New South Wales Court of Criminal Appeal CITATION : R v Chai [2002] NSWCCA 512 FILE NUMBER(S) : CCA 60550/98 HEARING DATE(S) : No further hearing (counsel relied on earlier submissions) JUDGMENT DATE : 20 December 2002 PARTIES : Regina Chong Mun Chai JUDGMENT OF : Mason P at 1; Sperling J at 1; Bergin J at 1 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70208/97 LOWER COURT JUDICIAL James J OFFICER : COUNSEL : Mr M G Sexton SC for the Crown Mr G Nicholson QC with Mr B W Cross for the Appellant S E O'Connor for the Director of Public Prosecutions SOLICITORS : S N Goodsell for the Appellant CATCHWORDS : Criminal Law - appeal against conviction - principles relating to the exclusion of or limiting the use of evidence for "unfair prejudice" pursuant to ss 136 & 137 of the Evidence Act 1995 - whether trial judge was bound to do so of his own motion - otherwise, no question of principle Criminal Appeal Act 1912, s6 LEGISLATION CITED : Criminal Appeal Rules, r4 Evidence Act 1995, s66, s136, s137, s165 Ambrosoli [2002] NSWCCA 386 Birks (1990) 19 NSWLR 677 Chai [2000] NSWCCA 320 Chai [2002] HCA 12 Ellis [1910] 2 KB 747 CASES CITED: GK (2001) 53 NSWLR 317 Ignjatic (1993) 68 A Crim R 333 Johns (1979-80) 143 CLR 108 Papakosmas (1999) 196 CLR 297 Stirland [1944] AC 327 Tangye (1997) 92 A Crim R 545 TKWJ [2002] HCA 46 DECISION : Appeal dismissed. - 23 -IN THE COURT OF CRIMINAL APPEAL 60550/98 Mason P Sperling J Bergin J Friday, 20 December 2002 R v Chong Mun Chai Judgment 1 The Court: On 25 August 2000, we allowed an appeal, brought by the appellant, Chong Mun Chai, against his conviction for the manslaughter of Duck Huan Kim and Doh Su Kim: Chai [2000] NSWCCA 320. The appeal was allowed by us on one ground of appeal, Ground 2. The remaining grounds of appeal were not decided. On 14 March 2002, the High Court allowed an appeal from our decision, setting aside our orders and remitting the matter to this Court for consideration of the remaining grounds of appeal: Chai [2002] HCA 12. 2 The following six paragraphs are from our judgment of 25 August 2000, with minor alterations. 3 The appellant, Chong Mun Chai, was indicted on 15 April 1998 in the Supreme Court of New South Wales on four counts: (1) that he murdered Duck Huan Kim, (2) that (in the alternative) he maliciously inflicted grievous bodily harm on that deceased, (3) that he murdered Doh Su Kim, and (4) that (in the alternative) he maliciously inflicted grievous bodily harm on that deceased. The statutory alternative charge of manslaughter by an unlawful and dangerous act went to the jury in relation to each charge of murder. 4 The appellant was found not guilty of murder under counts (1) and (3) but guilty of manslaughter on each count. Accordingly, no verdict was taken on counts (2) and (4). 5 The appellant's co-accused, Shang Hyun Bae, who was tried with him on identical charges, was found not guilty of both murder and manslaughter but guilty of maliciously inflicting grievous bodily harm on each of the deceased. 6 The Crown case was that both deceased were beaten up by a group of several men at the Ehwa Karaoke Bar at Kings Cross (which was owned and managed by the appellant), and that they died as a result of the beating. The Crown's case was conducted on the basis that it could not prove which blow or blows caused the deaths of the respective deceased or (necessarily) who in the group had delivered the fatal blows. 7 Sang Hoon Lee gave evidence at the trial that the appellant had summoned him and two companions to the bar in the course of a telephone conversation, saying, "The gangsters are here so come here quick". In two subsequent telephone calls on the way to the bar, the appellant told him that the waiter, Ba Da Lee, would point out two men to him and that he was to bring them to the garage on the premises. When he arrived at the bar, Ba Da Lee pointed out the men in a parked motor vehicle. He confronted them. The appellant and Shang Hyun Bae then ran up with wooden batons. The appellant and Sang Hoon Lee's companions proceeded to beat the two men. Shang Hyun Bae joined in. The two men were taken to the bar premises and were beaten further. That was Sang Hoon Lee's evidence. 8 There was no room for doubt that the deceased were in fact savagely beaten and received the injuries from which they died. 9 This was evidence on which (with other evidence) it was open to the jury to find that the appellant was the instigator of the episode and had procured others including Sang Hoon Lee and his companions, to beat up the deceased. 10 Following the decision of the High Court, there was a delay in arranging a fixture for further hearing of the appeal due to the practical difficulty of reconvening the same court. The matter was listed for hearing on 28 November 2002. Shortly before that date, the parties advised that no further submissions needed to be made. So the fixture was cancelled. 11 In this judgment, we decide whether the appellant is entitled to succeed on any one or more of the grounds of appeal other than Ground 2 (which has been rejected by the High Court). 12 The appellant's grounds of appeal were and remain as follows. 1. His Honour gave directions to the jury on the elements of the offences with which the appellant was charged which, in totality, were unnecessarily complex and confusing, and misleading. 2. His Honour gave directions to the jury as to the elements of manslaughter, including joint enterprise, which were erroneous and misleading. 3. His Honour gave directions to the jury as to the elements of the offence of maliciously inflicting grievous bodily harm which were erroneous and misleading. 4. His Honour erred in allowing evidence by Ms Kim of a statement allegedly made to her by Sang Hoon Lee that the appellant told him to bash the victims, to be admitted as evidence of its truth, or at all. 5. The verdicts of manslaughter returned in respect of the appellant, when examined in the light of the verdicts of maliciously inflicting grievous bodily harm returned in respect of the co-accused Bae, were inconsistent, repugnant, illogical and unreasonable. 6. The trial of the appellant involved a miscarriage of justice. 13 In the course of his summing up, the trial judge gave the jury written directions as follows. DIRECTIONS IN RELATION TO EACH ACCUSED AND EACH VICTIM MURDER – JOINT CRIMINAL ENTERPRISE Elements:- 1. An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the particular victim, that is to apply physical force to the victim's body , and in the assault to inflict grievous bodily harm on the victim, that is really serious bodily injury. 2. In accordance with the agreement to assault the victim and to inflict grievous bodily harm on him and while the accused continued to be a party to the agreement, a party or parties to the agreement did an act or acts with intent to inflict grievous bodily harm that is to inflict really serious bodily injury, which in fact caused the death of the victim. 