Reported Decision: 180 A Crim R 267 New South Wales Court of Criminal Appeal CITATION: Duong Hai Nguyen v R, ATCN v R, Khanh Hoang Nguyen v R, Minh Thy Huynh v R. [2007] NSWCCA 363 HEARING DATE(S): 14 September 2007 JUDGMENT DATE: 21 December 2007 JUDGMENT OF: Mason P at 1; Adams J at 2; Smart AJ at 3 DECISION: See para 150 CATCHWORDS: Charges of murder and maliciously inflict grievous bodily harm with intent. Correct directions as to extended joint enterprise for murder and manslaughter. Directions given deficient. Challenges to admission of identification evidence rejected. Identification evidence strong. No unfair prejudice in its admission. Duong Hai Nguyen as the shooter and principal offender correctly convicted of murder. Overlooking of jury note and not answering request for further directions or telling parties of note. New trials ordered for alleged other offenders. Sentence. Offence of murder of Duong Hai Nguyen classified as mid-range and not substantially above mid-range. Sentence reduced accordingly. Sentences for murder and maliciously inflict grievous bodily harm with intent partially cumulative. No special circumstances other than accumulation. Parole period one-third of total non-parole periods. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Carusi (1997) 92 A Crim R 52 55 Clayton v The Queen [2006]HCA 58 Hui Chi-Ming v The Queen [1992] 1 AC 34 CASES CITED: McAuliffe v The Queen (1995) 183 CLR 108 R v Sharah 1992 30 NSWLR 292 Reg v Hyde [1991] 1 QB 134 Smith v The Queen 206 CLR 650 PARTIES: Duong Hai Nguyen v R, ATCN v R, Khanh Hoang Nguyen v R, Minh Thy Huynh v R FILE NUMBER(S): CCA 20007/1145, 2007/1139, 2007/1132, 2007/787 C Nash & D Kang for: Duong Hai Nguyen, ATCN, Khanh Hoang Nguyen A Cook for: COUNSEL: Minh Thy Huynh P Ingram for: Crown Legal Aid Commission for: Duong Hai Nguyen, ATCN, Khanh Hoang Nguyen M Klees for: Minh Thy Huynh SOLICITORS: S Kavanagh for: Crown LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2005/205; 2005/424; 2005/191; 2005/189 LOWER COURT JUDICIAL OFFICER: Hulme J LOWER COURT DATE OF DECISION: 11/08/06 IN THE COURT OF CRIMINAL APPEAL MASON P ADAMS J SMART AJ Friday, 21 December 2007 2007/1145: Duong Hai NGUYEN (Duong) v Regina 2007/1139 : ATCN v Regina 2007/1132 : Khanh Hoang NGUYEN (Khanh) v Regina 2007/787 Minh Thy HUYNH (Minh) v Regina JUDGMENT 1 MASON P: I have had the benefit of reading the draft of the decision of Smart AJ. 2 I agree with it and the orders proposed, save with respect to the sentencing matter involving the appellant Duong. 3 In my view, it was open to the primary judge to conclude, for the reasons he gave, that Duong's offence was above the middle range of objective seriousness. This conclusion entailed an evaluative judgment, as did the length of the stern sentence that derived from it. I am not persuaded of any appealable error in the primary conclusion or the sentence itself. 4 ADAMS J: I agree with Smart AJ. 5 SMART AJ: Each of the four abovementioned men appeals against his conviction of the murder of Linda Huynh and of maliciously inflicting grievous bodily harm with intent upon Hien Duc Phan. Each also seeks leave to appeal against the severity of the long terms of imprisonment imposed upon him. ATCN was 16 at the time of the offences. Duong Hai Nguyen was the principal (first degree) as he fired the gun and led the other men. The judge left the case to the jury in four different ways, namely that the firing of the gun was an act of a particular accused ie., Duong, that the firing of a gun was in furtherance of and within the scope of a joint criminal enterprise and on the basis that the firing of a gun was outside the scope of the joint criminal enterprise, but such firing which was both contemplated by the particular accused as a possibility and occurred while he was still participating in that enterprise (often referred to as extended joint enterprise). The fourth basis was that the particular accused was present intentionally aiding and abetting the shooter. As to each basis the jury were instructed that the Crown had to prove that, at the time a gun was fired, this was done with an intention to kill someone or inflict grievous bodily harm on someone. 6 The appellants' challenges fell into three main categories: (a) Wrongful admission of identification evidence (Minh did not rely on this ground) (b) Erroneous directions as to extended joint enterprise (c) Failing to advise the parties of the terms of a jury note inadvertently overlooked and to advise the jury in response to their request to clarify the definition of joint criminal enterprise in murder and joint criminal enterprise in manslaughter. 7 On the night of 6 January 2004 Tien Duc Nguyen was celebrating his birthday with a party in the courtyard of Billiards 2000 in Cabramatta. Billiards 2000 has a long front pool hall (towards the rear of which is the manager's counter and in which a number of people were playing), a smaller back pool hall, a small back room (which was being used for food preparation) and a back courtyard with tables, chairs, a barbeque and a raised garden bed. Around 11.00 pm that night four men, some few seconds apart entered the front pool hall and walked through it, in a purposeful fashion, to the rear of the premises. The first man to enter had a handgun and on the Crown case was Duong. The next two men were ATCN, aged 16, and Minh. Lastly came Khanh who was carrying a samurai sword concealed under some material. The parties were, for the purposes of the conviction appeal, prepared to proceed on the basis of the facts stated by the trial judge in his sentencing remarks, which have been edited: "1 On 6 January 2004 four males, some few seconds apart, entered a billiard hall known as Billiards 2000, located in Cabramatta and walked through it to the rear. To a substantial degree their entry and movement through the billiard hall, and the subsequent departure of 2 of them, was recorded via 2 CCTV cameras which were mounted on the ceiling of the premises. The men made no attempt to hide their faces or conceal their appearance. As they walked through the billiard hall the first man reached into his waistband. I have no doubt that what he reached for was a pistol which, though only as a dark object, is to be seen in a photograph as he entered. As he walked through, the fourth man pulled out a Samurai sword or something similar from a towel or other cloth under which it was concealed and threw the cloth, and a scabbard onto one of the billiard tables. As he left a little later, he retrieved these items. 2 At least 3 of them entered a room behind the main part of the billiard hall where they were seen and the fourth man identified by a witness Mai Nguyen. (I may interpolate that, although there is a deal of commonality of names, first or family, between those involved in this case, virtually none of the persons with the same name were related. The similarity led to a number of persons being identified by their first names during the trial and it may be convenient at times for me to retain that nomenclature here. ) 3 The first man passed through that room and into a courtyard behind. By the time of his entry in to the courtyard, he had the pistol drawn. In the courtyard at the time some sort of celebration was being held for the birthday of Tien Duc Nguyen and about 10 people were then present. The first man advanced some distance with the weapon pointed at or in the direction of Tien Duc Nguyen and then fired at fairly close range – albeit over 50 centimetres - at least twice. It seems likely, although the evidence does not enable me to make the finding beyond reasonable doubt, that the intended victim was Tien Duc Nguyen. In fact one of the guests Linda Huynh was shot, fatally, in the chest and another, Hien Duc Phan, in the arm and possibly the nose. The 4 men then decamped. 4 Nothing occurred in the courtyard that provided any introduction to, or explanation for, the shooting. When police arrived some time later, they found in the courtyard, not only two 9mm cartridge cases from the weapon obviously used by the gunman but three complete .22 calibre cartridges and a spring, follower and base plate, being parts from a magazine of a .22 calibre pistol. Their presence suggests a magazine had simply fallen apart. Such items are not normally left lying around and I draw the inference that one of the guests at the birthday party was also armed with a weapon which, in a poor state of repair, fell apart. However, having regard to the evidence as to the actions of the 4 persons captured on the CCTV camera and of persons present at the time, I have no doubt that the presence of the .22 weapon in no way contributed to the commission of the offences with which I am concerned. … 7 The CCTV recordings are not clear and I allowed other evidence of identification to be given. The jury accepted that the first of the men, and the gunman, was Duong Nguyen, the second ATCN, the third Minh Thy Huynh and the fourth, the man with the sword, Khanh Nguyen. Against the possibility that it is for me to determine the identity of the 4 persons, from within the 4 Prisoners, as distinct from infer what the jury did, I should add that independently of the jury's view, I would draw the same conclusion. The evidence of each of Constables Purcell and Young was convincing. Despite her lies on a considerable number of other issues, so was that of Aimee Duong on the issue of identification. So was that of Mai Nguyen who identified Khanh Nguyen. 8 In the way in which the case was conducted, the jury's verdict carries with it the implication that the four were engaged in a joint criminal enterprise. Indeed, the actions of the 4, as captured by the CCTV cameras, the actions of the gunman not in dispute and the evidence of Mai Nguyen, albeit dealing with only 3 of the persons, could leave no possibility of doubt on that score. 