent of the conversation that took place. 57 Tania Leanne Murrell knew Mr Tu and was present at the conversation with him. According to her the Australian male said: "He slammed it into him". She made a statement on 23 February. 58 A written statement was read dealing with the appellant's attempts to run away and evade the police before he was arrested on 17 March 2000 . Appellant's evidence 59 The appellant gave evidence of the time that he stayed in the same house as the deceased and his brother, his relationship with them and the fight that had taken place in the game shop the day before the stabbing. The next morning at about 10.30 he was in Arthur Street sitting with an acquaintance he had met two or three times and knew by the name of Nhat. There was a restaurant where he was sitting which he identified from a photograph. He saw Phat Nguyen, his brother and another two people in the middle of the car park. The lane to John Street was behind them and they were walking towards him. On the other side of the road one of them stopped and the rest, including Phat Nguyen and his brother, continued to walk towards him. They looked very aggressive. The appellant started to walk away and the deceased said "Come over here, I want to talk to you", in a very loud voice. The appellant continued to walk away towards a park where there were lots of people standing. He was walking quickly. 60 At about that time the deceased and other people took out their weapons and started to attack him. Phat Nguyen had a big knife and the deceased had a metal pipe. The appellant was very frightened and ran across the street and saw three or four people approaching him from the opposite direction in front of him. "I thought that I should try to get something", something for his protection. He looked for it in a garden where he had seen someone putting an item. He got this item which was about 40 or 50 cms long and about 4 or 5 cms wide. It was in a sock. 61 When he turned around these people were around him and the fight already started. Asked what he was doing with "that piece of steel" he said "I used that item to swing around so that people cannot come close to me". He thought the person he had been sitting with was behind the people that were attacking him. He said that the third person looked like an Asian witness in the trial, Mr Tu. He could not remember 100 per cent. Nobody in the group was on his side. The fight moved off the footpath. He saw the deceased walking away from the group of people just a few steps and then he fell down. He took the opportunity to run away. He ran towards the land near the restaurant and then to the car park to Hughes Street. He was very frightened. He had in his hand the item that he had picked up earlier. He did not know the deceased had been stabbed. He threw the weapon away. 62 That night he learnt that the fight had resulted in someone being "stabbed dead". He was very scared because he thought about people from the gangs who might be trying to find him for revenge. He was told by someone that the police were asking people if they knew him. He tried to hide because he thought the police might charge him wrongly for a murder he had not done. On 17 March a policeman saw him and called out to him. He was very scared and that is why he was trying to run away. He said that there was no blood on the knife that he threw away though he was not 100 per cent sure. He was sure there was no blood on his hands. He said that it was possible that his weapon came in contact with someone when he was flailing it around to keep the people away but it happened very quickly so he did not remember. He said the pole, exhibit 2, looked like the item in the hand of the deceased. It was possible the knife, exhibit 1, was the knife that Phat Nguyen had. 63 In cross-examination the appellant agreed that there had been a dispute when he was staying with Phat Nguyen and he refused to lend them money. He was asked questions about visits to Cabramatta after he left Phat Nguyen's house. The cross-examination was as follows: "Q. Just before we go on to that, is it correct, after you left Phat's residence you went to Cabramatta almost every day? A. It is not the case that I went to Cabramatta every day but a couple of weeks prior to the event, yes, I had been there very often. Q. I said almost every day, I am not suggesting you were there actually every day, but almost every day from the time you left Phat's residence. Is that right? A. No, that is not correct, but it is the case that I'd been there from time to time in order to buy Asian and Vietnamese food. Q. Can you buy Asian and Vietnamese food at Bankstown? A. Well, yes, I could buy the Vietnamese food in Bankstown, but in Cabramatta there is more variety. Q. Let me put it directly to you, Mr Le, you were hanging around the streets of Cabramatta almost daily, weren't you? A. Not every day. Q. Was it about 4 o'clock in the afternoon that you saw Phat at Time Gone? A. Yes. Q. When you walked in, you were with another male person, weren't you? A. No. Q. You walked in alone? A. Yes. Q. Did you have any particular reason to go to Time Gone on this day? A. In order to play electronic games. Q. Do they have electronic games at Bankstown? A. But I had been in Cabramatta looking for work, so I didn't bother to come back to Bankstown in order to play electronic games. Q. Did you know that Phat liked electronic games as at February 2000? Did you know that? A. I don't know. Q. When you were living with Phat, had you ever been to Time Gone with Phat? A. I don't recall. Q. Did he ever talk about an interest in amusement parlours? A. I don't recall." 