Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hawi v R [2014] NSWCCA 83 Hearing dates: 18 July 2013 Decision date: 16 May 2014 Before: Bathurst CJ at [1]; Price J at [381]; McCallum J at [471] Decision: 1. The appeal be allowed. 2. The verdict of the jury be set aside and the conviction quashed. 3. There be a new trial. Catchwords: CRIMINAL - conviction - whether verdict unreasonable - whether jury verdicts inconsistent - whether open to jury to be satisfied beyond reasonable doubt as to the appellant's guilt on the evidence - advantage of hearing and seeing evidence at trial CRIMINAL - directions to jury - whether failure to leave provocation - whether evidence raised defence - whether subsumed by self-defence - substantial miscarriage of justice CRIMINAL - procedural fairness - principle of open court - exceptions - jury deliberations - what constitutes jury deliberations - whether judge should have disclosed content of communication between judge and jury - s 68B Jury Act CRIMINAL - jury directions - manner of jury deliberation on alternative charges JUDGMENT AND ORDERS - Court of Criminal Appeal - no majority as to orders -need for outcome - method adopted - least unsatisfactory outcome Legislation Cited: Contracts Review Act 1980 (NSW) Crimes Act 1900 (NSW), ss 23 and 421 Criminal Appeal Act 1912 (NSW), ss 3, 6 and 21A Fair Trading Act 1987 (NSW) Federal Court of Australia Act 1976 (Cth), s 16 Judiciary Act 1903 (Cth), s 23 Jury Act 1977 (NSW), ss 55F, 56 and 68B Mental Health Act 1990 (NSW) Migration Act 1958 (Cth), s 503A Senior Courts Act 1981 (UK), s 55 Supreme Court Act 1970 (NSW), s 45 Cases Cited: Arbest Pty Ltd v State Bank of New South Wales Ltd [1996] NSWCA 19; (1996) ATPR 41-481 Attorney General for New South Wales v Barr (Court of Appeal (NSW), 11 October 1991, unrep) Black v R [1993] HCA 71; (1993) 179 CLR 44 Burrell v R [2007] NSWCCA 65, (2007) 190 A Crim R 148 CES and Another v Superclinics (Australia) Pty Ltd and Others (1995) 38 NSWLR 47 Evans v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2003] FCAFC 276; (2003) 135 FCR 306 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Government Insurance Office of New South Wales v Rosniak (1992) 27 NSWLR 665 Hayes v Marquis [2008] NSWCA 10 HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 Huynh v R [2013] HCA 6; (2013) 87 ALJR 434 Lexington Constructions Pty Ltd v Coyne (Court of Appeal (NSW), 24 December 1992, unrep) Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58 McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 New South Wales Medical Defence Union Ltd v Crawford (No 3) (Court of Appeal (NSW), 23 September 1994, unrep) O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Pippos v Craig (1993) 1 VR 603 R v Aouli [2011] NSWSC 1393 R v Gorman [1987] 2 All ER 435; 1 WLR 545 R v Hawi [2012] NSWSC 332 R v Hawi & Ors (No 31) [2011] NSWSC 1677 R v Menzies [2012] NSWSC 158 R v Pearson [1996] 3 NZLR 275 R v Pirini [2011] NSWSC 1395 R v Potier [2005] NSWCCA 336 R v Robinson [2000] NSWCCA 59; (2000) 111 A Crim R 388 R v Shama [1990] 2 All ER 602; [1990] 1 WLR 661 R v Smith [1982] 2 NSWLR 608 R v Stone, Unreported, Court of Appeal Criminal Division England and Wales, 13 December 1954 R v Wilson [2005] NSWCCA 112; (2005) 153 A Crim R 257 R v Yuill (1994) 34 NSWLR 179; (1994) 77 A Crim R 314 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Skulander v Willoughby City Council [2007] NSWCA 116; (2007) 73 NSWLR 44 Stanton v R [2003] HCA 29; (2003) 77 ALJR 1151 Stingel v R [1990] HCA 61; (1990) 171 CLR 312 The Perpetual Trustee Company (Ltd) v Tindal and Others [1940] HCA 14; (1940) 63 CLR 232 The Queen v Ashwell (1885) 16 QBD 190 Tsivinsky v Tsivinsky (Court of Appeal (NSW), 5 December 1991, unrep) Van Den Hoek v R [1986] HCA 76; (1986) 161 CLR 158 Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 Woolworths Ltd v Kelly (1991) 22 NSWLR 189 Category: Principal judgment Parties: Mahmoud Hawi (Appellant) Crown (Respondent) Representation: Counsel: B Walker SC / G A Bashir / D Barrow (Appellant) P Ingram SC (Crown) Solicitors: AHA Taylor Lawyers (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/50087 2009/52582 Publication restriction: If there is to be a retrial, judgment should not be posted on the internet until after such trial. Non-publication of order of anything that would identify witnesses known as SP and AL. Decision under appeal Jurisdiction: 9111 Before: R A Hulme J File Number(s): 2009/50087 2009/52582 Judgment BATHURST CJ: Heading Par The persons involved [9] CMC members on trial with the appellant [9] CMC members not tried with the appellant [16] HA members involved [23] The evidence [32] The flight to Sydney [32] The affray at Gate 5 [51] The riot and fatal assault [93] (1) Witnesses who described the events in detail [103] (2) The evidence of the informers AL and SP [158] (3) Witnesses who provided general descriptions [169] The appellant's evidence [207] Mr Menzies' evidence [238] CCTV footage of the riot and fatal assault [263] Grounds 1 and 2 of the grounds of appeal [267] The appellant's submissions [269] The Crown's submissions [300] Consideration [307] Did the appellant strike the deceased with a bollard? [316] Liability on the basis of joint criminal enterprise [329] Disposition of the appeal [350] Does s 21A(2) of the Criminal Appeal Act apply in these circumstances? [352] Other options [366] (a) Expanding or reconstituting the Court [366] (b) Consideration by me of Ground 3 [370] (c) Allowing the jury verdict to stand [372] (d) The junior judge deferring to the senior judge [373] (e) A result reflecting the "highest common denominator" [375] 1The events the subject of this appeal arise out of an affray and riot which took place at Sydney Domestic Airport on 22 March 2009 involving members of two rival motorcycle clubs, the Comanchero Motorcycle Club (CMC) and the Hells Angels Motorcycle Club (HA). In the course of what occurred a member of the HA, Anthony Zervas (the deceased), was killed. 2As a consequence, Mahmoud Hawi (the appellant) and five other members of the CMC, Christian Menzies, Ishmail Eken, Usama Potrus, Farres Abounader and Zoran Kisacanin were each charged with the murder of the deceased. They were also charged with participating in a riot. 3After a trial which took place between 24 May 2011 and 2 November 2011, the appellant was convicted of murder. All five co-accused were acquitted of the charge. 4Manslaughter was left to the jury. The jury was unable to agree on a verdict in relation to Messrs Menzies and Abounader but acquitted the remaining co-accused. 5The appellant and his co-accused were charged with riot in addition to murder. Ultimately, no verdict was sought against Messrs Hawi, Menzies or Abounader, whilst Messrs Eken, Potrus and Kisacanin were found guilty of this offence. 6The charges referred to above related to events which occurred in the departure hall of Terminal 3 at Sydney Domestic Airport (the departure hall). Prior to this event an altercation between members of both clubs had taken place outside Gate 5 of Terminal 3 (Gate 5). Messrs Hawi, Menzies, Eken and Kisacanin were also charged with affray arising out of that incident. Only Messrs Hawi, Menzies and Kisacanin were found guilty. A member of HA (David Padovan) was charged with riot (in the departure hall) and affray (in the departure hall and outside Gate 5), but found not guilty. 7The appellant appealed against his conviction for murder. As one of the grounds of appeal was that the verdict was unreasonable, it is necessary to set out in detail the background facts and evidence as it emerged at the trial. 8It is convenient to deal first with evidence describing the various participants in the events of 22 March 2009, then the events which took place on a flight from Melbourne to Sydney (QF430), the events outside Gate 5 and finally, the riot which took place in the departure hall where the deceased was killed. The persons involved CMC members on trial with the appellant 9There were 12 members of the CMC involved in the incident. However, not all of them were tried with the appellant. The identity and description of the appellant and other five CMC members tried with him can be summarised as follows. 10The appellant was 28 years of age at the time of the incident. He was the National President of the CMC. Biometric details of the appellant contained in the jury bundle state that he was about 178 cm tall. Images from CCTV footage taken at the time of the incident and photographs taken by police on 6 April 2009 show the appellant as very muscular and having a large tattoo on his left shoulder that ended below his left ear. During the events of 22 March 2009 the appellant was distinctly dressed in a short-sleeved white shirt with black text across the front. He was wearing long white pants with black shoes. 11Biometric details of Mr Menzies contained in the jury bundle state that he was 26 years of age at the time of the incident and 191 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 27 March 2009 show him to be of Aboriginal appearance, of solid build, with short dark hair, with a tattoo of the letters "ACCA" on his neck under his chin and with large tattoos on both forearms. During the events of 22 March 2009 Mr Menzies was wearing a black t-shirt with a motif on the front and white text on the back, grey tracksuit pants and white shoes. 12Biometric details of Mr Eken contained in the jury bundle state that he was 26 years of age at the time of the incident and was 197 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident show him to be of medium build, of Middle Eastern appearance and with short dark hair and facial stubble. During the events of 22 March 2009 Mr Eken was wearing a black CMC t-shirt with a yellow logo on each sleeve and on the front. A yellow "1" was on the back of the shirt. Mr Eken was wearing brown pants with a white motif on the left leg. He was wearing blue, silver and white Nike running shoes. 13Biometric details of Mr Kisacanin contained in the jury bundle state that he was 22 years of age at the time of the incident and 179 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident show him as being of medium build and European appearance. During the events of 22 March 2009 Mr Kisacanin was wearing a grey singlet with black upper trim, a white baseball cap, navy blue shorts and dark shoes. 14Biometric details of Mr Potrus contained in the jury bundle state that he was 26 years of age at the time of the incident and 184.5 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 16 October 2009 show him to be of Mediterranean appearance, of medium build and with tattoos on his chest and arms. At the time of the incident Mr Potrus was wearing a black singlet and baseball cap, black three quarter length pants and white shoes. 15Biometric details of Mr Abounader contained in the jury bundle state that he was 27 years of age at the time of the incident and 171 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 3 July 2009 show him to be of solid build, of Mediterranean appearance and with tattoos on his chest, arms and back. At the time of the incident Mr Abounader was wearing a white singlet with a motif on the front, sunglasses, a gold neck chain, knee length black shorts and white shoes. CMC members not tried with the appellant 16The following people were members of the CMC and involved in the events at the Sydney Domestic Airport, however they were not tried at the same time as the six people described above. 17Biometric details of SP contained in the jury bundle state that he was 32 years of age at the time of the incident and 167 cm tall. He was a nominee member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 8 July 2009 show him to be of muscular build, of Pacific Islander appearance, with short dark hair and with tattoos on his upper right arm and a large tattoo on his left shoulder that extended to his lower forearm. At the time of the incident SP was wearing a black singlet with white writing on the chest, light coloured knee-length shorts and white shoes. 18Biometric details of Maher Aouli contained in the jury bundle state that he was 28 years of age at the time of the incident and 181 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 12 August 2009 show him to be of thin build, of Middle Eastern appearance and with short dark hair. At the time of the incident he was wearing a black short-sleeved polo shirt, grey tracksuit pants with a white stripe down each leg. 19Biometric details of Pomare Pirini contained in the jury bundle state that he was 21 years of age at the time of the incident and 185.4 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on 11 August 2009 show him to be of medium build, muscular, of Pacific Islander appearance and with short dark hair. At the time of the incident he was wearing a black long-sleeved polo shirt with an aqua coloured t-shirt underneath, navy shorts with three vertical stripes down each leg and white and blue running shoes. 20Biometric details of Tiago Costa contained in the jury bundle state that he was 29 years of age at the time of the incident and 186 cm tall. Images from CCTV footage taken at the time of the incident and photographs taken by police on 3 July 2009 show him to be of muscular build, with short hair that was longer at the back and with tattoos on his arms. During the events of 22 March 2009 Mr Costa was wearing a black t-shirt with a "9" motif on the front, three-quarter length white shorts and white shoes. 21Biometric details of AL contained in the jury bundle state that he was 40 years of age at the time of the incident and 181.5 cm tall. He was a nominee member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on the same day show him to be of large build, of Pacific Islander appearance, with short dark hair and a moustache. During the incident he was wearing a blue Hawaiian shirt and knee-length dark shorts. 22Biometric details of Francesco La Rosa contained in the jury bundle state that he was 37 years of age at the time of the incident and 175 cm tall. He was a member of the CMC. Images from CCTV footage taken at the time of the incident and photographs taken by police on the same day show him to be of an obese build, of Mediterranean appearance and having a small goatee beard. During the incident Mr La Rosa was wearing a black t-shirt with a white and yellow motif across the chest, together with dark coloured tracksuit pants. HA members involved 23The following eight persons were associated with the HA and were involved in the events in the departure hall. Biometric details contained in the jury bundle state that the deceased was 29 years of age at the time of his death and 161 cm tall. Images from CCTV footage taken at the time of the incident show him to be of thin build, of European appearance and with short dark hair. At the time he was wearing a grey t-shirt with white writing across the chest, a dark coloured hooded top, knee-length black shorts and white shoes. He had a bandage around his right calf. 24Biometric details of Peter Zervas contained in the jury bundle state that he was 32 years of age at the time of the incident. He was a member of the HA. Images from CCTV footage taken at the time of the incident and photographs taken by police on the same day show him to be of solid build, medium height, of European appearance, with short dark hair and HA tattoos around his neck, chest and on his right arm. He also had a coloured tattoo on his left shoulder. At the time of the incident he was wearing a green HA singlet with a motif on both the front and back, and light blue tracksuit pants with two white vertical stripes down each leg. 25Biometric details of Derek Wainohu contained in the jury bundle state that he was 51 years of age at the time of the incident. He was the President of the HA. Images from CCTV footage taken at the time of the incident show him to be of a thickset build, medium height, of Pacific Islander appearance and with a moustache. At the time of the incident he was wearing a black HA t-shirt with a motif of two wings on the front, dark jeans and carrying a sports bag. 26Biometric details of Musa (Phillip) Ovalle contained in the jury bundle state that he was 25 years of age at the time of the incident and 186.5 cm tall. Images from CCTV footage taken at the time of the incident and photographs taken by police on the same day show him to be of medium build, of Middle Eastern appearance and with short dark hair and some facial hair. He was wearing a dark short-sleeved shirt and dark coloured pants. 27Biometric details of Mr Padovan contained in the jury bundle state that he was 25 years of age at the time of the incident and 175 cm tall. Images from CCTV footage taken at the time of the incident and photographs taken by police on the same day show him to be of Mediterranean appearance and muscular build. During the incident at Gate 5 Mr Padovan lost his shirt. He was otherwise wearing a white baseball cap, dark coloured shorts and white shoes. Mr Padovan was the only HA member to be tried with the appellant and the five other co-accused CMC members. 28Biometric details of Tom Baker contained in the jury bundle state that he was 48 years of age at the time of the incident. Images from CCTV footage taken at the time of the incident show him to be of medium build, of medium height, of Caucasian appearance and with short dark hair and a goatee beard. He was wearing a dark coloured jumper, a black cap, blue denim jeans and dark shoes. 29Biometric details of Peter Martin contained in the jury bundle state that he was 41 years of age at the time of the incident. Images from CCTV footage taken at the time of the incident show him to be of medium build, of Caucasian appearance and with a beard. He was wearing a hooded red jumper with "Soho" written in white across the chest and pale blue jeans. 30Biometric details of Elias Khoury contained in the jury bundle state that he was 20 years of age at the time of the incident. Images from CCTV footage taken at the time of the incident show him to be of medium height, of Middle Eastern appearance and having a thin build. He was wearing a blue long-sleeved hooded jumper, grey knee-length shorts and white shoes. 31What is notable from these descriptions is that the appellant was highly recognisable. He was the only person wearing a white shirt, although Mr Abounader was wearing a white singlet and Mr Kisacanin a grey singlet. More significantly, the appellant was the only person wearing white pants. The evidence The flight to Sydney 32The aircraft which operated QF430 was a Boeing 767 with seven seats in each row in a configuration of two-three-two, marked A-K from left to right. 33Five members of the CMC were on the plane, including the appellant and Mr Menzies. The appellant and Mr Menzies were in seats 44D and 44F respectively. The other CMC members were in seats 35K, 43F and 44E. 34Mr Wainohu, the President of the HA, was also on the plane occupying seat 39K. Ms Rebecca Ketelhohn, a flight attendant, said after the plane had landed three of the men including the appellant, moved directly in front of her to get out of the plane. She said she saw the appellant call out a word to a passenger in the opposite aisle and make a gesture, pulling down his eyelid and then pointing to the person in question. She said the person in question repeated the action. 35Josephine Stevenson, a passenger sitting in seat 32K, gave evidence about a passenger who she described as about 5 feet 10 inches, thickset, of Middle Eastern appearance, aged between 20 and 30 years, wearing blue jeans and a white singlet. She said he was walking up and down the plane and the second time he did so, he pointed to a person behind her and said words in a different language. She said he was aggressive. 36Matthew McCrone, seated in seat 34J, described four men boarding the plane, one of whom he described as an alpha male. He said the alpha male and one man came down the aisle furthest from him, while the other two went down the aisle closest to him. He described the alpha male as wearing a white t-shirt and blue tracksuit pants. He said he was of Middle Eastern appearance, of solid build and had a tattoo around a bicep. He said that he was moving up and down the aisle. He said that at one stage when the man was in front of him, he stopped and pointed. He heard the words "Before we land in Sydney you mother fucker". 37Mr McCrone agreed the man in question seemed to be pointing and speaking to someone in seat 35K. He was not told that Mr Aouli was sitting in that seat. He agreed he would not be able to see persons in row 44 from where he was sitting as his view was blocked by a partition. 38It should be noted that the descriptions given by Ms Stevenson and Mr McCrone did not match the clothing of any of the persons said to be involved in the incidents. 39Rosemary Pagano was seated in seat 39J next to Mr Wainohu. She saw three men walking in the opposite aisle. She said one was wearing a white shirt and was tall and the other was wearing an olive t-shirt and about the same height. She subsequently saw the man in the white t-shirt staring at the man next to her with an angry expression. Mr Wainohu then started sending and receiving texts. 40Samantha Richards was seated in seat 33K. She saw two men of Middle Eastern appearance. She described one as very "muscly", having a shaved head and wearing a tight black singlet or shirt. She subsequently saw another man stopping diagonally from her and speaking in Arabic to someone behind her. She said he was angry. She described him as being in his late 40s, shorter than the other two men and of slim build. She agreed that she had given a different description to the police. 41Judith Auton was seated in seat 35J next to Mr Aouli. She said he made a phone call in a foreign language but she heard "Qantas domestic". She also heard him make another phone call in which he said that "the plane arrives at 1.30". 42Jonothan Patterson was seated in seat 40J. He saw a thickset man of Maori descent in front of him. Subsequently he saw three men whom he described as large and thickset of Maori appearance. He noticed that one of the men was wearing a CMC t-shirt. 43Andrea Halbert noticed four men of Middle Eastern appearance wearing casual clothes when she was checking-in for flight QF430. She was seated in seat 38B. She saw four men get onto the plane and saw at least two of them talk to another man. There was pointing and they did not appear friendly. 44Trudi McEntee was seated in seat 44A. She observed the passengers in seats 44D, 44E and 44F. She described the man in 44D as very big and dark-skinned, wearing a white tank top with a distinctive tattoo down his left arm. She also said he was wearing pale tracksuit pants with a stripe down the side. 45Ms McEntee described the man in seat 44E as well-built, stocky, muscular, with neat hair and a thin moustache and wearing a black polo shirt with yellow stitching and an emblem. 46Ms McEntee observed the men were in a hurry when they left the aircraft. She heard one of them say "It's time, time man". 47Matthew Jones was seated in seat 43F. He described four men of Middle Eastern descent, one dressed in a white tracksuit. One of the men, who was of Middle Eastern appearance and wearing a long-sleeved black top, sat next to him. He gave evidence that the man in white said "Get the guys to meet us at the other end". 48Nathan Anderson was seated in seat 45D. He said the persons in the row in front of him were of slightly above average height and of Middle Eastern appearance. The man in seat 44E (Mr Eken) was wearing a black CMC t-shirt. The man in seat 45F (Mr Menzies) had a "spider web's tattoo" on his elbow. When the plane landed the three men in front of him got up quickly and moved off the plane faster than any other passengers. 49Lucinda Milton was seated in seat 40D. She noted between two and four men of Middle Eastern appearance. In her police statement she said they all had short dark brown or black hair and were wearing t-shirts, one was black and one was white. She said the person in the white t-shirt may have been wearing light coloured pants or three-quarter length shorts. At one stage she saw the man in white staring at a person near her boyfriend. 50Ian Schilling was seated in seat 43D next to Mr Pirini. After the plane landed he saw him talking to a number of other men. One of the men had a mobile phone and was referring a message on the phone to the others on the plane. The affray at Gate 5 51A number of passengers gave evidence of the events which occurred outside Gate 5. 52Ms Pagano, to whose evidence I have already referred, gave evidence that when she got off the plane she heard yelling and scuffles. She saw that the man who was sitting next to her on the plane (Mr Wainohu) was part of a group of men who were "overseeing him". She estimated there were 30 men. She saw kicking, punching and there was yelling and screaming. She noticed the fight was moving towards her and she went into the Guess shop. She saw the man who was sitting next to her walk away with two men, one of whom had no shirt and was wearing shorts. 53Ms Halbert said that after she disembarked the plane she went into the Watermark Bookshop. She said that whilst she was in the bookshop she heard a lot of commotion and screaming. She saw a man who appeared to be being chased by some people. She then saw other people running in the opposite direction. 54Ms McEntee said that as she came out of the aerobridge she saw men fighting and wrestling. She saw the men from seats 44D, 44E, 43D and 43E. The man from seat 44D (the appellant) was holding a man she had not seen before. She said he was holding him and trying to hit him. The man from seat 44D punched the man on the side of his face whilst holding him. She said the men she saw seated in seats 43D and 43E were trying to get to the man being held down and keep the other men off the man from seat 44D. The man from seat 44D and the other men were holding the man on the ground and one of them kicked him aggressively in the kidney area. The man on the ground slipped out of his t-shirt and got away from the men who were chasing him. 55As Mr Jones emerged into the Gate 5 area he saw a man in white approach two men near a "booth". He saw some men coming down the alleyway from the right of the gate and a fight broke out. He saw a man with his shirt off on the ground and a further person was kicking him in his chest. He saw the man in white walking to the exit with "maybe three" other men. 56Andrew Dudgeon was one of the first off the aerobridge. He saw a number of men by a buggy. When the three men he observed on the plane disembarked, he saw a fight break out. He said that he saw a man who was sitting on the buggy attacked from his left and punched in the head quite violently. He went down on one knee and was kicked in the head by the person who punched him. He said the man who punched him on the ground was not one of the three men on the plane that he had observed earlier. 57Mr Anderson arrived off the aerobridge and saw a group of 15 to 25 men. He saw two men on the ground that were being punched and kicked. He said the main group excluding the two on the ground walked off. The other two then got up and walked in the same direction but at a slower speed. 58Shen Li Chong worked at a store next to Gate 5. She heard yelling. She saw one man looking angry and punching another man. After the man who was punched fell to the ground, the angry man and two other men ran off. The man on the ground got up, took his bag and walked forward. 59Dimitra Kriticos was a security officer in Terminal 3. Between 1.20 and 1.40 pm approximately ten men approached the screening area for screening. They asked where Gate 5 was and went through the screening. Two of the men remained behind and did not go through the screening. After five or ten minutes the men came back through the bi-fold doors, running. She could not say how many men she saw. Some time later, whilst working, she saw three or four men getting into a cab. She took down the number plate "T412". Prior to that she had heard screaming at the other side of the terminal. 60Ms Kriticos conceded in cross-examination, after watching CCTV footage, that the group she saw were walking not running. 61Alfred Dokli was at Gate 5 when he saw a group of about ten men and a group of about three men fighting each other. He saw a punch and the two groups started running in the same direction that he was going. 62Eyiram Dokli was at a store near Gate 5. She saw a group of three men and a group of ten men yelling at each other. She heard, "Not in here. Let's take it outside". 63Eyiram Dokli described a man with a bumbag, t-shirt and baseball cap in the group of ten men. She said most of the group of ten were Middle Eastern but one was an Islander. One of the men of Middle Eastern appearance was wearing a white singlet and white tracksuit. 64Eyiram Dokli saw a fight break out and moved away. 65Eyiram Dokli looked back and saw a person on the ground being kicked by the group of ten men. After that she saw that the group of ten men and the group of three men were "back together". She heard the man in the white shirt and tracksuit say, "Next time we see you, you're going to have bullets through you. You're a dead man walking". She said that when he said this he was pointing to three men who were standing on their own. 66Eyiram Dokli agreed she told the police that she was pretty sure the man who said, "Not in here take it outside" was one of the group of ten. 67Edem Dokli saw two men of Anglo Saxon appearance and one of Middle Eastern appearance. She heard yelling, "Not in here, not in here. Let's take this outside". She then saw a group of five or six men of Middle Eastern appearance. One stood out. He was tall, wearing a white tank top that said "Everlast" and shorts. She saw the man in the "Everlast" shirt push over one of the men in the group of three. That man was wearing a red t-shirt. 68Jeanne Dunn saw fighting whilst she was in the Guess shop. She saw two men punching each other and the shorter man took his t-shirt off. 69Jeffrey Searle was helping passengers who required the use of a wheelchair. He was standing at Gate 5. He saw a group of men coming off the flight, followed by another two or three. 70Mr Searle saw one man punch another man in the face. The man fell to the ground. A fight broke out. 71Mr Searle agreed that in a statement to the police he described a male wearing a white t-shirt with black writing across it and with blue denim jeans, and another male wearing a dark t-shirt with a jacket or jumper and blue denim jeans. He saw the man in the white t-shirt punch the other and hit him in the head. He confirmed in cross-examination that another man he had described as wearing a black t-shirt and white pants was not the one who threw the punch. 72Margaret McKay was outside the Watermark Bookshop. She saw a young man being hit. He was about 28 to 32 years of age, of Middle Eastern appearance, 5 feet 9 inches tall and wearing light brown pants, white sneakers and the remains of a white or cream shirt. 73The other two men in the fight were of the same age and background. Ms McKay described a ferocious fight in which there were powerful punches and kicks. Other men gathered around after the fight. The young man on the ground walked off with two other men in the direction of Gate 4. The two other men who had been in the fight walked off with a group of five to eight men. 74Karen Ford was near Gate 5. She heard screaming and saw a group of men brawling. A man on the ground was being punched and kicked. She said he was "an Islander". He did not have a shirt on. 75Christie King was near Gate 5 when she heard "a loud racket" and saw ten men running towards the exit chasing someone. They huddled around a person who then got away with no t-shirt on. One of the men said, "We'll get you, you cunt". 76Jason Stephenson saw and heard a lot of commotion, shouting and swearing. He saw 10 to 12 people shouting in the direction of Gate 5. One was over six feet tall; another was five feet seven inches or five feet eight inches tall. Later he saw a man running towards Gate 5 without a shirt. 77Ian Dunn was waiting to board a flight near Gate 5. He saw two males fighting. One was swinging punches and a man was slumped on the ground. Another man who was six feet two inches tall and strongly built was watching. That man approached and landed a single forceful blow to the man on the ground. 78Jeff Gordon saw a man without a t-shirt being followed by a group of about seven men. The man without the t-shirt was about five feet eight inches tall, well built, with a tattoo on the back of his neck. As the group moved past him, he heard one man say, "We will fix you up". 79After Sarah Osborn disembarked from QF430 she heard a woman screaming. She subsequently saw eight to ten men pushing and shoving. She then saw a group of three men to her right and a group of five or six men moving towards the exit. 80In the second group there was a very tall man of Middle Eastern appearance, wearing a blue or grey dark coloured jumper with a collar and tracksuit pants that were a lighter blue or grey. Ms Osborn saw that man point to the other group and say, "You're a dead man, you're fucking dead, you've got bullet holes in you". 81Louis Youssef saw ten men fighting, punching, kicking and swearing in English and Arabic. Someone said, "Not here, let's not do it here" and "Just wait till we head outside". He agreed he told police he had heard men yelling words like "Fuck you, we're going to get you, you're a fucking dog". 82Troy Hazelden saw two men walk past him. They were both in their late 20s or 30s and athletic. One was about 5 feet 11 inches tall and wearing a blue singlet. The other was wearing three-quarter length pants and a singlet. He saw those two men start to hit another man. A scuffle broke out and the man started back-tracking and running. The man fell to the ground and got up again. 