3. The accused participated in some way in the joint criminal enterprise to assault the victim and to inflict really serious bodily injury on him. It is sufficient for the Crown to prove that the accused participated in any one or more of the following ways:- (i) The accused himself did the acts done with intent to inflict grievous bodily harm which in fact caused the death of the victim ("the fatal act or acts") or (ii) At the time when the fatal act or acts were done by some other party or parties to the agreement, the accused was present and knowing that that party or those parties to the agreement intended to inflict really serious bodily injury on the victim, intentionally assisted or encouraged that other party or those other parties to inflict really serious bodily injury on the victim or (iii) In the case of Mr Chai, Mr Chai procured the party or parties to the agreement who did the fatal act or acts, to inflict really serious bodily injury on the victim or (iv) At some time before the fatal act or acts were done the accused, knowing that other parties to the agreement intended inflicting really serious bodily injury on the victim, had by words or acts assisted or encouraged parties to the agreement, including the party or parties who subsequently did the fatal act or acts, to inflict really serious bodily harm injury on the victim. MURDER – EXTENDED JOINT CRIMINAL ENTERPRISE Elements:- 1. An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the particular victim. 2. In the course of the carrying out of the agreement to assault the victim and while the accused continued to be a party to the agreement, a party or parties to the agreement did an act or acts with intent to inflict grievous bodily harm, that is to inflict really serious bodily injury, which in fact caused the death of the victim. 3. Although the inflicting of really serious bodily injury on the victim was not within the agreement, nevertheless the accused contemplated that, in the course of the carrying out of the agreement to assault the victim, a party or parties to the agreement might do an act or acts with intent to inflict really serious bodily injury on the victim, but nevertheless the accused, having that contemplation, continued to be a party to the agreement up to and including the time when the act or acts done with intent to inflict grievous bodily harm and causing death were done. 4. The accused participated in some way in the joint criminal enterprise to assault the victim. It is sufficient for the Crown to prove that the accused participated in any of the following ways:- (i) The accused himself did an act or acts of assaulting by way of participating in the assaulting of the victim. or (ii) At the time when the act or acts done with intent to cause really serious bodily injury and causing the death of the victim ("the fatal act or acts") were done by some other party or parties to the agreement, the accused was present and knowing that that party or those parties intended to assault the victim and contemplating that that party or those parties might do an act or acts with intent to inflict really serious bodily injury, intentionally assisted or encouraged that party or those parties to assault the victim. or (iii) In the case of Mr Chai, he procured the party or parties to the agreement who did the fatal act or acts, to assault the victim. or (iv) At some time before the fatal act or acts were done the accused, knowing that the other parties to the agreement intended assaulting the victim and contemplating that a party or parties to the agreement might do an act or acts with intent to inflict really serious bodily injury on the victim, had by words or acts assisted or encouraged parties to the agreement, including the party or parties who subsequently did the fatal act or acts, to assault the victim. If the jury are satisfied beyond reasonable doubt of all of the elements of murder-joint criminal enterprise or extended joint criminal enterprise, they should find the accused guilty of murder. If the jury are not satisfied beyond reasonable doubt of all of the elements of either murder-joint criminal enterprise or murder-extended joint criminal enterprise, they should find the particular accused not guilty of the murder of the particular victim and they should proceed to consider manslaughter. MANSLAUGHTER Elements 1. An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the particular victim. 2. In the course of the carrying out of the agreement to assault the victim and while the accused continued to be a party to the agreement, a party or parties to the agreement did an act or acts which were unlawful and dangerous, and which in fact caused the death of the victim. 3. The accused participated in some way in the joint criminal enterprise to assault the victim. It is sufficient for the Crown to prove that the accused participated in any of the following ways:- (i) The accused himself did an act or acts of assaulting by way of participating in the assaulting of the victim or (ii) At the time when the act or acts which were unlawful and dangerous and which caused death ("the fatal act or acts") were done by some other party or parties to the agreement, the accused was present and knowing that that party or those parties intended to assault the victim, intentionally assisted or encouraged that party or those parties to assault the victim or (iii) In the case of Mr Chai, he procured the party or parties to the agreement who did the fatal act or acts, to assault the victim or (iv) At some time before the fatal act or acts were done, the accused, knowing that other parties to the agreement intended assaulting the victim, had by words or acts assisted or encouraged parties to the agreement, including the party or parties who subsequently did the fatal or acts, to assault the victim. If the jury are satisfied beyond reasonable doubt of all of the elements of manslaughter, they should find the accused guilty of manslaughter. If the jury are not satisfied beyond reasonable doubt of all of the elements of manslaughter, they should find the accused not guilty of manslaughter and should proceed to consider maliciously inflicting grievous bodily harm. MALICIOUSLY INFLICTING GRIEVOUS BODILY HARM Elements:- 1. An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the victim and to cause some injury to the victim. 2. In the course of the carrying out of the agreement to assault the victim and to cause some injury to him and while the accused continued to be a party to the agreement, a party or parties to the agreement did an act or acts in assaulting the victim with intent to cause some injury to the victim, which in fact caused grievous bodily harm, that is really serious bodily injury, to the victim. 