9 A number of matters may be specifically mentioned. Firstly, the actions of the gunman leave room for no doubt that his intention was to kill and his actions premeditated, and this whether or not the intended victim was Tien Duc Nguyen. What the gunman intended was a cold-blooded execution. 10 A second is the way in which the gun was carried. Although out in the street it may have been concealed under a jacket Mr Nguyen was wearing, there was nothing to suggest its presence was concealed from his co-offenders. A third is the obvious presence and inherent nature of the sword. A fourth is the obvious deliberateness of the actions of all 4 in the pre-shooting movements depicted on the CCTV camera recordings. A fifth is that there is no evidence that the second and third men were armed. " 8 The judge found that the four men were all close friends or acquaintances and that the three men other than Duong were each actively, knowingly and with premeditation participating in the offences he committed and that each was there to, either or both, provide support and encouragement to the gunman and deter, if not deal with, any resistance. Identification Evidence 9 Duong, ATCN and Khanh challenged the admission of the identification evidence, alleging the judge had erred in admitting: Ground 2 – the visual identification of Senior Constables Purcell and Young Ground 3 - the visual identification evidence of Amee Duong Ground 4 - the voice identification evidence of Amee Duong of Khanh. 10 The judge held an extensive preliminary enquiry (voir dire) to determine the admissibility of the challenged evidence. On 20 April 2006 the judge ruled that the identification evidence of Snr Constables Purcell and Young was admissible. 11 In his detailed reasons the judge noted Snr Cons Young's evidence that he had been stationed at Cabramatta since 1995 and his duties had included beat policing and bike squad duties. Since 1996 he had met with Khanh on well over 100 occasions and with each of the other appellants on at least 50 occasions. Snr Cons Young had custody management of Duong between 4.05 to 5.22pm on 10 October 2001. On occasions he had spent in excess of half an hour in face to face contact with all four appellants. He had seen each of them within the three months prior to 6 January 2004 and spoken with all but ATCN. 12 The judge pointed out that the quality of the images on the CCTV footage from Billiards 2000 varies from one frame to another and also varies as between the four persons shown, that from the point of view of identification many of the images were useless, that the best were no better than fair and that that would be regarded by many as an overstatement. 13 About 1.00am on 7 January 2004 Snr Cons Young had been recalled to duty and viewed the CCTV footage. On first viewing the CCTV footage from Billiards 2000 he had identified the first man depicted as either Duong or Anh Hoa Tran and the second man depicted as ATCN. He was unable to recognise the third man and observed the fourth man depicted to be similar to Khanh, relating some features of the fourth man seen to features he had previously observed Khanh to have. 14 Later on 7 January 2004 Snr Cons Young saw some still photos taken from the CCTV footage. He then positively identified the first man as Duong, confirmed the second man as ATCN, identified the third man as Minh and identified the fourth man as Khanh. The judge commented that Cons Young seemed to indicate that it was the whole aspect of the first person depicted that led him to think that that person was, as one of two possibilities, Duong Hai Nguyen. 15 The judge noted the following further evidence of Cons Young: (a) ATCN, apart from his hair had very angled eyebrows which made his quite round and boyish face seem more angular. ATCN had a distinctive walk, often with his hands behind his back. The second man depicted on the CCTV footage walked that way. (b) Khanh exhibited a mannerism of apparent excitement, a factor which he had observed on the CCTV footage. Cons Young also referred to hair, a skeletal long face, a slim build and height but he said that these were not the only things and that it was not easy to describe some of this accused's attributes. He said that his identification was because he knew all of the accused so well. 16 Snr Cons Purcell described having been involved in extensive police duties in and around the streets of Cabramatta from about 1998 until 2004. He said that during most of this time he had seen Khanh on a near weekly basis including on at least two occasions between 30 December 2003 and 5 January 2004, speaking to him often at least to some extent. Snr Cons Purcell said that he had known Duong for 2½ to 3 years, having seen him many times. Snr Cons Purcell said that he rarely spoke with Duong but he did say hello or acknowledge him. Snr Cons Purcell said that he had noted that Duong walks in a very upright position with shoulders back and did not swing his arms a great deal, leaving them down by his sides. 17 Snr Cons Purcell stated that he had known ATCN for about 12 months or more adding that he was quite distinctive, describing his appearance, his ways of walking one being with his hands behind his back and how he generally dressed, He had seen him with Duong. On many occasions in the last few months (prior to 8 January 2004) the constable had seen ATCN standing outside the entrance to Viet Hoa Shopping Arcade. 18 Snr Cons Purcell stated that he had known Minh through his association with Khanh for at least two years and that Minh Thi Huynh was often in company with Khanh Hoang Nguyen and was distinctive in his appearance and gave some details. Snr Cons Purcell stated that he had known each of the four men for some time and had seen the ones he knew at least on not less than 50 occasions. On watching the CCTV footage on the morning of 7 January 2004 he "immediately and with absolute certainty recognised the first male depicted as Duong and the second male depicted as ATCN. Snr Cons Purcell, because of the flickering of the tape could not recognise, at that stage, the third man. The fourth male passed the camera too quickly for him to recognise him at that stage. He did note that the fourth male was carrying and removed a blue cloth from the top of a Samurai sword. As the four men left the premises the Constable did not recognise the third man, but believed the fourth man was Khanh. 19 On re-watching the CCTV footage on 7 January 2004 and pausing on the view of the fourth male from the front Cons Purcell realised that this was definitely Khanh. 20 On the following day, 8 January 2004 Cons Purcell viewed still photographs from the CCTV footage of the third man and recognised without doubt that it was Minh. 21 In cross-examination Cons Purcell was not able to pinpoint one particular thing that led him to conclude that the first male depicted was Duong. The whole image of the CCTV matched what was already in his mind. 22 The judge held: "25 The evidence of Senior Constables Young and Purcell made it clear that there were differences between the appearance of each of the Accused at about the time of the offence with which they have been charged and their appearance at the time of trial, differences which in the circumstances of the material available to the jury I regarded as significant. It is unnecessary for the purposes of these reasons that I detail those differences. Most are referred to in the transcript at pages 623-6 (Constable Purcell) and at pages 663-6 (Constable Young). 26 Prior to the officers giving evidence I myself had noticed differences between the appearance of each of the accused in the dock and their appearance as depicted in photographs tendered in evidence in the trial, some of which photographs had been taken at about the time of their arrest and some earlier. After the conclusion of evidence but prior to submissions on the voir dire I indicated to counsel in a document which became MFI 14 and subject to an order it be kept in the Court file my impressions in this regard. No counsel sought to argue against the existence of the differences reflected in the document and which in part at least accorded with the evidence given by the police officers. As a matter of convenience, I attach a copy of MFI 14 to these reasons. 27 Thus the circumstances here are significantly different from those the subject of remark in Smith v R . In the case of all Accused, the constables' assertions of identity are founded on material appreciably different from that available to the jury. It was thus not irrelevant on the basis evidence in Smith v R was held to be. Once that ground is put aside, it is clear that the constables' evidence is relevant." 23 Following the joint judgment of four Justices in Smith v The Queen 206 CLR 650 at [10] I accept that as to each of the four men the fact in issue was "Is the person standing trial the person who is depicted in the CCTV footage and the photographs as the first, second, third or fourth male respectively? In Smith at [11] the joint judgment made the point that because "the witness's assertion of identity was founded on material no different to the material available to the jury from its own observation, the witness's assertion that he recognized the appellant is not evidence that could rationally affect the assessment by the jury of the question" identified. Thus the assertion was irrelevant. 24 On the evidence it was open to the judge to conclude that the assertions of identity by both Snr Constables were founded on material different from that available to the jury. 25 I do not agree that the identification evidence of the two police officers in the third trial was an impermissible usurpation of the jury's role in the circumstances. When they made their identification they were relying on their detailed knowledge of each of Duong, ATCN and Khanh at about the time of the commission of the offence. The identifications were made on 7 January 2004 and the following day. The trial commenced on 29 March 2006. 