Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: TWL v R [2012] NSWCCA 57 Hearing dates: 16 February 2012 Decision date: 05 April 2012 Before: Macfarlan JA at [1] RA Hulme J at [68] Garling J at [69] Decision: (1) Appeal allowed. (2) Note that the appellant's conviction was quashed by an order made on 16 February 2012. (3) Order the appellant to be retried on the charge upon which he stood trial before Coolahan DCJ. Catchwords: CRIMINAL LAW - appeal - conviction - manslaughter - unlawful and dangerous act - joint criminal enterprise - need for agreement to commit act exposing victim to appreciable risk of serious injury - whether failure to direct jury as to essential element of offence led to miscarriage of justice - whether failure to comply with pre-trial disclosure requirements led to miscarriage of justice - evidence of critical Crown witness - ss 137, 138 Criminal Procedure Act 1986 CRIMINAL LAW - appeal - conviction quashed - miscarriage of justice - circumstances in which retrial appropriate Legislation Cited: Children (Criminal Proceedings) Act 1987 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 Clayton v The Queen [2006] HCA 58; 81 ALJR 439 Gerakiteys v R [1984] HCA 8; 153 CLR 317 Grey v R [2001] HCA 65; 75 ALJR 1708 Handlen v The Queen [2011] HCA 51 Ka Chung Fung v The Queen [2007] NSWCCA 250; 174 A Crim R 169 Krakouer v The Queen [1998] HCA 43; 194 CLR 202 LJW v R [2010] NSWCCA 114 M v The Queen [1994] HCA 63; 181 CLR 487 O'Leary v The King [1946] HCA 44; 73 CLR 566 R v Adam [1999] NSWCCA 189; 106 A Crim R 510 R v Anderson (1991) 53 A Crim R 421 R v Taufahema [2007] HCA 11; 228 CLR 232 SKA v The Queen [2011] HCA 13; 243 CLR 400 Wilson v The Queen [1992] HCA 31; 174 CLR 313 Category: Principal judgment Parties: TWL (Appellant) Regina (Respondent) Representation: Counsel: H Dhanji SC (Appellant) M M Cinque (Respondent) Solicitors: Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/51303 Decision under appeal Citation: Regina v TWL Date of Decision: 2011-04-20 00:00:00 Before: Coolahan DCJ File Number(s): 2009/51303 Judgment 1MACFARLAN JA: After a trial in the District Court before Coolahan DCJ and a jury, the jury found the appellant guilty of a charge, to which he had pleaded not guilty, that he "did unlawfully kill Jamie Purdon" on or about 20 February 2009 at Maitland in New South Wales. The appellant was 15 years and 5 months old at the time of the offence leading to this manslaughter conviction. 2On 20 April 2011 Coolahan DCJ sentenced the appellant to imprisonment with a non-parole period of 2 years 6 months commencing 20 April 2011 to expire on 19 October 2013 and an additional term of 2 years 6 months to expire on 19 April 2016. His Honour ordered that the appellant serve his sentence as a juvenile pursuant to s 19 of the Children (Criminal Proceedings) Act 1987. 3The charge against the appellant related to the death of Mr Jamie Purdon, a young man of about 20 years of age. Mr Purdon hit his head on a hard surface after being felled by a punch to the head delivered by one AC who was then 17 years of age. The incident occurred on a Friday evening when those involved were attending the Maitland Show. Put shortly, the Crown case against the appellant was that he, AC and one AB were parties to a joint criminal enterprise to physically assault Mr Purdon, pursuant to which AC delivered the fatal blow. The Crown's case at the trial was heavily dependent on the evidence that the Crown called from AC. 4At the hearing of the appellant's appeal against his conviction this Court concluded that deficiencies in connection with the trial had resulted in a miscarriage of justice. In consequence the Court quashed the appellant's conviction. It otherwise reserved its decision. The following are my reasons for supporting the order quashing the conviction and concluding that the Court should order a retrial of the appellant. 5The deficiencies to which I have referred were two. First, (Ground of Appeal 2), the trial judge did not direct the jury that to convict the appellant it was necessary that it be satisfied beyond reasonable doubt that the joint criminal enterprise for which the Crown contended involved an agreement or understanding that an act would be committed that was not only unlawful but was dangerous in the sense that it carried "an appreciable risk of serious injury" to Mr Purdon (Wilson v The Queen [1992] HCA 31; 174 CLR 313 at 333). Complaint about the absence of such a direction was not made at the trial but, for reasons that I give later, leave to raise the point on appeal should be granted pursuant to r 4 of the Criminal Appeal Rules. 6The second deficiency (Grounds of Appeal 7(b) - 9) was that the Crown, as it accepted, inadvertently breached the pre-trial disclosure requirements of ss 137 and 138 of the Criminal Procedure Act 1986. The Crown failed to provide the appellant or his representatives with copies of reports attributing to AC descriptions of the relevant incident that arguably conflicted to some extent with the evidence that AC gave at the trial. Possession of the reports would have been of considerable assistance to counsel for the appellant in cross-examining AC, upon whose credit the Crown's case largely depended. 7I shall now summarise the evidence at the trial but only insofar as it bears upon the issues that this Court needs to determine. THE CROWN CASE The evidence of AC 8On 22 February 2009 AC was charged with manslaughter in relation to Mr Purdon's death. At the first available opportunity he gave police an induced statement. He subsequently pleaded guilty to the charge and was sentenced to an overall term of imprisonment of 2 years 6 months, with an 18 month non-parole period. The sentence was ordered to be served by way of periodic detention. The sentencing judge allowed a 50 per cent discount for AC's early guilty plea and his past and future assistance to police, including an agreement by AC to give evidence against the appellant. On 8 September 2010 this Court allowed a Crown appeal against AC's sentence, reducing the discount to 40 per cent, comprising 25 per cent for AC's early guilty plea and 15 per cent for assistance. 