3. The accused participated in some way in the joint criminal enterprise to assault the victim and to cause him some injury. It is sufficient for the Crown to prove that the accused participated in any one of the following ways:- (i) The accused himself did an act or acts of assaulting with the intent to cause some injury, by way of participating in the assaulting of the victim. (ii) At the time when the act or acts causing grievous bodily harm were done by some other party or parties to the agreement, the accused was present and knowing that that party or those parties intended to assault the victim and cause him some injury, intentionally assisted or encouraged that party or those parties to assault the victim and to cause him some injury or (iii) In the case of Mr Chai, he procured the party or parties to the agreement who did the act or acts causing really serious bodily harm, to assault the victim and cause the victim some injury. or (iv) At some time before the act or acts causing really serious bodily harm were done, the accused, knowing that the other parties to the agreement intended assaulting the victim and causing him some injury, had by words or acts assisted or encouraged other parties to the agreement, including the party or parties who subsequently did the act or acts causing really serious bodily injury, to assault the victim and cause him some injury. If the jury are satisfied beyond reasonable doubt of all of the elements of maliciously inflicting grievous bodily harm, they should find the accused guilty of maliciously inflicting grievous bodily harm. If the jury are not satisfied beyond reasonable doubt of all of the elements of maliciously inflicting grievous bodily harm, they should find the accused not guilty of that charge. Ground 1: His Honour gave directions to the jury on the elements of the offences with which the appellant was charged which, in totality, were unnecessarily complex and confusing, and misleading. 14 We set out here the trial judge's oral directions in relation to manslaughter (SU 62-64). 1. The first element is the same as the first element in the extended joint criminal enterprise way of establishing guilt of murder. The first element is that an understanding or arrangement amounting to an agreement came into existence between the particular accused you are considering and other persons to assault the victim. All that I said earlier about such an understanding or arrangement applies equally here. It is sufficient that the object of the agreement was merely to assault the victim. It is not necessary that the understanding or arrangement should have included the intentional infliction of grievous bodily harm; 2. And this is the second element of manslaughter; in the course of carrying out the agreement to assault the victim and while the accused whose case you are considering continued to be a party to the agreement, a party or parties to the agreement did an act or acts which were unlawful and dangerous and which in fact caused the death of the particular victim. The crucial point with manslaughter is that it is not necessary that the act or acts which caused death should have been done with the intent either to kill or to inflict grievous bodily harm. It is sufficient that the act or acts were unlawful and dangerous. I direct you that an intentional application of force to the body of another person without that person's consent and in the absence of any lawful excuse is unlawful. In this case there is no evidence of any lawful excuse and you might think it is clear that neither victim consented. An act is dangerous if a reasonable person in the position of the person doing the act would have realised that doing the act would expose another person to an appreciable risk of serious injury. I repeat that an act is dangerous if a reasonable person in the position of the person doing the act would have realised that doing the act would expose another person to an appreciable risk of serious injury. It is not necessary that the person doing the act should himself have realised that doing the act would expose another person to an appreciable risk of serious injury. In the present case the Crown submits that the acts which caused the head injuries from which the victims died were acts which were dangerous; that is, acts such as a reasonable person in the position of the person doing the acts would have realised would expose the person to whom the acts were done to an appreciable risk of serious injury; 3. And this is the third element of manslaughter; the particular accused participated in some way in the criminal enterprise to assault the victim. It is sufficient for the Crown to prove beyond reasonable doubt that the accused participated in any one of the following ways which are similar to ways I have described earlier: The first alternative, the accused himself participated in the assaulting of the victim by doing an act or acts of assaulting; or, secondly, at the time when the act or acts causing death were done by some other party or parties to the parties to the agreement, the accused was present and, knowing that that other party or those other parties intended to assault the victim, intentionally assisted or encouraged that party or those parties to assault the victim; thirdly, in the case of Mr Chai, that he procured the person or persons who did the fatal act or acts to assault the victim; fourthly, even if the accused whose case you are considering was not present at the time when the act or acts causing death were done nevertheless at some time before those acts were done the accused, knowing that other parties to the agreement intended assaulting the victim, had by words or acts assisted or encouraged other parties to the agreement to assault the victim including the party or parties who subsequently did the fatal act or acts. What I said earlier about the subject's presence, knowledge, assisting or encouraging and procuring applies equally here as well. If on any of the four charges of the murder contained in the indictment you are not satisfied beyond reasonable doubt that the Crown has proved all the elements of murder in either the joint criminal enterprise way or the extended joint criminal enterprise way and you are not satisfied beyond reasonable doubt that the Crown has proved all the elements of manslaughter, then you must proceed to consider whether the particular accused is guilty of the crime of maliciously inflicting grievous bodily harm on the victim. 15 It is submitted on behalf of the appellant that errors in relation to the directions concerning murder carried over to the directions given concerning manslaughter. 16 The first asserted error relates to Murder – Joint Criminal Enterprise in the written directions, para 3(i). It is said that it was not and could not have been the Crown case that the appellant himself did the act or acts which resulted in the death of either victim. That is correct. It was impossible to say which blows had caused the deaths of the respective victims. It was accordingly impossible to say whose acts had caused the respective deaths. An oral direction involving the same error had earlier been withdrawn, but the direction was not removed from the written directions later provided to the jury. That was, apparently, an oversight. It is reasonable to assume that the jury appreciated that the written directions, when provided, were not intended to be operative in that respect. But, for the reasons which follow, that is not a critical consideration. 