26 In his reasons the judge recognised that while some of the evidence of Constables Purcell and Young as to the appearance of the various accused was evidence of fact, some of their evidence was opinion evidence. At [28]-[30] the judge said: "28 While some of the evidence of Constables Purcell and Young as to the appearance of the Accused was evidence of fact, e.g. their description of the length of hair, bone structure of the face, and manner of walking, there is no doubt that some of their evidence, and that the subject of these reasons, is properly characterised as opinion evidence. I include in this category the officer's evidence to the effect that the persons depicted on the CCTV recording and the still photographs taken from that footage are the Accused. In my earlier reasons dealing with similar identification evidence from Ms Duong I set out, so far as is presently relevant, my understanding of the operation of s78 and remarked on a number of decisions or earlier judicial observations concerning ss78 and 79 of the Evidence Act and it is unnecessary to repeat much of what I there said. 29 In the case of each of Constables Young and Purcell also, I am satisfied that his evidence that a person depicted in the CCTV footage (and still) is a particular Accused is clearly based on what he has seen or perceived about, firstly, the real life appearance of that Accused and, secondly, what is depicted in the recorded footage. As I said previously, 'In the context of s78, each of these items – the word 'matters' most naturally springs to mind but I wish to avoid prejudgment or the appearance of it – may fairly be regarded as a 'matter' or 'event', most appropriately the former.' Again in the case of the evidence of the each of the 2 constables, "the difficulties of describing people, particularly their facial features, in a way which amounts to anything remotely approaching a definitive description, means that evidence of (his) opinion is necessary to obtain an adequate account or understanding of (his) perception of the identity of the persons depicted on the CCTV footage". The same remarks will often apply in the case of a walk. It is one thing to say that someone tends to roll from side to side. It is another to describe that tendency with sufficient precision to identify one person having that mannerism from others sharing it. Thus I regard the constable's opinion evidence as admissible within the terms of s78. 30 Although the degree of acquaintanceship with the Accused varied, I am satisfied that each of the officers has specialised knowledge concerning the appearance or identity of all 4 Accused, based on fairly extensive experience of them and that his evidence that the persons depicted on the CCTV footage (or stills) are the Accused is evidence of opinions based substantially on that knowledge and that the evidence of each comes within s79 also." 27 Duong, ATCN and Khanh submitted that the judge erred in admitting the two police officers purported identification of them on the basis that it was "lay opinion" and "opinion based on specialized knowledge". These appellants complained that the judge had not sufficiently identified what was evidence of fact and what was evidence of opinion. It was submitted that should the officers ultimate identification meet the threshold of relevancy it should have been regarded as opinion evidence and excluded. Further, it was evident that much of the final identification depended on the still photographs of poor quality. The still photographs could not have assisted the police officers in determining the physical movements and physical habits of the three appellants. They pointed out the limitations of still photographs, relying on the remarks of Hunt J in Carusi (1997) 92 A Crim R 52 at 55. 28 It is a mistake to take the CCTV footage and the still photographs separately and in isolation. Taken together they allowed an overall picture to be formed of the persons captured, especially when the Constables had seen and met them frequently and reasonably close to the time of the commission of the crime and they viewed the CCTV footage and the still photographs on 7 January 2004 (Young) and 7 and 8 January 2004 (Purcell). The Court was referred to Beattie [2001] NSWCCA 502, Marsh 2005 NSWCCA 331 and Drollet [2005] NSWCCA 356. 29 What stands out in the present case is that both officers knew all appellants and the considerable opportunities they had to observe them and did so and the extent of their contact and observations. Both officers had a clear picture in their minds of each of the three appellants who have raised the admissibility of the identification evidence. 30 The judge held that the evidence of the police officers to the effect that the persons depicted on the CCTV footage and the still photographs taken from that footage are the accused was opinion evidence. He also held that the evidence of each of the officers was based on what he had seen or perceived about, firstly the real life appearance of the particular accused and secondly what is depicted in the recorded footage. Section 78 of the Evidence Act provides: "the opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event." 31 It was open to the judge to hold that both of these requirements were met. It would have been surprising if he had held otherwise. 32 Section 79 of the Evidence Act provides: "If a person has specialized knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge." 33 It was part of the duties of each officer to make himself familiar with those who were in the streets of Cabramatta CBD from time to time as he patrolled those streets and establish contact with them. As a result of many years of discharging police duties, much of it on the front line, both officers did so. Each acquired specialised knowledge based on his experience. 34 The judge was entitled to hold that each officer had specialized knowledge concerning the appearance or identity of all four appellants. Again, it would have been surprising if he had not done so. 35 In reliance upon sections 135 and 137 of the Evidence Act Duong, ATCN and Khanh submitted that the identification evidence of the officers should have been excluded on the basis that the probative value of their identification evidence was outweighed by the danger of unfair prejudice to them. It was submitted that the evidence of the officers necessarily involved the jury being informed that the appellants were under regular observation within the notoriously crime-ridden Cabramatta area, thereby raising issues of bad character or illegal activity creating substantial unfair prejudice to the appellants. 36 Cons Purcell in his evidence before the jury said that he had been patrolling the streets of Cabramatta for eight years and that he had developed a network of friendship with many locals over that time. He lived a short driving distance from Cabramatta and regularly went to Cabramatta to eat, drink and socialize even on his days off. He often saw Khanh in a coffee shop in the Viet Hoa Arcade, He often saw Khanh with his associates, ATCN, Minh and Duong and others in the streets of the commercial centre of Cabramatta. Cons Purcell gave detailed evidence as to his meetings with Khanh, his appearance and clothing. He also gave evidence as to his meetings with and observations of Duong. Cons Purcell gave evidence as to the appearance and mannerisms of ATCN. Cons Purcell gave evidence that Minh had a distinctive appearance and was often seen by him in company with Khanh. There was nothing in Cons Purcell's evidence to suggest that any of these men were behaving badly or in a criminal or illegal fashion. 37 Cons Young gave evidence before the jury of being out on the streets of Cabramatta daily for many years as part of his work. He had known Khanh since 1996 and had seen him over the years in company with Minh, ATCN and Duong. He recalled a particular occasion on 7 November 2003 when he had introduced Det Sgt Cutler to each of Minh, Khanh and Duong. It was a friendly occasion. Again there was no suggestion in his evidence that these men had prior to 6 January 2004 been behaving badly or were guilty of criminal conduct. It was part of Cons Young's job to get to know the local population. 38 Having regard to the careful way in which the Crown led the evidence I do not think there was the prejudice or potential prejudice of which the three appellants complain. 39 Even if there was mild prejudice because of the evidence that the police noticed the appellants amongst others and spoke with them, which I very much doubt, the probative value of each officer's evidence exceeded the danger of unfair prejudice (s 137 of the Evidence Act) and the danger that the evidence of each of the officers may be unfairly prejudicial to any of the appellants. While there was other evidence of identification the evidence of each officer constituted cogent evidence of identification in a case where very serious crimes were charged. The judge was correct to reject the contentions of the appellants that the evidence of the police officers should not be admitted pursuant to s 137 or s 135 of the Evidence Act. 40 Appeal Ground 2 should be rejected. Appeal Ground 3 – The … judge erred in admitting the visual identification evidence of Amee Duong 41 Amee Duong gave evidence before the jury that she had gone out with Duong for about a year before their daughter was born on 25 December 2001 and that she continued to go out with Duong for about a year after their daughter was born. She continued to see Duong after that from time to time. He came to visit their daughter at her parents' house and she was there at the time. He visited on 25 December 2003 on their daughter's second birthday. She said that Duong was the person who came to Billiards 2000 on the night of January 2004, entered the courtyard pointed the gun at Tien, her current boyfriend and fired the gun he (Duong) was holding. 