83Ian Richardson was seated in seat 31J. After he disembarked he saw a dark-skinned man in the foetal position whilst three or four men kicked him. He described a man in a black t-shirt with a yellow and orange motif trying to break-up the incident and help the man up. This description matched that of Mr Wainohu. 84Rhonda Richardson heard someone call the man on the ground without a shirt (who it was common ground was Mr Padovan) a "monkey". 85Kerry Hankinson was waiting for a flight at Gate 5 when she saw six or seven men arguing loudly. One was stockier and appeared older. The Crown submitted this was Mr Wainohu. She saw this man walking back towards the others saying, "Yeah I got something for you in my bag". She heard hitting sounds or the sounds of someone falling. She looked back and saw the man, that it was submitted was Mr Wainohu, on the ground. Another man with long stringy hair was also on the ground and further back a younger man without a shirt was curled into a ball while another younger man was kicking him. 86Clifford Kroeger said he saw a group of approximately six well-built young men punching and kicking another person. 87Mr Kroeger said one man who appeared to be the leader of the group was muscular and wearing white pants and a white shirt. The one who was the leader pointed to the man on the ground and said, "You're dead, you're fucking dead". 88Mr Kroeger identified the appellant as the leader of the group from a photograph. 89Rodney Moore heard swearing over his left shoulder and heard someone say, "I've fucking got something for you". The man had a carry on bag and he and another man walked to a cart and as soon as he turned around two men hit him and he "went straight to the ground". The man who was with him was then "king hit". 90Rebecca Porter was in the Watermark Bookshop. She saw a man, who was agreed to be Mr Padovan, with seven or ten men behind him, hitting him. After a second altercation the men appeared to let Mr Padovan go. He then met up with an older man. 91Pierre Schweitzer saw the altercation but did not recall seeing a man with a white top and white trousers. 92There were several other witnesses to the affray at Gate 5 (Roger Auton, Alicia Deak, Lisa Purton, Katarina Garas, Christian Avramides, Joanna Caldwell, Anne Copley Smith, Perez Sioneholo and Owen O'Shea). However their evidence does not add anything significant to the evidence described above. The riot and fatal assault 93CCTV footage recorded in part the movement of the participants from the vicinity surrounding Gate 5 to the departure hall. CCTV footage shows ten CMC members followed by three HA members walking towards the bi-fold exit doors. The CMC members, including the appellant, are seen looking over their shoulders. The footage was timed at approximately 1.38 pm-1:40 pm. 94CCTV footage taken from inside the secure area shows the appellant and the other CMC members looking back. It shows the three HA members walking through the bi-fold doors and into the departure hall. 95The CCTV footage shows the appellant and others exiting the bi-fold doors and walking east behind the economy class check-in counters. Further footage shows the CMC members meeting up with Mr Abounader and Mr Potrus and the group of 12 walking towards the check-in counters in the departure hall in the direction where the HA members are. They are seen as initially walking before speeding up to move quickly. 96The CCTV footage then shows the deceased moving behind the counter in a westerly direction towards the CMC members followed by the other HA members. The deceased puts his hood up as he moves. At the same time the CMC members can be seen behind the check-in counters moving in an easterly direction towards where the HA members are. 97The deceased and Mr Baker are seen to move around behind the CMC members. The appellant and other indistinguishable figures can also be seen moving at this time. 98The CCTV footage shows that having walked behind the appellant's group, the deceased is seen rushing back towards them. The footage also shows Peter Zervas running towards the CMC group. It also shows the appellant retreating twice before the deceased is seen to run in to attack him. 99More than 50 witnesses gave evidence in relation to the events that occurred in the departure hall on 22 March 2009. In addition, the two police informers, referred to as AL and SP, also gave evidence in relation to the incident. 100In summary, several witnesses gave evidence of a person using a bollard whose description was in some respects consistent with that person being the appellant. Xanthe Gray described the man as wearing light coloured pants. However in her first statement to police she described the man as wearing dark coloured clothing and thought he was wearing shorts. George Teale described one of the men using balustrades as wearing "whitish pants". However, he also stated that the man was without a shirt. Karen-Ann Whyte identified a photograph of the appellant as the person who "Bashed a man to death with an instrument". However, in cross-examination she accepted she had described the man to the police as "slightly overweight with a pot belly", wearing a shirt, not a t-shirt, and that the shirt was possibly blue or pale blue in colour. John Ireland described the man as wearing white trousers and a white shirt. He also described that man as using a putting motion with the bollard. However this description and Mr Ireland's chronological recount of events did not fit with the evidence of any other witness. Marie Ireland also saw a man dressed all in white. He was leaning over the man on the ground but she could not see what he was doing. The informer SP stated that Mr Menzies hit the deceased with a bollard once or twice and the appellant struck the deceased once, although in either case he did not see the bollard connect with the deceased. However, as set out below, his evidence was the subject of extensive criticism in cross-examination. 101There were, however, witnesses whose description of the man using the bollard was directly inconsistent with that person being the appellant. For instance, Leanne Buckingham described the person hitting the deceased with the bollard as wearing a khaki singlet. Keith Teale described the man using the bollard as short, stocky, with broad shoulders and wearing a dark pair of shorts with perhaps a white shirt. In particular, Keith Teale stated that the man using the bollard was not the man wearing white trousers. Robert Barnes described two men assaulting the man on the ground. The men appeared to be of Middle Eastern appearance and one may have been wearing a black tracksuit possibly with a white stripe on the trousers. He also referred to a man, in a white singlet with a motif on the front, yelling with another man. He stated that he did not see the man in the white top involved in the incident with the man on the ground. Judith Hanes stated that she saw three men, at least two of whom had bollards. She described one of those men as wearing a t-shirt or singlet that was either darkish blue or green. Mark Prunty stated that there were four men around a man on the ground. One of the four men was wearing a black or dark coloured singlet and grey tracksuit pants. He could not clearly describe the other three men. Bronwyn Brown described the man using the bollard as wearing black pants with a light coloured t-shirt that she thought was yellow. Steven Huggard described the man using the bollard as large, bulky and wearing very dark clothing. He also described a second man using a bollard whose clothing was also "dark and dirty". The informer AL gave evidence that Mr Menzies hit the deceased with a silver instrument that he thought was a rubbish bin. However, his evidence was also the subject of extensive criticism in cross-examination. 102A summary of the evidence of each of the witnesses concerning the events in the departure hall is set out below. For convenience, the evidence is divided into the following broad groupings: (1)witnesses who described in detail the events and provided some description of the persons involved in the incident with the deceased; (2)the evidence of the informers AL and SP; and (3)witnesses who provided a general description of the events but were unable to describe those involved in the incident with the deceased. (1) Witnesses who described the events in detail 103Ms Buckingham was a flight attendant with Qantas at the time and was arriving at Terminal 3 to begin work when the incident took place. Ms Buckingham gave evidence that she saw three men around another (the deceased). The deceased was lying in what she described as the recovery position. Two of the men were standing behind him and one man in front of him. The two men were kicking him in his back and the third was kicking him in the front. Ms Buckingham was unable to describe any of these three men. 104Ms Buckingham stated that there was another man standing at the head of the deceased. She described this man as wearing a khaki singlet who she had previously seen enter Terminal 3. Earlier in her evidence she stated that this man might have been of Maori or Islander ancestry, about 6 feet or 6 feet 2 inches tall and in his mid to late 20s. She stated that she saw this man pick up a bollard with both hands, raise it and hit the man on the ground with it. She stated that she saw him bring the bollard down only once before he threw it a short distance. She stated that it was the bottom or stand end of the bollard that came closest to the victim. Ms Buckingham then rendered assistance to the victim. 105In cross-examination Ms Buckingham confirmed that the man with the bollard that she identified was wearing a singlet that exposed his shoulders and not a t-shirt. She also stated that the man had short-cropped hair, not shaved. She also confirmed in cross-examination that she had been unable to identify any person during two line-up identification parades. 106Ms Gray was in the departure hall to catch a flight and was at an internet check-in kiosk at the time of the incident. She gave evidence that she witnessed altercations in three groups. She stated that in one altercation she saw two men fighting. One was being punched and kicked; he fell to the floor and appeared to be defending himself with his arms and legs. He was kicked in the abdominal area. Then the other man "grabbed a nearby barrier pole and stamped it over his head". She described this man as "wearing light coloured pants", in his late 20s or early 30s with olive skin and probably of Mediterranean descent. She stated that the man placed the pole on the ground and it rolled a metre or two away. She described the force used by the man as "excessive". In cross-examination she stated that she was 10 to 12 metres from the man with the bollard. 107Ms Gray gave evidence that at a later date she was shown several packets of photographs. From those packets she selected photographs of the appellant and Peter Zervas. She stated in relation to the picture of the appellant that it "looked very familiar to someone that I had seen that day at the airport", but that she was unable to say what the man was doing at the airport. 108Ms Gray accepted in cross-examination that in her first statement to police she described the assailant as "not Caucasian, possibly Lebanese or Mediterranean appearance, late 20s early 30s in age, he had an average build, approximately 175 cm tall with black or brown hair, he was wearing dark coloured clothing, I think he was wearing shorts". In selecting the photograph of the appellant Ms Gray also accepted that she had said "I don't know why but this guy looks familiar". 109Mr Barnes was a pilot who was in the departure hall waiting to catch a flight to Adelaide. At the time of the incident he was standing at one of the automatic check-in kiosks but moved backwards a couple of metres as the incident continued. He gave evidence of a general brawl that was comprised of a number of small brawls. He saw metal bollards being picked up and thrown in the air. He saw someone on the ground block a bollard with his arm as it came down on to him. He then saw that particular man get up and continue fighting. 110Mr Barnes also noticed a brawl near the glass wall where the entrance doors were located. There was a male on the ground that was being kicked and stomped. After several kicks and stomps on his body and head he appeared motionless. There were two or three men assaulting the man on the ground. They appeared to be of Middle Eastern ethnicity and one of them may have been wearing a black tracksuit possibly with a white stripe on the trousers. He gave evidence that he saw a man pick up a metal bollard, raise it over his head and smash it on to the man on the ground on his chest. He saw the bollard come up a second time and this time it came down on to his head. He confirmed that the base of the bollard was pointing towards the ground. 111Mr Barnes described two men standing to the eastern side of the brawl. One was wearing a green singlet. He had a shaved head, was of Middle Eastern appearance and was around five feet nine or ten inches. The other had very short brown hair, a rectangular goatee, was over six feet tall, with broad shoulders and was wearing a white singlet with a motif on the front. He could not recall specifically if the man in the white singlet did anything. 112Mr Barnes conceded in cross-examination that notes he had made shortly following the incident made no mention of a man wearing a white top. He confirmed in cross-examination that he did not see the man in the white top pick up a bollard and use it as a weapon. He accepted that at the committal hearing he gave evidence that the person using the bollard was "shorter than the man in the white T-shirt, not shorter than the man - not necessarily shorter than the man in the green T-shirt". He confirmed that he had been unable to identify any persons in two line-up parades. 113Julie Roelandts was employed by Qantas and at the relevant time was working as a customer service agent on counter 16. She generally described the brawl. In relation to the use of the bollard she stated that a man picked it up and was shaking it trying to get it off its strapping. He lifted it over the top of his right shoulder and went to smash it down in front of him. She closed her eyes and did not see it connect. She described him as being a smaller build than the first person she saw and had a lighter coloured t-shirt on. The first person that she referred to was described as "a big person" who appeared to be of Maori ethnicity, about six feet tall, tattooed on the front of his neck and down his arms and wearing a bright shirt. 114Trevor Brennan was in the departure hall on the day of the incident and was queuing to check-in. As a result of the proximity of the fight Mr Brennan grabbed Marie Weibrecht who was standing in front of him and they fell sideways over luggage. He looked up and saw a man unhooking one of the bollards. The man stood with the bollard over his head before walking towards the window, to the south. Mr Brennan described the man as thick set and of Islander origin, either Samoan or Maori. In cross-examination he agreed that the man was about 180-182 cm tall. He did not see the man swing the bollard. He also agreed in cross-examination that he had told police that he would recognise the man who picked up the bollard, but that he had not been asked to attend a line-up parade or to look at photographs. 115Elizabeth Rapkins was employed by Qantas and at the relevant time was working at counter 14 in the departure hall. She stated that between 10 and 14 men were arguing and then ran between the counters. She described them generally as between "16 and 30, European, Middle Eastern". She described one man in particular as bigger than the others with very short hair, wearing a green singlet top and with a tattoo on his left arm. She also described a man wearing a silver grey hooded jacket. She saw the man wearing the green singlet pick up a silver bollard. He picked up a bollard near the front doors but she did not see what he did with it. 116Kirsty Cutajar was in the departure hall to catch a flight with her husband and two daughters. She was sitting with her family on a bench seat that was located near a doorway. About six men who she described as having short dark hair, of Middle Eastern appearance and wearing tracksuit type clothing, walked past her. About 5 or 10 minutes later shouting commenced behind counters 10, 11 and 12. She stated that the men began to fight and also began to pick up metal bollards and hit each other. 117Ms Cutajar described two incidents that occurred in front of her. She saw a man on the ground holding his hands up towards his face as men were kicking him. There were about three men kicking him. She also noticed two men break off to the right hand side. She described one of the men as a taller Arabic looking man with a goatee, whilst she said the other was wearing a "greeny" coloured shirt that was ripped and was also wearing lighter faded jeans and joggers. She said the latter man also had shaved short hair. 118In relation to the man being kicked on the ground, Ms Cutajar stated that she also saw bollards being used. She could not say how many men were using bollards. Due to the fight on her right, Ms Cutajar moved backwards in her seat and her view of the man on the ground was obscured by an automatic teller machine (ATM). Three men then passed in front of her from the area where the man was lying on the ground. One man was without shoes and another wiped blood from his upper body. The latter man looked physically strong, medium build, medium height, with a goatee and well groomed. She could not describe the other two men further. The man with the ripped shirt then stumbled backwards to the injured person on the ground. 119In cross-examination Ms Cutajar accepted that she had said there were two males "really laying into one male on the ground". However, upon reflection she felt it was more than two. She said the men kicking the man on the ground were of Middle Eastern appearance and wearing tracksuits. She could not describe the colour. She did not see the man on the ground being hit with the bollard after her vision was obscured by the ATM. 120Keith Teale and his wife took his brother to catch a flight. At the time of the incident they were at one of the check-in kiosks in the departure hall. Keith Teale described one man being chased by another, shortly followed by a third. The first man fell to the ground and he said it was possible the second man also fell. The third man came through, picked up a bollard and hit the first man who had fallen to the ground. The man who had been knocked down was a very slight person. The man who was using the bollard was short and stocky with big broad shoulders. Keith Teale estimated his height as five feet eight inches and stated that he was wearing a dark pair of shorts. He could not be sure about his shirt, but it was perhaps white. He was possibly Middle Eastern. Keith Teale described the action of the bollard as a downward motion with the base at the bottom. He stated that he saw the man being struck with the bollard possibly two or three times. 121Toward the end of the altercation Keith Teale was standing near one of the exit doors. A man came through the door and said to another "You've got it coming, I'll get you tomorrow". Keith Teale described the man who had spoken as "probably 6 foot plus" and wearing white trousers. Significantly, in cross-examination Mr Teale stated that the man using the bollard was not wearing white trousers. He accepted they were two different people. He was close enough to touch the man in white trousers. He also accepted in cross-examination that he was never asked to participate in a line-up parade or to review photographs. 122George Teale had travelled to the Sydney Domestic Airport with his brother Keith Teale and his brother's wife Heather. He said that about five feet or six feet away two men had what he described as "balustrades" and were hitting another man who they had knocked to the ground. He described one of the men as probably over six feet tall, around 80 kg, olive skinned, very short hair, with no chest hair, wearing whitish pants and without a shirt. He described his build as athletic. He could not describe the second man apart from the fact that he was smaller. 123In cross-examination George Teale accepted that his police statement referred to one of the men wearing "light coloured long pants". He also accepted that his police statement only referred to one man with a bollard. He accepted that he had said in his statement that he was fairly confident he could remember the man swinging the bollard. He was unable to identify any person when shown photographs by police. He stated that as far as he was concerned he had not been shown a photograph of the man using the bollard. He accepted that Keith and Heather Teale were within a few metres of him at the relevant time. 124Ms Hanes was in the departure hall. She had obtained her boarding pass from one of the kiosks and at the relevant time was queuing to check-in her luggage. She saw three men, two large and one smaller, who were fighting. They crashed to the floor about three metres away from her. They got up and started to pick up the bollards and throw them. Then they moved towards the window and her view was partially obscured. She saw the smaller man fall to the ground. She was unable to describe any of the men apart from one whose shirt was torn. In cross-examination she said that she could not say for sure whether all three men had bollards, but at least two did. She said in cross-examination that the torn shirt was hanging in strips from the man's front and had a big split up the side and was either darkish blue or green. She accepted it was possible that it was a singlet. She also accepted in cross-examination that the man with the darkish blue or green shirt had a bollard. 125Helen Bagot met a friend, Jeff Bishop, at Terminal 3 and proceeded to queue to check-in her luggage in the departure hall. She saw a group of men, about a dozen. She saw none of their faces but she did see a man wearing a green t-shirt. She saw one man pick up a bollard between the baggage check-in and the ticket console. He swung it around virtually above his head. She did not see it connect with another person. She saw the leg of a person but could not see the rest of that person because a boarding pass ticket machine was blocking her view. There appeared to be someone kneeling on the ground beside the person. 126Ms Bagot accepted in cross-examination that CCTV footage did not show fighting between counters eight and nine as she had described. She stated in cross-examination that the man in the green shirt was the man who had picked up the bollard and swung it around his head. She remembered seeing at least another two men swinging bollards around. She described the man in the green shirt as having short to medium dark hair. 127Shalagh McCarthy was at the departure hall to catch a flight and at the relevant time had reached the head of the queue at the economy check-in counters. She saw two men running, followed "within a beat" by another man and then a cluster of perhaps five. 128Ms McCarthy stated that two men separated from the cluster and ran further towards the glass doors and started to pick up bollards. The two men they seemed to be chasing moved away towards the doors and one of them fell to the ground. The man who fell seemed to be in a "defensive or foetal position". One man stood next to the chest or head of the man on the ground. He had a bollard in his hands and brought it down heavily. The other person stood near the man's head and "didn't seem to prevent or interfere with what the man with the bollard was doing". The man with the bollard raised his hands to about forehead height and brought the bollard straight down with some vigour. She saw him bring the bollard down twice and then she brought her hands up and shielded her eyes. 129Ms McCarthy described the man with the bollard as "not as chunky or compact as the others", he seemed taller, "a good figure of a man, not overweight nor slim ... but just a well proportioned man". In cross-examination Ms McCarthy said the man with the bollard was possibly the largest in the group with fair coloured short hair, not shaved, that was not black. His face was not chiselled or thin. She confirmed that she had been unable to positively identify any persons when looking at photographs. 130Shayne O'Dwyer was a rescue medic who was in the business and Qantas Club check-in area. He saw a brawl involving 12 to 15 persons that was about 15 to 20 metres away. He saw a bollard being thrown across an area. He also saw a man lift up one of the bollards and hit a small man with it; the man holding the bollard had his back toward Mr O'Dwyer. He described the man as "about 6 foot, short hair, tattoos, T-shirt, track pants maybe, runners". He was bigger than the man who was hit, who was a "young, skinny little guy". The man with the bollard was also of dark skinned complexion. Later in cross-examination he accepted the description that he had given to police, including that the man with the bollard was of Middle Eastern appearance, dark short hair, coloured tattoos around both biceps, a ripped t-shirt, tracksuit or jogging pants and runners. 131Mr Prunty had arrived at Terminal 3 in a taxi and was walking towards a set of glass sliding doors leading to the departure hall when he noticed a fight taking place inside. He stated that there was a group of men inside the terminal standing over another man, punching and kicking him. The man was on the floor and there were four men around him. The first was about six feet four inches, quite muscular, of Lebanese appearance, with dark hair that was short on top and a bit longer at the back and wearing a black singlet and grey tracksuit pants. He also had tattoos on his arm. He was holding a steel bollard and hitting the man on the floor all over his body. There was a second male who was also hitting the man in much the same way. He was shorter, about six feet tall and of Lebanese appearance. In cross-examination Mr Prunty accepted that his statement to police stated that the first man was wearing a dark coloured singlet, not a black singlet. 132Mr Prunty could not see the second man as clearly because of the angle he was at. He described the other two men as Lebanese in appearance. They were punching and kicking the man and holding the man on the floor. He was defending himself but then he "just sort of went limp". The first man then yelled and all four men walked away from the man towards the centre of Terminal 3 where they met up with another four men. They then exited the building. In cross-examination Mr Prunty said that the man on the ground was pushed up against a bench and was hit with the bollards ten or more times. In cross-examination he said that he was more than five metres from the man on the ground. Mr Prunty accepted in cross-examination that he had reviewed photographs and had been unable to identify any person. 133Zhenya Welyczko was at a check-in kiosk when she heard some male voices yelling. During the fight she was facing an elderly couple sitting on a bench. She saw a man on the ground and then another man pick up a bollard and start hitting him on the head. She saw him raise the pole at least four times. She could not give a specific description of the man holding the bollard but stated that he was of a dark complexion, dark hair, solidly built and in his 30s. Ms Welyczko would have been between 20 and 30 metres away. In cross-examination Ms Welyczko accepted that she was asked to look at photographs and recognised one face that she understood was the brother of the victim. 134Abigail Teh was standing at one of the electronic check-in kiosks with a colleague at the relevant time. She saw around four to five men fighting. They then split into two groups. In one group, two men were attacking one other man about five metres from her. The man was being punched and he fell down to the ground and one man grabbed a metal pole and hit him on the head. She only saw one man hit him with a metal pole. There was only one other man assaulting him. He was kicking the man on the ground. She described the two men as quite tall, muscular and fair, with short hair and wearing a "casual normal T-shirt". In cross-examination she said when the man was being hit with the bollard she was about seven to ten metres away. In cross-examination Ms Teh accepted she was unable to identify any person in photographs. She could not say how many men were involved in the fight in the second group as it was behind her. 135Ms Brown was at the departure hall to catch a flight and was standing at an e-ticket machine at the relevant time. She saw one of the men pick up a silver bollard from the ground and lift it above his head in an action as if he was cutting wood with an axe. She saw him smash the bollard to the ground three times. She described him as six feet five inches, black hair shaved at the back, with olive skin, a tattoo on his right arm from shoulder to elbow and wearing black pants with a light coloured t-shirt which she thought was sleeveless. She also thought that the t-shirt was light yellow. 136Amanda Abbas was at the departure hall to catch a flight and was standing at one of the kiosks. She saw a group of men comprised of one Caucasian who it appeared was being chased by two men. The Caucasian man was quite small and had fair hair. She was unable to describe either of the two men chasing him. One of the men chasing him was holding a metal bollard and she saw him swing it at the smaller man. The first swing did not make contact. The action that was used was like swinging an axe. 137Ms Abbas described a separate incident that was occurring closer to her that also involved three men. The first appeared chubby with curly black hair wearing a white shirt, the second was Mediterranean in appearance and the third was Islander, quite muscular, with tattoos and with a ridge of hair at the top of his head. In cross-examination she stated that the man in the white t-shirt was being punched by the other two in the stomach region. 138Alice Riva was a Qantas employee who on the day in question had flown from Brisbane to Sydney. At the relevant time she was speaking to a former colleague at the sales desk. She saw one man on the ground with about four or five men holding Tensa poles and hitting him continuously. They were raising their arms and bringing the pole down onto the man on the ground. All of them had poles. She was unable to describe them as they were too far away. She said they were big guys and thought that one was wearing a tracksuit. She walked outside to speak to the triple-0 operator and saw three men, the first who she described as tall, dark hair, blue eyes. The one next to him was a little shorter with dark hair. She thought they were Caucasian. She could not describe the third man. In cross-examination she acknowledged that she had told police that the men hitting the man on the ground all had dark hair. Her statement also said that all the men were wearing long pants. 139Mr Huggard was in the departure hall to catch a flight and at the relevant time had just proceeded through the scanning area. Mr Huggard's vision was toward the front of the airport. He saw a man running and described him as a "surfy" type person, suntanned or darker, aged in his mid 30s and of Anglo Saxon descent. He saw a man with his arms outstretched bringing his arms to chin height and then bringing them down in front of him. He described the action as if "you were putting a spike into the ground with a spike impaler, just hard vigorous motion". He said that he saw this motion twice and part of the third motion at which time his vision was obscured. He described the man as large, very bulky, very dark, somewhere around six feet tall and wearing very dark clothing. He appeared to be wearing a t-shirt. He described the man's face as a "dark dirty face" and his hair was "tight". In cross-examination Mr Huggard stated that the man appeared to have a fat stomach and seemed to have facial hair. 140Mr Huggard explained that to the left of the man was a smaller person who was doing a similar action but on a different angle. He described the man as of smaller stature, once again in dark clothing and with tight hair. The action of this person was much quicker than the action of the other man. Mr Huggard stated the latter man made 3 or more strikes at what appeared to be a 45 degree angle. In cross-examination Mr Huggard stated that the second man appeared to be five feet seven inches tall, but that he was stooped. He accepted in cross-examination that he had been unable to identify anyone in photographs shown to him by police, that he had had a split second view, and that he was about 50 metres away. 141Roger Whyte was with his wife walking from Terminal 2 to 3. At the relevant time they were directly adjacent to where passengers were queuing for the economy check-in counters. Mr Whyte observed 10 or 12 persons involved in a fight. His attention was drawn to two persons, one was five feet nine or ten inches, of Middle Eastern appearance, of stocky build, with tattoos on his arms and wearing a green singlet. He was fighting with a man who was an inch or two taller wearing a red t-shirt and black shorts. The second man was also stocky, of Middle Eastern appearance and had black curly hair. 142Mr Whyte also saw a smaller man, around 5 feet 9 or 10 inches, with dark hair, of slight build, perhaps 70 kg, wearing a dark shirt and perhaps dark trousers and probably not much more than 30 years of age. He was being attacked by at least two people and perhaps up to four. He had a clear recollection of one of the assailants hitting the man with a silver bollard using a "stamping" action "straight downwards". He could not say how many times he did so but it would have been at least five times. He was unable to describe either man. He stated that he saw the two assailants run out of the door with two other men. They ran down the ramp and a short time later they ran back up the ramp. Mr Whyte accepted that he participated in seven different identification procedures but that he did not select any photographs. 