Vella v R

ALLSOP P : I have read the reasons in draft of Harrison J. I agree with the orders proposed by his Honour and with his reasons. I would only add the following. First, it is most unfortunate that the case was sought to be amended in midstream. That course carried the risk of unfairness, though I otherwise agree with Harrison J's reasons in this respect. Secondly, and related to the first comment, I particularly agree with what Harrison J has said on ground 11. A common sense appreciation of the DVD should have led to the matter the subject of the amendment being in the original charge. The verdict was plainly open to the jury. That made the vice of the failure to direct on the appellant's case on the alternative charge all the more material and productive of a lack of fairness.

PRICE J : I agree with Harrison J. I also agree with the additional remarks of Allsop P.

HARRISON J : The appellant stood trial before Neilson DCJ and a jury on a single count that on 12 October 2007 he maliciously inflicted grievous bodily harm on Clint Johnson with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900 . He was convicted and appeals against that conviction to this Court. Background facts

On 12 October 2007 Clint Johnson, a trainee bar manager, was injured in a brawl that broke out at the Green Valley Hotel where he was working. The Crown case at trial was initially that he received his injuries as the result of a series of blows inflicted upon him by the appellant over a period of about eight seconds. The event was captured on the hotel's CCTV and was available for viewing by the jury at the trial. The appellant denied inflicting the blows that injured Mr Johnson and maintained that another person shown on the video wearing a red shirt, who came to be described as 'red shirt' during the trial, had inflicted them.

The CCTV revealed that red shirt attacked Mr Johnson who fell to the ground. Red shirt had been involved in other attacks that evening upon hotel patrons both before and after he attacked Mr Johnson. Mr Johnson said that the appellant punched him to the head. The appellant said that although he and Mr Johnson exchanged blows they were insignificant. Mr Johnson was not wearing a hotel uniform and the appellant had not been to the hotel before that night. There was no question of intoxication of the appellant who only drank water.

Mr Johnson ultimately conceded under cross-examination that he did not know who had caused his injuries. He did not know if it was red shirt or the appellant. He agreed that he knew before he gave his evidence in chief that he had been shown the CCTV footage and realised that he had been attacked to the head by red shirt. He had not mentioned this in his evidence in chief. At the time of the incident Mr Johnson did not know that he had been attacked by red shirt and had formed the belief that he had been knocked to the ground by the appellant.

Following this, and at the close of the Crown case, Mr Nicholson QC, who appeared for the appellant at the trial, applied for a verdict by direction. The trial judge refused this application. This is referred to below. The Crown thereafter announced that its case was to be changed so that it would then proceed upon a case based upon the following alternatives. First, that the appellant had caused the injuries to Mr Johnson by punching him to the head. Secondly, that the injuries were caused by red shirt and not by the appellant but that red shirt attacked Mr Johnson as the result of a joint criminal enterprise formed instantly and spontaneously between the appellant and red shirt. In this respect the Crown relied upon what was said by this Court in Tangye (1997) 92 A Crim R 545 that the Crown needs to rely upon straightforward joint criminal enterprise only where it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged and that it needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed.

The Crown was permitted to change its case in this fashion after cross-examination of Mr Johnson and over the defence objection. The trial judge held that appropriate directions to the jury could overcome the risks associated with this course.

The appellant gave evidence at the trial that he did not know red shirt, that he had never spoken to him and that he had never been to the Green Valley Hotel before that evening. He gave evidence that he did not initially punch Mr Johnson but saw him being "king hit" by red shirt. He denied that he had any agreement of any kind with red shirt to do anything to Mr Johnson or anyone else. He rejected the suggestion put to him that red shirt was his mate. This was not how the Crown opened its case and no evidence of this was adduced by it. The Crown relied upon the circumstance of the appellant entering and leaving the hotel at the same time as red shirt and other people.

The Crown also relied upon an inferred mateship between the appellant and red shirt to support the formation of an instantaneous joint criminal enterprise pursuant to which red shirt attacked Mr Johnson who he had seen fighting with his "mate". The trial judge refused a defence application to give a direction in accordance with Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 concerning the inference of mateship before further inferring a joint criminal enterprise from "mateship". The grounds of appeal