42 She heard two shots and a couple of seconds later another two shots. Duong left through the doorway to the courtyard. She saw the deceased on the ground and her boyfriend trying to wake her. Amee Duong became very nervous and left in a hurry with her current boyfriend Tien Duc Nguyen ("Tien"). After they had left the premises she noticed blood in Tien's hand and upper arm. 43 Immediately before the gun was fired Amee Duong said that she heard another man call out in Vietnamese, "Shoot them, Shoot them". 44 A voir dire examination was held. Amee Duong said that in the 12 months before her daughter was born she came to know a number of Duong's friends. These included a man called "T-Bone" (Minh), ATCN and Khanh. She said that in 1999 and 2000 she was in the same year (Years 7 and 8 respectively) as ATCN at Cabramatta High School. They were in the same class some of the time. She got to know him. She saw him at school almost every day. After she left school in mid-2001 she saw ATCN at Duong's house. Duong lived there with ATCN, T-Bone, Khanh and some three or four others. Amee said that she went to Duong's house two or three times per week. On occasions she stayed overnight. She was there during the day as well as at night. 45 After she left school she saw ATCN occasionally at the house and also at the Cabramatta shops. She had seen ATCN a couple of days before the shooting. 46 Amee Duong said that she first met Khanh in a nightclub in 2000 or 2001; she thought it was 2000. She knew him through 2001 as well as 2000. She met Khanh about nine or ten times and had a talking acquaintanceship with him. They held conversations. She saw Duong and Khanh together in two houses which were both associated with Duong and Khanh. She spoke with Khanh about three times per week while visiting the houses. 47 The judge found that on the basis of her statement of 7 January 2004 and her evidence there was evidence justifying the conclusion that at the relevant time Amee Duong knew the appearance of each of the accused very well. I agree. 48 During the voir dire examination the trial Court was shown a video recording of Amee Duong watching the CCTV footage and identifying each of the appellants. There is also a transcript of that recording. She confirmed the occurrence of the events so recorded. This was the subject of objection. The judge found: "While watching the screen Ms Duong identified the four persons whose passage I have referred to .,.. as the 4 Accused. Within the limits of the circumstances her identification of them is spontaneous and positive." The judge was entitled to so find. 49 The judge held: "The second category (of objection) consisted of Ms Duong being shown on 3 occasions during a 'Power-point' presentation ten or a dozen photographs of youngish persons of Vietnamese appearance and asked if she could identify anyone. On each occasion she identified one of the Accused other than Duong Nguyen, and in the totality of the exercise identified the three other than him. Again within the limits of the circumstances, her identification of them is spontaneous and positive. On each occasion the procedure was video recorded." 50 Duong, ATCN and Khanh submitted that the evidence of Amee Duong should not have been admitted because of her lack of credibility. They pointed to these matters: (a) On 7 January 2004 she went to Cabramatta Police Station and gave a statement in which she was unable to recognise by name some of the party attendees. She stated at para 13, "[a]t this time I kind of knew some of the people there. I knew their faces but not their names" (b) in this statement she omitted any reference to her then boyfriend, Tien Duc Nguyen and his brother being present at the scene of the murder. During cross-examination she agreed that she had deliberately lied to avoid attracting police attention to her boyfriend. (c) Her omission from her first statement of any reference to a telephone threat allegedly made by Duong on 28 December 2004. (d) She had lied in relation to how her blood stained clothes ended up in the garbage bin of her mother's house. Her mother had placed them there. Ms Amee Duong admitted she had lied to police because she did not want police to speak to her mother, and her mother discovering that she was in trouble with the police. (e) She admitted that she may have been mistaken as to the actual timing when she allegedly heard Khanh say in Vietnamese "Shoot him, shoot him" or "Shoot them, shoot them", that is whether those words were spoken before or after the actual shooting. (f) In her statement of 7 January 2004 she stated at par 17 that she saw "T-Bone" walk out from the doorway into the rear yard, that he was standing about six metres from her, that he had a large knife or machete in one of his hands and that he was holding the knife down by his side. This was incorrect. It was after viewing the CCTV footage on 8 January 2004 that Amee Duong retracted her statement. (g) In para 9 of her statement of 7 January 2004 she said that when she got into her boyfriend's car she saw her boyfriend had a lot of blood on his right arm, that she told him to wipe his arm, that he stated that his arm was actually bleeding, that there was a lot of blood coming from his arm and that she put tissues on his arm to stop it bleeding. She stated that she did not ask why he was bleeding. It was submitted that this response was hard to believe. 51 None of these matters may have been regarded as being of critical importance in the light of the other evidence. One person had been killed and another seriously injured and Amee Duong was being asked to identify the assailants. Matters of credibility are for the jury. She appeared to know each of the accused well. On viewing the CCTV footage she readily identified all four accused. 52 Duong, ATCN and Khanh submitted that this evidence did not pass the relevance test. 53 The judge considered the decision of the High Court in Smith v The Queen, supra, and held that Ms Amee Duong's evidence passed the relevance test as: (a) The CCTV photographs are of poor quality and it is no easy task to make a comparison between what is depicted and the accused (b) the jury's opportunity to observe the accused is while they are in a fairly static situation. Ms Amee Duong's observations have been for much longer than that of the jury and in a much wider variety of situations (c) where, as here, the CCTV images are not clear, the difference in the period of observation and the circumstances of Ms Duong and the jury is relevant (d) the impact of poor quality photographs as here is likely to be less in the case of someone who knows the person depicted well or very well (d) her much greater familiarity with each of the accused than it is likely the jury will have distinguishes the situation from that considered by the High Court in Smith . (e) Ms Amee Duong's assertion of identity between the accused and the persons depicted on the CCTV footage based on her knowledge is different in a substantial way from the material available to the jury from its own observations. She is in a better position to make a comparison between the accused and the persons in the CCTV photographs than the jury (f) the changes that have occurred to the appearance of the accused between the time of the offences and the trial (That was not developed very far when dealing with the admissibility of Ms Amee Duong's evidence. It was dealt with more fully when dealing with the admissibility of the evidence of Snr Constables Purcell and Young). This is an important consideration. 54 The judge's remarks apply not only to the CCTV footage but also to the photographs shown to Ms Amee Duong during a "Power-point" presentation, described as the "second category of evidence". As to this category there was none which related to Duong. 55 Duong submitted that the jury would not have undertaken its own task of identification but would have acted on the identification of Amee Duong as a past girlfriend. I do not accept this submission. The jury would have acted on the totality of the evidence before it. Cumulatively, it was a strong Crown case. 56 Having determined the question of relevance the judge proceeded to consider whether the evidence was evidence of fact or evidence of opinion. 57 The judge described Amee Duong's evidence that the person she observed with the gun was Duong as evidence of fact and her evidence as to the identity of the persons depicted in the CCTV footage as opinion evidence. The judge held that this opinion evidence satisfied the requirements of both s 78 and s 79 of the Evidence Act. 58 ATCN and Khanh submitted that Amee Duong's evidence could not properly be regarded as opinion evidence. Each submitted that her familiarity with him could not be regarded as specialised knowledge based upon her previous association with him. 59 The judge held that Amee Duong's evidence to the effect that the persons depicted on the CCTV footage were the accused was admissible under s 78. The judge was both entitled to so hold and correct in so holding. The opinion was based on what she had seen over an extended period of time when she had seen the accused and that evidence was necessary to obtain an adequate account or understanding of her perception of the matter. 60 Turning to s 79 the judge held that Amee Duong had specialised knowledge concerning the appearance or identity of the four accused based on her extensive experience of them. The judge was correct in so holding. She had had extensive experience in observing each of the accused. Arguments to the contrary lacked substance. Amee Duong had specialised knowledge based on her experience of each of the accused. 