9At the appellant's trial AC gave evidence that he had known the appellant for a couple of years and that he encountered him at the Maitland Show on the evening of 20 February 2009. The appellant was with his brother and about four other people. AC said that at one point in the evening the appellant approached him in a small group that included AB and that the following exchange then occurred: "Q. What did [the appellant] say? A. He said something about these 20 year old dudes trying to fight [LM] who's 15 at the time and he said basically he was going back to get them. Q. I know it's a hard thing to do, but when he said he was going back to get them can you say it as if it was him saying it now in the words he used as best you can remember? A. This won't be exact words obviously because it was a while ago but he said, '[AC], these 20 year old dudes just tried to fight me, I'm going back to get them, have you got my back'. Q. Have you got my? A. 'Back'. Q. Did you know what he meant by 'Have you got my back'? A. As in will you watch my back? If I do something are you going to be there for me? Q. Did you respond to that? A. Yeah, I said okay. Q. What was his manner when he asked you that? So how did he seem in his appearance and manner? A. He seemed pretty worked up. Q. Are you able to tell us what about him it was that made you think he was worked up? A. How he was speaking. If he said he was going to go back to them he was obviously pretty worked up. Q. After he had asked you that and you had agreed did you stay together or did you split up? A. Yeah, we stayed together. I walked in the same group that he was in. ... Q. Were you or anybody in your group doing anything that would indicate something was going to happen? A. Not really. We were just walking towards the front gate but obviously someone in the group must have said something's going to happen and then it's just a small place where heaps of people are. Word must have spread and everyone gathered that there was going to be a fight so everyone thought they'd come and watch. Q. Just tell us what happened after you had started walking around with the accused towards the front gate? A. As we were walking towards the front gate we sort of pulled over onto the side of the road and I seen the big group behind us and I said there's a fight down at the front gate, yelled it out so everyone would go away because I didn't want a big group following us. Q. Did any of that big group move off? A. Yeah, there was quite a few of them walked to the front gate. Q. Did any remain? A. Yeah, there would have been a few hanging around still. ... Q. So after some of this bigger group had moved away, what did you do? A. We sat on the side of the road and then [the appellant] grabbed me and said, 'That's him. Let's go, bro,' and point to a dude with - I can't remember exactly but it was a light T-shirt. ... Q. Once [the appellant] had said that to you, what did you do? A. I proceeded across the road. Q. Where was the fellow who had been pointed out to you? A. He was basically directly on the other side of the road. ... Q. So you went in that fellow's direction? A. Yes. Q. What sort of pace were you moving at? A. I was at a quick walk. Q What about the accused? Was he doing anything when you moved off towards the fellow? A. I'm not sure. I led so I didn't - couldn't see behind me. Q. Did you look behind you at all? A. No. Q. You've said you moved in the fellow's direction. Did you do anything prior to going up to the fellow? A. No. Q. So what did you do, just tell us what you actually did? A. I just went straight towards him [that is, Mr Purdon] and he was facing the opposite direction and I put me left arm on his shoulder and turned him around and I thought he was going to hit me and I seen his mates behind him so I reacted and punched him in the left jaw. ... Q. When you hit the fellow to the jaw, what happened? A. He fell backwards and hit his head" (Transcript 31 August 2010, pp 80 - 84). 10AC said that he did not know Mr Purdon and had not seen him before the incident in question. Prior to approaching Mr Purdon, AC had asked another young man to hold his phone and wallet. AC denied in cross-examination that he did this because he knew that he was about to assault someone and did not want to leave evidence behind (Transcript 31 August 2010, p 96). He also denied in cross-examination that it was AB, and not the appellant, who told him about the 20 year old people and asked for his assistance. The evidence of AB 11AB was 15 years old at the time of the incident that led to Mr Purdon's death. He was subsequently charged with affray and gave the police an induced statement. However he agreed in cross-examination at the appellant's trial that he had lied in that statement and also in an earlier statement that he gave to police. Following a plea of guilty he was sentenced to six months probation. 12He said in evidence at the trial that he had known the appellant since 2008 and that he was with the appellant and other young people at the Maitland Show for most of the evening of 20 February 2009. He had not met AC before that night. 