143Ms Whyte was travelling with her husband and they were making their way from Terminal 2 to 3. She described several groups fighting. She stated that there were four people fighting in a group; one of them broke free and ran off through the exit leaving two people bashing one person. She described the man who ran off as short and nuggetty with a sleeveless shirt. The man who was being bashed was slight in build, had tattoos on his right calf and was wearing a t-shirt, shorts, socks and joggers. He was the size of a jockey or a bit taller and of light build, perhaps 60 kg. They were fighting near an elderly couple who were about ten metres away. 144Ms Whyte stated that at first the slight man tripped over. The two other men were punching him and the bigger man picked up a bollard and started hitting him with it. She described this man as clean cut, with dark hair, six feet tall, wearing a long-sleeved shirt and trousers and slightly overweight with a pot belly. The shirt was pale, maybe pale blue. She described the second man as wearing a t-shirt, with dark hair with blond streaks, slim and tallish and about five feet seven inches. The bigger man hit the other man with the bollard approximately five times; twice when standing, once when falling and twice on the ground. She accepted in cross-examination that she had described the first man at the committal hearing as overweight or obese. She also stated in cross-examination that the man's shirt had a collar and buttons. She also clarified in cross-examination that the man with the bollard did not use a putting action. He brought the bollard down like an axe. 145Ms Whyte was shown seven collections of photographs. In the first collection Ms Whyte identified one photograph as similar to the person kicking the deceased. The collection contained a photograph of Mr Menzies but the photograph selected was of a person other than Mr Menzies. Ms Whyte also viewed a collection that contained a photograph of Mr Aouli but selected a photograph of a person other than Mr Aouli. She did not select any photographs from the third and fourth collections that contained photographs of Messrs Eken and Pirini. She then viewed a collection and selected a picture as the person who "Bashed a man to death with an instrument". The picture was of the appellant. She also identified another person in the collection who she described as similar to the person hitting the man with the bollard. However, she was reasonably confident that between the two photos, it was the one of the appellant that was more familiar. She was then shown a collection that included a photograph of Mr Kisacanin and then a collection that included a photograph of Mr Potrus, but she did not identify any photograph in either collection. 146In cross-examination Ms Whyte accepted that when she spoke to police she described the man with the bollard as "slightly overweight with a pot belly". She also told police that he was wearing a shirt, not a t-shirt, and that the shirt was possibly blue or pale blue in colour. She accepted that at the committal hearing she described the man as "obese". 147Mr Ireland had been dropped with his wife Marie at Terminal 3. Mr Ireland required wheelchair assistance. Mr Ireland sat on a seat while a Qantas employee helped Mrs Ireland check baggage and obtain boarding passes. Mrs Ireland returned to sit with her husband while they waited for a wheelchair. The seat was just inside the glass walls of the departure hall. 148Mr Ireland saw a man run along the front of the check-in counters and then disappear behind the booths. He said it appeared there were a number of people brawling. He then saw a man lying in front of him on the ground. A man was standing near his head, neither hindering nor helping. Mr Ireland was continually looking back to make sure that his wife was all right. When he looked back both men were gone. 149Mr Ireland then saw a man running. When he looked back, after checking on his wife again, the man was lying on the ground in front of him. The man's feet were closest to Mr Ireland and they were about six feet away. The man was wearing darkish clothing and a cap. He then saw a man wearing a darkish singlet run over and look at the man on the ground. After turning back from his wife, he saw a man in white trousers and a white shirt; the man was facing away from Mr Ireland. The man appeared to be fairly tall and well built. The man appeared to have picked up a metal stand and appeared to be "swinging it across his body from right to left in a slow motion". Mr Ireland described it as a putting motion and said that he did not know whether it hit the man on the ground. He said that the man in white appeared to swing the metal stand two or three times. 150In cross-examination Mr Ireland stated that he did not see any fighting going on around the first man on the ground or any people throwing metal bollards. He said that the man in the dark hood would have been lying on the ground for maybe a minute or two with nothing happening to him. He reasserted that the man in white swung the post with a putting action. He stated that he did not see the man on the ground being chased by a number of people. He did not see anyone kicking him. 151Mrs Ireland was at the departure hall with her husband. They took their bags and sat just inside the door. A little later she noticed a man running behind the counters but she did not see where he went. She then saw a few people pushing one another and moving across towards where she and her husband were sitting. Then a big man came in front of them. She only saw him from the back. He was dressed all in white. He would have been a few feet away. She thought he was moving one arm but was not certain. She could not see his hands. After the man moved away there was a younger man lying on the floor. In cross-examination she stated that she was not certain about whether men were hitting one another with metal posts. She did not see anyone kicking the man on the ground. She said the man in white was leaning over the man but she could not see what he was doing. 152Patricia Watterson was the Sydney Domestic Airport duty manager at the relevant time. During the changeover with the previous duty manager there was a call on the radio regarding a fight at Gate 3. Ms Watterson heard a commotion in the check-in area. She ran in that direction and noticed bollards on the floor and a man on the ground. After arranging security screens she spoke to an elderly couple. She asked if they saw anything and the gentleman said to her that he remembered one person dressed all in white who had arms as big as legs. 153Jacquelin Magnay travelled on QF430. On the flight she said she saw a man who she described as six feet four or five inches tall, very large, muscular build, of Middle Eastern appearance, wearing a white t-shirt, white tracksuit pants and white shoes, come down the aisle with a second man who wore light grey or brown tracksuit pants and a darker top. She said the second man commented on the pink top that she was wearing. 154At Sydney Domestic Airport Ms Magnay again observed the man wearing a white top and white tracksuit pants; she noted that he had a large tattoo on the back of his neck that appeared something like an "infinite symbol". In the departure hall she saw five bollards being swung in the air at once. She was about 25 or 30 metres from the fighting. She saw a smaller man start to fall and one of the men with a bollard strike him on the head. Ms Magnay said the man used both hands, extended them way beyond the back of his head and used the full force to bring the bollard down. She saw this happen once. As this was happening another man was kicking the man on the ground in the groin and leg area. Another large man, wearing a ripped green shirt, jumped on the back of the man with the bollard. The man who later held the hand of the man on the ground was the same person who was on the back of the man holding the bollard. In cross-examination Ms Magnay stated that she did not see the man with the bollard using a putting motion. 155Matt Zhu travelled on QF430. He viewed the departure hall incident from a few metres from the top of the escalators. He saw two people beating one person. One lifted a steel pole to hit the man on the ground but he could not see if he actually hit the man as his view was obscured. He saw the man lift the pole and bring it down diagonally across his body from right to left more than two times. He described the man as having no or very short hair and he stated he possibly wore a t-shirt. He could not say what colour it was. 156Tony Wang travelled on QF430 with colleagues Deborah Deng, Matt Zhu and Huai Xi Luo. The fight in the departure hall happened about 20 to 25 metres from where they were standing. Deborah Deng filmed the incident. Mr Wang saw a person lift a pillar to hit somebody. The person's hands were lifted above their head and brought down in front of them; he saw that happen only once. He could not describe the persons involved because of the distance. 157Deborah Deng stated that at the top of the stairs she took out her digital camera to try to take some footage. The footage taken by Ms Deng was admitted as an exhibit in the proceedings. She otherwise did not give any evidence in relation to the incident involving the bollard. (2) The evidence of the informers AL and SP 158In addition, evidence was also given by the two informers, AL and SP. 159AL at the time was a nominee member of the CMC. On the day in question AL had returned home from church when he received a phone call that he had to go to the Sydney Domestic Airport. In relation to the events in the departure hall AL stated that he saw Mr Menzies, who he referred to as "Touza", with his hands around the top of a "silver thing", like a rubbish bin. He said that he saw Mr Menzies hit the man on the floor twice. He said that Mr Menzies was facing away from him when he was hitting the man on the floor. The man on the floor was lying on his right side, facing Mr Menzies. AL stated that after he saw the first and second hit he walked out. He stated that he ran out of Terminal 3 with the appellant, Mr Menzies and Frank (presumably La Rosa) and got in a taxi. He stated that in the taxi Mr Menzies said "I think I killed him". 160The cross-examination extensively addressed AL's mental health issues, an occasion when he was hit on the head with an iron bar, an occasion when he was scheduled under the Mental Health Act 1990 (NSW), his history of drug use, and his criminal record and history of violence. 161In cross-examination AL stated that following the appellant being stabbed he was standing by himself and was not kicking or hitting anyone. In cross-examination AL stated he was between two check-in counters when he saw Touza hitting the man on the ground. He stated that he picked up a bollard and threw it but it did not hit anyone. AL accepted in cross-examination that he had told police that Touza had been hitting the man on the ground with a rubbish bin. AL drew a diagram for police of the object that included a hole in which to put rubbish; it was about 30 cm wide. He was unable to describe what Touza was wearing at the time beyond that it was a short-sleeved shirt that maybe was black. AL conceded in cross-examination that in his first interview with police he did not refer to the admission made by Mr Menzies in the taxi. 162SP at the time was a nominee member of the CMC. In relation to the events in the departure hall, SP described seeing Mr Menzies and the appellant with a bollard near the deceased and also Mr Abounader punching the deceased. He said otherwise he did not see anyone else assault the deceased at the Sydney Domestic Airport. 163SP stated that he could see Mr Menzies and the appellant on the other side of a Qantas banner assaulting the deceased. SP saw that the deceased had fallen to the ground and bollards were being picked up. He saw Mr Menzies with a bollard in his hand bringing the bollard straight down once. He could not see clearly whether it connected with any part of the deceased's body. Mr Menzies was standing up around the head area of the deceased. He described the appellant as being about one metre away and to the left of Mr Menzies. 164SP stated he also saw the appellant strike the deceased with a bollard once. The appellant used a similar motion, picking it up and striking it down. He did not exactly see if it connected with the deceased. He did not see Mr Menzies leave. He saw the appellant turning around, putting his hand up to his eye and walking towards Peter Zervas with whom he then had an argument. 165In cross-examination SP stated that he did not see anyone kicking the deceased and did not see any blood around the deceased's head. He agreed there were inconsistencies between what he had told police and the events shown in the CCTV footage. SP accepted that he had lied when being cross-examined at the committal proceedings as to whether he attended premises called Gypsy Leather. SP accepted that in an interview with police on 10 July 2009, when he offered to provide assistance, he did not tell police that the appellant had a bollard. He later accepted that in the first police interview he left out details. He accepted he had initially told police that the assault with the bollard had occurred on the opposite side of the check-in counters. He also accepted that in an interview on 24 August 2009 he only spoke of one incident behind the check-in counters and did not refer to a person using a bollard or kicking the deceased. He denied making up a scene of what occurred behind the check-in counters in order to obtain an indemnity. 166In cross-examination SP was shown footage of the walk-through that police conducted with him. He accepted he had told police that he was at the back of the group leaving the bi-fold doors whereas in fact he was one of the first to leave. He also accepted that the appellant was at the rear of the group, whereas in the walk-through he stated he was at the front. SP accepted there were a number of further inconsistencies between his account at the walk-through and the events recorded on CCTV. SP also accepted he had given a different account in the walk-through compared to his evidence in chief at the trial. For instance, during the walk-through SP stated that Mr Menzies used a bollard behind the check-in counter, then the appellant used a bollard behind the check-in counter, then Mr Abounader stabbed the deceased behind the check-in counter and then both Mr Menzies and the appellant hit the deceased with bollards. SP accepted the evidence he had given in chief was completely different, both in relation to the relevant positions and the order of events. SP accepted that the walk-through began at 1.00 am and it was not until about 2.45 am that he changed his mind as to where he saw the deceased hit with the bollard. 167SP maintained he had received a telephone call from Mr Potrus on 22 March 2009 to meet, so as to pick up the appellant from Sydney Domestic Airport. SP was shown phone records which disclosed that the only calls between Mr Potrus and SP at the relevant time were in fact made by SP. SP accepted that he did not have a clear view of the events involving the bollards. SP maintained that the deceased had blood all over his t-shirt. He was shown a photograph taken at the scene and accepted that he could not see any blood on the deceased's t-shirt. 168SP accepted that in 1995 he was convicted of obtaining a benefit by deception. SP accepted that he had not made any contemporaneous notes regarding the events and that he had made mistakes in his evidence. In re-examination SP confirmed that at the time of his offence for obtaining a benefit by deception he was 18 years of age and it concerned $126.05. (3) Witnesses who provided general descriptions 169Adrian Conti was employed by Qantas and at the time of the incident was stationed at counter 15. Mr Conti gave evidence that he saw a gentleman holding up one of the bollards and described him as having a large build. However, he was otherwise unable to describe him. Following the incident Mr Conti collected a number of privacy screens to place around the victim. 170Brigitte Bucukovski travelled on QF430 with her ten year old son. She was standing near a vending machine at the time and caught glimpses of what was happening in front of the check-in counters. She stated that toward the end she saw two arms stretched into the air holding something metal that she later learnt was a bollard. The arms drove the metal down towards the ground with force and she could hear "a crunching" and that it was not the floor that the object was hitting. She stated that the object was brought down at least three or four times. As her vision was obstructed, she was unable to describe the man holding the metal object beyond that he was definitely tall for her to have been able to see him. 171Renee Redford worked as a customer service agent at the time and was rostered to work at counter three which was for Business Class and Qantas Club customers. She gave evidence of a fight in the departure hall in which a man, who she described as well built, muscular, tall, of Maori origin, with olive skin, dark hair and wearing an aqua coloured t-shirt, "king hit" another man who was of smaller stature and wearing a white coloured t-shirt with grey or white on it. 172Ms Redford also saw another man of a big build, wearing a dark grey singlet and with tattoos on both arms, "pick up a bollard over his left shoulder, swing it to the right". In cross-examination Ms Redford confirmed evidence she had given in her first statement that she did not know if the man hit anyone and she did not see him release the bollard. Finally, in a third position she saw a group of seven or eight men bent over. She gave evidence that she could see movement in the shoulders but could not see what they were actually doing. She was unable to describe any of the men in this position. She confirmed in cross-examination that she did not identify any persons in a number of sets of photographs that she was shown. 173Stephen Merrilees was a medical practitioner and had arrived at Terminal 3 in order to catch a flight. He was in the bag drop queue in the departure hall at the relevant time. He saw three males. One was described as 6 feet or slightly taller, mid 20s, Caucasian, with dark hair and wearing a t-shirt. One of the other men was slightly shorter and of quite a muscular build. The first male punched the second around the neck or face area and a fight erupted between the three persons. A number of other males joined the fight and Mr Merrilees witnessed three altercations. There was a small group, probably five or six males, and there were people swinging bollards. In particular, he saw one person unhook a bollard and throw it at another man. The bollard struck the man across the face and chest. 174A similar number of people were involved in what Mr Merrilees described as the second fight. However, as a result of movement the number of participants in the second fight was not static. He did not see any bollards used in the second fight. In cross-examination Mr Merrilees was played footage from camera 404 that covered the area where he said the second fight had occurred. He accepted that the footage did not show a fight in that location. 175In relation to the third fight, Mr Merrilees stated that he saw individuals fighting near the main glass doors. He said the group increased over time and that by the end there were seven or eight individuals fighting. As Mr Merrilees turned back from looking at the incident in which the bollard was thrown, he noticed a man lying on the ground near where the third fight had occurred. Mr Merrilees rendered medical assistance until the ambulance arrived. He did not see anyone involved in the third fight using a bollard. 176Stephen Shaw was a Qantas employee and at the relevant time had purchased lunch and was proceeding to the lunch room. He witnessed the events in the departure hall but did not give evidence in relation to the use of a bollard against the deceased. 177Diana Kuo was working as a Qantas check-in host helping passengers to queue and gave evidence using an interpreter. She stated that she saw one man try to pick up a pole several times. He eventually lifted it and tried to hit a person with it. She initially stated that she could not describe the man who was hit. With reference to her statement she described two men: one of a muscular build, tall with a tattoo on the right bicep and the second wearing a green singlet with a dark tan. She stated that she was not sure whether either of these men were the men involved in the bollard incident she described. She did not see the face of the man with the muscular build. 178Milan Botansky was working as a customer service agent and prior to the incident was assisting an elderly couple to check-in. He observed three men walking towards the middle of the departure hall. He described the first as a "stronger built guy", of Maori appearance, with short dark hair "like in the army", wearing a t-shirt and shorts and with red and green tattoos on his right arm. He was more than six feet tall. The second had a fair complexion, was slimmer and was wearing a white singlet and greyish khaki shorts. He described him (in cross-examination) as having a flat face and not being more than 170 cm tall. He could not provide a clear description of the third person beyond the fact that he was taller and (in cross-examination) slimmer than the second. He saw the first man punch someone. He saw bollards being thrown in the direction of the elderly couple. He said that he saw three bollards thrown but conceded in cross-examination that he had previously referred only to two bollards. He repeated in cross-examination his previous evidence that he could not describe the appearance of anyone throwing the bollards. 179Adela Harris was in the departure hall to catch a connecting flight and prior to the incident had come into the departure hall after having a cigarette. She noticed a short man wearing a cap, a dark t-shirt, board shorts, sneakers and a bandage around his leg. She also noticed another man wearing an off-green singlet that had "Hells Angels, Darwin, Northern Territory" on it, high waisted blue tracksuit pants and with tattoos on his arms. She saw six to eight men in the back of the check-in counters. One was taller than the rest, of Maori appearance, wearing a light coloured t-shirt and had a tattoo on his arm that looked like barbed wire. 180During the fight Ms Harris could see bollards being swung out in front of the check-in area. She noticed that there was fighting going on in front of an elderly couple, about a metre in front of them, and she went to try and get them out of the way. In doing so, she noticed the short man lying on the floor. The man in the green singlet was distressed. She stated in cross-examination that she did not see anyone pick up a bollard. 181Gregory Hudson was employed by Qantas as a customer service supervisor. He noticed three men walking towards him and another supervisor, Ralph Skinner, when he was standing around counter 14 and 15. He described the first as Middle Eastern, five feet six inches, stocky build, with short dark hair and wearing a light coloured t-shirt. The second was of Middle Eastern appearance, about five feet eight inches, hair closely cropped on the side and a bit longer on the top, wearing a light green singlet and with tattoos on his arm. The third was Caucasian, 5 feet 11 inches, with grey hair, grey moustache and goatee, around 50 years of age and wearing a checked button-up shirt. Then around six men came between the counters and walked towards the three men. Five were of Middle Eastern appearance and one Pacific Islander. 182Mr Hudson gave evidence that during the fight the participants were throwing bollards and trying to use them as weapons like clubs and pushing them into each other. He noticed the man lying on the ground injured. In cross-examination he could not say how many bollards were picked up or describe any persons using them other than being of Middle Eastern appearance. 183Mr Skinner was a Qantas customer service supervisor. On the afternoon of the incident he was conducting a shift changeover with Mr Hudson. He was walking with Mr Hudson behind the check-in counters when they walked between two groups, each of about six males, facing each other. During the fight he used his two-way radio to notify the duty airport manager that there was an incident. He walked between counters 12 and 13 and saw someone lying injured on the floor. 184Luke Cutajar was in the departure hall with his wife and two daughters to catch a flight. The evidence of Kirsty Cutajar is set out above. Mr Cutajar stated that a group of men walked past him and his wife. He later noticed a person with a red hood which the man pulled back whilst he was between the check-in counters. The fighting started and there were about 15 people involved. Mr Cutajar was unable to describe any specific incidents. He did see people swinging bollards. During the fight he took luggage outside and came back to collect his family. When he returned the fight was over and he was standing near a big man, at least six feet three inches, of Lebanese appearance, muscular and with short hair. The man had scratches and blood across his chest. 185Heather Teale was at the departure hall with her husband and brother-in-law. She witnessed the fight and stated that people were throwing bollards around. She could not say what happened with the bollards. She conceded in cross-examination that she could not say how many bollards were used. 186Amanda Battye was employed by Qantas and was working at the Business Class bag drop counter six at the relevant time. She saw about 10 to 12 men running through between counters 12 and 15. She started to hear the metal sounds of bollards. She saw one man starting to grab towards a bollard but could not describe him. She then followed a number of men who had been involved in the fight into the car park. 187Kelly Willett was employed by Qantas and was working at counter 20 at the time, which was closest to the exit door. Ms Willett stated that she saw a group of 15 to 20 men coming through the back part of the counters very aggressively. She also saw a man in a red jumper coming from the opposite direction walking east to west. There was fighting in front of the counters and she also saw a man in a cream shirt. She saw a bollard go into the air roughly in front of counter nine. It was then picked up by the man in the cream shirt who had dark hair and was quite built; she estimated his height as five feet ten inches. He threw the bollard towards the glass section at the front. In cross-examination she was shown CCTV footage and accepted that she was mistaken as to the movements of the man in the red jumper. She also accepted that her estimate of 15 to 20 persons and the cream colour of the man's shirt might be incorrect. 188Geoffrey Bishop had driven his friend to Sydney Domestic Airport to catch a flight and was waiting in the departure hall in the queue with her to check her baggage in. He saw two men, one who lifted his tracksuit hood up; the man was much smaller than the other man with him. Mr Bishop then moved from the queue to near the baggage check-in area so he was not near the fighting. He saw a man pick up a bollard and begin swinging it around. He could not describe the man. He also saw another man swinging a bollard but could not describe him. The two men with bollards were apart from one another. 189In cross-examination Mr Bishop accepted that he had told police that the two men who picked up the bollards moved towards the group of men fighting near the glass wall. 190Susan Griffiths was a customer service operator working at counter 11. She saw about 12 to 14 males pushing and shoving each other. She was unable to describe any individual. She saw a man pick up a bollard. She was referred to her statement where she said that she saw a couple of other males pick up metal poles and swing them at each other. 191Sarah Bell was a customer service agent working at counter two. She saw a group of around 15 to 20 men pushing and shoving. She got up from her counter and went closer to see what was happening. She proceeded to the break between the economy and business check-in counters. She saw a barrier flying through the air and lots of others falling around the floor. She saw the back of one man going out the door, describing the man as quite tall, very well built, broad shoulders, possibly a tight white t-shirt with blood on the back of his head. She also saw a man who remained behind with a torn green t-shirt and blue tracksuit pants. She later described the first man in cross-examination as about 175 cm to 180 cm tall with fairly short hair, "like a number 2 or 3". Ms Bell then rendered assistance to the victim. 192Marie Wiebrecht had printed off her ticket and had proceeded to the check-in area in the departure hall. She saw approximately 10 to 12 people involved in the fight. She described one man, a Pacific Islander, with an eagle tattoo either on his chest or back and who was about six feet two inches tall, trying to put a smaller man, about five feet seven inches tall, into a headlock. She also saw bollards being swung around and a man lying on the floor with a lot of blood. She saw "at least probably two or three" men with bollards. Ms Wiebrecht selected three photographs from a bundle as being familiar, one of which was the appellant. 193Nadia Abdul was a Qantas employee working at counter 17 at the relevant time. She observed a man of Maori Islander descent, wearing a Hawaiian t-shirt, aged 35 years plus and with a moustache. She saw this man fighting and using what she described as a "chopping" action. She saw him pick up a bollard and swing it around. She did not see it hit anyone. She conceded to the Crown Prosecutor that her evidence at the trial was the first occasion on which she had referred to the chopping action and agreed that she did not have a good memory. 194Maxine Koop was at the departure hall to catch a flight and was standing at one of the check-in kiosks at the relevant time. She estimated between 10 and 20 men came running through a gap to the side of the Qantas check-in counters. She stated that one larger man was yelling at somebody and encouraging others to "have a go at him". She described him as heavy set, tall and wearing tracksuit pants and a ripped t-shirt. She saw another smaller man, a bit older, pointing and yelling to others. She did not see him involved in the fight. She did not see what caused a man to fall to the ground. She then saw the man with the ripped t-shirt move over to the man on the ground. 195Elizabeth Tiernan was at the departure hall to catch a flight and at the relevant time was making her way through the security checkpoint. She heard loud noises and turned around. She saw a person step out between the two sets of baggage drops. He was approximately 170 cm to 180 cm tall, with dark hair and wearing a dark coloured top. He was holding a bollard in his hands. The man was only in her field of vision for a split second. In cross-examination it was put to her that she had a conversation with police in which she stated that the man's top was possibly grey. She could not say what he was wearing from the waist down. 196Sharon Duncan travelled on QF430 on staff travel and was the last person to board the flight. She described a man who boarded the plane before her as holding a box of doughnuts, wearing a white top, white tracksuit pants and runners, with a tattoo on his arm. She gave evidence of coming into the main section of Terminal 3 following the fight and of individuals getting into taxis. 197Derek Forrest travelled on QF430. At Melbourne Airport he observed two men about 175 cm tall and wearing black t-shirts. He confirmed in cross-examination that both had tattoos on their necks and arms. He was seated at the back of the plane and was one of the last to disembark. After disembarking, as he was walking towards the exit he was passed by a man without a t-shirt and who had a bumbag around his waist. Whilst exiting and in the departure hall, he looked in the direction of the check-in counters and saw a round bollard going up and down. He saw the motion three times. He could not describe the person lifting the bollard. 198Matthew Curtain travelled on QF430. In relation to the events in the departure hall, Mr Curtain gave evidence that an individual picked up a bollard and pushed, stabbed or stamped it in the direction of the chest of the person who was already on the ground. He recalled it happening once and it making a very distinctive cracking sound. Mr Curtain stated that he normally wore glasses and that he was not wearing them at the time of the incident. He confirmed in cross-examination that he was shown photographs or sketches by police and was unable to identify any person. 199Rodney Frost was at the relevant time arriving at Sydney Domestic Airport and getting out of a taxi. He gave evidence in relation to four men who got in to his taxi as he was about to take his Cabcharge card from the driver. He was unable to individually describe any of those men. In cross-examination he agreed he said in his statement to police that he also saw men get into other taxis. 