61 The judge correctly declined to exclude Amee Duong's evidence on discretionary grounds. The probative value of her evidence was considerable and outweighed the danger of unfair prejudice to the accused. 62 The judge held that Amee Duong's identification of the accused in the photographs used in the Power-point presentations tended to support her evidence that she was familiar with their appearance at the time and, having decided to allow her evidence of identification on the CCTV footage, this further evidence was relevant. 63 Appeal Ground 3 should be rejected. Appeal Ground 4 – The judge … erred in admitting the evidence of voice identification by Amee Duong of Khanh Nguyen 64 Amee Duong gave evidence that she did not see Khanh at the scene of the shooting, but heard a voice which she identified as being that of Khanh saying, "Shoot them, shoot them" in Vietnamese. At T220-221 she said in her evidence in chief on the voir dire that she recognised Khanh's voice. It was a "bit deep voice". There was nothing distinctive about the way he speaks the Vietnamese language. She said that on the night of the shooting the voice appeared to come from inside the pool hall, that is, back inside the entry door onto the courtyard. She did not remember any other noise at that time. She did not hear the same voice say any other words at that time. She recognised the voice as those words were spoken. At T222 she said that the words were spoken in a loud voice which she described as "yelling, screaming". 65 In cross-examination on the voir dire she said that during 2002 she did have some conversations in Vietnamese with Khanh. She could not recall when those conversations took place, the subject matter or how long they lasted. She said that while Khanh did not live in the house with Duong behind the school, he was there a lot of times. 66 In his submissions on the voir dire counsel for Khanh told the judge (at T293 ll 32 and ff): "I concede that the voice identification is relevant. The only issue is in regards to your Honour's discretion pursuant to section 137." 67 Counsel pointed out that there was some degree of familiarity on the part of Amee Duong with Khanh's voice although that familiarity was not particularly good. Counsel submitted that the probative value of the evidence was low. The risk of unfair prejudice was that even after the judge's directions (including warnings) the jury may give the voice identification evidence more weight than they ought. The judge observed that the weight to be given to that evidence was a matter for the jury. Counsel accepted that this was so. 68 Counsel submitted that given the circumstances, given the issues on familiarity and distinctiveness of the voice, clearly it had limited probative value. 69 After remarking that this was a different proposition the judge commented at T294: "… any prejudicial effect of that evidence is because it tends to incriminate your client, not because any prejudice is unfair. And that's not the sort of prejudice of which section 137 speaks." 70 Counsel acknowledged what the judge said but persisted with his application as to voice identification. Counsel said that he could not take the matter any further. 71 The judge had made his position and the reasons for it clear. The application had failed. 72 At T310 on 5 April 2006 the judge told the parties: "… both the CCTV identification of the witnesses and the still photograph identification evidence is admissible … I propose to allow the evidence." The judge said he would give his reasons. 73 At T315 ll 55 and ff the judge was reminded that he had not ruled on the voice identification evidence. At T315-316 the judge ruled that the voice identification evidence should be admitted. 74 Given the course of argument, the application that the voice identification evidence should not be admitted while not specifically mentioned in the detailed reasons of 12 April 2006 may have been covered in the statements in [35]: "I saw no reason to exclude Ms Duong's evidence on discretionary grounds. Thus it was that I regarded her evidence concerning the persons depicted on the CCTV footage as admissible. " That probably included the voice identification evidence. 75 In support of Ground 4 Khanh relied on evidence given by Amee Duong before the jury after the judge had given his ruling on the voir dire. In particular reliance was placed on evidence she gave on 10 April 2006 in cross-examination (T473 ll 45 and ff – 474). "Q. And you certainly are not positive that you heard his [Khanh's] voice that night [6 January at Billiards 2000] either are you? A. I heard someone's voice like his voice, but I'm not positive. Q. It is like his voice? A. Yes. Q. Is that what you are saying? A. Yes. Q. So do I take it from that, that you may be mistaken then, an honest mistake? A. I don't know Q. … you could be mistaken about believing it's his voice, is that fair to say? A. Yes." 76 At the committal proceedings she had agreed that she had heard words like "shoot him, shoot him" screamed out after the shots had been fired, whereas at the trial she said that the words were said before the shots were fired. 77 She agreed that maybe she could be mistaken as to when those words were said. 78 It would be a matter for the jury whether any of this mattered and what weight should be given to her evidence. The jury may have thought that there was ample evidence of Khanh's presence at Billiards 2000, his arrival and departure. 79 At a later stage she was positive that the person she identified on the CCTV footage as Khanh was Khanh, 80 The judge's reasons cannot be criticised for not taking into account evidence that was given after he gave his ruling on the voir dire. On the voir dire (T276.10) Amee Duong rejected the suggestion that she may have been mistaken in her identification of the voice. 81 Counsel for Khanh submitted that as Amee Duong agreed that she could have been mistaken as to the identity of the person whose voice she heard, her serious credibility problem and even allowing for the circumstances of the shooting being highly distressing, if the judge had given due consideration to s 137 of the Evidence Act he would have excluded the voice identification evidence upon the basis that it had limited evidentiary value, that is, that its probative value was outweighed by its prejudicial effect. 82 That submission relies upon evidence that was not before the judge on the voir dire examination. There is no error in the judge's view of s 137. That section does not restrict the admission of prejudicial evidence. Much of the evidence in a criminal trial is prejudicial to the accused. Section 137 is concerned with the danger of unfair prejudice. 83 The challenge to the judge's ruling as to the admission of the voice identification evidence under s 137 cannot be sustained. 84 At the tail end of this ground Khanh complained that the judge provided no directions to the jury regarding voice identification. 85 In his Summing-Up the judge summarised some of the evidence led at this quite lengthy trial. His summary of Amee Duong's evidence commenced at SU56. He referred to her evidence that she might have been mistaken about hearing Khanh's voice and when she heard the words "Shoot them, shoot them". The judge referred to the strong challenges to Amee Duong's credit. 86 The judge gave warnings as to identification evidence (SU34-37) and the special need for caution before accepting it. He included in the identification evidence that of Amee Duong, Mai Nguyen, Snr Constables Purcell and Young. Mai Nguyen was at the party. She saw a man with a gun come in from the front room of the pool hall. In Vietnamese she called out "He's got gun" . She identified Khanh as one of the men at the party and the man who was carrying the sword. She had previously seen Khanh around Cabramatta. The last time she had seen him was three weeks before the shooting. 87 The judge warned the jury that it was clear that Amee Duong had told a number of deliberate untruths. The judge continued (SU 36-37): "You may think in other respects which may or may not involve identification evidence she was mistaken. Her credibility and reliability in relation to these other matters are obviously relevant to the question whether her identification evidence as to what she saw on the night or on viewing the CCTV footage is such that you should rely on it." 88 The judge gave this direction: "One final matter on this topic, I have so far not mentioned Amee's evidence that the voice she heard saying 'Shoot them, shoot them', was that of Khanh Nguyen Given her evidence that she could be mistaken in thinking that it was his voice given that it seems clear from the parts of the magazine on the ground that someone else may have had a gun this night it would be dangerous to act on this piece of Amees evidence though obviously you are entitled to take it into account." 89 No further direction on this matter was sought by Khanh. I regard that direction as sufficient and probably more in Khanh's interest than directions as to voice identification evidence. Counsel must also have thought so. 90 Appeal Ground 4 should be rejected. Appeal Ground 1 - The judge erred in his directions of joint criminal enterprise and common purpose 91 The submissions on this ground were advanced by counsel for Minh and adopted by counsel for the other appellants. It may become necessary to distinguish between the position of Duong and the other appellants 92 In the course of a detailed summing-up after a lengthy and difficult trial the judge gave the jury written directions of some five pages which he said were to be treated as part of his summing-up. The judge explained that each of the offences involved a number of elements or ingredients which the Crown had to prove and that they may have to consider on the charge of murder that of manslaughter and on the charge of maliciously inflict grievous bodily harm with intent to do so that of maliciously inflict bodily harm without intent to do so. He would explain further. 