64 He denied that on the occasion of the fight on the night before the incident, after the manager had broken the fight up, he said to Phat Nguyen "Come outside" and that when Phat Nguyen walked towards the door he ran at him. He said that when he walked to the door of the store Phat was running after him and trying to punch him and they had a fight there and then and that after that he left. He was asked the following questions: "Q. Okay. Did you have a pair of dark green, long pants? A. I don't remember but most of my pants are in dark colour. Q. Right. Now, I suggest to you that on 23 February you were in the company of the same man who was in your company the day before. That is the man I have suggested to you is the curly-haired man. What do you say about that? A. No, that is not correct. Q. And I would suggest to you that on 23 February, during the incident, you were in possession of a knife which looked like an operation-type knife? GUMBERT: Could my friend make that clear. I am not sure what he means. CROWN PROSECUTOR: Q. Like a scalpel? A. I did not have such a knife. Q. Did you have a knife with a silver blade? A. No. Q. Did you have a knife with a handle that looked clear? A. No. Q. Did you take the knife out of the sock, did you? A. No. Q. So, the whole time you had the knife it was inside the sock, was it? A. It was partly covered. Q. What footwear were you wearing on 23 February? A. I cannot remember. Q. Were you wearing thongs? A. I don't remember. Q. Joggers? A. Normally I would wear sports shoes but I don't remember whether or not I was wearing the shoes on that day. Q. What other shoes did you have apart from sports shoes? A. I had leather shoes, black in colour, and I used them when I was wearing suits. Q. Are you right-handed? A. Yes. Q. When you were flailing around with this weapon, did you have it in your right hand? A. Yes. Q. You say that the weapon may have contacted with the deceased. Right? A. That's correct. Q. Apart from the weapon that you had, did you see any other weapon go anywhere near the deceased? A. At that time I didn't pay any attention to anybody else, but I was trying to protect myself." 65 He was asked questions about his attendance at the language school. Later he was asked: "Q. All right. So, you were attacked, were you, by three people with weapons. Is that what you are saying? GUMBERT: That is not what he is saying. CROWN PROSECUTOR: Q. I am asking you. Do you say that? A. What I am saying is that I am very sure that Tuan and Phat had their weapons and I thought that the third person also had weapon. Q. Did anybody use a weapon on you? A. When these people ran into me and I ran away. Q. Did anybody use a weapon on you? A. Because when I saw them taking out their weapons, I ran away and I didn't see them because they were behind me. Q. So, to your observation nobody ever attempted to use a weapon on you. Is that right? A. They ran into me in order to attack me and, of course, I had to run away and I could not afford to wait for them to attack me. Q. So, you didn't have any injuries at all. Is that right? A. That's correct. Q. You didn't have a mark on you, did you? A. That's correct. Q. Before you ran away, you yelled out 'Run. Run', didn't you? A. No. Q. You yelled out 'Run. Run', didn't you Mr Le? A. No. Q. I suggest you yelled that out because you knew you had stabbed the deceased? A. No. Q. And you did run? A. Yes. Q. And your companion ran? A. I don't know. Q. Did he have a weapon? A. I don't know. Q. Did he have a piece of pipe? A. I don't know. Q. Did he have a knife? A. I don't know. Q. Did you have another friend there who joined in with a knife? A. I don't know." 66 He was asked a little later: "Q. Why did you get rid of the weapon you had? A. After running a distance and I look back and I didn't see anybody, then I threw away (sic). Q. Well, you got rid of it because you knew you had stabbed somebody with it, didn't you? A. No. Q. I suggest to you that the weapon you actually had was one that had a blade no more than two centimetres wide. What do you say about that? A. No. Q. How do you know? Did you take it out of the sock? A. I did not but I look at from the outside and it was quite large. Q. I am suggesting that you are making up the dimensions of the knife to suit your own convenience? A. No. Q. You know very well, don't you, that you stabbed the deceased? A. No. Q. When he fell down, who was near him? A. I think there was nobody near him. Q. Except you? A. Including me. Not near him. Q. How could you possibly think that your knife may have wounded him if you were not near him? A. I don't know because the fight happened very quickly, involving a number of people moving around. Q. Involving a number of people on your side. Is that right? A. No. Q. When the deceased fell down, you were there with a knife? A. Yes, I was there, but I cannot deny or admit that I was responsible. Q. So, the deceased was within reach of you. Is that so? A. So, everybody was there in the fight and then he walk just a couple of steps. Q. Who else was within reach of the deceased