200Terrence Hall also gave evidence in relation to events outside Terminal 3. He stated that he saw three men get into the taxi behind his. The first man was fairly large, tall and muscular. The second and third men were not as tall but were of a similar build. They were of Middle Eastern or Lebanese appearance. The first man was wearing a white muscle shirt and long trousers. Behind the men he also saw two men of Pacific Islander ethnicity wearing shorts but he did not see where they went. 201A considerable body of evidence was led as to what occurred subsequently. One of the ambulance officers who attended Sydney Domestic Airport and treated the deceased stated that on her arrival the deceased was not breathing, his eyes were open, he was staring and there was no pulse. Multiple stab wounds were noted by medical officers upon examination of the deceased at the hospital. 202Senior Constable Smith, Crime Scene Investigation Officer, noted that in Terminal 3 in the area south of check-in counters 9 to 28, several metal bollards had been knocked over. She said that privacy screens had been placed around an area near the south wall of the terminal behind which there was medical equipment, a black coloured jumper and red stains which appeared to be blood. She also saw in another area a silver coloured knife on the ground with a partial shoe impression on the blade. 203Protective Services Officer Timothy Jeffcoat was on duty on 22 March 2009. He saw that a bollard had fallen over on its side about one metre from the deceased's head. He did not see any blood on the bollard. 204A post mortem examination was carried out on the deceased on 23 and 24 March 2009 by a Dr Johan Duflou. Dr Duflou listed the cause of death as "combined effect of blunt force head injury and stab wounds to the chest and abdomen". His summary of his finding was in the following terms: "At autopsy there were relevantly minor external injury to the head, but severe and potentially lethal internal head injury, with fracturing of the base of the skull, bleeding over the surface of the brain and bruising and other injury to the brain. There were stab wounds to the right side of the chest and the front of the abdomen. These stabs had resulted in injury to the right lung, the liver, stomach and soft tissues of the abdomen and had caused significant internal bleeding. A number of lesser injuries were also noted on the limbs of the deceased. A small old injury to the frontal lobe of the brain was noted. The deceased was noted to be infected by the Hepatitis C virus. Microscopic examination of tissues showed no additional abnormalities." 205Dr Duflou described the skull fracture as a hinge fracture. He said the external injuries were relatively minor whilst the internal injury was very severe. He said that something would have had to have been brought down hard on the side of the head causing the fracture in the middle. He said the object would have had to have been relatively flat and brought down with significant force. He said a bollard was consistent with the object he described. 206Importantly Dr Duflou said that if the bollard was swung into the side of the head in a putting motion it was more likely than not that there would be lacerations to the head, not the rest of the body. He stated that there was no fracturing at the top of the head. He said this was indicative of no forceful impact having had occurred with an object, like a bollard, being swung into the top of the head. The appellant's evidence 207The appellant gave evidence at the trial. He said he knew the deceased and Peter Zervas, saying that he had gone to school with them. He admitted punching and hitting the deceased but said it was because the deceased was coming at him with weapons. He denied hitting the deceased with a bollard or instructing anyone else to do so. He denied telling any CMC members to fight the HA members. 208The appellant admitted he was the President of the CMC. 209The appellant said that on 20 March 2009, Mr Abounader drove him and Mr Aouli to Sydney Domestic Airport. He understood that on their return Mr Abounader would pick them up in Mr Aouli's car. At Melbourne Airport he said he asked Mr Aouli to confirm this. CCTV footage shows Mr Aouli making a telephone call at Melbourne Airport. 210The appellant saw Mr Wainohu when he boarded the plane. He said he did not expect to see him. 211After he was seated there was an announcement that the plane would be late. The appellant said he walked up to Mr Aouli and asked him to let Mr Abounader know that the plane was running late. The appellant told Mr Aouli that Mr Wainohu was on the plane. He admitted when he went back to his seat he looked at Mr Wainohu and may have called his name. 212When the plane landed he could not see Mr Wainohu but could see Mr Aouli. He pointed to his eye to remind Mr Aouli that Mr Wainohu was behind him. 213When shown the CCTV footage, the appellant identified Mr Wainohu leaving the plane first, followed by him and Mr Eken, then Messrs Menzies and Pirini. When he got out of the aerobridge he saw Mr Wainohu with two men that he did not know at the time but he subsequently came to learn were Mr Padovan and Mr Baker. He spoke to Mr Wainohu for about ten seconds. Whilst doing that he saw at least three members of the CMC (SP, AL and Mr Kisacanin), approaching at a fast pace. 214The appellant said he was speaking when Mr Wainohu turned around and walked away. Mr Wainohu put his bag on a carrier and walked back saying, "I'll show you something" or "I've got something". Mr Wainohu walked straight towards him. The appellant stumbled and threw a punch at Mr Wainohu. Mr Baker threw a punch at AL and AL punched Mr Wainohu and knocked him to the ground. 215The appellant was on the ground with Mr Baker, fighting and wrestling. After about ten seconds they got up. Mr Wainohu walked to the right hand side with Mr Baker and the appellant to the left hand side with Mr Aouli. As the appellant walked east, Mr Padovan walked west. They said to each other, "Go fuck yourself". 216The appellant said he caught up with his "mates" and Mr Padovan caught up with his. He walked through the bi-fold doors near the rear of his group. 217The appellant said that when he saw the five CMC members coming towards him at Gate 5 he did not know they were coming to meet him. He met up with Mr Potrus and Mr Abounader and told the latter to take him straight to his car. He did not tell anyone to collect his luggage. 218When he came out of the bi-fold doors he went straight because he was following the others. At the point when he reached the last of the economy check-in counters, he did not know there were HA members in front of him. 219As he moved east he recognised Peter Zervas and the deceased. The deceased and another man walked straight past them. Peter Zervas then shouted words along the lines of, "Where do you think you're f'ing going? Do you think you can just walk away? You're dogs". The appellant said he moved forward saying, "Get fucked, what is it to you". He did not think there was going to be a fight. 220The appellant said that Peter Zervas ran straight at him with his hands in his pockets and stopped about a metre in front of him. The appellant said he took three or four steps backwards. Peter Zervas had a knuckleduster and Mr Abounader yelled, "He's got a gun, he's going to shoot". 221The appellant said he started running, looking back as he did. As the appellant looked back he saw the deceased swing his hand over the appellant's face. The appellant blocked it with his hand and his hand was cut open. The appellant said the same blow "sort of got me in the right eye". He went through the check-in counters backwards with Peter Zervas and the deceased, the latter still going at him with whatever he had in his hand. As they got to the front of the check-in counter the deceased dropped his weapon and "took off". Peter Zervas picked up a bollard and smashed the appellant in the back. 222As he untangled himself from luggage, the appellant found himself in a fight with the deceased and Mr Khoury. Mr Khoury was trying to hold him as the deceased was going at him with another weapon. Mr Pirini came from behind the deceased and took him off the appellant. 223The appellant was shown the Deng video (see par [266] below). He said the footage showed his back as he headed to the nearest exit of Terminal 3. He acknowledged he could see on the footage someone lifting something in the air but denied seeing it at the time. When he was exiting the door he said he looked back in the terminal. He did not notice anything happening where the deceased was killed. He said AL was running away from Peter Zervas who was saying "Come back in and fight you pussies" or "Come back in you f'ing dogs, come back in and fight. Don't go, come back in and fight". AL, Mr Menzies and Mr La Rosa were in the taxi with him. He did not hear Mr Menzies say anything about what had happened at the airport. He went to his parents' home where he washed and changed. He had blood on his face, neck, arms and in his hair. They were in his words, "all blood". 224He denied using a bollard on the deceased or directing anyone else to use a bollard on him. 225In cross-examination the appellant was shown a schedule of calls between CMC members. He agreed that after the call that was made from Mr Aouli to Mr Abounader a number of CMC members met at Brighton and then arrived at Sydney Domestic Airport. He said he did not know that those people were coming to the airport. 226The appellant agreed that he knew if he hit Mr Wainohu other loyal members of his club would come in and start fighting. He agreed that Mr Menzies was someone he could depend on in a situation like that. 227He agreed that in the fight that took place outside Gate 5 both Mr Wainohu and Mr Baker were hit to the ground and stayed on the ground. He maintained he was on the ground for five to ten seconds. He did not admit that he was angry. 228The appellant agreed that he was the person Mr Kroeger was describing when he described a man saying, "You're dead, you are fucking dead". However, he did not recall saying, "Next time we see you you're going to have bullet holes through you. You're a dead man walking". He said he could have said anything. 229The appellant denied he went in the direction he took after entering the departure hall because he was looking for HA members. He stated it was a coincidence that he ran into them behind the check-in counters on the way to the car. He said he had not had discussions with anyone about leaving their luggage at the airport. 230The appellant was asked about the footage which showed 12 CMC members speeding up and walking towards the HA members. He was directed to a man in black coming from the rear of the group and acknowledged what he was saying was the three people joined his group and ran with him. He said he did not stop until Peter Zervas ran at him. 231He denied he was so angry and worked up that he did not care that he was in a public place. He denied that he had already decided at Gate 5 that he was going to fight the HA members and that he had contemplated the possibility that one of the CMC members would inflict some really serious injury on the HA members, or at least intended to assault them in some way. 232He agreed that when the deceased assaulted him with a pair of scissors he put his arm up to deflect it, but he denied he got a red eye and a scratch on his triceps. He said: "No when he [Peter Zervas] started running towards me, I stopped and then he stopped about a metre in front of me and I walked back. Then he took his hands out of his pocket, he had a knuckleduster on so I walked back again and someone said there was a gun, so I run". He said the deceased was swinging a blade at his face. He agreed he was 186 cm tall (that was later corrected to 178 cm) and the deceased was 161 cm. He could not demonstrate how the swinging occurred. 233He said that both SP and AL were wrong in their evidence that he was standing still when the deceased attacked him. He denied the fighting broke out when the deceased struck at him. He agreed that both Peter Zervas and the deceased were fighting with him. He agreed that the effect of his evidence was that none of the other CMC members came to help him. 234In relation to his evidence that Mr Khoury was trying to hold him while the deceased was going at him with another weapon near the front door, the appellant agreed that not a single witness had said they had seen a person being attacked with a sharp weapon on the street side. He did not remember if Mr Menzies came in behind the check-in counters and grabbed the deceased's jumper and got the deceased off him. He denied seeing the deceased get away and being chased near the glass wall. He had no idea how the deceased came to be on the ground. He said he did not see the assault on the deceased. He did not see the deceased being kicked and punched and hit with a bollard. The appellant denied that he ran over and was part of the final assault on the deceased by using a bollard, either by hitting him or putting it in front of Mr and Mrs Ireland. 235He was shown the Deng video and agreed that he was the man in white, next to the man in black with his arms raised over his head. He said he could not see what was happening. 236The appellant denied that the actions of the day were as a result of decisions made by him. 237The appellant agreed that none of his blood was found at Sydney Domestic Airport and he did not tell the police of his injuries. He said his lawyers told him not to discuss the matters with the police. Mr Menzies' evidence 238Mr Menzies gave evidence. He said on the return journey from Melbourne he was wearing a short-sleeved black t-shirt with "Ed Hardy" written on the front in "whitey-creamy beigey" running writing, with an embroidered tiger's head underneath. He agreed that a photo showed a t-shirt similar to the one he was wearing. He said he was wearing grey Nike tracksuit pants and white and blue socks and "Shox" shoes. He was wearing a gold necklace and gold bracelet on his left wrist and an earring in each ear. 239Mr Menzies denied that he knew Mr Wainohu when he boarded the flight. He did not have knuckledusters or a knife with him when he boarded the plane. He said his phone was in his (checked in) luggage. 240Mr Menzies said he went to sleep in the aircraft. He said he was not aware of any confrontation on the plane. He said he was last off the plane out of the people in his group and was planning to take a taxi home. 241When Mr Menzies disembarked he saw the appellant talking to Mr Wainohu. He said Mr Wainohu said something like, "I've got something in my bag, I've got something for you". He said Mr Wainohu barged into the appellant. AL came out of nowhere and king-hit Mr Wainohu who fell to the ground. AL then hit Mr Padovan. He said the fight lasted less than a minute and was not much of a fight. 242Mr Menzies said he believed there were cameras everywhere, and security. He said he wanted to get out of Sydney Domestic Airport. He did not know the people at Gate 5 were HA members. He did not remember meeting up with anyone after they went through the bi-fold doors, although he acknowledged the CCTV camera showed that he had. 243Mr Menzies was shown CCTV footage and identified himself as walking on the left-hand side of the group behind the check-in counters. He said he stayed at the same speed. He saw another group and said he did not know them or that they were HA members. 244Mr Menzies said that when his group approached the other group the man in the green singlet "was screaming out, swearing and the other lad in the black jumper was jumping around and running towards us sort of, in our direction". 245Mr Menzies' group stopped in front of the others and they also stopped. As the person in the black jumper was coming he pulled his hood over his head. He came from Mr Menzies' left side, he was "jumping, sort of". Mr Menzies said the man was standing there for about four seconds and then he heard Mr Abounader say, "Watch out, he's got a nug, he's going to shoot, he's got a gun". 246Mr Menzies said he froze. He said the appellant and the other men took "off through the check-ins". He said the man in the black jumper had something sharp in his hand and took a swing at the appellant's head. The appellant put his hand up and it connected with his hand. 247Mr Menzies said there was a big scuffle, everyone was throwing punches. When everyone got off the ground he noticed Mr Eken was still on the floor, on his back with someone on top of him. Mr Menzies grabbed the man on top of him and punched him so he got off Mr Eken. He then had a fight with that man and fell on his backside and they had a scuffle on the floor. They both got up, shaped up to each other and Mr Menzies said he took off. 248Mr Menzies was shown Exhibit 20 (a PowerPoint slide of a photograph taken by Ms Magnay, which identified a person matching Mr Menzies' description in the departure hall in front of the check-in counters). He said at that time he was headed "out the door". He said he was not carrying anything and did not have a weapon. Mr Menzies said he did not see anyone strike the deceased with a bollard. He denied that whilst he was in a taxi leaving Sydney Domestic Airport he said, "I think I killed him". Mr Menzies claimed the appellant said, "He tried to kill me". 249Mr Menzies denied saying anything to anyone at the home of the appellant's parents about having killed or murdered anyone. 250Mr Menzies said he did not touch anyone behind the check-in counters. He admitted to fighting in front of the check-in counters. He denied using a weapon or picking up or using a bollard. He denied any involvement in the killing of the deceased. 251In cross-examination Mr Menzies denied that the reason he could not produce a photograph of his t-shirt was that he had destroyed it. 252Mr Menzies acknowledged that he was aware of an ongoing hostility between the CMC and the HA. However, he again stated he did not know who Mr Wainohu was. 253Mr Menzies acknowledged he was the person described by Mr Anderson as sitting in seat 44F. He did not agree that he and the person in seat 44E attempted to leave the plane quickly. Notwithstanding CCTV footage, he did not agree he was moving faster than other passengers when getting off the aerobridge. 254Mr Menzies agreed the footage showed him only four seconds behind the appellant but said by the time he caught up to the appellant, the appellant was already talking to Mr Wainohu. He denied the appellant's evidence that everyone was fighting and that that included Mr Menzies. 255Mr Menzies also said in cross-examination that he saw SP, AL and Mr Pirini fighting outside Gate 5. He agreed his earlier evidence was that he had only said SP and AL were fighting outside that gate. 256Mr Menzies said as there was a fight he decided not to get his luggage. The only discussion between him and other members of the group was someone said, "Let's get the fuck out of the airport, let's get out of here the cops are coming". He said it was the appellant who said, "Let's get the fuck out of the airport". 257Mr Menzies said he did not recognise anyone behind the check-in counters. He did not notice that the singlet worn by Peter Zervas was a HA singlet. He denied he would recognise a HA t-shirt or insignia. 258Mr Menzies agreed the two groups came together. He was focused on the deceased. He said the deceased pulled a knife and attacked the appellant from behind whilst the appellant was arguing with Peter Zervas. He said the appellant put up his hand and blocked it and shuffled backwards through the check-in counters. Mr Menzies said he walked (and on other occasions, ran) through a different check-in counter closer to the bi-fold doors. 259When Mr Menzies heard someone say, "He's going to shoot, he's got a nug" he froze and then started to walk through the check-in counter. Everyone was on the other side when he got through. He agreed he was headed in the same direction as whoever was supposed to have a gun. 260Mr Menzies denied he grabbed the deceased after the deceased struck at the appellant. He knew that a matching DNA profile had been found on the deceased's jacket but maintained he did not grab the deceased or stab or otherwise touch him. He denied he came through the check-in counter in a group. He did not see the deceased get away, being chased by other CMC members and fall or be hit to the floor. He denied he ran over and joined in the assault. 261Mr Menzies agreed by reference to Exhibit GT (a photograph of the departure hall) that he was running towards where the deceased had died, but denied he was doing so to join in the assault on him. He agreed he ran in that direction before the deceased was assaulted. 262Mr Menzies said he did not see bollards being used whilst he was in the departure hall. He denied that he was part of the fatal assault because he was party to an agreement with his fellow CMC members to inflict serious injuries on HA members. He repeated that he had no idea they were HA members whilst he was in the terminal. CCTV footage of the riot and fatal assault 263I referred earlier to the CCTV footage shortly after the CMC members left the secure area. Footage taken immediately thereafter shows the 12 CMC members moving behind the check-in counters, initially walking before speeding up. 264The CCTV footage shows the deceased moving towards the CMC members followed by the other HA members. The deceased is shown putting his hood up. At the same time the CMC members can be seen moving towards the HA members. The deceased and another man are seen moving behind the CMC members. A man in white and other unidentified figures are also seen to be moving. 265Having passed that group, CCTV footage shows the deceased moving back towards the group. It also shows Peter Zervas moving towards that group. The footage captures the appellant retreating twice before the deceased is seen to run in to attack him. 266Regrettably the CCTV cameras were not in operation in the area in which the fatal attack took place. However, the incident was filmed by a visiting Chinese lawyer, Ms Deng (the Deng video). The Deng video is by no means clear. However, it does show a man in dark clothing with his arms raised to the fullest extent and a man in white in the background in the area where the deceased was fatally attacked. The man's arms that were raised then descend out of view. The man in white then appears to be moving away from the deceased's location towards the centre exit. The man in white disappears through the exit. Grounds 1 and 2 of the grounds of appeal 267Grounds 1 and 2 of the grounds of appeal are as follows: "Ground 1: The verdict of the jury with respect to Count 1 is unreasonable and cannot be supported by the evidence. Ground 2: When regard is had to the verdicts of the jury in relation to the co-accused and the manner in which the Crown case was left to the jury at trial, the verdict of the jury with respect to Count 1 was a miscarriage of justice." 268It is convenient to deal with each of these grounds together. The appellant's submissions 269The appellant placed great stress on the manner in which the Crown presented its case at trial. He submitted that what was put against him was a case of either liability on the basis that he was the person who inflicted the fatal blow on the deceased, or alternatively liability for murder as a result of a joint criminal enterprise or extended joint criminal enterprise arising out of an agreement or understanding between him and the five other CMC members charged with the murder. In that context, the Crown made the following remarks in opening: "The Crown says in this case that you would at least be satisfied that such an understanding or arrangement had been formed from the time that Mahmoud Hawi called out the threats to the Hells Angels after the gate 5 affray but, members of the jury, on the Crown case it will be open to you to find that the agreement was formed spontaneously at any time after the fighting had broken out behind the check-in counters." 270The appellant pointed to the ten points relied upon by the Crown at the trial as establishing his guilt and those of the other CMC members charged. The first point was the underlying animosity between the two motorcycle clubs. The second was the events on QF430 as described by the witnesses to whose evidence I have referred in pars [32]-[50] above. 271The third point was that Mr Kisacanin, Mr Abounader and Mr Potrus came to Sydney Domestic Airport knowing of the possibility of an incident with the HA members. The fourth point was that the CMC members started the affray at Gate 5. The fifth was the threats made at the end of the affray at Gate 5 (with particular reference to the evidence of Edem and Eyiram Dokli, Ms Magnay, Ms Osborn, Mr Kroeger and Mr Stephenson to which I have referred above). 272The sixth point was that the CMC members, rather than retrieving their luggage, walked towards the HA members, advancing on them intending a confrontation. The seventh point was that the CMC members stopped when they saw the HA members because they were expecting a confrontation. The eighth point was that the descriptions of the fight given by the eye-witnesses were inconsistent with the CMC members running away from the risk of a firearm or the deceased coming back at the appellant a second time. 273The ninth point was that the CMC members left together, while the tenth was that the CMC had a hierarchal structure. 274The appellant also referred to the direction of the trial judge on the issue of joint criminal enterprise: "In this case, the Crown says that there was a joint criminal enterprise. The object of it was to inflict grievous bodily harm upon a member, or members, of those who were in the Hells Angels group. That group included the deceased. It says that this joint enterprise was in existence at the time the fatal injuries and wounds were inflicted upon the deceased. It says that each of the six accused were parties to this joint enterprise and participated in some way in it. It also says that the fatal injuries and wounds were inflicted upon the deceased by a person, or persons, who were also parties to the joint enterprise. It does not matter whether you are satisfied beyond reasonable doubt as to whether a particular accused inflicted the fatal injuries or wounds; simply that you are satisfied to that standard that they were inflicted by someone who was also a participant in the enterprise." 275The appellant emphasised that in these circumstances the Crown case on joint criminal enterprise and extended joint criminal enterprise was limited to an agreement or understanding between only the six accused CMC members, and that the agreement or understanding was reached at least at Gate 5. 276The appellant also noted that the Crown relied upon the doctrine of extended joint criminal enterprise as a result of an agreement or understanding reached between the same CMC members where lesser violence was contemplated but each accused contemplated the possibility that other participants might intentionally inflict grievous bodily harm. 277The appellant noted that the Crown case against Mr Menzies and Mr Abounader was that they were liable to be convicted either by way of direct involvement in the murder, joint criminal enterprise or extended joint criminal enterprise. He noted that the case against Mr Kisacanin, Mr Potrus and Mr Eken was based at the very least on extended joint criminal enterprise. 278Although the case against Mr Abounader based on direct involvement was put on the basis that he stabbed the deceased, the case against the appellant and Mr Menzies was put on the basis that they inflicted fatal blows on the deceased with a bollard. However, in the case based on joint criminal enterprise and extended joint criminal enterprise, the jury was directed that the scope did not extend to inflicting grievous bodily harm by stabbing and that they should put that cause of death to one side, effectively limiting the act causing death to a blunt force head injury inflicted by a bollard. 279The appellant noted that the Crown also put the case on the basis that if the jury was not satisfied on the murder count, a manslaughter verdict was open. This was provided they were satisfied there was a joint criminal enterprise to assault and they were also satisfied that it carried an appreciable risk of serious injury. Alternatively, if the agreement was to intimidate the HA members and the jury was satisfied that the appellant participated in some way, contemplated the possibility that someone might intentionally assault one or more HA members and the assault was a dangerous and unlawful act with the appreciable risk of serious injury, the jury could then convict him of manslaughter. 280The appellant submitted that the jury's decision to acquit Messrs Potrus, Eken and Kisacanin of both murder and manslaughter meant the jury rejected the argument that all six CMC members were liable for murder or manslaughter on the basis of joint criminal enterprise or extended joint criminal enterprise involving an agreement or understanding between all six CMC members. The appellant submitted the same reasoning must have applied to the decision of the jury to acquit Mr Menzies and Mr Abounader of murder and their failure to reach agreement on a verdict of manslaughter. He submitted that as a matter of logic this would lead to the rejection of the Crown case against him based on joint criminal enterprise or extended joint criminal enterprise. He emphasised that it was the Crown case against him that as a result of joint criminal enterprise or extended joint criminal enterprise the actus reus of Mr Menzies, as the person bludgeoning the deceased with a bollard, was attributed to him. 281The appellant submitted that the rejection of the Crown case based on joint criminal enterprise and extended joint criminal enterprise was hardly surprising given the following matters. 282First, the limited nature of the affray at Gate 5 and the fact that it stopped without any significant harm being caused to the HA members present. Second, the unlikelihood that the CMC members would seek to engage in a riot at such a location. Third (and somewhat contradictorily) the availability of bollards outside Gate 5 which could have been used had there been an agreement to inflict grievous bodily harm. 283Fourth, the CCTV footage of the approach of the CMC members after they entered the bi-fold doors was consistent with a lack of aggression and an initial unawareness of HA members being ahead of them. The appellant also noted the route that the CMC members took was broadly consistent with the way a number of them had entered Terminal 3 that afternoon. 284Fifth, AL and SP denied any such agreement or intent amongst the CMC members. Sixth, there was no immediate violence when the CMC members first encountered the HA members in the departure hall. The appellant also pointed out that the group first ignored the deceased when he walked past them in contrast to the deceased who pulled his hood over his head and ran towards the CMC members in a hostile manner. Seventh, the CMC members were unarmed except for Mr Abounader and, finally, there were real difficulties in establishing that the scope of any agreed infliction of harm included the use of a bollard. 285The appellant pointed to the fact that all parties to the trial ultimately agreed that based on the Deng video, the man visibly wielding the bollard and striking down on the deceased was wearing dark clothing and was not the appellant. 286The appellant pointed out that it was the Crown case that the disputed use of the bollard and the striking of the deceased evinced an intention to inflict grievous bodily harm inconsistent with self-defence. The appellant submitted that if some members of the jury reasoned it was a reasonable possibility that Mr Menzies thought it was necessary to defend himself, but could not agree that his acts were excessive, this may explain the hung verdict on manslaughter. However the appellant submitted that such reasoning would have been even stronger in his own case. The appellant submitted it was far more likely that the jury could not be satisfied beyond reasonable doubt that Mr Menzies was involved in the acts causing the death of the deceased. 287In relation to what he described as "direct liability", the appellant referred to the evidence which I have summarised above. The appellant submitted that the evidence could not lead to the conclusion beyond reasonable doubt that he was actively involved in the killing of the deceased. 288In particular, he submitted that evidence capable of supporting such a conclusion was in conflict with that of other witnesses and inconsistent with the Deng video. He stated that the Crown accepted that a bollard was not swung into the deceased's head in the putting manner described by Mr Ireland. This was a reference to the statement by the Crown Prosecutor in her closing address that there was no sign of forcible impact on the top of the head or on the face and there were no external marks on the head indicating that the bollard was swung into the head in a putting type motion. He submitted that, given the jury verdict with regard to Mr Menzies, it was clear that the evidence of AL and SP was not accepted. 289The appellant submitted that the only other possible basis for liability was that the appellant entered into an agreement with one or more of the accused CMC members who actually inflicted the fatal injuries; such an agreement arising only after the attack on the appellant by the deceased. He submitted that such a verdict would be contrary to the assumption that the jury followed judicial directions. 