93 The written directions as to murder were in these terms: "MURDER An Accused should be found guilty of murder if, and only if, in relation to that Accused, the Crown establishes beyond reasonable doubt each of the ingredients (i) and (ii) and one of the elements in each of sub-paragraphs (iii) and (iv) below: (i) that Linda Huynh has died AND (ii) that her death was caused by a deliberate act; AND (iii) that the deliberate act was · an act of the particular Accused, or · an act done in furtherance of, and within the scope of, a joint criminal enterprise to which that Accused was a party. or · an act done outside the scope of a joint criminal enterprise to which that Accused was a party but one which both was contemplated by that Accused as a possibility and occurred while he was still participating in that enterprise, or · done, while that Accused was present, intentionally aiding or encouraging the person who did the act, to do it and aware that that person had one of the intentions referred to in (iv) below; AND (iv) that at the time the act was done, it was done with - · an intention to kill someone, or · an intention to inflict grievous bodily harm on someone." 94 The directions stated: "the 'act'" alleged is the firing of a gun. 95 The directions stated: "A 'joint criminal enterprise' includes an understanding or arrangement amounting to an agreement to do an act or acts which amount to a crime. The understanding or arrangement need not be express and may be inferred from the circumstances. Examples of 'an act or acts which amount to a crime' as that expression is used in the immediately preceding paragraph include the following:- · Any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence; · Pointing a gun at someone (who sees it) in circumstances likely to cause fear or apprehension; · Firing a gun at or near someone with intent to kill, or injure, or frighten. "Grievous bodily harm" means really (or very) serious physical injury." 96 The judge spoke to the written directions. The effect of his oral directions was to emphasise and repeat what was in the written directions as to murder, but in slightly less formal language. 97 Counsel submitted that the error emerged from the combination of propositions in para (iii) bullet points 2 and 3. Minh complained that the written directions invited the jury to convict Minh of murder in the absence of any finding by the jury that he contemplated that it was possible that the shooter (Duong ) would have deliberately pulled the trigger of the gun intending to cause death or grievous bodily harm. It was submitted that by virtue of the written directions, the judge directed the jury that Minh should be found guilty of murder if the following matters were proved against him that: (i) Linda Huynh died; and (ii) her death was caused by a deliberate act; and (iii) the deliberate act was an act done in furtherance of, and within the scope of, a joint enterprise to which that accused was a party; or by virtue of bullet point 3 "an act done outside the scope of the common criminal enterprise to which the accused was a party but one which was contemplated by that accused as a possibility and occurred while he was still participating in that enterprise". 98 Counsel submitted that there were three major problems with the directions, namely: (a) the "act" is defined as the firing of the gun as distinct from firing a gun at someone (b) bullet points 2 and 3 in (iii) make it clear that there is no requirement for any mens rea on behalf of Minh as to the intention of the shooter (c) not only was there no requirement for any mens rea by Minh as to the intention of the shooter it was implicitly excluded. This implicit exclusion was reinforced by the terms of bullet point 4 in that it referred to 'intentionally' aiding or encouraging the person who did the act. 99 As to the "mens rea" required of Minh this was explained by Lord Lane CJ in Reg v Hyde [1991] 1 QB 134 at 138-139. His Lordship explains the position thus in part: "If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder." 100 Lord Lane's judgment was approved by the Privy Council in Hui Chi-Ming v The Queen [1992] 1 AC 34 (at 49-51). It was followed by this Court in R v Sharah 1992 30 NSWLR 292 at 301-303. Sharah lent himself to a venture in which an offensive weapon was being carried by his accomplice to his knowledge and the weapon was in fact used by the accomplice with an intent sufficient for murder. Sharah too was held guilty of murder as the prosecution had established beyond reasonable doubt that he contemplated that in carrying out the common unlawful purpose (robbery whilst armed in that case) his accomplice might use the weapon with the intention of at least causing serious bodily harm. 101 This Court at 303 followed the Privy Council's approach that mere foresight is not enough: the accessory, in order to be guilty must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise. 102 This does not differ from the approach in McAuliffe v The Queen (1995) 183 CLR 108, esp at 114-117. The High Court quoted with approval the abovementioned passage from the judgment of Lord Lane. While the judge defined the act alleged as the firing of the gun when he defined a "joint criminal enterprise" he referred to "an act or acts which amount to a crime." In the examples of an act or acts he referred to actions which were directed against a person. The difficulty is that the definition of "act" differs from the sense in which it is used in the examples, that is, severe or criminal misconduct directed against a person. However, para (iv) envisages an intention to kill someone or inflict grievous bodily harm on someone, that is, serious action against a person. 103 The Crown submitted that in endeavouring to ascertain what the directions mean all pre-conceptions should be put aside. The judge told the jury that most of the words and expressions used in the directions were ordinary English words and needed no explanation. To the extent that concepts may be unusual he had sought to explain them by note (in the directions) The Crown pointed out that the word "deliberate" was neither defined nor explained. Thus it was used in its ordinary meaning, that is, "intentional". That would be the meaning a juror would attribute to it. A juror would not use the word "deliberate" in this context as understood by a lawyer, namely "voluntary" and not accidental. A deliberate act conveyed the intention of the person doing it, that is to fire the gun. 104 Element (iv) had to be included because the jury had to be told what the relevant intention was. The Crown continued: "Para(ii) tells the jury that the act must be a deliberate intentional act but the word 'intentional' may or may not be sufficient depending on the precise circumstances of the offence. Here, because the mens rea for murder is an intention to kill or inflict grievous bodily harm, the intention relevant to the shooter, had to be properly identified and that's the purpose of para (iv). Para (iii) required the jury to advert to the deliberate act, that is to say the one referred to in para (ii) informed by the requirement in para (iv). That is a deliberate act, one carrying the intention or having rather been accompanied at the time of the commission of the act by the relevant intention to murder." 105 During argument Adams J pointed out that there were difficulties with the submission that the judge had used the word "deliberate" as meaning or including the meaning "intentional". Paragraphs (i) to (iii) of the murder and manslaughter directions were in identical terms. While deliberate meaning "voluntary" was apt in both cases, deliberate meaning intentional or including the meaning intentional was not apt in the case of the manslaughter directions. This would lead to the conclusion that "deliberate" probably did not include in its meaning "intentional". 106 The Crown appeared to accept that the judge did not explain to the jury the link between "deliberate act" and para (iv) to make it clear that when he referred to "act" in bullet point 3 it was intended to incorporate both the intentional firing and the intent to cause death or grievous bodily harm. 107 Notwithstanding the resourcefulness of Crown counsel the alternative in bullet point 3 was stated incorrectly. What was required was a fuller description of the possibility which the accused contemplated, that is, that the principal or a co-offender might fire the gun at someone with the intention to kill someone or inflict grievous bodily harm on someone. This gives effect to the statement earlier referred to from p 53 of the report of the Privy Council's decision following (but qualifying Sir Robin Cooke's formulation) that foresight is not enough; the accessory in order to be guilty must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must with such foresight still have participated in the enterprise. In McAuliffe at 117 five justices of the High Court referred to the passage from the Privy Council's decision with evident approval. 108 It is also useful to refer to the judgment of six justices in Clayton v The Queen [2006] HCA 58. The High Court declined to reconsider its decisions in McAuliffe and Gillard. 