at the time he fell down? A. Nobody. Q. That is nobody apart from you? A. When everybody else and I was still in the fight, the location, then the man walked a few steps away and fell down. Q. You had a friend there who had a knife, didn't you? A. I don't know. Q. You had another friend there with a piece of pipe, didn't you? A. I don't know. Q. After the deceased fell down, he was kicked, wasn't he, by yourself and your friends? A. No, that is not correct. As soon as the man fell down, everybody else stopped and took the opportunity to run away. Q. He was hit by the man with the pipe, wasn't he? A. I don't know." 67 A little later he was asked: "Q. Just to get the sequence again, I am suggesting, Mr Le, that the deceased called out the words 'Come. I want to talk'? A. Yes. Q. Then I am suggesting that you said 'Wait there'? A. No. Q. Okay. Then, after the words 'Come. I want to talk', after that, you went over to the garden area? A. No. Q. All right. You say what? What did you do? A. After he said that, I continued to walk away and then I saw them taking out their weapons, together with the third person. Then I ran away." 68 Asked how the people stopped him, he said: "They were in front of me and they ran into me and at that time I believed that they will were going to attack me." 69 Asked whether he had run towards the deceased and his brother he said: "No I did not run into them but they ran into me." 70 Asked whether he had sought to find his acquaintance he said he had tried but that he did not dare go to Cabramatta because he was afraid that Phat and his people might take revenge against him. 71 The following cross-examination took place: "Q. See, Mr Le, you were quite upset, weren't you, when you were confronted on this day. Weren't you upset? A. No, I was very scared. Q. You had a fight with Phat the day before, didn't you? A. Yes. Q. And you weren't scared of Phat, were you? A. But when they approached me and particularly with weapons, I was very scared of them. Q. See, what I am suggesting to you is that the only weapon they had, the brothers, initially, was the pipe? A. That is not correct. Q. Your friend, the man with you, had a knife? A. I don't know whether or not the other man that you are talking about had a weapon or a knife, but I had the weapon that I picked up, as I told you. Q. And you picked it up because you had put it there previously, hadn't you? A. No. Q. And you were perfectly willing to engage in a confrontation with the deceased and his brother, weren't you? A. No. Q. I am suggesting you weren't scared at all? A. I was very scared. Q. You ran over and got stuck into the deceased? A. No. Q. After he was stabbed you and your friends kicked him on the ground, didn't you? A. No. Q. Then you ran away and disposed of the weapon? A. As soon as Tuan fell down, everybody stopped and I ran away. Q. And later on you ran from the police? A. Yes." Summing up 72 McClellan J gave the jury a set of written directions. He referred to its containing seven pages though the document in the record MFI 5 consisted of six. The last page which is missing from the document MFI was described by his Honour as a page "dealing with the result which seeks to explain to you the outcomes that are possible and the questions you will be asked and the role that your foreperson plays in answering those questions." The six pages in MFI 5 were as follows: "Murder – By an Act of the Accused (1) Murder is established if the Crown proves beyond reasonable doubt that: (a) the deceased dies as a result of the deliberate act of the accused and (b) the act was done - (i) with an intention to kill the deceased, or (ii) with an intention to cause grievous bodily harm upon him, and (c) the act was not done in self-defence. (2) If the Crown fails to prove any of (a) or (b) or (c) above, beyond reasonable doubt, the Crown has failed to establish murder by an act of the accused. Murder – Joint Enterprise (3) Murder is also established if the accused, did not commit the act which killed the deceased but nevertheless the Crown proves beyond reasonable doubt that (a) the act causing death was done by another pursuant to an agreement or understanding with the accused to attack the deceased, other than in self-defence, where the accused contemplated that the other person might use a knife with the intention of inflicting grievous bodily harm or causing death, and (b) the act causing death was not done in self-defence. (4) If the Crown fails to prove either (a) or (b) above beyond reasonable doubt the Crown has failed to establish murder on the joint enterprise basis. Grievous bodily harm (5) Grievous bodily harm means really serious injury. Self-defence (6) An act is done in self-defence if - (a) the accused believed that it was necessary in his own defence to do the act, and (b) there were reasonable grounds for that belief. (7) The Crown may establish that the accused's act was not done in self-defence by satisfying you beyond reasonable doubt that (a) above was not so or that (b) above was not so. Manslaughter – By an Act of the Accused (8) If the accused is guilty of murder, you do not proceed any further. The question of manslaughter only arises if the accused is not guilty of murder. (9) The accused is not guilty of murder but guilty of manslaughter if and only if the Crown proves beyond reasonable doubt that - (a) it was a deliberate act of the accused which caused the death of the deceased, and (b) the act was unlawful and dangerous, and (c) the act was not done in self-defence. (10) If the Crown fails to establish any of (a), or (b) or (c) above, beyond reasonable doubt, the Crown has failed to establish manslaughter by an act of the accused. Manslaughter – Joint Enterprise (11) Manslaughter may also be established if the Crown proves beyond reasonable doubt that (a) the act which caused the death of the deceased was done by another pursuant to an agreement or understanding with the accused to apply violence to the deceased by use of a knife, other than in self-defence, and (b) it was a deliberate act of the other which caused the death of the deceased, and (c) the act was unlawful and dangerous, and (d) the act was not done in self-defence. (12) If the Crown fails to establish any of (a) or (b) or (c) or (d) above, beyond reasonable doubt, the Crown has failed to establish manslaughter on the joint enterprise basis. (13) An act is unlawful if it involves a deliberate application of force to another person without that person's consent. (14) An act is dangerous if it is such that a reasonable person in the position of the accused would have realised that, by the act, the deceased was being exposed to an appreciable (or significant) risk of serious injury." 73 The trial Judge later made amendments to the document that had been handed to the jury which were incorporated in MFI 5. His Honour emphasised that the Crown had to prove beyond reasonable doubt that the act causing death was not done in self-defence. His Honour stated the following legal principles in relation to self-defence: "They are these: Firstly, you should approach this topic in a practical manner and without undue nicety, giving proper weight to the predicament of the accused, if it afforded little or any opportunity for calm deliberation. I will come back later to look at the precise evidence of the accused in relation to this matter. It is obviously very important. But you will remember generally how he tells us that he was sitting with his friend when he was approached by the deceased and his brother. He tells us that he believed that he was being threatened by them, that they were carrying weapons and he tells us that he acted, firstly, to go away and when he was unable to achieve that, he called up from his memory the weapon which he then held apparently during the course of the fight. But it is important that you bring to mind that evidence when you consider the predicament faced by the accused. A person defending himself or herself from an attack or a threatened attack, who may believe that there is a need to act instantly, cannot be expected to weigh carefully what measures of self defensive action are called for. That is the first point of the principle. The second point is this. When it comes to reasonableness, it is the accused's state of mind that has to be evaluated and not that of some hypothetical, reasonable person in the position of the accused. The question is whether this accused person did not believe, on reasonable grounds, that it was necessary to do what he did. You do not put yourselves in his shoes and ask what would I have thought and done. You take, as a given, what the accused believed or may have believed. If he believed or he may have believed that it was necessary to do what he did in self-defence, you ask yourself whether you are satisfied, beyond reasonable doubt, that there were reasonable grounds for that belief. The third matter is this: the threat does not ordinarily call for a response which involves an intention to kill or to cause really serious injury unless the threat causes a reasonable apprehension of death or of serious bodily harm. If the response of the accused went beyond what he believed to be necessary in order to defend himself or if there were no reasonable grounds for a belief, on his part, that the response was necessary in order to defend himself, then the action was not one of self-defence. The fourth matter is that there is no rule that the force used by the accused must be no more than was proportionate to the threat. It may be relevant to consider whether the accused must have believed that what he did went beyond the bounds of what was necessary. You ask whether the Crown has established that the accused did not believe, on reasonable grounds, that what he did was necessary. I repeat, there is no rule that the accused's act must not be disproportionate to the threat. The question is whether you are satisfied, beyond reasonable doubt, that the accused, in the circumstances in which he found himself, did not believe that what he did was necessary in self-defence or that there were no reasonable grounds for such a belief. If you are not so satisfied, the verdict must be returned of not guilty. Fifthly, there is no rule either that the person under attack must retreat, if they can, before attempting to defend themselves by an act intended to kill or to cause really serious injury to an assailant. If there is a real opportunity to retreat, that is one aspect of the total consideration. It is one consideration among a totality of considerations. The question is this: Given the opportunity to retreat, if there was one, are you satisfied beyond reasonable doubt that the accused