290The appellant referred to paragraph 57 of the remarks on sentence of the trial judge. However, those remarks need to be read in the context of the preceding paragraph. The relevant paragraphs are as follows: "[56] The Crown relied upon other evidence to support the proposition that the offender was involved in the fatal assault. It is unnecessary to refer to more. I am satisfied beyond reasonable doubt that the offender was in the immediate presence of the deceased when the assault occurred. I am not satisfied that he was the person who inflicted the blow, or blows, which caused the fractured skull. The person who did that was the person to whom I referred earlier who was tall and had dark clothing on his upper body. I am not satisfied beyond reasonable doubt that the offender inflicted any blows at all. I am satisfied that the person referred to in the evidence of Mr and Mrs Ireland was the offender but they did not actually see any blows make contact with the deceased. [57] I am satisfied beyond reasonable doubt that what occurred was this. One of the Comancheros rammed a bollard into the head of the deceased one or more times by raising and lowering it and striking him with the base of it. This caused the fractured skull. The offender contributed to the actions of this man by either joining in the assault by attempting, at least, to strike the deceased, or by simply being there when it was occurring. His presence would undoubtedly have had the effect of authorising and approving the actions of the other man who bludgeoned Anthony Zervas to death. Having seen the deceased being dealt with in that fashion, he turned and walked towards the exit, exchanged some threats with Peter Zervas, and then hurriedly left." 291The appellant submitted that the trial judge's conclusion that he contributed to the actions of the perpetrator either by joining the assault, by attempting to at least strike the deceased or by simply being there when it was occurring, illustrated that the verdict was unsafe. He submitted that his presence nearby said nothing about his mens rea. The footage depicting him as being present and walking away was not evidence supporting an agreement to inflict grievous bodily harm on the deceased. 292The appellant also submitted that such a conclusion was not open for the following reasons: (a)The time between the attack on the appellant by the deceased and the appellant's appearance on the Deng video when the deceased appeared to have been struck by the bollard was about 34-35 seconds. (b)During that period the appellant was engaged in resisting the attack on him by the deceased, if not others, for at least some of that time. (c)There were no bollards behind the check-in counter where the appellant was initially attacked, thus further limiting the time for such an agreement to have been reached. (d)CCTV footage 414 suggested that the participants moved rapidly to the location where the deceased was killed suggesting the actions of the person who struck the deceased with a bollard occurred almost as soon as the deceased arrived at the location. (e)The Deng video depicted the appellant departing immediately after the blow. His movement was directed to leaving the terminal. His actions provide no support for such an agreement. 293Senior counsel for the appellant emphasised the manner in which the case had been put at the trial and stated it was too late to put a different case. He submitted there were only three ways the appellant was said to be liable to be convicted at the trial for murder. The first, he submitted, was by the infliction of the blows which brought about the death. 294In relation to the second and third ways in which the appellant was said by the Crown to be liable, namely, as a result of a joint criminal enterprise or extended joint criminal enterprise, senior counsel for the appellant emphasised the way the case was put was that the agreement or understanding was reached at Gate 5. He submitted that it was no part of the Crown case that it was an instantaneous agreement made at the time the bollard was brought down on the deceased's head. It should be noted, however, that one reference in the Crown Prosecutor's closing address that was relied on in this context referred to the fact that the agreement could be formed spontaneously. 295Senior counsel for the appellant emphasised the fact that only the six persons standing trial for murder were said to be participants. He said there could not be a verdict of murder for any of the six unless they were a participant and continued to be so up until the act in question was committed by the co-participant. In that context, senior counsel for the appellant submitted that it was necessary to establish that the striker was one of the participants to the agreement. He submitted that the verdict in favour of the other alleged participants excluded any possibility of liability by way of joint criminal enterprise or extended joint criminal enterprise. 296Senior counsel for the appellant submitted that the only persons put forward by the Crown as striking the deceased with a bollard were the appellant and Mr Menzies. He submitted that in those circumstances the appellant could only be convicted on the basis of joint criminal enterprise or extended joint criminal enterprise if Mr Menzies was convicted. 297Senior counsel for the appellant submitted it was not open to the jury to convict on the basis that they were satisfied that the six accused were parties to a joint criminal enterprise but they could not determine who was the striker. This was because there was no evidence from which one could "close the class" and limit the possible striker down to the six said to be participants in the agreement, as opposed to the other CMC members involved in the incident that were not tried with the appellant (described at pars [16]-[22] above). 298In relation to "direct liability", senior counsel for the appellant reviewed the evidence which I have summarised above. He submitted that it was not capable of giving rise to the conclusion beyond reasonable doubt that the appellant had inflicted the fatal blow. In particular, he referred to Mr Ireland's evidence and pointed out that Mr Ireland did not see any violence and spoke about a putting motion which was quite different from other witnesses and inconsistent with the Deng video. Senior counsel also emphasised it was at odds with the evidence of SP. He submitted that the evidence of SP to the extent that it asserted the appellant was striking the deceased with an up and down motion was contrary to the Deng video. He emphasised that the jury did not accept the evidence of SP relating to the participation of Mr Menzies so as to ground a finding beyond reasonable doubt. 299Senior counsel for the appellant emphasised there was no case based on accessorial liability as distinct from joint criminal enterprise or extended joint criminal enterprise. The Crown's submissions 300The Crown submitted that the absence of a finding identifying the person who wielded the bollard did not necessarily lead to the conclusion that the guilty verdict against the appellant constituted a miscarriage of justice. In written submissions it was submitted that the guilty verdict for murder was sustainable on the basis that the appellant was armed with a bollard and was present with a man who inflicted the fatal injuries (the bollard man) and contributed by attempting to strike the deceased and by being present and available to assist the bollard man "to inflict serious injury". 301In making this submission the Crown relied, amongst other things, on the evidence of what occurred on the aircraft, the affray outside Gate 5 and, in particular, the evidence of Mr Ireland that the appellant had a bollard in his hand which he was swinging from right to left in a slow motion. The Crown submitted that its contention was supported by the Deng video which the Crown submitted showed the appellant did not move from the vicinity of the man wielding the bollard until he brought the bollard down. 302The Crown also relied in this context on the evidence of Ms Wattison, Ms Gray, SP and various other witnesses to the fight whose evidence I have summarised above. 303Senior counsel for the Crown commenced his submissions by stating that whilst he was not formally conceding that joint criminal enterprise as it was run at the trial was not open, his submissions would be directed to an alternative basis arising from the fact that the appellant was present when another person inflicted the fatal blow. However, he did not put this on the basis of accessorial liability. He put it on the basis that an agreement or understanding was spontaneously formed between the person who delivered the blow and the appellant just before the blow was delivered. However he acknowledged that the spontaneous agreement had to be between the appellant and one of his five co-accused. 304In stating it was open to the jury to convict on this basis, senior counsel for the Crown referred to a statement by the trial judge in his summing-up. The statement was to the effect that the existence of a joint criminal enterprise may be inferred from all the circumstances, the circumstances of joint participation may be an unspoken understanding or arrangement then and there to commit the crime and to the fact that no conversation was necessary. In this context he relied on Mr Ireland's evidence that the appellant was swinging a bollard. 305Senior counsel for the Crown submitted that the acquittal of Mr Menzies on the charge of murder was not inconsistent with the conviction of the appellant based on joint criminal enterprise if the fatal blow was struck by Mr Menzies. He submitted the actus rea would be attributed to the appellant who had the necessary mens rea. It would not matter that Mr Menzies had a partial defence. However, senior counsel for the Crown accepted that the trial judge was correct in directing that for a criminal enterprise to be established, the jury would have to be satisfied beyond reasonable doubt that one of the parties to the agreement inflicted grievous bodily harm upon a member of the HA (unlawfully, that is not in self-defence). 306Senior counsel for the Crown accepted the Crown case at trial was that the persons who were actively involved in the killing were Mr Menzies and the appellant with bollards and Mr Abounader with a knife. Consideration 307The principles on which an appellate court is required to deal with a ground of appeal that a verdict was unreasonable are now well established. They were set out by the High Court in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 (M) and have been consistently reaffirmed since that time. They were summarised by a majority of the High Court in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 (SKA) in the following terms: "[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.' [12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence".' [13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. [14] In determining an appeal pursuant to s6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand.'" (References omitted). 308It is not enough for the verdict to be unreasonable that a review of the evidence shows that it was open to the jury to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]. However, it is equally clear that it is not sufficient that there was evidence on which a jury could convict. That was made clear in M, cited in SKA at [13]. If, after giving full weight to the primacy of the jury as the fact finder, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt, that the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 (MFA) at [26] and [55]-[56]). 309The question of inconsistent verdicts the subject of Ground 2 raises particular issues. However, it must be remembered that the test prescribed by s 6(1) of the Criminal Appeal Act 1912 (NSW) is that the verdict in question is unreasonable, not that it is inconsistent with another verdict given by the jury: MFA at [36]. 310In MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 (MacKenzie) at 365-368 the issues surrounding inconsistent verdicts were extensively considered by Gaudron, Gummow and Kirby JJ. While it is unnecessary to cite the whole of the passage of their Honour's judgment, a number of matters should be emphasised. 311First, where inconsistency arises in the jury verdict upon different counts in the originating process in a criminal trial the question of whether the inconsistent verdicts can be reconciled is one of logic and reasonableness (MacKenzie at 366 citing R v Stone, Unreported, Court of Appeal Criminal Division England and Wales, 13 December 1954, per Devlin J). 312Second, respect for the function the law assigns to jurors has led to the reluctance of appellate courts to accept a submission that the verdicts are inconsistent in the relevant sense. If there is a proper way to reconcile the verdicts, allowing the court to conclude the jury performed its function as required, that conclusion would generally be accepted (MacKenzie at 367). 313Third, there is however a residue of cases where the different verdicts reached represent an affront to logic and commonsense. It is when the inconsistency rises to the point that the appellate court considers intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside (MacKenzie at 368). 314Further, the issue should be considered on the assumption that juries understand and follow the directions given by the trial judge: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [13] and HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [52] and [353]. 315It will be necessary to say something more on the question of inconsistency of verdicts. However, it is convenient to deal first with the question of liability for murder on the basis that the appellant inflicted a blow which killed or contributed to the death of the deceased. Did the appellant strike the deceased with a bollard? 316It was no part of the Crown case that the appellant stabbed the deceased. It was only contended that he inflicted a blow or blows with a bollard which caused the death. 317I have reviewed the evidence above and as a consequence have been left with a doubt that the appellant struck the deceased with a bollard. 318I do not propose to repeat the evidence to which I have referred to above. However, a number of matters should be emphasised. First, as I pointed out, the evidence of Ms Gray who described a man with light coloured pants as a person who brought the bollard down on the deceased was inconsistent with her earlier statement to the police. Second, Mr Barnes, who said he saw a man in a white top in the vicinity of the deceased when he was struck, acknowledged in cross-examination that he did not see the man in the white top involved in the incident with the man on the ground. 319Third, George Teale, who described the incident in which the deceased was struck with a bollard, stated that two men were hitting the deceased with bollards, describing one as wearing whitish pants without a shirt. No one suggested the appellant was not wearing a shirt at the time the assault on the deceased occurred. Further, George Teale's statement to the police was that he saw only one person with a bollard, in light coloured pants and could not identify that person from police photographs. 320Ms Whyte identified a picture of the appellant as the man who hit the deceased with a bollard. She said the man she saw did not use a putting motion; rather he brought the bollard down like an axe. However, her description of the assailant at trial was inconsistent with the description of the appellant, as was the description of the assailant which she gave to the police and at the committal hearing. 321I have set out the evidence of SP above. Effectively he stated that two men were striking the deceased with a bollard in a similar fashion, identifying them as Mr Menzies and the appellant. No other person gave evidence to this effect. It is not apparent from the Deng video. I have referred to the other inconsistencies and difficulties with the evidence of SP above. Even taking into account the advantage the jury had in seeing SP and hearing his evidence, that does not resolve any reasonable doubt as to whether the appellant was the person who brought the bollard down on the deceased. 322Ms McCarthy, whose version of events most closely resembled the Deng video, identified two men standing next to each other but only one wielding a bollard. However, she was unable to identify either man when looking at photographs. 323The evidence I have referred to in the preceding paragraphs of this section of this judgment is the evidence, in my view, most favourable to the Crown to support the contention that the appellant hit the deceased with a bollard using an up and down motion. Having regard to the uncertainties and inconsistencies in this evidence, even taking it on its own, I am not satisfied beyond reasonable doubt that the appellant struck the deceased in that fashion. 324That, however, is not the only evidence. I have summarised the balance above. That evidence either does not identify any person swinging a bollard in an up and down motion or, to the extent that such evidence was given, it was contrary to the person being the appellant. 325The Deng video is of considerable significance. I have studied it a number of times. As I pointed out it shows a man wearing dark clothes with his arms raised. It does show a man in white standing next to him but not with raised arms. It does not assist in establishing that the appellant inflicted a fatal blow by using the bollard in an up and down motion. 326There remains however the evidence of Mr Ireland who, as I indicated, saw a person answering the description of the deceased picking up a metal stand and swinging it across his body from right to left in what he described as a putting motion. This evidence was not inconsistent with what appeared on the Deng video. That footage is incapable of resolving whether or not the man in white is moving in a manner consistent or inconsistent with a putting motion. Further, Mr Ireland said he did not see the metal bollard hit the deceased, and Ms Whyte and Ms Magnay (who were in close proximity to Mr Ireland) said that they did not see a man using bollards with a putting motion. No other witness described a bollard being used with a putting motion. 327In these circumstances I cannot be satisfied beyond reasonable doubt that the appellant inflicted fatal blows on the deceased using a bollard with a putting motion. Further, Dr Duflou's evidence that had the bollard been swung directly into the head of the deceased he would have expected to see lacerations to the head, casts further doubt on this proposition. 328In the circumstances, I cannot be satisfied beyond reasonable doubt that the appellant inflicted fatal blows to the head of the deceased using a bollard. It is a doubt I believe the jury should have held and it was not open for the appellant to be convicted on the basis that he inflicted the fatal blow or some of the blows which caused death. Liability on the basis of joint criminal enterprise 329The extent and scope of what has been described as joint criminal enterprise was stated by the plurality in the decision of the High Court in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108. In that case the plurality stated the relevant principles in the following terms at 113-114: "The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission. Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose." (References omitted). 330The effect of the judgment was summarised by the plurality in Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 as follows: "[19] On the principal case, the appellant was liable for the murder of the deceased under the principle of criminal responsibility variously described as joint criminal enterprise, common purpose or concert. On this analysis, it was necessary to prove that the appellant was a party to an understanding or arrangement, whether formed expressly or tacitly, with John Likiardopoulos, Aydin and Singh, to inflict really serious injury on the deceased and that, while that arrangement was on foot, one or more of the parties to it did the acts which caused death intending thereby to do really serious injury to him. The appellant's participation in the enterprise while possessed of the requisite intention (here, to inflict really serious injury) operates to fix him with liability for the acts of the other parties carried out in pursuance of it. On the principal case, the appellant's liability is direct and, as his argument acknowledged, his amenability to prosecution for murder is unaffected by the Director of Public Prosecutions' ('the Director') acceptance of pleas to lesser offences from all of the other parties to the joint criminal enterprise." (References omitted). 331It is important to bear in mind that liability for participation in a joint criminal enterprise does not depend on the person who committed the actual act giving rise to the offence being convicted. So much was made clear by McHugh J in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 (Osland). His Honour emphasised at [72]-[76] that what was attributed to the participants in the joint criminal enterprise was the actus rea of the person who actually committed the act in question. 332Osland was a case where the verdict of the jury convicting the accused of murder arising out of a joint criminal enterprise to murder the deceased was said to be inconsistent with the acquittal of the person said to be the co-participant in the enterprise. In his judgment in Osland, which was expressly approved by the High Court in Huynh v R [2013] HCA 6; (2013) 87 ALJR 434 at [37], McHugh J made the following comments: "[79] The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely. Thus, the person who did the act may be legally insane. Yet as long as that person had sufficient mental capacity to enter into the arrangement or common understanding, the other participant present at the scene will be guilty of committing the principal crime if he or she has the relevant mens rea. In Matusevich v The Queen, this Court decided that, when two persons are said to be acting in concert, the fact that the actual perpetrator is legally insane does not necessarily mean that the conviction of the other, who was present at the scene, should be quashed. If the actual perpetrator has sufficient capacity to enter into the agreement or understanding, the person present at the scene who was acting in concert may be convicted of the offence. ... [93] Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime." (References omitted). 333Thus it is clear the fact that the other co-accused were not convicted at the trial does not inevitably lead to the conclusion that the verdict against the appellant was unreasonable. What must be considered, consistent with what was said in MacKenzie, is whether or not on the particular facts of the case the verdicts can logically and reasonably stand together, or whether no reasonable jury who had applied their minds properly to the facts could have arrived at the conclusion they reached. 334The Crown's opening address to the jury was that each of the six CMC members on trial were parties to the enterprise. The Crown stated: "That each of them had agreed to assault one or more of the Hells Angels in some way, just to assault them, and that each of them... contemplated the possibility that someone else in the agreement might intentionally inflict really serious physical injury on one or more of the Hells Angels as part of that agreement, then each of them would still be guilty of murder". The Crown emphasised that the agreement was limited to one between the six accused. 335The Crown put the case in the same way in its closing address: "The Crown has to prove against each accused charged with murder that there was an understanding or an arrangement in existence at the time of the acts that caused Anthony Zervas' death, but you could be satisfied that it was formed spontaneously at any time up until those fatal acts. But what we say is you would be satisfied at least that that agreement was formed from the time of the threats that were issued as the 10 Comanchero left gate 5." 336In his summing-up the learned trial judge directed the jury in the following terms: "So, what is it that the Crown must prove to prove that an accused is guilty of murder on the joint criminal enterprise basis? The Crown must prove that at the time that the acts which caused the death of the deceased were committed, there are five things: 1. There was in existence a joint criminal enterprise or agreement, which had as its object the infliction of grievous bodily harm upon one or more members of the Hells Angels group. 2. The accused, whose case you are considering, was a party to that agreement. 3. One or more parties to that agreement inflicted grievous bodily harm upon a member of the Hells Angels group, namely Anthony Zervas: (i) by a deliberate act; (ii) with the intention at least to cause grievous bodily harm; and (iii) unlawfully, that is, not in self-defence. 4. Anthony Zervas died as a result. And 5. The accused, whose case you are considering, was present, participating in the execution of the agreement at least by being ready and willing to provide assistance if required." There was no suggestion on the appeal that these directions were erroneous. 337As I indicated earlier, none of the alleged co-participants in the joint enterprise were convicted of murder or manslaughter, although there was a hung jury on manslaughter in respect of Mr Menzies and Mr Abounader. 338The question which then arises is whether there is a way of reconciling these verdicts. 339The first and most obvious way is that the jury did not convict the appellant on the basis of joint criminal enterprise at all but rather on the basis that the appellant inflicted the fatal blow. As I have indicated I cannot be satisfied beyond reasonable doubt that that is in fact what occurred. 340The second and also relatively obvious way of reconciling the verdicts is that the jury was satisfied that the appellant participated in a joint criminal enterprise with one or more of his fellow CMC members, but could not be satisfied which of those CMC members were parties to the joint criminal enterprise either at the time the understanding was reached or at the time the fatal blow occurred. This would readily explain the acquittal of all the other CMC members. However, the difficulty with this conclusion is that to convict the appellant it would be necessary for the jury to conclude that at least one of the five persons said to be co-participants in the joint criminal enterprise with the appellant was one of his co-accused and that co-accused inflicted the fatal blow. The jury's verdicts in respect of the alleged co-participants meant it could not be concluded that one of them inflicted that blow as distinct from the other CMC members who were not on trial. Absent satisfaction that one of the co-accused inflicted the fatal blow it could not be said that the appellant was guilty of murder resulting from a joint criminal enterprise. The same reasoning applies to the argument in respect of extended joint criminal enterprise. 341In his remarks on sentence the trial judge attempted to reconcile the verdicts in the manner I have set out in par [290] above. His Honour was of course in a position where he had to give effect to the verdicts of the jury. However, with the greatest respect, there are a number of difficulties with his analysis, at least so far as liability on the basis of participation in a joint criminal enterprise is concerned. 342First, as his Honour correctly pointed out, all he could be satisfied of was that the man who inflicted the fatal blow was one of the CMC members. However, he was unable to identify who out of the six accused it was having regard to the verdicts of the jury. In these circumstances it could not be concluded that the person who struck the fatal blow was one of the participants to the agreement. 343I am conscious of the fact that there was evidence which may have suggested that the person who inflicted the blow was Mr Menzies. However, as the trial judge said in his remarks, the most that could be concluded was that having regard to the verdict of the jury the person who inflicted the fatal wounds was tall and had dark clothing on his upper body. That description is at least consistent with the descriptions of Mr Menzies, Mr Eken, Mr Potrus, Mr Aouli, Mr Costa and Mr Pirini. Mr Aouli, Mr Costa, and Mr Pirini were not said to be participants in the joint criminal enterprise. 344Had Mr Menzies been convicted of manslaughter it would have been possible to reconcile the verdicts on the basis that the jury had concluded that there was an agreement between at least Mr Menzies and the appellant to assault the HA members and that they contemplated the possibility that the result might be to inflict serious injury on one of them. In these circumstances the jury may have considered, for example, that Mr Menzies was only liable to be convicted of manslaughter, having used excessive self-defence in the fight, but the appellant was guilty of murder, he having the requisite mens rea. 345There are of course difficulties with this analysis. First, the action of a person bringing down a bollard on another person lying on the ground seems difficult to characterise as an act of self-defence. Further, on the facts, the appellant would have had a stronger argument of self-defence than Mr Menzies, given the appellant was (at least initially) attacked by the deceased. More importantly however, Mr Menzies was not convicted of manslaughter. In these circumstances it does not seem to me to be possible to reconcile the verdicts in this fashion. 346A second difficulty with trial judge's analysis at par [290] above is that the conclusion does not seem to me to be based on either joint criminal enterprise or extended joint criminal enterprise. Rather, it is consistent with the appellant being liable as an accessory to the crime committed by one or other of the CMC members (not necessarily limited to those on trial with the appellant). Although this may well be a way of reconciling the verdicts of the jury, the difficulty is that the Crown case was not put on that basis either before the jury or in this Court. The only alternative relied on was a spontaneous agreement made between the appellant and the five other CMC members on trial who inflicted the fatal blow. 347I accept that an agreement constituting a joint criminal enterprise need not be formal and an understanding reached spontaneously between two persons to inflict grievous bodily harm on the deceased would be sufficient to constitute such an enterprise. Further, I accept the understanding or arrangement may be inferred from all the circumstances. However, there remain a number of difficulties with this approach. First, on the Crown case the spontaneous agreement had to be one between the appellant and one of his five co-accused. However, none of the five co-accused was convicted of any unlawful act of either murder or manslaughter. The same problem thus arises as arose in the case of an alleged joint criminal enterprise formed by an agreement or understanding at Gate 5. 348Further, I cannot be satisfied beyond reasonable doubt that such a spontaneous agreement existed. The fight in which the deceased was killed was ongoing, commencing when the deceased attacked the appellant. As the appellant pointed out in his submissions, there was about 48 seconds in which such an agreement or understanding could be reached. The fact that there was ongoing fighting including the assault on the deceased does not satisfy me beyond reasonable doubt that a separate agreement or understanding was reached spontaneously between the appellant and whoever it was who inflicted the fatal blow in that short time frame. 349In these circumstances it does not seem to me possible to reconcile the verdict convicting the appellant with a verdict of acquittal in respect of three of the co-accused and the failure to find Mr Menzies or Mr Abounader guilty of any unlawful act of either murder or manslaughter. In the circumstances the verdict was unreasonable and should be set aside. Disposition of the appeal 350It follows I am of the view the following orders should be made: (1)Set aside the conviction of the appellant for the murder of Anthony Zervas. (2)In lieu thereof direct the entry of a verdict of acquittal. 351The effect of the judgment of the other members of the Court is that Price J and I would allow the appeal but differ as to the consequent order to be made. McCallum J would dismiss the appeal. There is thus no majority in favour of any form of orders disposing of the proceedings. Does s 21A(2) of the Criminal Appeal Act apply in these circumstances? 352Section 21A(2) of the Criminal Appeal Act relevantly provides that if the judges present on an appeal are equally divided in opinion, the decision of the court is to be in accordance with the opinion of the Chief Justice or other judge presiding. 353Some support for the conclusion that s 21A is capable of operation in the present circumstances perhaps may be derived from the decision of the Full Court of the Federal Court in Evans v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2003] FCAFC 276; (2003) 135 FCR 306 (Evans). That case involved the determination of two separate questions. The first question asked whether a notice published by the Minister in the Commonwealth of Australia Gazette was a valid exercise of power under the then s 503A(9) of the Migration Act 1958 (Cth). The second question asked that if the first question was answered in the negative, were the invalid parts severable? The primary judge answered the first question in the negative and the second question in the affirmative. The appellant appealed from the primary judge's answer to the second question, whilst the respondents cross-appealed against the answer to question one. 354Gray J, the presiding judge, concluded that the appeal should be allowed and the cross-appeal dismissed, with the result being that both questions should be answered in the negative: Evans at [31]. Kenny J concluded that both the appeal and cross-appeal should be dismissed: Evans at [70]. Downes J would have allowed the cross-appeal, as a consequence of which, in his view, the second question did not arise. He also considered that in the circumstances it was not appropriate for him to deal with the second question: Evans at [112]-[113]. 