109 In Clayton relations between the two victims and the three applicants were at boiling point as a result of some incidents. The three applicants, each having armed himself or herself in some way with a weapon, went to the house of the female victim. The male victim was also there. There was evidence of the three armed applicants assaulting the female victim and one of them detaining her at knife point while there was a prolonged assault on the male victim. He was severely beaten and stabbed a number of times. One of the stab wounds caused fatal injuries. The prosecution could not identify which of the applicants inflicted the fatal injury. The prosecution's case of murder against each applicant was put in three ways: (i) each applicant had participated in a joint enterprise; or (ii) each had agreed to assault the deceased using weapons and reasonably foresaw the possibility that death or really serious injury might be intentionally inflicted upon the victim by one of them in the course of their carrying out the agreed assault (extended common purpose) (iii) the two applicants who did not inflict the fatal wound had aided and abetted the person who did, by intentionally helping, encouraging or conveying their assent to that person in his or her commission of the murder (accessorial liability) 110 At [17] the joint judgment said (omitting citations): "17. …If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight. That the participant does not wish or intend that the victim be killed is of no greater significance than the observation that the person committing the assault need not wish or intend that result, yet be guilty of the crime of murder. " 111 At [25] the High Court stated that the case against each applicant had to be considered separately 112 At [26] the joint judgment stated: "26. If, as the prosecution contended was the case in respect of each applicant, the particular applicant under consideration was shown, beyond reasonable doubt, to have agreed with one or both of the other applicants to cause really serious injury to the deceased, a verdict of guilty of murder had to be returned. If the prosecution demonstrated beyond reasonable doubt that the applicant under consideration was party to an agreement with one or other of the applicants to assault the deceased to some lesser degree, and foresaw the possibility that death or really serious injury might intentionally be inflicted on the deceased in the course of that assault (otherwise than in self-defence), again, a verdict of murder had to be returned. In this latter respect, if persuaded beyond reasonable doubt that the applicant concerned went to the premises armed, or knowing that others were going armed, it would be open to the jury to infer that that applicant foresaw the possibility of assault with the requisite intent, but such an inference was not inevitable. " 113 In Clayton the High Court at [28] pointed out that the issues (as distinct from the evidence) were relatively simple, namely, what did the applicant agree was to happen, what did that applicant foresee might happen; what did that applicant do at the house? That summary could be applied to the present case, substituting "Billiards 2000" for "the house". 114 During argument the President put the position pithily. After acknowledging that the jury had to find the shooter had the requisite intention he added: "the relevant contemplation of the abettor or the person present or the person involved in the extended joint criminal enterprise that's the critical mens rea that they needed assistance on." 115 It suffices that the jury may have proceeded in accordance with the incorrect formulation in bullet point 3 of (iii) of the written directions. Minh accepted that no explicit request for redirections was made. The issue was fundamental. There was a real prospect that Minh had been convicted of murder based on a proven liability only for manslaughter. 116 Appeal Ground 1 must be upheld. Regrettably this means that there will have to be a new trial at least in resect of the appellants other than Duong. 117 Minh relied on a further ground of appeal. That ground and the submissions in support of it were adopted by the other appellants. Further Ground of Appeal – The trial miscarried as a result of the judge overlooking a note from the jury. 118 On 5 May 2006 the jury asked, in writing, a question in the following terms: "If a joint criminal enterprise is established and we have identified intent on the behalf of one member of the joint criminal enterprise is that sufficient to establishment the same intent for all other members of that enterprise". (MFI 27) 119 The judge gave the following answer: "Members of the jury I have your note. I'm not sure that I understand all that you may have in mind by the terms of that note, but I will do my best to provide you with an explanation of the issue that seems to me to arise. If in what I now say I don't adequately answer your questions, would you please give me another note? But I will do the best I can. There are effectively three components of your note: If a joint criminal enterprise is established, 1, and then 2 – and you have identified intent on the part of one member, then you raise the third point, is that sufficient to establish the same intent for the other members, for all other members of the criminal enterprise? Now the third question is not one that arises. If you have my written directions there, and perhaps you remember them anyway at this stage, there were – and I will confine my attention for the moment to the murder without the manslaughter or malicious infliction of grievous bodily harm – there were four paragraphs in those written directions; the death caused by a deliberate act, that is number (ii) and I can put them aside because they don't seem to arise. In paragraph (iii) there were a number of dot points, that the deliberate act was one of four dot points, and (iv) that at the time the act was done, it was done with an intent to kill or do grievous bodily harm. So far as that intent is concerned, the issue is whether the person who did the act, had the intent. In looking at the intention required by paragraph (iv) of the murder directions, the only inquiry is as to the intent of the person who did the act. In looking to see whether someone else [ non shooters] is liable for that act, you address paragraph (iii) and the four dot points there. I will just say that again, and perhaps a little more shortly. You don't need to address -- CROWN PROSECUTOR: Excuse me your Honour, but the microphone is not amplifying the sound. HIS HONOUR: I will speak a little more loudly then, I'm sorry. You do not need to address the question of intent on what I will call the non-actors, the non-gunman. The question raised by paragraph (iv) is the intent of the gunman. To see whether others are liable, you look at the dot points under paragraph (iii). Now I think that should be an answer to the issues that seem to be troubling you in your request. Could I ask you whether there is any one there who thinks what I have just said does not adequately address your request? I don't think it appropriate for you to have a discussion here in the jury box, but that I think addresses the questions that I perceive as arising. Perhaps I'm saying go back to the written directions, precisely, although I can understand that perhaps I should have said in (iv) you look at the intent of the gunman, not the intent of others. Now, I have only given that explanation in relation to page 1, the murder direction. What I would say in relation to the other offences, or other possible offences, is along the same lines, but unless someone wants me to expand it page by page, I think I may only confuse you further. All right. I hope that is sufficient. If it is not and it obviously is tremendously important, please ask me another question. All right, would you go now." That answer did not address the gap in bullet point 3 as earlier explained. 120 The judge had received an envelope containing the jury note MFI 27 on 5 May 2006. Unfortunately there was a second jury note in the envelope which had not come out when the judge addressed MFI 27. 121 That second jury note read: "The jury would like the judge to clarify the definition of Joint Criminal Enterprise in Murder & Joint Criminal Enterprise in Manslaughter" 122 There were thus two requests for further directions and the judge did not deal with the second request. 123 I do not accept that the judge's answer to the first question also answered the second question. 124 The judge had given the same definition of "joint criminal enterprise" for both murder and manslaughter. The definition of joint criminal enterprise could not change but it seems that the jury probably needed further help in appreciating the difference between murder and manslaughter. 125 Adams J pointed out that in the manslaughter directions it was important to separate adverting to the possibility of the gun being fired and the different possibility of the gun being fired with murderous intent as that can lead to different verdicts. Proving beyond reasonable doubt that the co-offenders contemplated the possibility of the gun being fired with murderous intent is often a difficult task. 126 The Crown accepted that on the directions as given the jury would either have convicted the co-offenders of murder or acquitted them entirely. In my opinion the alternative on manslaughter was never fully put to the jury or considered by them. While there was force in the argument that this was a case where the co-offenders must have contemplated the possibility that the gun would be fired with murderous intent that was a matter of fact for the jury to decide. 127 A verdict of manslaughter rather than murder was a real possibility in the case of Minh, ATCN and Khanh. As the appellants were not shown the second jury note they were not given an opportunity to make submissions about the manner in which the question should be answered. 128 This further ground of appeal must be upheld. 