17 Of foremost importance in this regard is that the corresponding direction in relation to manslaughter – in para 3(i) – was materially different from that given in relation to murder. The direction in relation of manslaughter was that participation by the appellant in the alleged joint criminal enterprise could be established by the appellant himself being found to have participated in the assault of the victims as distinct from doing the act or acts resulting in death. There was evidence that this was so. There could, accordingly, have been no "carry over" from the direction in para 3(i) in relation to murder. The error in that direction was not repeated in the direction relating to manslaughter. 18 The second submission was that there was no factual basis on which the jury could conclude – as was left to them in relation to murder – that the act or acts causing death were done in the presence of the appellant, he knowing that the party or parties performing them intended to inflict grievous bodily harm. That was paragraph 3(ii) in the written directions relating to Murder – Joint Criminal Enterprise. 19 The submission is not correct. As to knowledge that the persons inflicting grievous bodily harm intended to do so, that was an inevitable finding assuming knowledge of what was to be done. As for presence, the witness Sang Hoon Lee said the appellant was present at various stages of the episode (Tr 1032-3, 1036-7, 1039, 1047, 1061-3, 1073). The trial judge also correctly directed the jury that, in law, it was sufficient if the appellant was present on the premises, ready and able to assist, although not within sight and hearing of the fatal acts (SU 41-43): Tangye (1997) 92 A Crim R 545, 547. There was evidence to support such constructive presence. 20 The third submission related to the directions concerning Murder – Joint Criminal Enterprise, para 3(iii), namely, that the appellant procured the persons who did the fatal act or acts to inflict really serious bodily injury on the victims. It was open to the jury to find, on the evidence, that the appellant had procured Sang Hoon Lee to do just that. 21 The fourth submission was that the directions in relation to manslaughter based on joint criminal enterprise were unnecessarily complex. That is not an error, even assuming the criticism to be correct, unless the form in which the directions were given was likely to confuse. The criticism is not made out having regard to the decision of the High Court concerning what was meant, and what would have been taken to have been meant, by the word "assault". 22 The fifth submission relates to para 3(iv) in the directions concerning manslaughter. It is said that this paragragh overlapped paras 3(ii) and 3(iii), and that difficulty arose from an attempt to combine liability under the doctrines of common purpose and accessory liability. 23 The criticism is not valid. The Crown case was based on joint criminal enterprise. That necessarily involved some form of participation by the appellant. Assistance and encouragement was a legitimate basis for such participation, amongst others. In Johns (1979-80) 143 CLR 108, Barwick CJ said (at 112): In my opinion, these submissions are clearly unacceptable. In the first place, there is no reason in principle why the participant in a common design or joint enterprise cannot be held as responsible as other participants simply because he remains an accessory before the fact and does not actively participate in the execution of the enterprise to which he has agreed or encouraged. Nor was any authority produced, whether in text book or reported decision, to support the proposition. In my opinion, the participant in a joint enterprise or common design is liable for all that occurs in the course of its execution which is of a kind which fairly falls within the ambit of the enterprise or design, though he is not present at its execution and is only sought to be made liable as an accessory before the fact. The responsibility for acts done within the ambit of the enterprise or design cannot be confined to those who actively participate in or are present at the performance of those acts. Mason, Murphy and Wilson JJ said (at 125): There is nothing in this to suggest that the criterion of complicity and liability should differ as between accessory and principal in the second degree. If they are both parties to the same purpose or design and that purpose or design is the only basis for complicity relied upon against each of them, there is no evident reason why one should be held liable and the other not. No error or confusion arose in this regard. 24 There is then extensive criticism in the appellant's written submissions concerning the trial judge's directions in relation to Murder – Extended Joint Criminal Enterprise. It is unnecessary to take time over those submissions. The directions relating to manslaughter did not include extended joint criminal enterprise. They were limited to straightforward joint criminal enterprise. Accordingly, there is nothing in the directions relating to Murder – Extended Joint Criminal Enterprise, additional to or different from the directions relating to Murder – Joint Criminal Enterprise, which can have had any bearing on the jury's understanding of the directions given in relation to manslaughter. It follows that the appellant's argument about a "carry over" effect from errors in relation to Murder – Joint Criminal Enterprise exhausts the argument concerning a "carry over" effect arising from the directions in relation to Murder – Extended Joint Criminal Enterprise. We have dealt with that argument. 25 The first ground of appeal is not made out. Ground 3: His Honour gave directions to the jury as to the elements of the offence of maliciously inflicting grievous bodily harm which were erroneous and misleading. 26 The appellant's argument begins with the direction given concerning the agreement necessary to support the charge of maliciously inflicting grievous bodily harm. As in relation to the charges of murder and manslaughter, the Crown case was that the offence was committed by the appellant by complicity in a joint criminal enterprise. The agreement necessary to support that case was specified in the written directions (as recorded above) as follows: An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the victim and to cause some injury to the victim. 27 The appellant contrasts that with the agreement necessary to support the case for manslaughter by complicity in a joint criminal enterprise, specified in the written directions (recorded above) as follows: An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the particular victim. 28 The argument is that the necessary agreement specified in relation to inflicting grievous bodily harm contained two elements, namely, to assault the victim and to cause some injury to the victim, whereas the necessary agreement specified in relation to manslaughter contained only one element, namely, to assault. That is said to have conveyed to the jury that, in this respect, the offence of manslaughter involved a lower threshold than the offence of inflicting grievous bodily harm. 29 The answer to this argument is provided by the High Court in its decision on appeal from our earlier decision. The High Court held [at 23] that the word "assault" as used by the trial judge in relation to manslaughter, and as the jury would have understood it in that regard, meant "an assault involving acts of a kind that were objectively dangerous, and of the kind that actually took place". That was a severe and prolonged beating. 