355Section 16(a) of the Federal Court of Australia Act 1976 (Cth) provides that in the case of an appeal from a judgment of the Court constituted by a single judge, if the judges constituting a Full Court are equally divided in opinion, the judgment appealed from shall be affirmed. Gray J held that as there was a majority view that the cross-appeal should be dismissed, such an order should be made. So far as the appeal was concerned, his Honour held that there was no majority view on the answer to the second question. However, his Honour concluded that so far as views were expressed the Court was equally divided and in those circumstances the decision of the primary judge on that question should be affirmed: Evans at [33]; Kenny J at [70] and Downes J at [112] agreeing. 356In Skulander v Willoughby City Council [2007] NSWCA 116; (2007) 73 NSWLR 44 (Skulander) the three members of the Court disagreed as to the outcome of an appeal from a verdict for the defendant in a claim for negligence. Mason P would have dismissed the appeal. Beazley JA and Basten JA would have upheld it, but made different allowances in their assessment of the deduction from the award of damages for contributory negligence. 357Section 45(2) of the Supreme Court Act 1970 (NSW) is in the same terms as s 21A of the Criminal Appeal Act. Mason P expressed the opinion that if in the circumstances the Court was equally divided, the application of s 45(2) would produce startling and troubling consequences: Skulander at [49]-[51]. The same may be said in the present case where I am the only judge who has concluded that the verdict was unreasonable. Although Mason P did not state that the decision in Evans was wrongly decided, the Court did not apply s 45(2) of the Supreme Court Act. 358The approach in Evans may have been appropriate in the particular circumstances of that case where only two judges dealt with a separate order in respect of which an appeal had been brought. However, in my opinion that approach cannot be extended to circumstances where three judges hold different views as to the outcome of the appeal. Such an approach is inconsistent with the plain words of s 21A of the Criminal Appeal Act, the operation of which is predicated on the members of the Court being equally divided. In the present case they are not. 359The view which I have expressed is consistent with authority. 360In The Perpetual Trustee Company (Ltd) v Tindal and Others [1940] HCA 14; (1940) 63 CLR 232 (Tindal) there was a diversity of opinion between six justices of the High Court as to the manner in which the proceeds of an insurance policy on the life of a deceased should be distributed. Three of the justices held that the policy should be distributed in a particular way, whilst the other three disagreed but each reached different conclusions as to the appropriate method of distribution. However, five of the six justices were of the opinion that the judgment of the court below was incorrect. At 250, Latham CJ expressed the view that where there was a majority in favour of allowing the appeal but no majority in favour of the terms of any particular order to be substituted, it was a matter of doubt whether the matter was governed by s 23(2) of the Judiciary Act 1903 (Cth). Section 23(2) provided that in the case of an equal division of opinion in an appeal from a decision of the Supreme Court of a State, the decision of the court below should be affirmed. The problem was resolved in that case by Starke J withdrawing his judgment. It should be noted that Starke J was not the junior judge. 361The view that s 21A(2) of the Criminal Appeal Act has no application in the circumstances of the present case is also supported by authority in this State. Arbest Pty Ltd v State Bank of New South Wales Ltd [1996] NSWCA 19; (1996) ATPR 41-481 (Arbest) concerned an appeal from the dismissal of a claim for relief under the Fair Trading Act 1987 (NSW) and the Contracts Review Act 1980 (NSW). Kirby P and Priestley JA each considered that the appeal should be allowed but differed as to the extent of the relief which should be granted. Powell JA would have dismissed the appeal. Kirby P withdrew his orders in favour of those proposed by Priestley JA. His Honour stated that it was the opinion of Priestley JA which represented "the highest measure of agreement" between the members of the Court: Arbest at 41,997. A special leave application was refused, the High Court expressing the view that s 45(2) of the Supreme Court Act had no application in the circumstances of the case. 362In R v Robinson [2000] NSWCCA 59; (2000) 111 A Crim R 388 (Robinson), a situation similar to the present occurred. The accused was charged with various counts of sexual offences. He was convicted on three counts but acquitted on one other. Fitzgerald JA concluded that the verdicts of guilty were unsafe and unsatisfactory and would have entered a verdict of acquittal. Barr J would have ordered a retrial whilst Smart AJ would have dismissed the appeal. However, to achieve a result Smart AJ withdrew his judgment and concurred in the orders proposed by Barr J. His Honour did not state any reasons for doing so. 363Special leave to the High Court was sought on grounds including that the Court was equally divided and in those circumstances the orders proposed by Fitzgerald JA should have been made by virtue of the operation of s 21A of the Criminal Appeal Act. Special leave was refused. 364Although neither the remarks made in argument on a special leave application nor the reasons for refusal of leave are binding on this Court, I would respectfully adopt the following remarks of Gleeson CJ in argument: "... Now, we have a different system, but surely what a statutory provision like this operates on is the ultimate decision rather than the process of reasoning leading up to that decision. I would have thought that in the present case if Justice Smart had not taken the course that he took and had simply gone ahead to say, 'I propose that the appeals should be dismissed' then there would have been nothing for this section to operate on because the judges were not equally divided in opinion." See Robinson v The Queen S106/2000 [2000] HCATrans 716 (24 November 2000). 365These remarks accord with my view as to the proper construction of s 21A(2) of the Criminal Appeal Act. It follows that it has no application in the present case. Other options (a) Expanding or reconstituting the Court 366In the United Kingdom s 55(5) of the Senior Courts Act 1981 (UK) provides that where an appeal has been heard by a court consisting of an even number of judges and the members of the court are equally divided, the case shall be re-argued before and determined by an uneven number of judges. By convention, a similar approach was adopted in the case of division between an uneven number of judges: see R v Shama [1990] 2 All ER 602; [1990] 1 WLR 661 (Shama) at 663. However the validity of that approach does not appear to be universally accepted. In Shama the judges who first heard the appeal were divided as to the outcome. The case was referred to a different bench of three, but following an objection to its jurisdiction it was referred back to the original bench which ultimately resolved the appeal. 367Section 3(1) of the Criminal Appeal Act provides that the Supreme Court shall for the purpose of the Act be the Court of Criminal Appeal, and the court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct. 368It has been the practice for the Chief Justice to nominate three (or five) judges to constitute the Court of Criminal Appeal for any particular case or on a particular sitting day (usually done by appointing judges to sit on a particular sitting day with the power to complete cases listed on that day if not finished on the day in question). This was the procedure adopted in the present case. It is questionable whether the power conferred by s 3(1) of the Criminal Appeal Act confers a power to vary or enlarge a bench where the bench has already heard argument on the appeal. 369It is not necessary to reach a final conclusion on this issue, as even if the power were available I would not be disposed to exercise it. This is for two reasons. First, it would not necessarily produce an outcome. Second, and more fundamentally, it would be unjust to expose the appellant to a risk of dismissal of his appeal in circumstances where a majority of the Court as presently constituted would at least quash the conviction. (b) Consideration by me of Ground 3 370The issue which divided Price and McCallum JJ was whether the appellant should succeed on Ground 3 (provocation). In Skulander at [71]-[76], Mason P reluctantly adopted the course of considering the issue of contributory negligence on the assumption that, contrary to his view, negligence had been established. 371Although that course of action may well have been appropriate where the outstanding issue was the extent of the appellant's contributory negligence, I do not think it is appropriate in this case. It would involve me considering the issue on the basis that the jury was entitled to be satisfied of the appellant's guilt beyond reasonable doubt subject to the direction as to provocation. This is a conclusion which I have rejected. Further, if I came to the view that McCallum J was correct in relation to Ground 3, presumably the result would be that I should concur in the dismissal of the appeal notwithstanding the view I have expressed. In my opinion this approach would seem to cause significant injustice to the appellant. (c) Allowing the jury verdict to stand 372This was the approach adopted in earlier times in the United Kingdom when a bench was equally divided: The Queen v Ashwell (1885) 16 QBD 190. It has not been the approach adopted in this State and in any event the Court is not equally divided. In my opinion it would be quite inappropriate in circumstances where at least the majority would quash the conviction. (d) The junior judge deferring to the senior judge 373There was said to be a convention that in cases of this nature the junior judge should withdraw the orders he or she proposes and agree with those of the senior judge: see, for example, O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 at 641. The existence of such a convention was described by Kirby P in CES and Another v Superclinics (Australia) Pty Ltd and Others (1995) 38 NSWLR 47 (Superclinics) at 79 as a procedure not to be adopted in "these more enlightened times": cf. Skulander supra at [74]. However the approach even in those so-called less enlightened times was by no means universal. I have already referred to Tindal where Starke J who was not the junior judge withdrew his judgment to enable a majority decision to be reached. Further, it does not generally seem to be the approach which has been adopted in this Court or in the Court of Appeal since the decision of the Court of Appeal in Woolworths Ltd v Kelly (1991) 22 NSWLR 189 (Woolworths) (see the cases cited in (e) below. Cf. Government Insurance Office of New South Wales v Rosniak (1992) 27 NSWLR 665 at 700 and Hayes v Marquis [2008] NSWCA 10 at [203]). 374McCallum J has not indicated a willingness to withdraw her judgment and in my opinion it would be inappropriate for her to do so. The result would be that the jury verdict would be held to be unreasonable notwithstanding her view and the view of Price J. To elevate my dissent into a majority decision in these circumstances does not seem to me to be an appropriate result. (e) A result reflecting the "highest common denominator" 375In Woolworths at 200, Kirby P stated that the appropriate course was an attempt to find within the reasons and orders proposed by the judges the highest common denominator of rational agreement. That case involved the question of whether the appellant was liable to pay an annual pension to the respondent and whether the respondent held those payments which had been made as constructive trustee for the appellant. The trial judge had found for the respondent on both issues and his findings were the subject of the appeal. Kirby P would have allowed the appeal on both issues, Samuels JA on the first only whilst Mahoney JA would have dismissed the appeal. 376At 200, Kirby P described the traditional approach of the junior judge deferring to the senior judge as owing more to history than logic. He stated that the appropriate approach was to find what he described as the highest common denominator of rational agreement (perhaps more accurately the highest common factor, or as Brooking J described it in Pippos v Craig (1993) 1 VR 603 at 611 (Pippos), the least unsatisfactory outcome). Applying this approach Kirby P concurred in the orders proposed by Samuels JA. 377Kirby P applied this approach on a number of subsequent occasions: Superclinics at 78-79, New South Wales Medical Defence Union Ltd v Crawford (No 3) (Court of Appeal (NSW), 23 September 1994, unrep), Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 at 213-214, Lexington Constructions Pty Ltd v Coyne (Court of Appeal (NSW), 24 December 1992, unrep), Tsivinsky v Tsivinsky (Court of Appeal (NSW), 5 December 1991, unrep) and Attorney General for New South Wales v Barr (Court of Appeal (NSW), 11 October 1991, unrep). In Skulander at [74], Mason P accepted that the approach was rational but expressed concern that Kirby P had appeared to adopt it of his own volition and without the concurrence of his colleagues. In Pippos, Brooking J consulted with his judicial colleagues before adopting a similar course. 378A similar approach has been adopted in a number of cases in this Court: Robinson and R v Wilson [2005] NSWCCA 112; (2005) 153 A Crim R 257 at [38]. 379In the present case, after consultation with Price and McCallum JJ and with their corroboration, I have concluded that notwithstanding the view I have expressed, it is appropriate that I concur in the orders proposed by Price J. This gives effect to the majority view that the appeal should be allowed whilst preserving the opinion of each of Price and McCallum JJ that the verdict was not unreasonable. It will of course be a matter for the Crown after consideration of the reasons of each member of the Court and such other matters as it considers appropriate to determine whether or not to retry the appellant. 380For these reasons I agree that the orders proposed by Price J should be made. 381PRICE J: I have had the privilege of reading the judgment of Bathurst CJ. His Honour's exposition of the evidence enables me to go to the appellant's contention that the jury's verdict of murder is unreasonable and cannot be supported by the evidence (Ground 1). 382The Chief Justice has detailed at [307] - [315] above, the principles on which this Court is obliged to deal with this ground of appeal and the question of an inconsistent verdict (Ground 2). In respect of the first ground, I would add what was said by Hayne J (Gleeson CJ and Heydon J agreeing) in Libke v R [2007] HCA 30; 230 CLR 559 at [113]: "It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence... That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt." 383The Chief Justice has carefully analysed at [316] - [326] above, the inconsistencies in the evidence of the witnesses upon whom the Crown relied to establish beyond reasonable doubt that the appellant was directly responsible for the death of Anthony Zervas. The question is whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant deliberately struck the deceased's head with a bollard which substantially contributed to his death with an intent to kill or to cause grievous bodily harm and the act was not done in self-defence. 384During oral submissions in this Court, senior counsel for the Crown argued that it was open on the combined evidence of SP and Mr Ireland for the jury to find that the appellant actually inflicted the fatal blow. I understood from this submission that the Crown contended that it was open to the jury to find that there had been a deliberate act by the appellant which caused or substantially contributed to the death. It was the appellant's case that the evidence viewed as a whole, simply did not support the conclusion that he was actively involved in the killing of the deceased. The appellant criticised Mr Ireland's evidence as being unreliable and inconsistent with the independent evidence of the timing of the incident as established through the CCTV footage and the Deng video. 385The appellant argued that given the jury verdicts with regard to Mr Menzies, it was clear that the evidence of SP and AL was not accepted. 386The appellant further submitted that SP's evidence was not supported by the Deng video. As the Chief Justice points out at [325] above, the video does not assist in establishing that the appellant inflicted a fatal blow by using the bollard in an up and down motion. The footage does depict the appellant moving away from the location of the violence inflicted upon the deceased. However, it was not suggested that the video recorded all that occurred. The trial Judge directed the jury that "the Deng footage was recorded around about the time of the end of the incident in the departure hall". The footage runs for 16.16 seconds. In my opinion the Deng video neither strengthens nor weakens the Crown case. 387It was SP's evidence that he saw the appellant strike the deceased with a bollard once. He said that the appellant used a similar motion to Mr Menzies, picking the bollard up and striking it down. SP had been criminally concerned in the events at the airport and had received a 30 per cent reduction in sentence for his assistance to authorities. The trial Judge provided the jury with directions and warnings about SP's evidence, which included the obligation to approach that evidence with great caution, as it may be unreliable. 388Although it was not necessary for the trial Judge to direct the jury that SP's evidence must be corroborated, it is the Crown's contention that his evidence found independent support particularly in the evidence of Mr Ireland, who saw the man in white trousers and white shirt pick up a metal stand and appear to swing it with a putting action two to three times. 389Although Mr Ireland did not describe the appellant using the bollard in an up and down motion, it was not his evidence that he saw all that occurred. Mr Ireland described his concerns for his wife, looking at her and then looking back. He told the jury his head "was virtually on a swivel". It was open to the jury to reject the criticism of Mr Ireland's testimony and to consider that it supported SP's evidence. 390To a lesser extent, SP's evidence finds support in the testimony of Ms Xanthe Gray who saw the man wearing light coloured pants grab a nearby barrier pole and stamp it over the head of the man on the ground and Ms Karen-Ann Whyte's selection of the appellant's picture as the person who "bashed a man to death with an instrument". She also selected another photograph of a man who had a similar build to the one she saw hitting the man on the ground with the bollard, but was more reasonably confident that between the two it was photograph number 4 (the appellant) who was familiar to her. Whilst there were inconsistencies in the evidence of these witnesses, it was open to the jury to take their evidence into account in support of the case against the accused. 391SP's evidence is consistent with Dr Duflou's finding that the cause of death was the combined effect of blunt force head injury and stab wounds to the chest and abdomen. The jury plainly rejected the appellant's account of events at the airport. 392It seems to me that it was open to the jury to be satisfied beyond reasonable doubt that the appellant struck the deceased on the head with the bollard but not to be satisfied to the criminal standard that Mr Menzies did. Although AL testified that he saw Mr Menzies hit the man on the floor twice, AL was criminally concerned in the events at the airport and the jury was instructed to also approach his evidence with great caution. There was no independent evidence that supported AL. 393Unlike his evidence concerning the appellant, SP's evidence of Mr Menzies was not supported by Mr Ireland or any other independent witness nor was his photograph selected as being a person who struck the deceased. The same observation might be made about SP's evidence of Mr Abounader. I conclude that the verdicts are not inconsistent and do not demonstrate that SP's evidence of the appellant was not accepted by the jury. 394Having made my own independent assessment of the evidence, it is my view that it was open to the jury to be satisfied beyond reasonable doubt, that the appellant deliberately struck the deceased's head with a bollard which substantially contributed to his death with an intent to kill or to cause grievous bodily harm and the act was not done in self-defence. In the result, I do not agree with the Chief Justice that the jury should necessarily have entertained a reasonable doubt that the appellant struck the deceased with a bollard and was directly responsible for the death. 395I have also had the advantage of reading the judgment of McCallum J. Her Honour at [488] - [518], deals with the issues raised in the appeal as to the guilt of the appellant on the basis of joint criminal enterprise, or extended joint criminal enterprise if the conclusion as to guilt on the basis of direct responsibility entails error. I respectfully adopt the reasons and conclusions of her Honour. 396I would reject Grounds 1 and 2 of the appeal. Ground 3: The trial judge erred in failing to leave provocation to the jury. 397During the course of the trial (5 September 2011), senior counsel then appearing for the appellant requested that the jury be directed in relation to the alternative verdict of manslaughter based on provocation. It was not in dispute that in the departure lounge, the first physical act of violence was when the deceased had tried to stab the appellant in the head. Senior counsel put to the trial Judge that this was a "highly provocative act" which had occurred before the attack alleged by the Crown and should the jury reject the appellant's account and find that the appellant was involved in the fatal attack on the deceased, both provocation and excessive self-defence arose. 398The Crown submitted that if provocation was raised on the evidence, there was no objection to the direction being given. His Honour determined on 20 September 2011 that provocation should not be left to the jury. His Honour said: "I don't propose to leave provocation to the jury. I have come to the view that whatever might be relevant in terms of those types of defences, they are relevant to self-defence and there is no work left for provocation upon that material." Argument 399The appellant submitted that this ruling was erroneous, as provocation as a basis for a verdict of manslaughter was available on the evidence relied on in the Crown case and should have been left to the jury. The appellant contended that it was not correct to say that provocation was consumed by the directions on excessive self-defence. The appellant referred to the observation of Brennan, Deane, Dawson and Gaudron JJ in Masciantonio v R (1995) 183 CLR 58 at 68 that: "Whilst anger is primarily a feature of provocation and fear a feature of self-defence, loss of self-control may be due to a mixture of fear and anger." 400The appellant noted that s 421 Crimes Act 1900 (NSW) (excessive self-defence) makes it essential that the conduct is not a reasonable response as he/she perceives them, "but the person believes the conduct is necessary: (c) to defend himself ... or another person..." The appellant pointed out there is no such requirement for belief that the conduct is necessary in defence of self or another, under s 23 Crimes Act (provocation). Rather, the focus of provocation, the appellant submitted, was on a loss of self-control induced by conduct of the deceased, which could have induced an ordinary person in the position of the appellant to have lost self-control such as to form the relevant intent to kill or inflict grievous bodily harm. The appellant argued that excessive self-defence does not subsume provocation, rather there is a real and substantial difference between the two, and there is a duty on the trial Judge to give directions on provocation even where an issue to be negatived is self-defence. 401The Crown submitted that the trial Judge did not err by failing to give directions on provocation, having regard to the evidence in the trial. The Crown referred to the sole reliance on self-defence in the appellant's case, the absence of "even the faintest suggestion" in the evidence that the appellant had or might have been acting in a manner that could successfully enliven the defence of provocation and the absence of any detailed application at trial by the appellant in support of the directions being given. 402The Crown argued that his Honour's remarks were made having regard to the complexity of the trial and the task that lay before him and the jury. The Crown suggested that the trial Judge was referring to the practical rather than the theoretical relevance of provocation to the issues litigated, and the evidence led before the jury by the Crown and in the respective defence cases. 403The Crown contended that if this Court was of the view that directions on provocation ought to have been given, the Court would nevertheless be satisfied that there has been no substantial miscarriage of justice. The Crown argued: (a) the evidence demonstrates beyond any reasonable doubt that the pre-emptive strike by the deceased was undertaken in circumstances where a violent confrontation between the gangs was inevitable because of the appellant's conduct (during the fight at Gate 5 and by approaching and arguing with the deceased's brother in the Departure Hall) against a background of inter-club hostility; and/or, (b) there is no reasonable possibility that the appellant might have lost self-control as a consequence of the conduct of the deceased towards or affecting the appellant that he participated in the fatal attack on the deceased intending that he be killed or suffer really serious bodily harm; and/or, (c) there is no reasonable possibility that the conduct of the deceased towards or affecting the appellant could have induced an ordinary person in the position of the appellant to have so far lost self-control as to have formed an intention that the deceased be killed or suffer grievous bodily harm. Consideration 404The first question for the trial Judge was whether there was evidence which was capable of constituting provocation. The test has been summarised as being whether, "on the version of the events most favourable to the accused which is suggested by the material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense": Stingel v R (1990) 171 CLR 312 at 334. 405The appellant did not give evidence that he was provoked or lost self-control but that does not exclude the partial defence of provocation: Van Den Hoek v R (1986) 161 CLR 158 at 161. On the Crown case, the appellant was stabbed in the departure hall, behind the check in counters by the deceased. The deceased used scissors to strike at the temple area of the appellant's head. It was SP's evidence that the deceased came from behind and pulled scissors from behind his back, and took a strike at the side of the appellant's head. SP thought the appellant put his hand up and it [the scissors] connected on the side of his head. In cross-examination, he agreed that whilst the appellant and Peter Zervas were face to face, the appellant was attacked by the deceased from behind. 406AL gave evidence of a man running at the appellant with a clenched fist and AL could see metal extending out about 10 centimetres. He agreed that at the time he was not sure whether it was scissors or a knife. The man ran straight at the appellant and tried to stab him. AL said that the appellant put his arm up to protect himself and the person tried to stab him in the head. Both witnesses testified that these events occurred behind the check-in counters. 407It was the Crown case that the deceased's blow with the scissors, although blocked by the appellant, penetrated his skin occasioning injury to the appellant near his eye and on the Crown case, to his tricep. It was common ground that the deceased's attack took place shortly before he was killed in the check-in area. 408An agreed fact was that there was ongoing hostility between the Hells Angels and the Comanchero prior to 22 March 2009. Furthermore, all of the accused were aware of the ongoing hostility in existence between the two clubs. 409The Crown conceded that this attack by the deceased was the first physical attack in the departure hall, following which the riot ensued. It was not disputed that the appellant was unarmed at the time of the deceased's attack upon him. 410Accepting the version of facts most favourable to the appellant, it is reasonably possible that a jury might regard as highly provocative the deceased's attack upon the appellant with the scissors and conclude that the appellant lost self-control as a result of the deceased's conduct. The gravity of this conduct so far as the appellant is concerned, must be considered against the ongoing hostility between the members of the two motorcycle clubs, the heightened tension after the events at Gate 5, the fact that the appellant was unarmed, and the introduction of a weapon by the deceased. Furthermore, the savagery of the attack upon the deceased including the use of the bollard whilst he lay on the ground in the check-in area in the presence of members of the public suggests a loss of self-control. Moreover, the fighting continued after the confrontation behind the check in counters culminating in the death of the deceased a short time later. A jury might reasonably conclude that the appellant did not regain his self-control and that his acts causing the deceased's death resulted from a loss of self-control on his part. 411A more difficult question is whether the deceased's attack upon the appellant was such that it could have induced an ordinary person in the position of the appellant to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm. As I have previously mentioned, a jury might reasonably assess the deceased's conduct in attacking the appellant by reference to the appellant's characteristics as highly provocative, but the question is whether provocation of that high degree of gravity could cause an ordinary person to lose self-control and form an intention to kill or do grievous bodily harm and act upon that intention: Masciantonio at 67. 412In my view, it is reasonably possible that a jury might conclude as a result of that high degree of provocation, an ordinary person in the position of the appellant could so far have lost self-control as to have formed an intention to inflict at least grievous bodily harm, and to have acted upon that intention so as to give effect to it. 413It is well recognised that there is a substantial difference between provocation and self-defence. As Mason J observed in Van Den Hoek at 167: "In Anglo-Australian criminal law provocation and self-defence are distinct and separate defences. Provocation is more limited in its area of operation and its consequences. And there is a difference in the elements of the two defences. Loss of self-control is essential to the first, but not to the second." 414And at 169: "The failure of an accused person to testify to loss of self-control is not fatal to a defence of provocation or a case in which self-defence is raised. Because the admission of loss of self-control is bound to weaken, if not destroy, self defence, the law does not place the accused in a dilemma" (citation omitted). 415In my respectful opinion, I consider that the directions on self-defence did not consume provocation, should this have been what his Honour meant in the passage quoted at [398] above. For instance, the jury could reasonably have concluded that the appellant did not believe that it was necessary to do what he did in order to defend himself, but that he had lost self-control. The evidence disclosed that when the fatal blows were struck, the deceased was lying on the ground. The Crown may have eliminated self-defence as an issue before the jury was required to consider whether the appellant's use of force was excessive or otherwise unreasonable. 416This was a trial of considerable complexity and the trial Judge gave very careful and well-crafted directions. However, as there was reasonable evidence of provocation, his Honour in my respectful opinion, was obliged to leave the partial defence to the jury. The Crown bore the onus of proving beyond reasonable doubt that the appellant was not acting under provocation. If the Crown did not discharge that onus, the appellant was not guilty of murder but guilty of manslaughter. Accordingly, there has been a substantial miscarriage of justice. I would allow Ground 3 of the appeal and order a retrial. Ground 4: The trial miscarried by virtue of: a. the trial judge failing to disclose the full content of the jury notes MFI 118 and 119 to counsel thereby denying procedural fairness to the appellant on issues of substance in his trial; b. the trial judge failing to discharge the jury in the circumstances prevailing at that time in the trial. Ground 5: the trial judge erred by failing to direct the jury that they were free to deliberate in whatever manner was convenient to them and by directing them to consider the primary charge of murder before addressing the alternatives to murder. 417It is convenient to deal with these grounds of appeal together as they concern complaints by the appellant of matters that arose after the jury retired to consider its verdicts on 29 September 2011. Background 418On 19 October 2012, the jury sent a note (MFI 114) asking: "Can we please have clarification of the following: If we are unable to come to a unanimous verdict on murder, do we then address manslaughter or is this considered a compromise by the people who can meet the requirements of murder." 