129 The Crown case was that Duong was the shooter. He fired the shots that killed the deceased. The evidence to that effect was powerful. The evidence was also powerful that he went to the party with a gun with the intention of shooting someone. He led the group of men. He fired a number of shots from the gun at close range killing the deceased and wounding Hien Duc Phan. All the ingredients of the crime of murder were proved against Duong beyond reasonable doubt, namely Linda Huynh had died, her death was caused by a deliberate act of Duong in firing a gun at someone with the intention to kill someone or inflict grievous bodily harm on someone. The jury convicted Duong of murder. 130 Likewise the Crown case was that Duong fired the shots that wounded Hien Duc Phan. The evidence to that effect was powerful. The evidence was also powerful that Duong went to the party with a gun with the intention of shooting someone. Duong led the group of men to the party and fired a number of shots from the gun at close range killing the deceased and wounding Hien Duc Phan. All the ingredients of the crime of maliciously inflict grievous bodily harm with intent to do so were proved against Duong beyond reasonable doubt namely, that Hien Duc Phan suffered grievous bodily harm, that that harm was caused by a deliberate act of firing a gun at someone with an intention, at the time that the firing took place, to inflict grievous bodily harm on someone. The jury convicted Duong of maliciously inflicting grievous bodily harm with intent to do so. 131 What has been written in the case of Minh also applied to ATCN and Khanh. The errors which render a new trial necessary in the cases of Minh, ATCN and Khanh do not operate in the case of Duong, (against whom there was a strong Crown case). Duong's appeal against conviction must be dismissed in both cases. 132 As there has to be a new trial in the cases of ATCN, Minh and Khanh it is inappropriate to consider their applications for leave to appeal against sentence. However, it is necessary to consider Duong's application. Duong's sentences 133 Duong was sentenced for murder to a non-parole period of 23 years commencing on 30 January 2006 with a balance of term of 8 years and for maliciously inflicting grievous bodily harm with intent to a non-parole period of 7 years from 30 January 2004 with a balance of term of 2 years 4 months. Thus there were effective non-parole periods of 25 years and an effective balance of term of 8 years. 134 The judge's factual findings have been set out earlier. He paid careful attention to the relevant statutory provisions. He noted as aggravating factors the actual use of a firearm, Duong 's record of previous convictions, both offences being committed in company, the offences being committed without regard for public safety and the offences being part of a planned or organised criminal activity. The judge attached considerable importance to the offences being committed without regard to public safety. The judge also took into account the presence and display of the sword pursuant to s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999. 135 Duong was aged 22 at the time of the offence. Between 1999 and 2001 he committed a number of driving offences, including dangerous driving and driving whilst disqualified, minor drug offences and offences of stating a false name. His 2001 offences were in breach of a bond imposed for one of his driving whilst disqualified offences. The judge noted that Duong did not have any record of violence or serious offending and that individually his past offences were of no present relevance, but held that his record was significant in demonstrating an attitude of refusal to adhere to at least some of society's rules when doing so does not suit him. There was no evidence of him committing offences in 2002-2003. Too much should not be read into his offences at the lower end of the criminal range in 1999-2001 when he was aged 18 to 20. 136 The judge held that as he regarded the murder offence as substantially above the mid-range in objective seriousness and as there were no subjective factors supporting lesser sentences the non-parole period of the murder sentence should exceed the standard non-parole period. The judge attached much weight to the demands of retribution and more importantly general deterrence. 137 The judge found special circumstances due to the accumulation of the sentences, but not otherwise. Sentencing Appeal Ground 1 – the judge erred in finding that the objective seriousness of the murder offence was above mid-range. 138 During sentencing senior counsel for Duong submitted that the objective seriousness of the offences was mid-range. The Crown also submitted that the two offences could be regarded as falling within the mid-range of objective seriousness. The judge disagreed and held that the murder was above the middle range of objective seriousness for such an offence for the following reasons: (i) the intention to kill and premeditation – this was a cold blooded execution on the part of Duong the gunman – these were the primary features (ii) the offence was committed in company, involving the use of a firearm and the threatened use of the Samurai sword (iii) the offence involved both disregard for public safety and risks to others, and (iv) the offenders made no effort to conceal their identity notwithstanding that the offence was committed in full view of an appreciable number of people, most of whom seemed to have been members of the Vietnamese community and many of whom lived in Cabramatta or nearby suburbs and that the offenders were often to be seen in or adjacent to the Cabramatta shopping centre. The judge held that the offence was a very brazen one. 139 The judge thought the absence of any attempt at concealment of their identity was the offenders' choice. It was not a matter of forgetfulness. He held that the immediate departure of the offenders from the scene after the shooting made it clear that the offenders wished to avoid apprehension. The judge concluded that the offenders were prepared for their identity and actions to be known within that portion of the community represented at the billiard hall. 140 It was pointed out on behalf of Duong that three of the four males who entered Billiards 2000 at 11pm wore baseball caps and that these partially obscured their upper facial features. I do not accept the submission that by wearing baseball caps three of the four males were mindful to disguise their identity. 141 On the evidence it was not possible to draw the conclusion beyond reasonable doubt that the four accused had attempted to enhance or even had turned their minds to enhancing their reputation for violence in their own ethnic community. This point was raised by the judge during argument. It was not raised or adopted by the Crown. 142 I doubt if the non-concealment by offenders of their identity can be regarded without more as taking the offences above the middle range of objective seriousness. The absence of concealment made it easier to identity the offenders and arrest them. If they had been wearing balaclavas or some other disguises over their faces it would have been more difficult for the two police officers in the instant case to recognize them. 143 An intention to kill and premeditation are usual elements in a murder of mid range objective seriousness. 144 In holding that the murder was substantially above the mid-range in objective seriousness the judge erred. This murder was mid-range in objective seriousness. As with all murders it was a grave offence. 145 The judge did not regard the offence of maliciously inflicting grievous bodily harm with intent as above the mid-range of objective seriousness. There was no evidence that the second offence was premeditated. 146 The judge was correct in partially accumulating the sentences and the extent of the partial accumulation he determined was within permissible limits. 147 These offences were the first serious crimes committed by Duong. The judge did not regard him as otherwise being of good character. The judge was unable to determine the prospects of Duong's rehabilitation nor whether he was likely or unlikely to re-offend. The judge found that there was no evidence of remorse. He noted that Duong was aged 21 at the time of the offence but did not allow any leniency on account of his age. 148 Duong will be on parole for a period in excess of 7 years. That is more than a sufficient period for him to re-adjust to the community if he is ever going to do so and to rehabilitate himself. 149 The only special circumstances that truly exist are the accumulation of the sentences and the periods on parole should only be adjusted to ensure that the balance of the term of the total sentence does not exceed one third of the total non-parole periods for the sentences. Under s 44(1) of the Crimes (Sentencing Procedure) Act 1999 the Court is first required to set a non-parole period for the sentence. A parole period more or less than one-third of the total non-parole periods should not be set. 150 I propose the following orders: 1. Dismiss the appeal against conviction by Duong Hai Nguyen 2. Allow the appeals against conviction by ATCN, Khanh Hoang Nguyen and Minh Thy Huynh. Convictions quashed. 3. Order that there be new trials of ATCN, Khanh Hoang Nguyen and Minh Thy Huynh. 4. Leave to Duong Hai Nguyen to appeal against his sentence for murder. Sentence quashed. 5. In lieu thereof Duong Hai Nguyen on the count of murder is sentenced to imprisonment for a non-parole period of 20 years commencing on 30 January 2006 with a balance of term of 7 years 4 months expiring on 29 May 2033. 6. Leave to appeal against the sentence imposed on Duong Hai Nguyen on the count of maliciously inflicting grievous bodily harm with intent to do so refused. ********** 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.