30 There is no reason to think the jury would have understood the word "assault" in the directions relating to the offence of inflicting grievous bodily harm to mean something different from its meaning in the directions relating to the offence of manslaughter. 31 The oral directions were in the same vein. In response to a question from the jury as to the difference between what was described in the directions as the first element of the manslaughter charge and the first element of the charge of inflicting grievous bodily harm, the trial judge said (SU 265-6): The first element of maliciously inflicting grievous bodily harm is the same as the first element of manslaughter except that the words "and to cause some injury to the victim" appear at the end of the first element of maliciously inflicting grievous bodily harm. The reason for the inclusion of the words, "and to cause some injury to the victim" in the first element of maliciously inflicting grievous bodily harm is that it is an ingredient of the offence of maliciously inflicting grievous bodily harm, that the inflicting of the grievous bodily harm was maliciously done and in the present circumstances that would require proof beyond reasonable doubt that an understanding or arrangement came into existence between the accused and other persons to assault the victim and to cause some injury to the victim. This explained the presence in the direction relating to inflicting grievous bodily harm of the element, agreement "to cause some injury to the victim". But, because an agreement "to assault" meant agreement to give the victims a severe and prolonged beating, an agreement "to cause some injury to the victim" would have added nothing in substance. 32 It follows that what the appellant categorises as two elements, said by the trial judge to be necessary to satisfy an agreement supporting the offence of inflicting grievous bodily harm, would have been seen by the jury as involving only one in substance. The submission that the jury may have been led, in these circumstances, to think there was a lower threshold for manslaughter than for the offence of inflicting grievous bodily harm, because the threshold for the specified agreement was lower, cannot be sustained. 33 It is further to be noted that the trial judge, elsewhere, gave directions which, in our view, would have left the jury in no doubt that manslaughter was the more serious charge. In the context of distinguishing between the two offences, he directed the jury that they could not find the appellant guilty of manslaughter unless all the elements of manslaughter were established, including elements 2 and 3 in the written submissions (SU 266). Element 2 included an unlawful and dangerous act or acts causing death. 34 A second argument in support of this ground of appeal was that the trial judge erred in specifying an agreement to "assault" as a necessary element of the offence of inflicting grievous bodily harm. 35 It is unnecessary to take time over the intricacies of this argument. The appellant was not convicted of inflicting grievous bodily harm, and it is not shown how the directions in relation to the offence of inflicting grievous bodily harm bear on the appellant's conviction for manslaughter. Ground 4: His Honour erred in allowing evidence by Ms Kim of a statement allegedly made to her by Sang Hoon Lee that the appellant told him to bash the victims, to be admitted as evidence of its truth, or at all. 36 For the purpose of giving consideration to this ground of appeal, we set out the terms of s6(1) of the Criminal Appeal Act 1912 and of r4 of the Criminal Appeal rules. Section 6(1) provides as follows: The court on any appeal under section 5 (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. Rule 4 provides as follows: No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal. 37 Min Jung Kim gave the following evidence (at Tr 1386): Q. When Sang Hoon Lee came home what did you notice about him? A. He had blood on his clothes. Q. Whereabouts did you see the blood? A. The middle of the chest. Q. And when you saw that did you say something to Sang Hoon Lee? A. Yes. Q. What did you say? A. I said, "Why have you got blood on you?" Q. What did he say? A. He said he had a fight with somebody. Q. What did you say? A. "With who". Q. And what did he say? A. He said he got a pager message from Mr Chong Mun Chai, "I was told to go to Ehwa quickly since there was some gangsters there and come here and bash them". 38 This evidence was prima facie admissible by operation of s66 of the Evidence Act 1995, notwithstanding its hearsay character. 39 The submission on appeal is that the trial judge's failure to disallow the evidence altogether pursuant to s137 or to restrict its use pursuant to s136 constituted a miscarriage of justice. 40 Section 137 provides as follows: 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. Section 136 provides as follows, so far as is relevant: The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might … be unfairly prejudicial to a party … 41 No application was made at the trial to disallow the evidence or to limit its use. That is not necessarily fatal. It has long been held that failure by a trial judge to disallow inadmissible evidence may give rise to a miscarriage of justice notwithstanding the absence of objection: Ellis [1910] 2 KB 747; Stirland [1944] AC 327. The same principle applies in relation to a failure to limit the use of evidence. 42 In view of the terms of ss136 and 137, the argument on appeal necessarily depends upon the proposition that the evidence was unfairly prejudicial or that there was a danger that it might be so. For the reasons which follow, we do not see how it could reasonably have been held by the trial judge that this was the situation in the circumstances of the case. 43 Evidence is not unfairly prejudicial merely because it makes it more likely that the accused will be convicted. In Ambrosoli [2002] NSWCCA 386, Mason P (Hulme and Simpson JJ agreeing) cited what he had said in GK (2001) 53 NSWLR 317, at [30]: Section 137 requires the exclusion in criminal proceedings of evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The key term is "unfair prejudice" in the sense of evidence creating "a real risk that the evidence will be misused by the jury in some unfair way": R v BD (1997) 94 A Crim R 131 at 139, per Hunt CJ at CL; see also Papakosmas v The Queen (1999) 196 CLR 297 at 325-326; Ordukaya v Hicks [2000] NSWCA 180; R v Lisoff [1999] NSWCCA 364 at [52]; R v Toki (2000) 116 A Crim R 536 at 548. Merely because evidence points overwhelmingly to guilt does not make it unfair to adduce it. And even if evidence carries a prejudicial overlay its genuine probative value must be put in the scales. 