The appellant relied upon eleven grounds of appeal. They are as follows: 1. The trial judge erred in refusing to outline the defence case during his summing up. 2. The summing up lacked fairness and balance. 3. The trial judge erred in inhibiting cross-examination of Mr Johnson concerning his prior criminal conviction for an offence of violence. 4. The trial judge erred in prohibiting cross-examination of Mr Johnson concerning his treatment for a diagnosed condition of anger management at a relevant time. 5. The trial judge erred in permitting the Crown to vary its case for an alternative platform of joint criminal enterprise late in the proceedings. 6. The trial judge erred in declining to give directions in accordance with Shepherd (1990) 170 CLR 573 concerning evidence said to support the formation of a joint criminal enterprise between the appellant and red shirt. 7. The trial judge erred in declining to give directions in accordance with Shepherd (1990) 170 CLR 573 concerning the claimed joint criminal enterprise between the appellant and red shirt. 8. The trial judge erred in failing to give directions to the jury concerning causation and the injuries received by Mr Johnson. 9. The trial judge erred in failing to direct the jury adequately concerning the need for unanimity in the way the prosecution put its case on alternative bases. 10. The trial judge erred in failing to direct a verdict of not guilty at the conclusion of the Crown case opened as the Crown had failed to establish that the appellant caused the injuries suffered by Mr Johnson. 11. The verdict is unreasonable and cannot be supported by the evidence. The conduct of the trial

Before proceeding to deal with these grounds of appeal it is instructive to record some of the evidence that was given at the trial. Reference to this material informs a number of the issues that arise in this appeal. A convenient starting point is the evidence of Mr Johnson. He gave the following evidence in chief: "Q. And as you put your hand out, what happened then? A. From there I was attacked, I was attacked from the side and at the same time I was told, "Do you want to have a go too?" And I was sent back quite a few paces from being attacked. Q. When you say you were attacked, can you explain to the jury what happened? A. What happened from when I had my hand on the man, from this side out of my peripheral view I was attacked, sort of. Q. Well how were you attacked? A. With punches--

Mr Johnson was cross-examined. Some of that evidence is as follows: "Q Okay. May I ask you yesterday you gave evidence to the effect . . . that when you approached the group of three and near the gentleman on the ground, that from your left peripheral vision someone came across and punched you? A. Yes. Q. Now I suggest to you that did not happen as you have contended for us. Do you agree? A. I don't agree. Q. After you were punched by that person three or four times, did you fall down? A. No. Q. Didn't you say that's what happened? A. No I didn't fall down. Q. Well did you fly backwards after being punched three or four times? A. Yes. Q. Well I suggest to you that you engaged in a scuffle and you went backwards at close quarters with Adam Vella, do you agree with that? A. I didn't engage in a scuffle, no. Q. I suggest to you that soon after Adam Vella disengaged, that is stopped being in contact with you, that you were in a clinch of some sort between those chairs, those tables. Do you agree with that? A. No. Q. I suggest to you that after he disengaged from you, you felt three or four strong blows to the head. At that point. Do you agree or disagree? A. No. Q. I suggest to you that at the point where he disengaged from you that another person attacked you. Do you agree or disagree/ A. From watching the footage I agree to that.

The appellant also gave evidence. Some of that was as follows: "Q. Did you walk there [to the Green Valley Hotel] in company with anyone or pass anyone on the way? A. No. But I could see that there was a bunch of people on the other side of the car park making their way over and I did as I got to the door, I've turned back maybe five metres, a couple of metres before the entry and -- Q. What happened then? A. I turned around and said, "Vince, what are you doing? Are you coming or what?" and he said, "Yeah, yeah, we're coming now". And just as I did that, I've turned back around a guy crossed my path. Q. Who crossed your path? A. Some big guy, big tall guy.

It is convenient to deal with these grounds of appeal together. The appellant invited the Court to do so. The first ground of appeal is effectively a particular instance of the second.

At the conclusion of his Honour's summing up, and after the jury had been asked to retire to consider their verdict, senior counsel for the appellant suggested to his Honour that he had failed to put the nature of the defence case to the jury. The relevant complaint is encapsulated in the following submission that was made at that time: "NICHOLSON: No but I think your Honour has put the Crown case. How it puts its case. I am not asking your Honour to go on the evidence, there is a difference. All I am asking your Honour to do is this: the defence case was both positive and one of denial. I do not ask your Honour to go on the evidence. The defence case was simply put: that the accused was there in company with Vince Chicotti and his two friends Mike and Joe and nobody else. Two, he did not know anyone else in the hotel. Three, that after Albert was knocked out he went and looked at him. Four, that Clint Johnson held him in front. Five, (not transcribable) held him behind. Six, his response to Clint Johnson was reasonable in the circumstances. Seven, he disengaged from Clint Johnson near the pillars. Eight, Red Shirt separately attacked furiously Clint Johnson after first attacking Red Shirt. Nine, Red Shirt was out of control and attacking White Shirt, Clint Johnson and Wes. Ten, Red Shirt was in company with bald black T-shirt man that night. Eleven, the accused did not know Red Shirt or Black Shirt. Twelve, the accused did not cause injuries to Clint Johnson and thirteen, the accused did not have any agreement with Red Shirt to assault anybody. Your Honour that is not the evidence. It is simply putting it together separately the defence case as you put the Crown case separately."