13AB said that during the evening he, the appellant and others watched a fight occur. He gave the following evidence as to what then occurred: "Q. Did you get involved in anything that occurred immediately after the fight? A. Yes, we did. Q. What was that, what happened? A. Well Jamie Purdon came up to us and asked what happened. He was kind of agro and yeah. Q. You have referred to Jamie Purdon. Was he someone that you knew on this night? A. No. Q. Had you met him before? A. No. Q. So you have subsequently come to know that the name of that fellow was Jamie Purdon. Is that right? A. Yes. Q You said he came up to you and asked you what happened? A. Yeah. Q. Who was he asking? A. Me at first and then [the appellant] - no sorry, it was [the appellant] first because [the appellant] wouldn't answer and then me. Q. Can you remember what Mr Purdon said to [the appellant]? A. No, not really. Q. Can you remember what he said to you? A. Just asking me what's going on. Q. Did anybody answer Mr Purdon? A. No. Q. What was the next thing that happened after he asked you and [the appellant] and no one gave him that information? A. He got a bit angry and tried to get it out of us. Q. When you say he got a bit agro what was he doing? A. Like he's getting tensed up and, yeah, just getting angry. Q. How was it that he tried to get it out of you? A. He come up and tried to face me, got in my face and [the appellant] and two of his mates broke it up. Q. What do you mean when you say got in my face? A. Like got like right in front of me. Q. You have got your hand in front of your face at a distance of 15 centimetres? A. Yeah, yeah. Q. You said [the appellant] and two of his mates broke it up? A. Yes" (Transcript 31 August 2010, pp 128 - 129). 14AB gave the following evidence of a conversation that he heard occur a little later between the appellant and AC: "Q. Did [the appellant] say anything about what he wanted to happen in the future, after the incident at the barn? A. After [Jamie] Purdon got hit? Q. No. After [the appellant] told [AC] about what had happened at the barn? A. He just basically said he wants him gone. Q. He wants him gone-- A. Wants him taken care of. Q. I know this is hard but as best you can, can you try and put it as if it were [the appellant] saying it now, and the words he used? A. He basically just said, you know, he told him what happened and then, 'I want him gone, I want him taken care of'. Q. How did he seem when he was saying that, in terms of his mood, his appearance. [The appellant]? A. Tense. Q. What was it about him that made you think he was tense? A. Like an adrenaline type of look. Q. Did [AC] give [the appellant] any response to what [the appellant] had said about wanting him gone, wanting him taken care of? A. I don't know." ... Q. Once Mr Purdon came into view, did anyone say anything about him? A. We - well, I described him, and then [the appellant] pointed over, 'that's him over there'. ... Q. Once that had been said, what happened? A. Me, [the appellant] and [AC] walked in a fast pace. It was [AC] first, then it went - it was me, [AC], two of his friends, and [the appellant]. It went [AC], his two mates, [the appellant] and me. Q. Where did you go? A. Towards Jamie Purdon. Q. What sort of pace were you moving at? A. A fast walk. ... Q. Did you or anyone in your group, get to Mr Purdon's location? A. Only [AC] got that close. Me and [the appellant] about 10 to 15 metres away. Q. What did you see [AC] do when he got close? A. He tapped him on the shoulder, a little bit of an argument, and then just one big hit. Q. When Mr Purdon was hit, I think he fell down straight away? A. Yes" (Transcript 31 August 2010, pp 132 - 134). Pre-incident evidence 15Ms JG, a friend of the appellant, gave evidence that the appellant had said to her in the week leading up to the Maitland Show of 20 February 2009 that he only went to the Show so that he could get into fights (Transcript 1 September 2010, p 188). 16Ms AS, another friend of the appellant, gave evidence that in the week prior to the Maitland Show the appellant had said that he was going to the Show and that "Friday was fight night", although he had not said that that was why he wanted to go (Transcript 2 September 2010, p 245 - 6). 17Mr RD, another friend of the appellant, gave evidence that on the night of the Show, prior to Mr Purdon's death, he had heard the appellant and others say "Let's go after people and start fights" (Transcript 1 September 2010, p 206.8). In cross-examination RD said that he did not specifically recall the appellant, as opposed to someone else in the group saying "Let's go after people and start fights" (Transcript 1 September 2010, p 210). However in re-examination he agreed that in his statement to police he had attributed to the appellant the words "We'll just run into fellows to pick a fight with them" (Transcript 1 September 2010, p 214.13 and following). Post-incident evidence 18Ms JC gave evidence that the appellant had run up to her on the night of the Show and asked her if she had seen what had happened (referring to the assault on Mr Purdon). When she said no, he told her that "a group of people had approached him and asked for his phone, and he said no, then he said he was going to get his boys to see how tough they were ... [and] a guy called, [AC], had punched someone out" (Transcript 1 September 2010, p 190.38 and following). When telling her that "[AC] had punched someone out", the appellant had punched his fist into his hand and appeared excited. 19Ms KC gave evidence that on the evening of 20 February 2009 the appellant had told her about someone having been "knocked out cold", had said that he did not do it and that AC was responsible (Transcript 1 September 2010, p 176). She said that later the appellant had called her on her mobile and said "If the cops ask you mine or [AC's] name, don't give it to them" (Transcript 1 September 2010, p 173.48). Later again that night KC received a text message from the appellant which included the statement: "I'm fucking scared because everyone thinks it was me and not to mention the cops just drove past. You know it wasn't me right" (Transcript 1 September 2010, p 174). 