did not believe, on reasonable grounds, that it was necessary to do what he did, rather than retreat. And again we will come to it later, but I remind you at this stage of the evidence which the accused gave of his initial attempts to walk away and how he was obstructed and could not take that course. Sixthly, the accused's mental state includes the effect which you think what had gone on, on the previous day, was likely to have had on him. You will remember that on the previous day there had been a fight between the accused and Phat Quoc Nguyen, which the accused apparently won. There is no dispute that on the subsequent day the initial approach to the accused was made by the deceased. The accused tells you that he perceived this approach as a threat. As I indicated, we will discuss the evidence in detail later, but you are entitled to have regard to those circumstances, as indeed you must, when considering the mental state which would have occurred within the accused when he was approached on that day. So that deals with the question of self-defence." These directions were not challenged on the appeal. 74 In accordance with these directions it is apparent from the jury verdict of manslaughter that the jury were satisfied beyond reasonable doubt that the act was not done in self-defence. 75 His Honour said, after referring to joint criminal enterprise and giving some examples: "In this case the Crown suggests that if the accused did not himself stab the deceased, he was engaged in a joint enterprise with the acquaintance with whom he was sitting outside the Chinese restaurant. Before you could find that there was a common enterprise between the accused and this person, you would have to be satisfied beyond reasonable doubt that such an enterprise existed and, otherwise, you would then have to address the matters on the second sheet which we have just looked at." 76 The jury was satisfied beyond reasonable doubt either that it was the appellant's deliberate act which caused the deceased's death and that the act was not done in self-defence or, if the deceased was stabbed by another person, that that was a deliberate act and not in self-defence but done pursuant to an agreement or understanding with the appellant to apply violence to the deceased by use of a knife other than in self-defence. Grounds of Appeal 77 Ground 17 was that the trial Judge erred in finding there was sufficient evidence to leave a case of common purpose to the jury. It is convenient to deal with this ground first having regard to what had been said in his Honour's directions about joint enterprise. His Honour called for and heard submissions at the end of which he said that he would allow the Crown to put joint enterprise (T481). I must say and with due respect there seems to be but the slenderest evidence that the appellant was engaged in a joint enterprise with the acquaintance with whom he was sitting outside the Chinese restaurant, or with any other person, that any such person was armed with a knife and that there was anything in the nature of an agreement or understanding between such person and the appellant to apply violence to the deceased by use of a knife. However, it is not necessary, as will appear, that I examine this question further. 78 Section 6(1) of the Criminal Appeal Act 1912 provides that this Court on any appeal under s5(1) against conviction shall allow the appeal "if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice; and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 79 In M v The Queen (1994) 181 CLR 487 at 492-3 Mason CJ and Deane, Dawson and Toohey JJ considered the relationship between a conclusion that a verdict was unsafe and unsatisfactory and the language of s6(1). Their Honours said: "Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as 'unjust or unsafe', or 'dangerous or unsafe'. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v The King (1919) 27 CLR 13 at 23, Isaacs J said: 'If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.' And as the Court observed in Davies and Cody v The King (1937) 57 CLR 170 at 180, the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers: 'not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.' Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." 80 In Gipp v The Queen (1998) 194 CLR 106 Callinan J said at 164, after quoting the above passage: "So long as the ground that the verdict is unsafe and unsatisfactory is truly raised it is now accordingly well settled that a court of appeal should undertake 'an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused'. [citations omitted] It almost goes without saying that the independent assessment of the relevant evidence has to be made in the context of the whole trial, including rulings on evidence and directions to the jury." 81 In Jones v The Queen (1997) 191 CLR 439 Gaudron, McHugh and Gummow JJ, who formed the majority of the Court, said at 452 that the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory. 82 In Gipp McHugh and Hayne JJ, who dissented, said at 123: "A criminal trial under the common law system remains today, as it has been for many centuries, based on the theory that it is an adversarial contest between the Crown and the accused. Each party gathers its own evidence, tenders its own evidence and cross-examines the evidence of the opposite party. Each party selects the grounds upon which it relies and argues them without assistance from the court. For its part and subject to statutory exceptions, the court's role is generally limited to determining what legal rules govern the issues selected by the parties and whether the evidence and contentions of the parties are within those rules." 