44 What weight the jury gave to the evidence in the present case is questionable. On the one hand, the evidence was capable of providing corroboration of Sang Hoon Lee's evidence that he was summoned to the bar by the appellant, but it went further than that. Sang Hoon Lee's evidence was that he was asked by the appellant to come to the bar quickly and to bring his two companions with him, that two men would be pointed out to him and that he was to bring them into the garage of the premises. He said that, immediately after he arrived at the bar and confronted the two men, the appellant and Shang Hyun Bae turned up with wooden batons and the attack on the two men began in earnest. That was evidence from which it was open to the jury to infer that the appellant had procured the attendance of Sang Hoon Lee and his companions for the purpose of giving the two men a beating. If the account given by Sang Hoon Lee to his girlfriend was reliable, her evidence made explicit what was otherwise only inferential, namely, that the appellant asked Sang Hoon Lee, in terms, to come to the Ehwa and bash the two men. 45 On the other hand, the trial judge warned the jury, pursuant to s165, that Min Jung Kim's evidence might be an unreliable basis on which to find the truth of what she said Sang Hoon Lee told her (SU 90-91). As his Honour said, it was possible that, having arrived home with blood on his clothing, Sang Hoon Lee might have given his girlfriend an untrue version of events which tended to deflect blame for what had occurred from himself to the appellant. 46 It is also possible that Min Jung Kim's evidence might have been seen by the jury as weakening rather than strengthening the Crown case by casting doubt on the reliability of Sang Hoon Lee's account of what had been said to him by the appellant. If Min Jung Kim's evidence of what was said to her by Sang Hoon Lee was reliable, Sang Hoon Lee gave her an arguably different account of that conversation, saying that the appellant had not merely asked him to come and take the men into the garage but that the appellant had asked him to come and bash them. If the jury regarded those two accounts as materially different versions of what was said by the appellant, one version was factually incorrect. Sang Hoon Lee could then be seen as having given at least one incorrect account of what was said. So it could then be asked how either version could be taken to be reliable. 47 Refusing to admit the evidence pursuant to s137 would have resulted in a direction to the jury to disregard the evidence that had been given. A direction pursuant to s136 would presumably have left untouched the first part of what Sang Hoon Lee said according to Min Jung Kim, namely, that he was summoned. The limitation would have been to limit the reported statement that he was told to bash the two men. The jury would presumably have been directed to take the latter part of Min Jung Kim's evidence into account only insofar as it went to the credit of Sang Hoon Lee (whether by supporting his credit with a consistent statement or reflecting on his credit by an inconsistent one, depending on the view the jury took on the question of consistency). No other course pursuant to s136 was proposed in argument. 48 These observations aside, the critical consideration is that the evidence was capable of being seen by the jury as evidence strongly supportive of the Crown case and as significantly strengthening the prospect of the appellant being convicted. In that sense, the evidence was prejudicial or there was, at least, a danger that it was prejudicial. But that is not the question. The question is whether it was unfairly prejudicial. 49 This was not the typical case for operation of s136 or s137 where the evidence is both inessential to the Crown case and liable to cause prejudice to the accused because of its emotional impact if admitted into evidence, or if admitted without some limitation on the way in which it is to be used. There was no risk in the present case that the evidence might be given weight beyond its rational significance. No other reason was suggested in the appellant's submissions on appeal for deciding that the evidence was unfairly prejudicial or that there was a danger that it might be so. 50 We conclude that, had the matter been raised, the only view that would have been reasonably open to the trial judge was that the evidence was not unfairly prejudicial to the accused. 51 McHugh J explained the relationship between s6(1) of the Criminal Appeal Act 1912 and r4 of the Criminal Appeal Rules as follows in Papakosmas (1999) 196 CLR 297 at [72]: There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted. Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant. 52 Having regard to what we have said in relation to this ground of appeal, leave should not be granted pursuant to r4. The ground of appeal accordingly fails. Ground 5: The verdicts of manslaughter returned in respect of the appellant, when examined in the light of the verdicts of maliciously inflicting grievous bodily harm returned in respect of the co-accused Bae, were inconsistent, repugnant, illogical and unreasonable. 53 There was a case against the appellant on the evidence that he had procured the beatings, that the beatings were unlawful and dangerous viewed compendiously, and that the beatings resulted in the death of the victims. That was a case against the appellant of manslaughter by participation in a joint criminal enterprise. 54 No such case was available against Shang Hyun Bae who had not initiated the episode or procured others to beat the victims, as was alleged and open to be found against the appellant. 55 It was open to the jury to find on the evidence that Shang Hyun Bae, by his own acts, inflicted grievous bodily harm on the victims with intent to do so. The jury so found and accordingly found him guilty of that offence. 56 There was no inconsistency between the two verdicts. Ground 6: The trial of the appellant involved a miscarriage of justice 57 This ground of appeal had two limbs. The first was that defects in the summing up referred to in the preceding grounds resulted in a miscarriage of justice, in respect of which the application of the proviso was not appropriate. We refer to our review of the alleged defects in the summing up. Miscarriage of justice has not been established. 58 The second limb was that the conduct of counsel, specified in argument, caused or contributed to a miscarriage of justice: Birks (1990) 19 NSWLR 677; Ignjatic (1993) 68 A Crim R 333. 59 The context in which this ground of appeal arises should be stated. The Crown asserted that the appellant summoned Sang Hoon Lee and his companions to the bar and that, when they arrived, the appellant and the appellant's co-accused joined them in beating the deceased men. Sang Hoon Lee's evidence was that this was so. 60 Concerning his procurement, Sang Hoon Lee gave evidence of the appellant summoning him and his companions to the bar in the course of telephone conversations between the appellant and himself, in which the appellant allegedly said that there were gangsters there, that they would be pointed out on Sang Hoon Lee's arrival, and that Sang Hoon Lee was to bring them to the garage of the bar premises. 