20Mr JF gave evidence that on the evening, sometime after the incident in question, the appellant had told him the following: "When I left the showground these four 20 year olds came up and said 'Give me your phone and wallet.' 'Nah, I'm not giving you my phone and wallet. I'll fight to the death.' I said, 'Wait here 10 minutes'. One of them said to me 'Oh, who ya gonna get?' I said, 'You'll see'. I walked back with heaps of people and the four 20 year olds saw me and they started to run away. Some of the boys in my group ran after them. [AC] caught up with one of them and hit him in the side of the head and the bloke hit the ground. Now the coppers are chasing me" (Witness Statement of JF dated 21 February 2009, p 2). THE DEFENCE CASE 21The appellant gave evidence that he was present when AB was involved in two altercations prior to the incident that led to Mr Purdon's death. He said that during the second altercation Mr Purdon approached the participants and tried to break them up, leading to a verbal exchange between AB and Mr Purdon. 22The appellant gave evidence that, later, AB asked AC for help, apparently, to confront Mr Purdon. AC asked the appellant if AB was the appellant's friend. He responded that he was. 23The appellant said that as his group approached "three guys" (who must have included Mr Purdon) the following events occurred: "When - when they had found out [AC] said, 'Well, let's go and get him,' I had actually grabbed [AC] on the arm and said [AC], don't worry about it, it's not your fight. [AC] shrugged me off. Him, two of his mates and [AB] ran at the - at the three other guys. And that's all I saw until I got down there. I was about 20 metres away from the footpath of where Mr Purdon was struck and I could see him laying on the ground with - with a lot of blood around his head and not moving at all" (Transcript 2 September 2010, p 275). THE SUMMING-UP 24The trial judge summarised the Crown's case as follows: "What the Crown says in this case is that the accused was involved in what lawyers call a joint criminal enterprise to visit physical violence upon Mr Purdon and the participants in that joint criminal enterprise were [AC] and [AB]. Although the Crown would succeed if it satisfied you beyond reasonable doubt that the, if there was an agreement to do, it was between the accused and [AC] only. But the Crown says that [AB] was also part of that agreement. ... The Crown says that you would infer from [the evidence of AC and AB] and draw the conclusion that from both the words and the actions of the accused, [AB] and [AC] that there was an understanding or arrangement that Mr Purdon would be physically assaulted and that you would be satisfied of that beyond reasonable doubt" (Transcript 10 September 2010, pp 6 - 8). 25I turn then to consider the appellant's grounds of appeal. GROUND 1 - "THE LEARNED TRIAL JUDGE FAILED TO ADEQUATELY DIRECT THE JURY WITH RESPECT TO THE APPELLANT'S LIABILITY BASED ON JOINT CRIMINAL ENTERPRISE" 26This objection was not taken at the trial. Accordingly, the appellant needs leave under r 4 of the Criminal Appeal Rules to rely upon this ground. 27The appellant submitted in relation to this ground that the trial judge failed to direct the jury that it needed to be satisfied beyond reasonable doubt that AC's conduct in punching Mr Purdon was done in pursuance of the understanding, arrangement or agreement to which the appellant and AC were parties, such that it could be said that the appellant and AC were acting in concert in relation to that act. 28I do not accept this submission. In my view the trial judge made this requirement clear at a number of points in his Summing-Up, including in the following passage: "If you were satisfied beyond reasonable doubt that there was this arrangement or understanding or agreement between, in particular the accused and [AC], that physical violence would be perpetrated or visited upon Mr Purdon and that [AC] in punching Mr Purdon in the way in which he did, was acting as part of that understanding or arrangement or agreement, then the Crown will have established its case. That is what the Crown has to establish beyond reasonable doubt before you could convict the accused" (emphasis added). (Transcript 10 September 2010, p 10). 29In these circumstances I do not consider that a grant of leave under r 4 in relation to this ground of appeal is warranted. GROUND 2 - "THE LEARNED TRIAL JUDGE ERRED IN FAILING TO DIRECT THE JURY THAT IT WAS NECESSARY THAT THE CROWN ESTABLISH THAT, AS PART OF THE JOINT CRIMINAL ENTERPRISE TO WHICH THE APPELLANT WAS A PARTY, THE APPELLANT AGREED THAT THE DECEASED WOULD BE SUBJECTED TO AN UNLAWFUL AND DANGEROUS ACT' 30This point also was not taken at the trial, with the consequence that leave under r 4 is required if the appellant is to be permitted to rely upon it. 31In the passage of the Summing-Up quoted in [24] above, the trial judge referred to the Crown case that there was a joint criminal enterprise "to visit physical violence upon Mr Purdon" and an understanding or arrangement that Mr Purdon "would be physically assaulted". He used these or similar expressions many times elsewhere in his Summing-Up. 32The trial judge also said in his Summing-Up: "Just to go back to the actual circumstances, the law provides, members of the jury, and it is common ground, that if you commit an unlawful and dangerous act upon another person and as a result that person dies, then you are guilty of the crime of manslaughter and it is not disputed here but that the punch thrown by [AC] was both unlawful and dangerous, as a result Mr Purdon died and therefore [AC] was guilty of the crime of manslaughter" (Transcript 10 September 2010, p 10) 33At no point did the trial judge direct the jury that for an act to be "dangerous" for this purpose, it had to be one that exposed the victim to "an appreciable risk of serious injury" (Wilson v The Queen). 