83 The first two grounds of appeal were that the trial miscarried and the verdict of the jury was unreasonable in all the circumstances. It is convenient to return later to those grounds of appeal. 84 Grounds 3, 4, 5 and 6 can be taken together. They were: "3. The trial Judge erred in failing to reject the evidence of identification of the accused given by the witness Banks. 4. The trial Judge erred in failing to discharge the jury immediately on the giving of identification evidence by the witness Banks. 5. The trial Judge erred in failing to immediately direct the jury as to how they should regard the evidence of Banks. 6. The trial Judge erred in the directions he gave of identification in relation to Banks." 85 It was submitted on behalf of the appellant that, in view of the following facts: - Banks had not previously identified the accused; - he did not identify the accused in examination in chief; - his identification of the accused came in cross-examination; - his positive incorrect identification of the knife, namely that the accused was the one holding the knife which stabbed the deceased; - the speed with which the events occurred affecting his identification; - the fact that his identification was more than twelve months after the events and whilst the accused was in the dock; - he gave a very limited description in examination in chief of the persons involved; the evidence of Mr Banks should have been rejected or the jury discharged. 86 Mr Banks identified the appellant in answer to a direct question from the appellant's counsel: "You know who had the knife. Who was that?" Such a question carried high risk. Counsel no doubt thought that Mr Banks would identify somebody other than his client, the appellant. Had he done so he would have significantly improved the appellant's chance of an acquittal. The answer he got was possible though unexpected. A decision then had to be made whether to cross-examine further by pressing Mr Banks on his failure previously to identify the appellant as the person who had the knife with which the deceased was stabbed, the lateness of the identification twelve months after the events and the very limited description Mr Banks had given in chief of the person with the knife. Such cross-examination may have demonstrated that the answer was false or unreliable. But it involved further risk that Mr Banks would stand by his evidence and the jury would accept it. Counsel preferred to make these points about the unreliability of the evidence in argument rather than by cross-examination. Such decisions are part and parcel of the adversarial contest. Counsel did not seek any immediate direction, no doubt not wishing to emphasise the significance of the answer. 87 Had the evidence of identification by Mr Banks been led by the Crown and had there been no other identification of the appellant as the person who stabbed the accused the trial Judge may have been justified in discharging the jury; see R v Saxon (1998) 1 VR 503 at 513. But the evidence was led by counsel for the appellant in an attempt to exclude the appellant as the person who had stabbed the accused. If that risk is run by counsel with the legitimate intention of getting an acquittal I do not think an unexpected answer entitles the accused to have the answer taken from the jury or the jury discharged. However, as Mason J said in Alexander v The Queen (1981) 145 CLR 395 at 427, a court or dock identification is of little probative value when made by a witness who has no prior knowledge of the accused; see also JD Heydon, Cross on Evidence, 6th Australian ed (2000) at 1410. 88 In the course of his directions to the jury in summing up, when dealing with this evidence of identification by Mr Banks, McClellan J twice said: "It will be apparent to you that evidence of identification of the accused as the person committing the crime, when he has obviously been identified by others and is on his trial, should be approached with the greatest of caution." 89 His Honour was directing attention to what Mason J in Alexander at 427 called "the trial circumstances (which) conspire to compel the witness to identify the accused in the dock". Counsel for the appellant claimed that what his Honour suggested was that the appellant had been identified by others as the person who had stabbed the deceased. However counsel at the trial apparently did not so understand the expressions and sought no redirection. I am not persuaded that any part of McClellan J's direction on this identification by Mr Banks calls for the Court to intervene. This passage aside, it was unexceptionable. 90 In my opinion, these grounds of appeal standing alone should be rejected. 91 Grounds 8, 9, 10 and 13 were as follows: "8. The trial Judge erred in failing to discharge the jury when the witness Phat Nguyen became unavailable. 