61 In his evidence in chief and in cross-examination, the applicant denied that any of those things occurred. He said the telephone calls he made were not intended for Sang Hoon Lee but for Jung Suk Song and were for the innocuous purpose of retrieving a company car. He denied knowing anything about the attack on the deceased men until after the event. 62 In re-examination, the applicant said that in one of the telephone calls he did mention to Sang Hoon Lee that there were gangsters outside but that they had been sent away. He now also added that he had asked Sang Hoon Lee to come and see him. The tenor of that evidence was, however, that this was a casual invitation, involving no urgency or association with gangsters being there or having been there. 63 So the case which the appellant presented in his evidence was that he did not summon Sang Hoon Lee and his companions to the bar to deal with the two men who were outside, and that he did not participate in any attack on the men following Sang Hoon Lee's arrival at the bar. 64 After the Crown had opened its case at the commencement of the trial, the appellant's counsel, Mr A Martin, made an opening statement on behalf of the appellant. The following is an extract (Tr 52-57): We suggest to you that on the 30 January 1997 what happened was started with a simple coincidence. Ki Hyun Bae was driving through the streets of Sydney and he saw the white Saab car, a fairly distinctive looking car. It was being driven by Jang in the streets, and you recall I put to you and I think it will be shown in evidence that that car was in fact owned by a company and Ki Hyun Bae was a shareholder in the Company along with Kevin Cho. … … … [Later] Shang Hyun Bae was somewhere outside the room occupied by Ki Hyun Bae and Jin Hun Jang but at some stage he went to the front door and looked outside. He saw two men in a parked car. That would have to be Dok Su Kim and Duck Hwan Kim sitting in their Ford Festiva at that time parked either in Earl Place or illegally parked outside the Nam Gang on the corner of Earl Place and Earl Street. That corner is about 35 metres from the entrance of the Ehwa. Mr Bae went inside and spoke to Mr Jang. Jang went outside for a while and came back and re-entered the room. Shang Hyun Bae some time later went to the front and went out again and he called out words to the effect that they were still there; presumably called out in a loud voice because of the sound of the music playing in room 3. Kwang Min Park will say that he heard those words called out by Mr Bae but couldn't make them out. Mr Jang apparently according to Kwang Min Park was in the same position. Mr Chai said "What?" Jang says that about that time he was asked by Shang Hyun Bae to go outside and shoo these two men away. Mr Chai, alerted to what was going on, rang the security company he employs but couldn't get through. He then rang one phone number looking for Sang Hoon Lee, the same man who had run to him for help on the night of the 7 January. There was no answer. He referred to a paging service and he left a message. Later he was rung by Lee who was told about the situation and asked to come to the Ehwa to tell the two men to move on. Lee was specifically told no fighting by Mr Chai and you might think that's logical. Obviously it is not in Mr Chai's interest to have fights going on in Earl Street or Earl place. … … … At about this time, at about the time when Jang went outside just before those phone calls were made, Sang Hoon Lee had arrived with his two friends called Myoung Il Jong and Jung Suk Song. Their names again are up on the Board. Apparently when Sang Hoon Lee was contacted he was working out of the city gym with these two associates. He shared a flat with Myoung Il Jong but I don't think Jung Suk Song was someone he knew only from the gym. Jang came out at about the time these three arrived. … … … What happened at that time is by no means certain. Mr Chai says at about this time he was either in the room he used as an office store room or he had gone into room 5 which he did for a short period of time to see how the young ladies were going. Those who can tell us exactly what took place at that time are either dead, have fled the country or we say not inclined to tell the truth fearing imprisonment. 65 Mr Martin continued with a suggested reconstruction of the attack on the two men which did not involve participation or knowledge on the part of the appellant. 66 That, obviously enough, was substantially different from the account of events given on oath by the appellant later in the trial. It involved a concession that the appellant summoned Sang Hoon Lee and his companions to deal with the two men who were there, but that Sang Hoon Lee was told there was to be no fighting. 67 Mr Martin's cross-examination of Sang Hoon Lee was in the same vein. It was not suggested to Sang Hoon Lee that he and his companions had not been summoned to the bar to deal with the two men. What was put to Sang Hoon Lee in cross-examination conformed with the scenario in the opening statement. 68 The opening statement made by Mr Martin and the vein in which Lee was cross-examined provided the Crown Prosecutor with the argument - which was put to the appellant in cross-examination and to the jury in final address - that the appellant had changed his story in the course of the trial, that he had initially instructed Mr Martin that the events were as Mr Martin told the jury in the opening statement and as Mr Martin put to Sang Hoon Lee in cross-examination, and that the appellant had later decided to give a different version of events when it came to giving evidence. 69 It cannot be doubted that, in a case which turned on oath against oath, these developments were very damaging to the appellant. 70 The case sought to be made on appeal was that the opening statement by Mr Martin and the cross-examination of Sang Hoon Lee were inconsistent with the appellant's instructions and that the prejudice the appellant suffered in consequence constituted a miscarriage of justice. 71 Evidence was given at the hearing of the appeal by the appellant, by Jacob Kim (the interpreter who assisted the appellant in conferences with his lawyers and at court), by Mr Martin (the appellant's counsel) and by Ms Baptie (the appellant's solicitor). We need refer only to the salient features of that evidence. We will pass over aspects of the evidence which are relevant but ultimately inessential for resolution of what has to be decided. 72 The appellant said that, in the instructions he gave his lawyers before the trial commenced, the course of events was the same as that which he later gave in his evidence in chief at the trial, including that he had not summoned Sang Hoon Lee. 73 As to the evidence given by the appellant in his re-examination at the trial, the appellant said that his reference to gangsters on that occasion was untrue and that he had given false evidence in that regard on Mr Martin's insistence. 