34On appeal the appellant contended, and the Crown did not dispute, that the Crown did not at the trial rely upon the principle of "extended common purpose". An explanation of that principle was given in Clayton v The Queen [2006] HCA 58; 81 ALJR 439 at [17] and adopted in R v Taufahema [2007] HCA 11; 228 CLR 232 at [7] as follows: "The principle referred to in the second of the above paragraphs is sometimes described as "extended common purpose". In Clayton v The Queen [2006] HCA 58; 81 ALJR 439 at [17], the majority gave the following example: " ... 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" (citations omitted). 35Under this principle, even if no agreement had been made to assault Mr Purdon in a manner that exposed him to an appreciable risk of serious injury, if the possibility of that occurring had been contemplated as part of an enterprise to visit some physical violence upon Mr Purdon, the consequence would have been that the commission of an act in fact exposing Mr Purdon to an appreciable risk of serious injury pursuant to that enterprise would have rendered each party to the arrangement liable for the consequences of the act. However, the Crown did not put its case in this way. 36As the Crown did not rely upon the extended joint criminal enterprise principle, it was necessary for the trial judge to direct the jury that it needed to be satisfied beyond reasonable doubt that the appellant and AC had an agreement or understanding that an act would be committed that exposed Mr Purdon to an appreciable risk of serious injury. A general agreement to assault Mr Purdon or "to visit physical violence" on him would not have sufficed. Performance of such an agreement would not necessarily have exposed Mr Purdon to the requisite level of risk of serious injury. 37The agreement between the Crown and the appellant that the punch delivered by AC upon Mr Purdon was an unlawful and dangerous act did not in my view obviate the need for this direction. It could be argued that the jury would have inferred that the arrangement between the appellant and AC needed to be one that such an act should be committed, because it was instructed that the punch had to have occurred as part of the arrangement. A point of such importance, however, should not have been left to inference. It was critical that the jury appreciate the need for proof beyond reasonable doubt that the appellant had agreed with AC that an act would be committed exposing Mr Purdon not simply to some physical harm but to an appreciable risk of serious injury. 38Leave should be given under r 4 to rely upon this ground. The omission in the directions related to a critical element of the offence with which the appellant was charged. In light of the factual circumstances of which evidence was given at the trial, proof of this element was essential in establishing the appellant's guilt. As Latham J (with the concurrence of Spigelman CJ and Kirby J) indicated in Ka Chung Fung v The Queen [2007] NSWCCA 250; 174 A Crim R 169 at [48], deficiencies in directions relating to the elements of an offence are of particular importance and stand in a different category to other deficiencies raised on appeal. 39For the same reasons I do not consider that this is a case in which the proviso to s 6(1) of the Criminal Appeal Act 1912 applies. In my view a substantial miscarriage of justice occurred here because the jury was not properly directed about a critical element of the offence with which the appellant was charged. Such a misdirection does not necessarily render the proviso inapplicable (Krakouer v The Queen [1998] HCA 43; 194 CLR 202 at [23]; see also Handlen v The Queen [2011] HCA 51 at [80] per Heydon J). However, the proviso will seldom be applied in circumstances where, as here, "the jury were not sufficiently directed of the need to be satisfied to the requisite standard of an element of the offence being considered": Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 at [31]. 40I add that in the course of her address on appeal, counsel for the Crown, very properly, conceded the existence of the error referred to above in the directions to the jury and did not deny that a substantial miscarriage of justice had occurred. GROUND 5 - "A MISCARRIAGE OF JUSTICE WAS OCCASIONED BY THE ADMISSION INTO EVIDENCE [OF] THE EVIDENCE OF [RD] OF WHAT THE APPELLANT TOLD HIM IN RELATION TO GETTING INTO FIGHTS" 41It is convenient to deal with this ground before grounds 3 and 4. 42Leave to raise this ground is necessary as objection to RD's evidence was not taken at the trial. 