9. The trial Judge erred in exercise of his discretion in permitting the statements of Phat Nguyen to be read to the jury. 10. The trial Judge erred in failing to give the jury a warning pursuant to s165 Evidence Act immediately after the statements of Phat Nguyen were read to the jury. 13. The trial Judge erred in failing to withdraw the evidence of Phat Nguyen from the jury at the close of the Crown case." 92 It was accepted that each statement was "a prescribed written statement" within the meaning of s116(1) of the Criminal Procedure Act 1986. The requirements of subs (2) were met. Proof on oath was available that Phat Nguyen was absent from Australia and for that reason not able to give oral evidence. McClellan J admitted both statements and at a later stage when the other prosecution evidence had been led refused to take them away from the jury. He took account of s137 of the Evidence Act. 93 His Honour accepted, I think correctly, that the probative value of the statement was significantly reduced by the non-availability of Phat Nguyen for cross-examination; see Papakosmas v The Queen (1999) 196 CLR 297. At 323, McHugh J referred to the definition in the Dictionary of the Evidence Act of "probative value" as being "the extent to which evidence could rationally affect the assessment of the probability of the existence of a fact in issue". His Honour said: "That assessment, of course, would necessarily involve considerations of reliability … An assessment of probative value, however, must always depend on the circumstances of the particular case at hand." 94 Such an approach is one more favourable to the appellant than that adopted by Hunt CJ at CL in Carusi v R (1997) 92 A Crim R 52 at 66. His Honour said that the power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence. 95 In Papakosmas at 325-6 McHugh J referred to Gordon (Bankrupt) Official Trustee in Bankruptcy v Pike (No 1) (Federal Court of Australia, 1 September 1995, unreported) and Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 401-402 where courts have exercised their discretion to exclude transcript or hearsay evidence because of the resultant inability of a party to cross-examine the maker of the representation on a crucial issue or otherwise effectively challenged the evidence. McHugh J observed: "It is unnecessary to express a concluded opinion on the correctness of these decisions, although I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of 'prejudice' in a context of rejecting evidence for discretionary reasons." 96 The non-availability of Phat Nguyen for cross-examination was at the same time a matter of prejudice to the appellant. The balance was not an easy one to judge. But the mere fact that the evidence was contrary to the appellant's case, while in a sense "prejudicial", does not amount to unfair prejudice. In R v BD (1997) 94 A Crim R 131 at 139 Hunt CJ at CL said: "The prejudice to which each of the sections (ss 135, 136 and 137) refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way." 97 I am not persuaded that at any stage McClellan J erred in admitting the statements or in refusing to take them away from the jury. As I have already indicated counsel for the appellant, for reasons related to an argument of self-defence, agreed at various stages to the admission of the statements and to their not being taken away from the jury. The trial Judge directed the jury that it would be dangerous to convict the appellant relying only on the evidence of Phat Nguyen. This was an appropriate direction sufficient for the case. In my opinion, these grounds of appeal standing alone should fail. 98 It is appropriate now to return to grounds 1 and 2. The jury saw and heard the appellant's evidence. From the transcript on its face the appellant seemed to give his evidence frankly. He did not attempt to hide that he was present at the fight and had a knife and ran away when the deceased fell to the ground. There was no attempt to improve his position by saying that he did not have a knife in his hand or more importantly that he did not strike the deceased with it. These critical parts of his evidence "I'm not sure. It is possible that my weapon came in contact with someone but it happened very quickly, so I don't remember" and, in answer to the question "When the deceased fell down, you were there with a knife?", "Yes, I was there, but I cannot deny or admit that I was responsible" were forthright and not self-serving. 99 The evidence identifying the appellant as the person who stabbed the deceased was the oral testimony of Mr Banks and the untested statements of Phat Nguyen. Mr Banks' evidence was of little weight in the circumstances in which it was given. In Davies & Cody v The King at 182 the High Court said: "…if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial." 100 As the trial Judge pointed out to the jury it would be dangerous for them to convict on the statements of Phat Nguyen if they stood alone uncorroborated. Phat Nguyen did not like the appellant, had been involved in a fight with him the day before and was the brother of the deceased. He was not an impartial and objective bystander but a person who had motive falsely to accuse the appellant. There was the independent statement that Mr Tu, according to his evidence, an idle spectator of the fight, had been identified as the person disposing of a knife shortly after the fight. In several respects the evidence of Phat Nguyen was inconsistent with or unsupported by other evidence both as to the nature of the fight, in which he took part, and what he did when his brother fell to the ground. No one else suggested that after his brother went down Phat Nguyen remained to look after him. All the other evidence suggested that he ran away immediately. 