74 Jacob Kim corroborated the appellant's account of the instructions given by the appellant to his lawyers prior to commencement of the trial, including the innocuous reason advanced by the appellant for the telephone calls, that there had been no request for Sang Hoon Lee to come, and that there had been no mention of gangsters in the telephone conversations. 75 Mr Martin, on the other hand, said, in his evidence, that the opening statement conformed with his understanding of his instructions at that time. He went on to say that, prior to the appellant giving evidence, he had further conferences with the appellant. A proof of evidence was prepared by Mr Martin. He said it was based on earlier instructions and other detailed instructions given by the appellant. In part, it read as follows: 8. I rang the Unicorn trying to contact Jon Suk Song but couldn't contact him. I rang Sang Hoon Lee's pager number in fact by accident because I confused his number with that of Jon Suk Song. My main reason for ringing was not anything to do with the people Jang talked about, it was to get the company car back. I mentioned the "gangsters" only as an excuse to have them return the car. I used my mobile for these calls – Kwang Min Park told me there was a call on the landline and I spoke to Sang Hoon Lee. I asked for Jon Suk because he was the person I wanted to speak to, not Sang Hoon Lee. I tried to speak to Jon Suk but the line kept breaking up. I used the mobile to call Jon Suk Song because the landline at the Ehwa couldn't be used to call mobile numbers. I discussed something about gangsters being outside and how I didn't want any fighting (like what had happened at the Bee Won). I didn't think the situation was dangerous or urgent – my main reason for ringing was to get the car back. Frankly I wasn't confident they would come at all. I told them to come to the shop. I remember distinctly telling Sang Hoon Lee I didn't want any fighting. My main concern was not that Sang Hoon Lee and the others would fight with these men but that the men would fight with one another as they had done before. 76 That account differed significantly from Mr Martin's opening statement in that it did not include a request to Sang Hoon Lee to come and deal with the two men. It was also different from the evidence subsequently given by the applicant at the trial in which the applicant denied that he told Sang Hoon Lee there was to be no fighting. 77 Mr Martin said that, when the time came for him to open the appellant's case before calling evidence, the appellant had not confirmed what his instructions now were. Mr Martin said he gave an opening address to the jury at this stage which he believed would accommodate what he now thought the appellant wished to say. 78 Mr Martin conceded that there may have been some misunderstandings between the appellant and himself in relation to the appellants instructions concerning subsidiary matters, such as the prior attempt to contact the security company, but not about gangsters being present (whether mentioned as such or by name) and not about no fighting. 79 Ms Baptie took notes at conferences she attended and notes were also taken by other solicitors from her office who attended conferences from time to time. Notes taken on 9 February 1998 include: re: phone call – Chai paged Lee and Lee called Chai back. Why page? – Jang told Chai that there were gangsters outside. … … … Asked to contact security Unable to contact security company – asked for Lee's pager – from Bae … … … Call close friends and asked them to intercede "Calm down … send them away" Notes taken on 13 February 1998 include: - 30 Jan Lee says got pager message. Don't know what time (Chai). Page said urgent ring Ehwa. Always page and say urgent but that night was urgent. - Lee says rang on mobile and you said gang kids are there Mon Il and Jon Soc. No I didn't say that. - Told him gangs have to get money off him, can you come? I told him not to get into any fighting but control them. Also paged him because couldn't get hold of security guards. Notes taken on 19 February 1998 include: I said I do not fight. … … … When I said left an urgent message he didn't come (I didn't comprehend) I was quite desperate. I didn't know what he thought about message. When he called me he said he was exercising in a gym and I think that he be balance in power with people outside. I said again don't fight. We don't have a relationship that I could order him to do anything. 80 The notes reflect some difficulty with language but the content is clear in critical respects. They refer unequivocally to the appellant having summoned Sang Hoon Lee urgently to deal with gangsters who were there, and to the appellant saying there was to be no fighting. 81 Either the notes establish that the appellant's initial instructions were as Mr Martin says and as he presented the appellant's position to the jury in his opening statement, or the notes are fabricated. It was not suggested to Ms Baptie that the latter was the case. We have no doubt that the notes are genuine. 82 Recognising that memory becomes less reliable over time and that people tend to remember events in a way that suits, one looks for reliable, objective evidence to resolve conflicting testimony dependant upon recollection. The solicitor's notes fulfil that role. They corroborate the account given by Mr Martin and Ms Baptie concerning the initial instructions. They show that the appellant's account of his initial instructions is incorrect and that the interpreter, Jacob Kim, is mistaken in his recollections of what was said by the appellant at that time. 83 The proof of evidence taken shortly before the appellant gave his evidence shows that the appellant was changing his account of events at that stage, although it was not yet clear what his new account would be in every detail. The account which he ultimately gave in evidence, denying that he summoned Sang Hoon Lee to deal with the two men and denying he told Sang Hoon Lee there was to be no fighting, was materially different from his initial instructions. He had changed his story fundamentally and was solely responsible for the prejudice which that brought upon him. 84 We would add that Mr Martin impressed us with his care not to overstate what he recalled and to concede where misunderstandings could have arisen. We believe that he and Ms Baptie were conscientious, reliable and honest witnesses. By contrast, the appellant had already demonstrated, by his confession of having given false evidence in re-examination at the trial, that he was willing to say whatever he perceived to be to his advantage. We prefer the evidence of Mr Martin and Ms Baptie to that of the appellant and we are comfortably satisfied that Mr Martin was instructed by the appellant the he had telephoned Sang Hoon Lee, asked him to come to the Ehwa and told him there was to be "no fighting". 85 It is unnecessary, in these circumstances, to embark upon a discussion as to how the conduct of trial counsel may sound in a miscarriage of justice, for which purpose the decision of the High Court in TKWJ [2002] HCA 46 is now a relevant authority. The factual basis for this ground of appeal is not made out. Conclusion 86 The appeal should be dismissed. -oOo- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.