43The evidence of RD (see [17] above) concerned statements made by the appellant "at some time during the night" of 20 February 2009 prior to the assault on Mr Purdon (Transcript 1 September 2010, p 214). It was in my view admissible as evidence of the appellant's state of mind at the time of the alleged offence. The evidence did not reveal, contrary to s 97 of the Evidence Act 1995, a general tendency or propensity of the appellant to engage in the alleged conduct. Rather, it evinced "a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence" (R v Adam [1999] NSWCCA 189; 106 A Crim R 510 at [30]). Evidence that the appellant and others had said "Let's go after people and start fights" was directly relevant to the existence of the alleged joint criminal enterprise between AC, AB and the appellant to assault Mr Purdon. Accordingly, although the evidence was not so significant as to form "an inseparable feature of a unified sequence of events" (LJW v R [2010] NSWCCA 114 at [45] per Hodgson JA), its proximity in time to the formation of the alleged enterprise rendered it admissible as "evidence of a state of mind which could reasonably be inferred as having a probability of continuing ... to the time of the events alleged" (ibid at [47]). The evidence was therefore admissible and leave to raise this ground of appeal should not be granted. GROUNDS 3 AND 4: "THE LEARNED TRIAL JUDGE ERRED IN ADMITTING INTO EVIDENCE THE EVIDENCE OF [JG] THAT THE APPELLANT TOLD HER HE 'ONLY GOES TO THE SHOW TO GET INTO FIGHTS'''AND "A MISCARRIAGE OF JUSTICE WAS OCCASIONED BY THE ADMISSION INTO EVIDENCE [OF] THE EVIDENCE OF [AS] THAT THE APPELLANT TOLD HER THAT 'FRIDAY NIGHT WAS FIGHT NIGHT'" 44The evidence of JG concerned a statement that had been made by the appellant in the week leading up to 20 February 2009 that he "only goes to the show to get into fights" (Transcript 1 September 2010, p 188). It suggested a tendency of the appellant to engage in violent behaviour (compare s 97 of the Evidence Act 1995). Given the time lapse between this statement and the assault on Mr Purdon, the evidence was neither referable to a "connected series of events" (O'Leary v R (1946) 73 CLR 566 at 577 per Dixon J), nor in my view sufficiently proximate to the assault to be probative of the appellant's state of mind at the time of the alleged offence (R v Adam at [30]). Accordingly, the evidence of JG should not have been admitted at trial. 45The evidence of AS concerned a statement that had been made by the appellant in the week leading up to 20 February 2009 that "Friday was fight night" (see [16] above). It was not in my view admissible. It did not reveal a propensity of the appellant towards violent conduct but if it had, it would have been precluded from admission on that basis by s 97 of the Evidence Act. Furthermore it was not sufficiently proximate to the formation of the alleged criminal enterprise to reveal anything relevant about the appellant's state of mind at that time. GROUND 6: "A MISCARRIAGE OF JUSTICE WAS OCCASIONED BY THE FAILURE OF THE TRIAL JUDGE TO ADEQUATELY DIRECT THE JURY WITH RESPECT TO THE EVIDENCE THE SUBJECT OF GROUNDS 3, 4 AND 5" 46It is unnecessary to examine the alleged inadequacy of the trial judge's directions in this respect as I have already concluded that a miscarriage of justice was occasioned by the deficiencies raised in Grounds 2 and 7(b). GROUND 7(a): "A MISCARRIAGE OF JUSTICE WAS OCCASIONED BY THE FAILURE OF THE APPELLANT'S COUNSEL TO CROSS-EXAMINE [AC] OR [AB] WITH RESPECT TO THE BENEFIT EACH RECEIVED FOR AGREEING TO GIVE EVIDENCE AGAINST THE APPELLANT AND THE CONSEQUENCE FOR HIM OF NOT DOING SO" 47It is unnecessary to deal with this ground of appeal for the same reasons as I have given in relation to Ground 6. In addition, scrutiny of the appellant's counsel's cross-examination at the trial would neither assist me in deciding whether a new trial should be ordered nor facilitate the conduct of any new trial that takes place. GROUND 7(b): "A MISCARRIAGE OF JUSTICE WAS OCCASIONED BY THE ABSENCE OF CROSS-EXAMINATION OF [AC] [WITH] RESPECT TO PRIOR STATEMENTS MADE BY HIM IN CONJUNCTION WITH HIS SENTENCING PROCEEDINGS ARISING OUT OF: 1. THE FAILURE OF THE CROWN TO COMPLY WITH S 137, CRIMINAL PROCEDURE ACT, 1986 AS A CONSEQUENCE OF WHICH THAT MATERIAL WAS NOT PROVIDED TO THE DEFENCE; OR, ALTERNATIVELY 2. THE FAILURE OF THE DEFENCE TO SUBPOENA THE COURT FILE WITH RESPECT TO THOSE PROCEEDINGS" GROUND 8: "THE LEARNED TRIAL JUDGE ERRED IN REFUSING TO GRANT LEAVE TO THE CROWN TO RE-OPEN ITS CASE TO RECALL THE WITNESS, [AC]" GROUND 9: "TRIAL JUDGE ERRED IN FAILING TO DISCHARGE THE JURY HAVING DECIDED THAT HE WOULD NOT ALLOW THE WITNESS [AC] TO BE RECALLED FOR FURTHER CROSS-EXAMINATION" 48These grounds relate to the Crown's non-disclosure to the appellant and his representatives of certain reports concerning AC that were in the Crown's possession prior to the trial. As the Crown accepted that it failed to comply with its obligations of disclosure under s 137 of the Criminal Procedure Act 1986 concerning those reports, it is unnecessary to refer to the evidence adduced on appeal as to how the non-disclosure came about. It is sufficient to note that the non-disclosure was inadvertent and arose out of the fact that at the time that the Crown was preparing for the appellant's trial it had on foot an appeal in relation to AC's sentence. 49The first report in question is a report prepared by officers of the NSW Department of Juvenile Justice and dated 31 July 2009. The report included the following in relation to an interview of AC: "[AC] reported that the incident occurred due to being informed that two younger males had been 'pushed around' by adult males within the showground. [AC] stated his intention in approaching the victim was to verbally abuse him but stated he was aware a physical altercation may ensue. [AC] initially reported being angry due to the bullying but stated when the victim turned around and grabbed his arm and as a consequence his emotions turned to fear. His fear included being physically hurt as the victim was also surrounded by several mates" (Report, p 2). 