419The trial Judge proposed that the jury's question be answered by repeating an earlier direction and the jury also be directed with answers "no" (they should not then address manslaughter) and "yes" (this would be considered a compromise). Counsel for Mr Potrus disagreed, stating that the answer should be in the reverse and that the jury should consider manslaughter. Counsel for Mr Potrus submitted that the jury should be told "they can approach this any way they really can without compromising" and that if the jury did so and was unanimous as to the alternative only, then the jury would not return a verdict on the primary count. Counsel for the appellant did not express opposition to the course proposed by the trial Judge. 420When the jury later returned, the trial Judge gave directions as he had proposed, implicitly rejecting the argument by counsel for Mr Potrus. His Honour directed the jury in the following terms: "The answer in short to the first part is no and the answer to the second part, whether it is a compromise, is yes but perhaps to be clearer about it I should repeat just a small portion of what I said to you on the subject in my summing-up to you. I spoke about the fact that there were alternative charges for you to consider and I referred to the fact that six of the accused, as you well know, are charged with murder in count 1 and there is the alternative of manslaughter and then in count 2 the alternative of riot...But the critical part is I said to you: 'If you find that the more serious charge has not been proved beyond reasonable doubt but are satisfied that an alternative charge has been proved beyond reasonable doubt, then you may find an accused not guilty of the more serious offence and guilty of the other. This option only arises where you are all agreed that the Crown has not proved the more serious offence beyond reasonable doubt.' I said: 'The important thing I need to emphasise is that you should not regard this as an invitation to compromise.'" 421On 25 October, the jury sent a note (MFI 117) to the trial Judge which read: "We have been able to come to unanimous decisions of several of the charges placed. However, on the remaining charges, we have not been able to come to a unanimous verdict, which from our deliberations, appears that we will be unable to. Can we please be provided information as to where we go from here?" 422His Honour, with the concurrence of counsel, asked the jury to indicate "in respect of which accused, and in respect of which charges you have been able to arrive at unanimous decisions. I stress that I do not want you to tell me what those decisions are, just the name of the accused and the charges." 423The jury responded with a further note (MFI 118). The trial Judge informed counsel that he had received this note but he did not propose to read it out. His Honour described the note as being "open to two interpretations", both of which indicated to him that the jury had reached unanimous decisions on alternative counts, but the note was ambiguous as to whether the jury had reached unanimous decisions or not on the more serious charges. No further disclosure of the contents of MFI 118 was made by his Honour. As to the appellant, MFI 118 read; "We have unanimous verdicts on the following Hawi - Riot and Affray" 424His Honour handed to counsel a sheet which listed each accused and each of the charges and proposed that the sheet be distributed to the jury who would be asked to indicate in relation to each charge whether unanimous decisions had been reached or whether they were unable to agree. His Honour asked counsel for comments or dissent. Counsel for the appellant did not respond to the trial Judge's invitation and did not object to the course proposed. 425The Jury returned to court and the question sheet was distributed. In relation to the sheet, his Honour said: "It sets out each of the charges upon which a verdict, theoretically at least, is available, and it asks you to consider and tell me by ticking in whichever column is appropriate, against each of the charges for each of the accused. There is a column "Unanimous decision"? And another column "Unable to agree"? So if you could perhaps go through this sheet and put a tick in the appropriate column for each of the charges for me, I will then be clear..." 426Following a short adjournment, the trial Judge informed counsel that, as anticipated, he had received a "further note" from the jury (MFI 119) which his Honour then summarised. The summary included "[f]or some accused, they have reached unanimous decisions in relation to a primary charge but not in respect of an alternative charge. For some accused, they have reached unanimous decisions in relation to an alternative charge but not in respect of a primary charge". The contents of the "note" were not further disclosed to counsel. The note was in fact the questionnaire that had been given to the jury. In respect of the appellant, the jury had indicated on MFI 119 that they were unable to agree on murder and manslaughter but had reached unanimous decisions on riot and affray. 427The trial Judge told counsel that he had in mind reminding the jury "that I cannot accept a verdict on an alternative charge until I have first received a verdict of not guilty on a more serious charge" and to also give a direction in accordance with Black v R (1993) 179 CLR 44 at 49. 428Mr Grant, junior counsel for the appellant, expressed a concern to the trial Judge that the jury had not been able to reach a verdict on a primary count but had in respect of the alternative count. Mr Grant said if that had been the case, the jury had not been following the trial Judge's directions. Mr Grant told his Honour that he was concerned that the jury note was "a way of bypassing [his] Honour's tick and flick document." He asked that the jury be told to complete the tick and flick document. His Honour responded: "In effect that's what they've done by the note that they have sent me in response to the last discussion I had with them." 429During the exchange between the trial Judge and counsel, Mr Gordon, counsel for Mr Kisacanin expressed concern that the jury had not completed the tick box. His Honour replied that the jury had responded by ticking the boxes and that he had conveyed to counsel "the substance of what they indicated through that process." Mr Gordon asked to know what boxes were ticked. His Honour said: "I do not think it would be appropriate..." 430Upon the return of the jury, the trial Judge's directions included the following: "Where you have reached an unanimous decision for an accused in relation to a lesser alternative charge, but you are unable to agree upon a more serious charge, I must point out to you that I can only accept a verdict on the lesser charge after you have returned a verdict or verdicts of not guilty on the more serious charge or charges. So, in relation to departure hall charges if I can call them that, they are as you know, murder then manslaughter then riot for the six Comanchero accused and riot and affray in the case of Mr Padovan. First and foremost you must determine whether you can agree upon a verdict for the primary charge. Murder in the case of the six and riot in the case of Mr Padovan. Until you can do that it does not matter what you think of the alternative charges. If you do come to a unanimous decision on the primary charge, if it is guilty, then there is no need to make any decision on any alternative because you will be not asked to return a verdict on it or them. If it is guilty on the primary charge, that is the end of the matter. If it is not guilty it is then and only then that you will be asked to return a verdict on an alternative. In the case of murder there are the two alternatives, if you were to find an accused guilty of murder no further verdict on the alternatives is required. If you find an accused not guilty of murder, then the next verdict you will be asked to return is on manslaughter. If you come to a unanimous decision that an accused is guilty of manslaughter, then for that accused that is the end of the matter. It is only if you come to a unanimous decision that the accused is not guilty of manslaughter that you will then be asked to return a verdict on riot. Now, coming down the charges in the order in which I have explained, if you come to a point either at the beginning on the primary charge or subsequently on the next alternative, or as it is in the case of murder where there is the second alternative of riot, if you come to a point where you find you cannot agree let me know and I will give you some further directions." 431The trial Judge went on to give the jury a Black direction and told the jury that the circumstances in which majority verdicts may be accepted had not arisen. 432On the following day, Mr Grant made an application for the discharge of the jury, and alternatively for a majority verdict direction on the basis that the jury had not followed the directions of the trial Judge and "for the jury to continue, it raises the real spectre of a compromised verdict occurring..." The Crown opposed the application for a discharge. The application for a majority verdict was opposed by counsel for Mr Menzies and Mr Abounader. 433His Honour delivered an ex tempore judgment (R v Hawi & Ors (No 31) [2011] NSWSC 1677) (26 October 2011) in which he expressed the view that the content of MFI 114 did not indicate that the jury had not adhered to any instruction he had given. His Honour said that it was "unproductive to speculate" about what gives rise to jury questions but one view of that question, was that the jury were seeking confirmation of an instruction that he had given. His Honour referred to the communications received from the jury on 25 October 2011 which indicated that the jury "in some cases reached unanimous decisions on lesser charges without having reached unanimous decisions on primary charges." 434In rejecting the submission that such an approach was contrary to the jury instructions, his Honour said at [6]: "[I]t is my view that there is nothing wrong with the jury considering how they might find in relation to any of the charges that are before them. The only requirement is that they return verdicts in only one order, that is, first for a primary charge before it may be possible to accept a verdict for an alternative charge if the verdict on the primary charge is not guilty." 435His Honour held at [9] that a fundamental problem with the application to discharge the jury is that he would not have the power to discharge unless he was "first to find, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a majority verdict: s 56 Jury Act." 436In relation to majority verdicts, his Honour noted that the Black direction had been given the previous afternoon and considered that it would be premature to unilaterally invoke the provisions of s 55F of the Jury Act 1977. The application was declined both as to the discharge of the jury and a majority verdict direction. 437The jury continued to deliberate for two more days. On 28 October 2011, the jury wrote a note (MFI 121): "Update on where we are at. We are still finding it difficult to come to unanimous decisions on the primary charges. Is there any direction we can be provided to resolve our stalemate. There has been movement on individual decisions, however not to the point of a unanimous decision." 438The jury were then asked whether they could not reach unanimous decisions or it was simply unlikely. The jury replied (MFI 122): "We believe at this point in time we will be unable to reach a unanimous verdict on the primary charges." 439The jury were subsequently given majority verdict directions on all counts. After deliberating for a further two and a half days, the jury returned majority verdicts in relation to five accused. In relation to the appellant, a majority verdict of guilty of murder was returned. Argument 440The appellant submitted that the failure of the trial Judge to disclose MFIs 118 and 119 to counsel was erroneous and resulted in a denial of procedural fairness. The premise for this submission was that, subject to certain exceptions, communications between the trial Judge and the jury should be disclosed to counsel. The appellant contended that the effect of this denial was exacerbated when counsel were asked to make submissions in relation to proposed directions by the trial Judge and to which the contents of MFIs 118 and 119 were directly relevant. This was also said to be the case in relation to the discharge application, which was made by junior counsel for the appellant on 26 October 2011. 441The appellant further contended that the trial Judge gave directions to the jury that were erroneous. In particular, it was submitted that it was erroneous for the jury to have been given the following directions: 1. that until they had determined a verdict on murder "it does not matter what [they] think of the alternative charges"; 2. that "yes" it would be a compromise to address manslaughter if a verdict on murder could not be agreed [in response to MFI 114]; and 3. that "coming down the charges in the order in which I have explained, if you come to a point... where you find you cannot agree let me know and I will give you some further directions." It was the appellant's submission that jurors are free to organise their deliberations in whatever manner is convenient to them and for them to determine. The appellant further argued that questions of the jury pertaining to the manner of their deliberations remained unanswered and that verdicts should not have been taken, as the nature of the questions manifested a confusion, which threatened to restrict their deliberations. 442The appellant submitted that s 56 Jury Act did not preclude the trial Judge from discharging the jury and that his Honour erred in holding that he did "not have power to discharge unless [he] was first to find, after examination on oath... that it is unlikely that the jurors will reach a majority verdict". 443The appellant contended that the jury's indication in MFI 118 that they had reached a unanimous verdict on riot and affray in relation to the appellant, without also reaching unanimous verdicts on the more serious charges of murder and manslaughter, suggested by implication that the trial Judge could not think otherwise than that the jury was totally off course and probably compromising. 444The Crown submitted that the failure by the trial Judge to disclose MFIs 118 and 119 to counsel did not result in a denial of procedural fairness and his Honour had not erred by failing to discharge the jury. 445The Crown submitted that MFI 118 clearly disclosed the jury had reached unanimous verdicts on particular charges, and this provided an insight into aspects of the jury's deliberations that were inappropriate to disclose to the parties. The Crown also noted that while the text of MFI 118 was not provided to counsel, sufficient detail was disclosed to allow the parties to make appropriate submissions on the perceived need for additional clarification from the jury. 446The Crown contended that MFI 119 revealed even more clearly the disposition of the unanimous verdicts and where the jury was unable to agree in relation to each charge and accused, and that such information provided even more insight than MFI 118 into the disposition of the jury's deliberations. Similarly, it was noted that while the text of MFI 119 was not provided to the parties, sufficient detail was disclosed to permit counsel to make appropriate submissions in relation to the issues of alternative verdicts and jury unanimity. 447With respect to the freedom of the jury to order its own deliberations, the Crown noted that MFI 114 clearly indicated that the jury could not arrive at a unanimous verdict on the question of murder, and the jury was inquiring whether in that situation they should address manslaughter or whether that would be considered a compromise by those jurors who were satisfied that murder had been established. In response, the trial Judge directed the jury that the answers were "no" and "yes" respectively, and reminded the jury of his earlier directions not to compromise on alternative verdicts. The Crown submitted that the answer "yes" was not erroneous in the context of the question posed by the jury and did not preclude the jury giving consideration to alternative charges in any particular order. 448The Crown argued that the appellant's submissions that the trial Judge directed the jury to conduct their deliberations in a particular manner or order, ignored the broader context of other directions concerning the order in which the verdicts would be rendered. Further, the Crown argued that the trial Judge simply reminded the jury that it would only be when they returned a unanimous verdict of not guilty to the more serious offence that a verdict would be sought to the alternatives. The Crown contended that the direction was not erroneous and did not preclude the jury giving consideration to alternative charges in any particular order. 449In response to the contention that questions (MFIs 114, 117 and 121) remained unanswered at the time of receiving the verdict, the Crown submitted that all questions had been answered and received appropriate responses. 450As to the application for a majority verdict and the discharge of the jury, the Crown noted that at the time of the applications, the trial Judge received submissions in relation to whether a reasonable time had elapsed. The appellant's counsel submitted that sufficient time had passed and each of the other counsel either made an equivalent submission or did not oppose the finding. The Crown contended that as the trial had, for all practical purposes, reached the stage where the Court could accept majority verdicts, the trial Judge did not err by declining to discharge the jury. Consideration 451It is not in dispute that his Honour did not disclose the full contents of jury notes MFI 118 and 119 to counsel. The general rule is that any communication between judge and jury should be made known to counsel in open court and in the presence of the accused. It is a "fundamental requirement of the administration of the criminal law that the trial and every aspect of the trial must take place in open court": R v Smith [1982] 2 NSWLR 608 at 611 per Street CJ. It ensures that "there is no suspicion of any private or secret communication between the court and jury": R v Gorman [1987] 2 All ER 435 at 440; 1 WLR 545 at 551. This approach is one of procedural fairness enabling counsel to be aware of and to have the opportunity to assist the Court with any question or problem that might arise in the course of the trial and during the jury's deliberations: Burrell v R [2007] NSWCCA 65, (2007) 190 A Crim R 148 at [264]. 452However, the general rule is subject to exceptions. In R v Yuill (1994) 34 NSWLR 179; 77 A Crim R 314, the Court (Hunt CJ at CL, Abadee and Simpson JJ) said at 190: "It has always been the basic rule that the contents of any communication between the jury and the trial judge must be disclosed to the parties in open court and recorded in the transcript ... This Court has recently said that the preferred course is not only for such communications to be recorded in the transcript but also for them to be marked for identification and placed in the file: R v Masters (1992) 26 NSWLR 450 at 482. There are two exceptions to that basic rule. The first is where the communication concerns some subject which is unconnected with the issues which the jury have to determine - for example, a request by a juror to pass on a message to a relative about staying back late... The second is where the communication concerns some subject about which it was inappropriate for the jury to have communicated with the judge - the most obvious example being a disclosure of the voting figures when quite properly informing the judge of the existence of a disagreement..." 453MFI 118 and 119 (the jury notes) do not fall within either exception to the general rule as enunciated in Yuill. The contents of the notes were responses by the jury to requests by the trial Judge and it was not inappropriate for the members of the jury to impart the information to his Honour. By the notes, his Honour was informed that in the case of the appellant, the jury were unable to agree on murder and manslaughter but had reached unanimous decisions on riot and affray. This leads to the question as to whether the jury were providing information about its deliberations in these notes. 454The deliberations of the jury are not confined to voting figures but are of a wider embrace encompassing "statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations": s 68B(3) Jury Act. In my view, the determination by the jury of unanimous decisions on the alternative counts falls within the compass of the jury's deliberations. 455A cardinal principle of criminal procedure is that the deliberations of the jury are not to be revealed during the trial. In Burrell, McClellan CJ at CL said at [265]: "It has always been the case that it is inappropriate for the jury to disclose their deliberative process to the judge. It would be equally inappropriate if a judge was to further the error by disclosing the jury's deliberative process to counsel. Unless a jury note reveals some irregularity upon which submissions would be of assistance, the only purpose served by the disclosure of the note would be to dispel any impression of secrecy. Since for sound policy reasons a jury's deliberations are required to be secret, disclosure must be confined." 456The policy reasons for jury secrecy have been said to be "based on the need to promote full and frank discussion amongst jurors, to ensure the finality of the verdict, to protect jurors from harassment, pressure, censure and reprisals, and (to a degree) to maintain public confidence in juries": R v Potier [2005] NSWCCA 336 at [12]. 457The prohibition against disclosure of information about the deliberations of the jury or how the jury formed an opinion or conclusion in relation to an issue arising in the trial is enshrined in s 68B Jury Act. The disclosure of such information with the consent of or at the request of the Judge is an exception to the prohibition: s 68B(1) Jury Act. 458The question remains whether the trial Judge was obliged to convey to counsel the full contents of the notes, which disclosed information about the jury's deliberations and had been provided in response to his Honour's requests. 459I do not think that this Court in Yuill intended to convey that there could be no exceptions to the general rule other than the two to which the Court referred. As was said by Eichelbaum CJ in R v Pearson [1996] 3 NZLR 275 at 279: "However, given the infinite variety of circumstances that will arise it is impossible to lay down absolutes." 460In my view, the trial Judge took the correct approach. It would have been inappropriate for his Honour to convey to counsel the specifics of the jury's deliberations. Until the jury delivered its verdicts, its members were entitled to change their mind on any of the charges and were not bound by the information provided to the trial Judge. His Honour's summary to counsel that included unanimous decisions being reached in the case of some accused in relation to the alternative charge, but not in respect of a primary charge and vice versa (see [426] above) was all that he needed to convey for counsel to make submissions both in relation to proposed directions and the discharge of the jury. The appellant was not denied procedural fairness. I would reject Ground 4(a) of the appeal. 461There is no substance in the appellant's complaint that the jury should have been discharged. The trial Judge correctly rejected the submission that the jury had not followed his Honour's directions. Whilst his Honour was not confined in his power to discharge the jury by the provisions of s 56 of the Jury Act, there was no basis for a discharge. In my opinion, Ground 4(b) fails. 462I turn to Ground 5. The appellant criticised the trial Judge for failing to tell the jury that they were free to deliberate in whatever manner was convenient to them and by directing them to consider the primary charge of murder before addressing the alternatives to murder. Particular criticism was levelled at his Honour's direction that has been quoted at [430] above that: "First and foremost you must determine whether you can agree upon a verdict for the primary charge. Murder in the case of the six...Until you can do that it does not matter what you think of the alternative charges." [Emphasis added.] and "Now, coming down the charges in the order in which I have explained, if you come to a point either at the beginning on the primary charge or subsequently on the next alternative, or as it is in the case of murder where there is the second alternative of riot, if you come to a point where you find you cannot agree let me know and I will give you some further directions." [Emphasis added.] 463In Stanton v R [2003] HCA 29; (2003) 77 ALJR 1151, the majority of the High Court (Gleeson CJ, McHugh and Hayne JJ) considered that it would be wrong if the effect of the trial Judge's direction to the jury were to tell them that they could not even think about the charge of manslaughter until they had first decided unanimously the charge of murder. The majority said at [35]: "Jurors are free to organize their individual processes of reasoning, of their discussions as a group, in whatever manner appears to them to be convenient." 464The majority had earlier observed that a trial Judge was entitled to direct the jury of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them. Their Honours said at [23] - [25]: "The corollary of that proposition is that, as Anderson J told the jury, they would only be asked whether they found the appellant guilty or not guilty of murder if they had already found him not guilty of wilful murder; and they would only be asked whether they found the appellant guilty or not guilty of manslaughter if they had already found him not guilty of wilful murder and not guilty of murder. In Gammage v The Queen, Kitto J said: 'The common law, authorizing as it did a verdict of guilty of manslaughter on an indictment for murder, always made it a condition of the validity of that verdict that the jury should first have returned a verdict of not guilty of murder.' In R v McCready, the Full Court of the Supreme Court of Victoria, speaking of a case where the indictment charged rape and where there was, by statute, a possible alternative verdict of assault with intent to commit rape, said: 'The terms of [the statute], in our view, make a verdict of assault with intent to commit rape dependent upon the jury being not satisfied that the accused is guilty of the crime of rape. The question of his guilt of the alternative charge does not arise unless and until the jury is not satisfied of his guilt of rape, and whilst the jury is in a state of disagreement upon the latter, the accused's guilt of the alternative crime remains irrelevant.' There is nothing in The Criminal Code that warrants a different conclusion in a case such as the present." [Emphasis added.] 465The trial Judge did not err in telling the jury that it did not matter what they thought of the alternative charges before a unanimous verdict had been reached on murder. If the jury were unable to agree, either on a verdict of guilty of murder or a verdict of not guilty of murder, the jury would be discharged. His Honour did not tell the jury they were not even to think about the alternative verdicts until they had all agreed on the primary charge. 466The appellant complained about the trial Judge's answer to MFI 114 which is quoted at [420] above, although no complaint was made by his counsel at trial. In my view, his Honour's answer in the negative to the jury's query as to whether manslaughter should be addressed in the event of disagreement on murder could not reasonably be understood by the jury as an instruction that they could not think about the alternative charge. In the direction, his Honour reminded the jury that a verdict could only be returned on the alternative charge, if they found that the primary charge had not been proved beyond reasonable doubt. 467His Honour was plainly conscious that the jury were entitled to think about the charges in whatever manner they thought fit, but were required to reach an unanimous verdict on the primary charge before returning a verdict on an alternative charge. He expressly outlined the correct approach in R v Hawi (No 31) at [6] which I have quoted at [434] above. 468In my view, there is no justification in the appellant's criticism of his Honour's directions. Accordingly, Ground 5 fails. 469The orders I propose are: 1. The appeal be allowed. 2. The verdict of the jury be set aside and the conviction quashed. 3. There be a new trial. 470I have read [350] - [380] of the Chief Justice's judgment as to the orders that should be made because there is no majority in favour of any form of orders disposing of the appeal. I respectfully agree with the Chief Justice's reasons and the orders that should be made. 471McCALLUM J: I have had the benefit of reading in draft the judgments of Bathurst CJ and Price J. With great respect to the Chief Justice, I do not share his Honour's conclusion as to grounds 1 and 2. For the reasons stated below, I would reject those grounds. 472Grounds 3 to 5 are addressed in the judgment of Price J. With great respect to his Honour, I do not agree with him as to ground 3. For the reasons stated below, I would reject that ground. 473As to grounds 4 and 5, I agree with Price J. For the reasons his Honour has stated, I would reject those grounds. The appellant accepts that, while the jury was free to deliberate in any way it saw fit, the trial judge had to take a verdict on the primary count on the indictment first. The jury was directed to that effect. Until a verdict was taken, their deliberations were just that - deliberations. They were deliberations in which the jury was entitled to engage. But his Honour was correct, in my respectful opinion, to regard any expression of agreement as to the lesser charges revealed by MFI 119 as an aspect of the jury's deliberations which was necessarily tentative and which it was not necessary to disclose in terms. 474I do not think it follows from the content of MFI 119 that the jury disregarded his Honour's directions. Again, until a verdict was taken, any indication of agreement that (at least) the lesser charge was proved did not reflect compromise. The several alternative verdicts did not fall into mutually exclusive classifications so far as proof of the elements was concerned. 475I am of the view that the appeal against conviction should be dismissed. Reasons for rejecting grounds 1 and 2 476Ground 1 invokes the power of this Court under s 6(1) of the Criminal Appeal Act 1912 to set aside the verdict of a jury if the Court is of the opinion that the verdict is unreasonable, or cannot be supported, having regard to the evidence. As noted by Bathurst CJ, the High Court has explained that, in considering an appeal on that ground, the task for this Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". The purpose of undertaking that assessment is to determine the question whether the jury ought, upon the whole of the evidence, to have entertained a reasonable doubt as to the guilt of the accused. The High Court has said that is a question of fact which is not to be confused with the legal question whether a verdict of guilty was open on the evidence: M v R [1994] HCA 63; (1994) 181 CLR 487 see at 492-493. But nor is it to be confused with the question left to the jury at the trial, that is, whether to be satisfied beyond reasonable doubt of each of the elements of the offence. 477Whilst the High Court has made it clear that this Court must undertake its own evaluation of the evidence, it does not follow that a conviction cannot stand unless the Crown satisfies this Court beyond reasonable doubt of the guilt of the accused. The High Court has made it equally clear that the formation of the opinion which enlivens the power under s 6(1) is not to be understood to supplant the process of trial by jury. The opinion this Court must reach before it can interfere with a verdict is in that sense prescriptive as much as factual. It is a historical assessment as to whether the jury must or ought to have entertained a reasonable doubt. It is for the appellant to persuade this Court, by reference to some insufficiency or aspect of poor quality in the evidence, that the verdict of guilty was reached notwithstanding the demonstrated existence of a reasonable doubt which the jury ought to have held. 478In M, the High Court remarked that, in most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. Plainly, the reference to "a doubt experienced by an appellate court" is to be understood to relate to a doubt experienced by the appellate court after considering the whole of the record of the trial, for it is only by reference to the whole of the record that the prescriptive conclusion (as to the state of mind the jury ought to have had) can be reached. That is reflected in the important qualification with which that observation in M was made, which acknowledges the need for the appellate court to consider whether its own doubt is one capable of being resolved by the jury's advantage in seeing and hearing the evidence. 479The demonstration of a doubt which ought to have been experienced by the jury will not necessarily be achieved by demonstrating doubt on paper. What is required is a disciplined analysis of the forensic course of the trial pointing persuasively to some real inconsistency or weakness in the Crown case which this Court can conclude, on the strength of its own assessment of the evidence, the jury with all its advantage must have overlooked or ignored such that the verdict reached was "unreasonable" or is unsupportable. 480The advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function. 