101 Even though, if the jury rejected as it did, the whole or part of the appellant's evidence, there was evidence upon which the jury could convict, nonetheless, in my opinion, it would be dangerous in all the circumstances to allow the conviction to stand. I pay full regard to the consideration that the jury was the body entrusted with the primary responsibility of determining guilt or innocence and had the benefit of seeing and hearing the witnesses. 102 It is not inappropriate at this point to refer to ground 18 of the grounds of appeal and the cross-examination which I have set out of the appellant which tended to suggest that he had come to Cabramatta on 23 February 2000 and on other occasions for no good or legitimate reason. In the circumstances of this case and the slight evidence that the appellant had stabbed the deceased, the prejudice from such a cross-examination, which seems to me to have been entirely irrelevant except as to credit, was significant. Section 104(2) of the Evidence Act provides that in a criminal proceeding a defendant must not be cross-examined about a matter that is relevant only because it is relevant to the defendant's credibility, unless the court gives leave. No such leave was sought or given. 103 In my opinion the appellant has established that the conviction was unreasonable and involved a miscarriage of justice. Accordingly, it should be quashed. 104 It is not necessary that I say anything about grounds 7, 11, 12, 14, 15 and 16 which were as follows: "7. The trial judge erred in refusing to rule on the effect of cross-examination in raising character. 11. The trial judge erred in permitting further examination and cross-examination of the witness Carzo. 12. The trial judge erred in failing to give the jury a s165 Evidence Act warning in respect to the evidence of the witness Murrell at the time or later. 14. The trial judge erred in failing to discharge the jury at the close of the Crown case. 15. The trial judge erred in failing to direct the jury of their right to then bring in a verdict of acquittal at the close of the Crown case. 16. The trial judge erred in permitting the Crown to re-open its case." nor is it necessary to say anything about the sentence imposed. 105 Ground 19 was that the appellant was incompetently represented. Counsel's instructions were that the appellant took part in the fight with a knife in his hand and that one of his opponents in the fight was the deceased. The appellant and the deceased and the deceased's brother were not on good terms. In those circumstances it is not surprising that counsel considered the best hope for acquittal was self-defence. One element of this defence was evidence that the deceased and his brother carried weapons. Counsel no doubt expected that Phat Nguyen would give evidence which would support that conclusion and could be cross-examined to show that he and his brother attacked the appellant. In a sense this was an all or nothing defence, acquittal if the jury was not satisfied beyond reasonable doubt that the stabbing was not in self-defence, conviction if the jury was so satisfied. 106 To make good this defence, Phat Nguyen's evidence needed to be admitted. The choice of aborting the hearing, once Phat Nguyen was not available to give oral evidence, was contrary to counsel's instructions to get the trial over with and involved some risk if Phat Nguyen turned out to be a good witness able to persuade the jury that the appellant was the attacker. The choice was a difficult one but it was not unreasonable in the circumstances to allow the matter to proceed on Phat Nguyen's statement knowing that in so far as that implicated the appellant as the person with the knife it was of less weight if the deponent was not available to give evidence. 107 In dealing with the identification evidence of Mr Banks, counsel ran a risk but it was justified by the possibility, reasonably to be expected, that Mr Banks would identify the knife carrier as someone other than the accused. Identifying the appellant as the knife carrier while unhelpful in terms of obtaining an acquittal other than on self-defence was not necessarily harmful to that defence. The identification in court of the appellant would be treated as of little weight. An answer that the person carrying the knife was not the appellant would have left only the statement of Phat Nguyen as evidence implicating him as the stabber. The chance of acquittal was far higher. 108 Too often, if an accused is convicted, the transcript is carefully scrutinised by new counsel away from the heat of the battle and blame for alleged failures to obtain rulings or call evidence is laid at the trial counsel's door and incompetency asserted. I am not impressed by this ground of appeal. Orders 109 In my opinion, the following orders should be made: 1. Appeal upheld; 2. Verdict of 15 March 2001 quashed; 3. Direct a judgment and verdict of acquittal to be entered. 110 LEVINE J: I agree with Sheller JA. 111 SIMPSON J: I agree with Sheller JA. ********** 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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