50AC's asserted statement to the Department that "his intention in approaching [Mr Purdon] was to verbally abuse him" stands in apparent contrast to AC's evidence given at the trial. The Crown put to the jury that the effect of AC's evidence was that the appellant and AC agreed that Mr Purdon would be physically assaulted and that AC punched Mr Purdon in pursuance of that agreement. AC may have had some explanation for the apparent inconsistency but certainly the statement attributed to AC in the report would have provided valuable ammunition for AC's cross-examiner in dealing with this critical part of AC's evidence. Acceptance of that evidence was fundamental to the success of the Crown case. 51AC's description of his fear of assault, in the statements attributed to him in the Department's report, would have provided support for an argument that AC punched Mr Purdon in self-defence rather than in pursuance of a pre-existing agreement to assault Mr Purdon (see also the evidence given by AC at the trial that "I thought he was going to hit me" at [9] above). This may well have assisted AC's cross-examiner in proving that AC did not throw the punch for the purpose of giving effect to the alleged joint criminal enterprise. 52The second report of significance is the Psychologist's Report dated 15 January 2010 of Dr Christopher Lennings. Dr Lennings' Report included the following: "By way of context, [AC] says he was approached by a few young people he knew who told him that a group of young men had roughed up his younger brother's mate ... [AC] says he was told this boy was in a bad way and this friends [sic] asked him 'have you got my back'. He said 'yes', in part because the boys were young and he was worried about them ... He said the boys went walking, and then [AC] became aware of a fight brewing and he called to the kids he was with to leave, in order to avoid a further provocation of what he saw as a tense situation. However, one of his friends spotted the alleged assailant of his friend across the road, and [AC] says he crossed the road to 'have a go' (that is tell off) this person [that is, Mr Purdon] for having a go at his brother's mate. He says he grabbed this person on the shoulder, the victim grabbed his hand, he [thought] the victim was going to punch him so he punched him first ... " ([15]). 53The statement attributed to AC that he crossed the road to "'have a go' (that is tell off)" Mr Purdon again stands in apparent contrast to AC's evidence at the trial that the Crown contended indicated that he punched Mr Purdon to give effect to the alleged joint criminal enterprise. The admission that "he [thought] the victim was going to punch him so he punched him first" provides further support for an argument that AC assaulted Mr Purdon in self-defence rather than in pursuance of a joint criminal enterprise to assault him (see [52] above). 54The appellant was in my view seriously disadvantaged by not having this material available for use by his counsel in cross-examination. As was the case in Grey v R [2001] HCA 65; 75 ALJR 1708, it is "not difficult to imagine a fertile area of cross-examination that could have been tilled by the appellant on the basis of this [evidence] ... Its revelation and admission into evidence could have put a quite different complexion on the case for the appellant and the way in which it was conducted" (at [18]). That disadvantage flowed from a breach of the Crown's duty of disclosure. In my view it resulted in a miscarriage of justice. At the hearing of the appeal, counsel for the Crown, quite properly, did not deny that a miscarriage of justice had flowed from this breach of s 137. 55It follows that the appellant's conviction should be quashed on this basis, as well as upon the basis of ground of appeal 2. As Kirby J noted in Grey v R, "[i]n cases where credibility is in issue and where the jury's assessment of the truthfulness of a vital prosecution witness might be important for their verdict ... the unavailability of significant and relevant evidence that later comes to light may, in a particular case, occasion such a miscarriage of justice that a guilty verdict should not stand" ([55]). In my view, the present is such a case. 56In these circumstances it is unnecessary to examine in any detail whether any steps could and should have been taken at the trial to avoid this miscarriage of justice occurring, once the reports had come to the appellant's counsel's attention. That occurred on 9 September 2010 after the evidence, but not the final addresses, had been completed. It resulted from the delivery of this Court's judgment on the Crown's appeal against AC's sentence on 8 September 2010. That judgment quoted critical aspects of the reports. 57The appellant then sought to have AC recalled for further cross-examination but the trial judge declined to permit this upon the basis that the new material did not "make a great deal of difference to the overall issues" (Transcript 9 September 2010, p 30.46). For reasons that are apparent from what I have said earlier, my view is that the material in the reports was, in fact, of considerable significance. GROUND 10: "THE VERDICT OF THE JURY IS UNREASONABLE AND CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE" 58This ground has its foundation in s 6 of the Criminal Appeal Act 1912. The High Court recently considered this ground in SKA v The Queen [2011] HCA 13; 243 CLR 400. It is apparent from the judgment of the plurality in that case, and from the earlier decision in M v The Queen [1994] HCA 63; 181 CLR 487, that the question for a court of criminal appeal when considering such a ground of appeal is not simply "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (M at 493 and SKA at [11]). The Court is also required to conduct its own "independent assessment of the evidence, both as to its sufficiency and its quality", and to assess whether, "notwithstanding that there is evidence upon which a jury might convict, 'nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand'" (M at 492 - 3; SKA at [14]). 