481The jury was directed that the Crown case against the appellant was put in three ways. The first was referred to by the learned trial judge as the direct responsibility basis. Price J has summarised the evidence on the strength of which the Crown contends that it was open to the jury to find the appellant guilty of murder on that basis. I would respectfully adopt his Honour's analysis of that evidence. 482As Price J has noted, an aspect of the appellant's argument was that, having regard to the jury's acquittal of Menzies, it is clear that the evidence of SP and AL was not accepted. That is a point commonly sought to be made in this Court in support of a ground of appeal that the verdict was unreasonable or cannot be supported on the evidence. It is an argument which entails a level of misconception or false logic. It does not follow from an acquittal that the jury must have rejected all of the evidence of a witness called in the Crown case in support of the relevant charge. Still less does it follow that any conviction based on the evidence of the same witness must be set aside as unreasonable. 483As Price J's consideration of the evidence reveals, there was direct evidence that the appellant struck the deceased with a bollard. This was not a circumstantial case resting on inferences equally able to be assessed by this Court as by the jury. The case rested very much on the assessment of the direct evidence of eye witnesses. Contrary to the conclusion reached by Price J, I consider that the Deng footage did provide some support for the Crown case against the appellant. Based on my review of the record of the trial, my assessment of that evidence has not excited any doubt in my mind that cannot be resolved by the jury's advantage in seeing and hearing the evidence. 484In reaching this conclusion, I have been concerned by the fact that, in sentencing the appellant, the trial judge was not satisfied beyond reasonable doubt that the appellant was the person who inflicted the blow or blows which caused the fractured skull or that the appellant inflicted any blows at all: R v Hawi [2012] NSWSC 332 at [56]. Those findings do not bind this Court but they do warrant respectful consideration. 485The trial proceeded over a period of four months. The jury returned its verdicts after deliberating for over a month (retiring on 29 September 2011 and returning verdicts on 2 November 2011). The trial judge's findings were made at a later time for a different purpose. 486The information and evidence before the trial judge did not coincide exactly with that before the jury. The trial judge had the advantage of seeing and hearing the evidence but did not of course participate in any of the jury's deliberations. In that respect his Honour's involvement was less. In other respects it was more. Although the jury could not reach a verdict on manslaughter against Menzies, he pleaded guilty to that offence within a month after the trial. By the time of sentencing the appellant, the judge had sentenced Menzies on the agreed basis that he was not directly involved in the assault but was complicit in the killing by virtue of being a participant in a joint criminal enterprise to commit an unlawful and dangerous act: R v Menzies [2012] NSWSC 158 at [40]. The outcomes in respect of others involved in the incident are set out in his Honour's remarks on sentence for Menzies at [39]. Although the appellant was the only person to be convicted at the trial in respect of the death of Anthony Zervas, four other Comancheros had previously pleaded guilty to manslaughter and had been sentenced by his Honour (Pirini, La Rosa, Aouli and Costa). 487In all the circumstances, although it has troubled me to some degree, the fact that the trial judge was not satisfied of the appellant's guilt on the direct responsibility basis at the time he passed sentence has not swayed me from my own conclusion as to the reasonableness of the jury's verdict. 488If it was open to the jury to be satisfied that the appellant was guilty on the direct responsibility basis, ground 2 falls away. I would reject grounds 1 and 2 on that basis. However, in case my conclusion as to guilt on the direct responsibility basis entails error, it is appropriate also to determine the issues raised in the appeal as to guilt on the basis of joint criminal enterprise or extended joint criminal enterprise. 489In his remarks on sentence for the appellant, the trial judge said (at [57]): I am satisfied beyond reasonable doubt that what occurred was this. One of the Comancheros rammed a bollard into the head of the deceased one or more times by raising and lowering it and striking him with the base of it. This caused the fractured skull. The offender contributed to the actions of this man by either joining in the assault by attempting, at least, to strike the deceased, or by simply being there when it was occurring. His presence would undoubtedly have had the effect of authorising and approving the actions of the other man who bludgeoned Anthony Zervas to death. Having seen the deceased being dealt with in that fashion, he turned and walked towards the exit, exchanged some threats with Peter Zervas, and then hurriedly left. 490Adopting the language used by the Crown in his submissions, it is convenient to refer to the Comanchero who "rammed a bollard into the head of the deceased" as the bollard man. For simplicity, I will refer to the basis on which the judge sentenced the appellant as joint criminal enterprise with the bollard man. 491As noted by the Crown, although none of the Comancheros who stood trial was convicted on the basis that he was the bollard man, such a person obviously existed and, I might add, was obviously a Comanchero. He can be seen on the Deng footage. The critical issue is whether it was open to find the appellant liable on the basis found by the trial judge at sentence having regard to the case put at trial and in the absence of a guilty verdict for either murder or manslaughter against any other member of the six Comancheros indicted for murder. 492One argument raised on behalf of the appellant can, I would respectfully suggest, be dismissed out of hand. It was suggested that the trial judge's remarks set out above reveal that his Honour sentenced the appellant on the basis of direct liability as an accessory to the crime committed by one or other of the Comancheros, rather than on the basis of either joint criminal enterprise or extended joint criminal enterprise (appeal transcript page 15). It may be that I have misunderstood the burden of the argument but, in case it was put in the way I have understood, I should deal with it. 493I do not think the judge's remarks in the passage set out above are to be understood to mean that his Honour sentenced the appellant on the basis of direct liability as an accessory. His Honour gave careful and unexceptionable directions to the jury on joint criminal enterprise and extended joint criminal enterprise. Those directions have not been the subject of any challenge on appeal. The fifth element of murder on the joint criminal enterprise basis as to which his Honour directed the jury was that the accused whose case was being considered was present, participating in the execution of the agreement at least by being ready and willing to provide assistance if required. It was in that context that his Honour made an express finding as to the conduct of the appellant. His Honour found that the appellant was present and that he "contributed" to the actions of the bollard man. That amounts, in substance, to a finding that he participated in the execution of the agreement. The judge found that the appellant contributed either by "attempting, at least, to strike the deceased" or by simply being present. 494The appellant's written submissions (at [1363]) focussed on his Honour's remark that the appellant's presence would have had the "effect" of authorising and approving the actions of the bollard man. It was noted, correctly, that the potential effect of the conduct says nothing about the appellant's state of mind. However, it does not follow that his Honour mistook the basis on which the appellant stood to be sentenced as one of direct, accessorial liability. His Honour's remarks at [38] to [41] make clear that his Honour was well aware of the three alternative bases on which the offender might have been found guilty. It is clear that his Honour understood that it was necessary to make a choice as between those three bases. The suggestion that his Honour nonetheless thought it was open to sentence the appellant on a basis never put during the four-month trial over which he presided is without substance, in my view. 495It follows that his Honour considered joint criminal enterprise with the bollard man to be within the ambit of the case put at trial. That is not determinative but it is a powerful consideration informing the issue whether justice miscarried. 496The appellant does not suggest the existence of any obstacle in law to the appellant being held guilty on the basis of joint criminal enterprise with the bollard man. Rather, the submission was founded in notions of fairness or reasonableness having regard to the way in which the case was put at trial. 497The appellant submitted that the jury's verdicts regarding the six Comanchero accused must mean that the jury rejected the Crown case that each Comanchero accused was liable to be convicted of murder or manslaughter because of the doctrines of joint criminal enterprise or extended joint criminal enterprise. It was submitted that "to have found only the appellant guilty of murder the jury must have reasoned either that he was directly involved in the killing of the deceased or, if not directly involved, that he entered some other agreement to inflict grievous bodily harm upon the deceased" (my emphasis). 498It may be accepted that the Crown put forward a particular case, which was that all six Comanchero accused were party to the agreement or understanding that they would inflict really serious physical injury on one or more of the Hells Angels. However, to say that the jury "rejected the Crown case" that each Comanchero was liable on that basis is potentially confusing. The jury was required to consider the case against each accused separately. Although the Crown put a case that all six joined in the criminal enterprise, the Crown did not have to prove against any one accused that each of the other five joined the enterprise. As to any individual accused, what had to be proved was that there was in existence a joint criminal enterprise or agreement which had as its object the infliction of grievous bodily harm upon one or more members of the Hells Angels group. Accordingly, the contention that the jury must have reasoned on the basis of "some other agreement" in my view poses a false dichotomy. The object of the enterprise was in each case the same. It was not altered by the number of men proved to have been a party to it. 499The judge directed the jury that a joint criminal enterprise exists "where two or more persons have an understanding or an arrangement which amounts to an agreement between them that they will commit a crime" (SU 60). It was submitted on behalf of the appellant that his Honour used the phrase "two or more" because it is found in the textbooks but that the Crown case was that the agreement was reached between "the six". The appellant submitted that the Crown could not step back from a case based on agreement between six and that, as a matter of elementary justice, could not "so radically change the case" as to rely on agreement between just "two or more" (appeal transcript at page 9). I do not accept that any case based on fewer than six parties to the agreement fell outside the ambit of the issues fairly brought forward by the Crown case. 500A rational explanation of the jury's reasoning process in respect of the appellant is that they were satisfied beyond reasonable doubt that there was in existence a joint criminal enterprise as alleged by the Crown and that the appellant was a party to it. The jury could rationally have reasoned that they were satisfied beyond reasonable doubt that the bollard man was also a party to the joint criminal enterprise but could not be satisfied beyond reasonable doubt who the bollard man was. The critical issue is the significance of the existence of doubt as to the identity of the bollard man and, specifically, whether such doubt speaks of miscarriage of justice in the case of the appellant. 501The jury was specifically directed that they did not need to be satisfied which person actually inflicted the grievous bodily harm on the deceased so long as they were satisfied that "whoever it was, that person was a participant, or those persons were participants, in the joint criminal enterprise" (SU 64). 502However, the appellant submitted that a verdict on that basis cannot be sustained because it is not reasonably open to conclude that the bollard man was one of the five other men alleged to have been party to the joint criminal enterprise. Senior counsel for the appellant submitted that the uncertainty in the evidence on that issue precludes the Crown from "closing the class" of persons with whom the appellant might have been on a joint enterprise to those five. That was said to be reflected in the jury's verdicts acquitting each of the other five of murder (Eken, Potrus, Kisacanin, Menzies and Abounader); acquitting Eken, Potrus and Kisacanin of manslaughter and their failure to agree as to manslaughter in the case of Menzies and Abounader. The difficulty with the verdict, it was suggested, is that the bollard man could have been one of the Comancheros who was not indicted as a member of the joint enterprise. It was submitted that a verdict on that basis could not be sustained because it was not the case put at trial. 503Is closing the class a predicate to a sustainable verdict in a case such as this? It is theoretically possible that the bollard man was not one of the five other men accused of murder, just as it is theoretically possible that he (or she) was not a Comanchero at all, but one of the many members of the public present in the departure lounge that day. I am not persuaded that the verdict must be set aside on the basis of that theory. It is an unlikely theory which finds little support in the evidence. The undisputed description of the bollard man (that he was tall and was wearing a dark top) was consistent with Menzies. There was a good deal of other evidence that it was Menzies, but Mr Stratton of counsel ran a strong case and, in the result, the jury was not satisfied of Menzies' guilt beyond reasonable doubt. No more can be concluded from that fact than that each juror entertained a reasonable doubt as to one or other of the elements of the offence of murder. The fact that they could not reach a verdict on manslaughter does not inform this issue either way. The case was left on the basis that they could find some accused guilty of murder and some guilty of manslaughter (SU 128). The murder case against the appellant was probably the strongest, flanked as he was by a group of tall men in dark tops and having regard to his role as President of the Comancheros, the content of the threats he made in Gate 5, his distinctive white outfit and the eye-witness evidence of his direct involvement in the final assault on the deceased. 504The Chief Justice has noted that the description of the bollard man is also consistent with that of a number of the other Comancheros (Eken, Potrus, Aouli and Pirini) including two who were not said to be participants in the joint criminal enterprise (Aouli and Pirini). As to the other two, Eken and Potrus, they have been acquitted of any involvement in the death of the deceased but again, no more can be concluded from that fact than that each juror entertained a reasonable doubt as to one or other of the elements of the offence as against each of them. 505It is true that Aouli and Pirini were not said to be participants in the joint criminal enterprise. They had both pleaded guilty to manslaughter before the trial and had been sentenced on a basis inconsistent with that put against the six at trial (a different, less serious joint enterprise): see R v Pirini [2011] NSWSC 1395 at [30]; R v Aouli [2011] NSWSC 1393 at [35]. The acceptance of those pleas reflected the absence of any evidence that either directly assaulted the deceased. Two other Comancheros (Costa and La Rosa) had also pleaded guilty to manslaughter before the trial. That was the legal context in which the trial had to be run. 506The trial was thus conducted on the basis that the Crown had narrowed to six the number of Comancheros against whom it was alleged that they were party to an agreement or understanding that they would inflict really serious physical injury on one or more of the Hells Angels. Does it follow that a verdict based on joint criminal enterprise with the bollard man, who clearly exists but cannot be identified, entails a miscarriage of justice? I am not persuaded that it does. 507The appellant's argument holds that, in order to make good the case brought forward at trial, the Crown had not only to prove each element of the offence beyond reasonable doubt but also positively to exclude any reasonable possibility that those from whom pleas were accepted in fact had a more serious involvement than the Crown could establish on the evidence. I do not think the rejection of that proposition endorses any miscarriage of justice. 508I should note that the appellant drew the Court's attention in that context to the decision of the High Court in Likiardopoulos v R [2012] HCA 37, primarily for the purpose of distinguishing it. I do not think that decision assists one way or the other in the disposal of the present appeal. 509Separately, the appellant submitted that it was not open on the evidence to conclude that the appellant reached agreement with the perpetrators of the attack. The suggestion that the trial judge saw fit to sentence the appellant on the basis of direct liability as an accessory (considered above) was an aspect of that submission. 510In my view, it was well open to the jury to be satisfied beyond reasonable doubt that the bollard man and the appellant (who on the evidence of Mr Ireland was also wielding a bollard) were embarked upon a joint criminal enterprise to inflict really serious bodily harm on the deceased (in reaching this conclusion, I am not overlooking the fact that the joint enterprise was not alleged to anticipate the use of bollards). As already explained, I think that is clearly the basis on which the trial judge sentenced the appellant. 511The trial judge did not need to make any specific finding as to when or how the joint enterprise was agreed upon as between the appellant and the bollard man. But although the Crown relied on the events of Gate 5, it was plainly within the ambit of the Crown case that the criminal enterprise could have been hatched or joined at a later point. Potrus and Abounader (two of the six indicted for murder on that basis) did not join the ten who came from Gate 5 until they reached the departure hall. 512I do not accept, as repeatedly submitted on behalf of the appellant, that the acquittal of Menzies and Abounader of murder and the jury's failure to agree on a verdict as to the alternative of manslaughter signals "a clear rejection" of the existence of the joint criminal enterprise alleged by the Crown. The jury had to consider the case against each accused individually. The existence of doubt as to one or other element of the case against Menzies or Abounader is not logically or legally inconsistent with the conviction of the appellant on the basis of joint criminal enterprise. 513In my respectful opinion, contrary to the conclusion reached by the Chief Justice, there is ample evidence to sustain the conclusion beyond reasonable doubt that an understanding was reached spontaneously, within the 34 seconds between the deceased's attack on the appellant and the final assault on the deceased. Indeed, I consider that it was open to the jury to be satisfied that the understanding was reached only seconds before the fatal attack. It was a fight between two openly hostile gangs. If the jury accepted the evidence of Mr Ireland, analysed in the context of the other evidence they had heard, it was open to them to accept that the appellant and another Comanchero fell in side by side swinging bollards in the general direction of Anthony Zervas's head. Whether or not the jury were satisfied that the appellant made contact, it would not be difficult on that basis to be satisfied that the two Comancheros had quickly reached an understanding that they were in it together, for the common purpose of doing the man really serious harm. 514It may be accepted that the Crown cannot point to any direct evidence that definitively excludes the possibility that the bollard man was one of the other Comancheros in the departure hall (as opposed to being one of the other five indicted for murder) but I am unable to discern any miscarriage of justice in that fact. In my view, the appellant's argument is based on a technical, hindsight analysis of the way in which the case evolved. It conflates the Crown case theory with the elements of the offence. As already noted, it was not an element of the offence charged against the accused that each of the other five accused was a party to his enterprise. It cannot be said that the appellant was deprived of a trial on the issues. The case on which the verdict can, in my view, be sustained is not explicitly or implicitly different from the case presented at trial. I do not think the outcome of the trial entailed any substantive or procedural unfairness. The verdict did not offend any legal principle and was within the ambit of the careful legal directions given by the trial judge which, as I have noted, are not the subject of any challenge. 515The appellant noted that the trial judge directed the jury that they were only concerned with the six Comanchero accused. On that basis, it was submitted that a verdict based on joint criminal enterprise with the person who inflicted the fatal injuries would have been contrary to the legal assumption that juries follow judicial directions. But as the submission reveals, that is an assumption adopted for the purpose of appellate consideration. It is not a legal determinant of whether justice miscarried. 516During argument on the appeal, the Crown conceded that he was "locked into the six", since that was the way in which the Crown ran the case (appeal transcript day 2, pages 21-22). I have given careful consideration to that concession. Upon reflection, I am not persuaded that it capitulates to the issue raised by ground 2. Ultimately, the question raised for this Court is whether the verdicts reveal a miscarriage of justice. 517The Crown acknowledges that the case was run on the basis that a joint criminal enterprise was entered into by the six accused. The trial judge directed the jury accordingly, explaining that they were concerned with the six accused. What is put on appeal is that the Crown had to prove beyond reasonable doubt that the bollard man was one of the six. That he was one of the six was an assumed premise of the analysis of the evidence argued on behalf of the Crown. The jury was not satisfied of the case against Menzies, but it was ultimately a matter for the jury whether to be satisfied of the elements of the offence against the appellant in accordance with the directions of the trial judge. Those directions included the proposition conceded by the Crown on appeal (that they were concerned only with the six). I have not been persuaded that a verdict of guilty against the appellant standing next to the acquittal of Menzies and Abounader entailed any miscarriage of justice. 518For those reasons, I would reject grounds 1 and 2. Reasons for rejecting ground 3 519Ground 3 contends that there was evidence that the appellant committed the act causing the death of the deceased "under provocation" as that term is defined in s 23(2) of the Crimes Act 1900. That section provides: (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. 520The suggestion that there was such evidence in the present case was first raised by the appellant on the fifty-eighth day of the trial (5 September 2011) and then almost in passing, in the context of submissions as to the appropriate directions concerning the elements of murder on the joint criminal enterprise basis. It is instructive to consider the whole of the relevant exchange between senior counsel for the appellant and the trial judge (T4239-4241): DUNN: I rely upon what Mr Stratton has said and I would urge your Honour to make the amendment that's proposed to page 1 to the extended joint criminal enterprise murder, but with the greatest of respect, it has to be made clear that it may be possible that people find themselves in the situation where they were fighting in front of the check-in counters and were doing so either on the basis of self-defence or, indeed, provocation, and in doing so that wouldn't automatically, because they are fighting, make them part of the agreement that some others may have had, that they have to look at the evidence in relation to each individual and it would be an error to say that because somebody was involved in a fight that they were necessarily part of the agreement. HIS HONOUR: That's a point I hope to make to the jury. DUNN: Thank you, your Honour. HIS HONOUR: Just going back, you mentioned the word "provocation"? DUNN: I did. HIS HONOUR: That concerns me. DUNN: I would have thought it was a highly provocative act if somebody tried to stab Mr Hawi in the head. HIS HONOUR: What did he do in response to that provocation, kill the deceased? DUNN: I'm not saying he did anything, but if the jury were to find that he did do something, they may find his mental state was affected by the fact that somebody had, 30 seconds earlier, tried to kill him. HIS HONOUR: Even though he didn't say that in his evidence. DUNN: Even though he didn't say it in his evidence. It's open and therefore I would urge your Honour to take that view. HIS HONOUR: So I would have to give all of the formal directions on provocation to the jury upon the basis that they rejected Mr Hawi's evidence and accepted that he was involved in the fatal assault upon the deceased? DUNN: That's what the Crown is asking them to do. If the Crown, as I apprehend the way the case has been put over the last two days, accepts that Mr Zervas may well have tried to stab Mr Hawi in the head, the Crown say "you don't accept what he said", the next thing is we know that, and indeed I will be able to demonstrate to the jury, that Mr Hawi was out the door in something like a little over 30 seconds after that and in that period of time was he able to reason calmly and rationally as a result of what had happened to him. HIS HONOUR: Mr Dunn, I won't shy away from giving directions that I have to give to the jury, but I find the prospect of introducing provocation concepts into the directions frightening. DUNN: If your Honour pleases. HIS HONOUR: If I have to, I will. DUNN: All I'm saying is the Crown accepts that there was an attack by Mr Zervas with the weapon to Mr Hawi, that he has not had a lot of time to reason calmly and rationally thereafter, and that the effluxion of time is such and the nature of the attack is such that a number of things flow from that and the Crown are saying, "Do not accept his evidence." What we are saying is how one can reason calmly and rationally in that situation is one thing and if you do not accept his evidence as excessive self-defence or that he was provoked in some way in a brief period of time are matters that have to be covered, in my submission. HIS HONOUR: I am just surprised because there has been no mention of provocation until today in the trial. DUNN: I've been listening intently now. I know it's only limited pages of transcript but Mr Hawi has been mentioned every day and it's clearly put, "You don't accept what he says", and maybe the jury don't, and that's not the end of it. 521It is clear from that exchange that the trial judge was not labouring under the misapprehension that provocation is comprehended within self-defence as a matter of law. The debate proceeded on the common premise that the critical issue was whether provocation was raised on the evidence. The judge's surprise at the late raising of the issue is not determinative of that question but it is a powerful indication of his Honour's assessment of the evidence at that advanced stage of the trial. The Crown also expressed her surprise and responded to the point only by acknowledging (unexceptionably) that if provocation was raised on the evidence, the direction had to be given (T4244). The judge indicated that he would think it through. 522As Price J has noted, the judge determined the issue on 20 September 2011 with the following short remarks (emphasis added): You will notice I have taken out "provocation". I don't propose to lead (sic) provocation to the jury. I have come to the view that whatever might be relevant in terms of those types of defences, they are relevant to self-defence and there is no work left for provocation upon that material. 523In my view, it is clear in the context outlined above that those remarks recorded his Honour's assessment of the evidence, not an understanding that the law of self-defence leaves no work for the law of provocation. To the extent that ground 3 rests on an alleged misapprehension of the law on the part of the trial judge, it must be rejected, in my view. The basis on which his Honour determined not to leave provocation to the jury was that he was not satisfied that it was a factual issue raised on the evidence before the jury. It is the correctness of that conclusion which must be impugned in order to make good this ground. 524As stated in the authorities referred to by Price J, the trial judge had to consider the matter on the version of the events most favourable to the accused and by reference to a jury acting reasonably. 525There was scant analysis of the evidence in the submissions made to the trial judge. The submission focussed on the conduct of the deceased in attempting to stab the appellant. The trial judge correctly directed counsel's attention to the separate issue of the character of the response to that conduct. Section 23 did not apply unless the attempt to stab could have induced an ordinary person in the position of the appellant to have so far lost self-control as to have formed an intent to kill or to inflict grievous bodily harm. 526Senior counsel responded to the trial judge's question by referring to the short period of time between the deceased's conduct and the time when the appellant left the building, the simple proposition being that it was open to the jury to conclude (if they rejected the appellant's version of events) that, if provoked, the appellant did not have time to reason calmly and rationally before striking the deceased with a bollard with the necessary intent. No submissions were directed to the conduct of an ordinary person. No submissions were directed to the evidence as to what transpired between the conduct of the deceased behind the check-in counters and the point where he lay on the ground, apparently unconscious, about six feet in front of Mr Ireland. 527It has repeatedly been observed that the failure of an accused person to give evidence of loss of self-control or to raise the issue of provocation during the trial is not fatal to the application of the defence. As the trial judge recognised, if there was material on which the jury, acting reasonably, could return a verdict of manslaughter on that basis, it had to be left. But the circumstances in which the issue of provocation is raised, or not raised, are undoubtedly capable of informing the assessment (both at first instance and by an appellate court) as to whether it is properly raised. In the present case, the generality with which the issue was raised was a reflection of its weakness upon close scrutiny. 528The premise on which ground 3 falls to be considered is that, induced by the attack behind the check-in counters, the appellant so lost his power of self-control that he pursued the deceased to the other side of a large public area and, in the presence of many members of the public, struck him to the head with a bollard as the deceased lay prone on the ground. I am not persuaded that any jury acting reasonably could hold that the deceased's conduct could induce an ordinary person in the position of the appellant to lose self-control to that extent. The ordinary person test in s 23(2) Crimes Act does not enact a lower standard of self-control for the members of rival bikie gangs than for other citizens. I do not think the conduct which is to be attributed to the appellant for the purpose of this ground is capable of meeting the objective standard to which the protection of human life must yield in accordance with the section. Accordingly, I am not persuaded that the trial judge erred in declining to leave provocation to the jury. 529Even if that conclusion is wrong, and the proper analysis is that there was evidence that the act causing death was an act done by the appellant under provocation as provided by s 23(2), I consider that, for the reasons set out above, no substantial miscarriage of justice has actually occurred. I would dismiss the appeal on that basis, in accordance with s 6(1) of the Criminal Appeal Act 1912. 530For those reasons, in my view the order that should be made in the appeal against conviction is that the appeal be dismissed. 531I have read paragraphs [350] to [380] of the Chief Justice's judgment as to the orders that should be made in the circumstances. Without withdrawing my judgment or resiling from my own view that the appeal should be dismissed, I agree with the approach outlined by the Chief Justice, for the reasons his Honour has stated. ********** 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: 05 September 2014