59This requirement was reflected in the later reference in the plurality judgment in SKA to the "central question" as being "whether on the evidence the Court was satisfied that the applicant was guilty of the offences" (at [20]). 60In light of my conclusion that the appellant's conviction should be quashed on other grounds, it is neither necessary nor desirable that I deal with this ground of appeal to the full extent dictated by SKA and M. In particular, as there were deficiencies in connection with the trial that resulted in a miscarriage of justice, it would be inappropriate for me to form and express a view, based upon what I find to have been a flawed trial process, on whether at the trial the Crown proved beyond reasonable doubt that the appellant was guilty of the offence charged. 61It is appropriate however that I consider the first aspect of the task identified in SKA and M, that is, whether on the evidence that was before the jury, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The answer is to this question is important in considering whether a retrial should be ordered because it should be assumed, in the absence of any indication to the contrary, that the Crown would lead substantially the same evidence at a retrial as that which it led at the initial trial. If that evidence was not capable of sustaining a conviction, it would be inappropriate to order a retrial on substantially the same evidence: Gerakiteys v R [1984] HCA 8; 153 CLR 317 at 321. As was noted in R v Taufahema [2007] HCA 11; 228 CLR 233 at [52], "if the evidence is unchanged at the second trial, accused persons should not be placed in jeopardy of conviction by a second jury where an appellate court has found that the evidence was insufficient at the first trial". Moreover, "a new trial should not be ordered merely to give the prosecution an opportunity of mending its hand and presenting new evidence at the second trial which it failed to present at the first" (ibid at [52]). WHETHER A RETRIAL SHOULD BE ORDERED 62I have summarised earlier the presently relevant evidence given at the trial (see [8] - [20]). The only evidence led by the prosecution that was capable on its own of proving the alleged joint criminal enterprise was that of AC and AB. The remainder of the evidence was at best supportive and can for present purposes be put to one side. 63Standing alone, AB's evidence might not be a satisfactory basis for ordering a retrial because, as noted earlier ([11]), AB conceded that he lied in various respects. In its submissions on appeal the Crown accepted "that there were parts of [AB's] evidence (or evidence from others of [AB's] statements to them) that were seemingly inconsistent with other evidence" (Written Submissions [107]). 64In a practical sense the Crown's case rested, and would rest again at a retrial, substantially on the evidence of AC. His evidence (see particularly [9] above), if accepted, was in my view capable of supporting the Crown's case against the appellant. I consider that it was open to the jury to take the view that the statement that AC attributed to the appellant that "these 20 year old dudes just tried to fight me, I'm going back to get them", was a statement of the appellant's intent to physically assault those persons. It was also open to the jury to conclude that AC's affirmative response to the appellant's question "have you got my back?", together with their movement and apparent search for Mr Purdon and the appellant's statement "There he is. Let's go" gave rise to a joint criminal enterprise to physically assault Mr Purdon in a manner exposing him to an appreciable risk of serious injury. Upon AC's evidence, it was open to the jury to conclude that AC threw the punch at Mr Purdon in pursuance of that joint criminal enterprise. 65In reaching these conclusions I have taken into account the hurdles the Crown would face at a retrial which would include the following. First, even if the jury accepted AC's evidence, it might not be satisfied beyond reasonable doubt that such arrangement as was made between AC and the appellant contemplated physical assault on Mr Purdon or, if it did, that it contemplated an assault of such severity that it would expose Mr Purdon to an appreciable risk of serious injury. Secondly, the jury might reject AC's evidence on the basis that he had a strong motive to give evidence favourable to the Crown's case to avoid losing the discount in his sentence that he had received for assisting the police. Thirdly, the jury might take the view that the statements attributed to AC in the reports of the Juvenile Justice Department Report and Dr Lennings undermined his credit to such an extent that his evidence could not be accepted. There are other possibilities as well. 66Given my view that on the evidence led by the Crown at the first trial it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged, and given "the desirability, if possible, of having the guilt or innocence of the [accused] finally determined by a jury" (R v Anderson (1991) 53 A Crim R 421 at 453 per Gleeson CJ), it is my view that a retrial should be ordered. ORDERS 67An order quashing the appellant's conviction was made on 16 February 2012. The appeal should be allowed and an order now made that the appellant be retried in relation to the charge upon which he stood trial before Judge Coolahan. 68RA HULME J: I agree with Macfarlan JA. 69GARLING J: On 16 February 2012, I joined in the order made by the court quashing the appellant's conviction. 70I agree with the reasons of Macfarlan JA for the making of that order and the balance of the orders which he proposes. ********** 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. Decision last updated: 18 October 2013