That was followed by this exchange: "HIS HONOUR: I did not put the Crown case separately. I just pointed out that the Crown puts its case firstly on the basis that the accused threw all the punches. Secondly on the basis that it was open to them to find that the accused may have thrown some and Red Shirt threw others and on the third basis, the basis relied upon by the defence that all the punches were thrown by Red Shirt. It did not go anything further into it. NICHOLSON: Your Honour that is the nature of the Crown case. I am not talking about the evidence – anyway I have made my application. Your Honour has heard my application. HIS HONOUR: I am afraid, I am trying to be fair but if I start summing-up the defence case in that fashion I have to then go and sum up the Crown case in that fashion and it is only if I go to the evidence that one can do it."

Although the jury returned to permit his Honour to correct two different errors that counsel had identified, no further directions of the sort requested by the appellant's counsel were given to them.

In the course of his summing up the trial judge did, however, say this to the jury: "In this case, of course, the Crown asks you to draw inferences from how eleven men entered the Green Valley Hotel and the positions they took up in it and in particular from how Red Shirt and the accused entered the hotel and left the hotel and from how they were seen near each other and from what each one did, that they were acquaintances or friends, that they were in company. Again you should not draw any inference from direct evidence unless it is the only rational inference in the circumstances. Essentially the Crown asks you to accept that Red Shirt and the accused were friends or acquaintances or mates, that they were in company and that there was an understanding or an arrangement amounting to an agreement between Red Shirt and the accused, that Red Shirt and the accused would assault Johnson."

At the most fundamental level, the appellant's complaint is that no equivalent statement of his response to the amended Crown case was made to the jury. This complaint takes account of the fact that the appellant's counsel was himself able to present that case. The appellant emphasises the potential for prejudice in the fact that the jury did not hear the trial judge give what was arguably an equivalent emphasis to the case he wished to propound. The appellant contends that even the mere perception of imbalance that such a comparison might produce is enough to amount to a prejudice that could result in an unfair trial.

As the appellant's submissions make plain, it was his position at the trial that he did not know red shirt and did not form any intention or agreement spontaneously, instantaneously or otherwise to do or to suffer to be done anything at all to Mr Johnson. Having arguably demonstrated during cross-examination of Mr Johnson that he could not identify the appellant as his actual assailant, the appellant was at pains to have the jury understand that he denied with equal force the proposition that he was in any way associated with or an associate of red shirt. These propositions should on the appellant's case have been reaffirmed and repeated by the trial judge during the course of his summing up. Anything less than this meant that in the circumstances of this case he was denied the opportunity of a fair trial.

The appellant does not complain that the trial judge failed to instruct the jury in general terms about the legal elements of a joint criminal enterprise. In this respect it is instructive to observe what the trial judge said to the jury on this topic: "47. For you to be satisfied in this case that there was a joint criminal enterprise, you must be satisfied that the accused and Red Shirt were friends or acquaintances, that they were in company. Such a conclusion must be reached by you beyond reasonable doubt. A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence, depending on the nature of the circumstances relied upon when considered as a whole, not individually or in isolation to the conclusion that the Crown has established its case that the accused and Red Shirt were part of a joint criminal enterprise. It is essential that you examine the evidence with care and consider whether it is reliable before drawing any conclusions of facts which you regard as established by it."

His Honour subsequently said this: "51. If, however you are not satisfied beyond reasonable doubt as to the essential intermediate fact that they were friends to which I have referred or even if you are so satisfied that taken as a whole the facts do not enable you to infer or conclude that there was a joint criminal enterprise beyond reasonable doubt, you must acquit the accused and bring in a verdict of not guilty. As I have said this would be the position if, at the end of your deliberations, you are of the view that some other reasonable explanation than the existence of a joint criminal enterprise and beneath that of a friendship between the accused and Red Shirt, existed."

The issue is effectively whether a statement of those thirteen elements of the defence case that the appellant contends should have been referred to by the trial judge but were not, ought properly to have been given as a counterpoint to these descriptions of the elements of the joint criminal enterprise and of the Crown case that the trial judge gave in fact.

There were only five witnesses who gave evidence. His Honour referred to that fact in his summing up in the context of declining to sum up the facts to the jury. His Honour said, "I do not propose to do so". Instead, and uncontroversially, he said to the jury: "58. . . . What the CCTV shows is purely a question for you. What the accused said it showed or what the Crown said it showed is not for either counsel or a witness to prove, what it shows is what you believe it shows".

This course is not unusual and has been approved as an appropriate course by this Court. In Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260 at [37]-[39] Wood CJ at CL said this: "37 It was next submitted that his Honour failed sufficiently to summarise the key points of the defence case, specifically in relation to weaknesses in the complainant's evidence. The trial was a short one, the evidence having begun and concluded within two days. In those circumstances it was entirely appropriate for his Honour to take the course followed, of not summing-up the evidence, as is permitted by s 405AA of the Crimes Act . 38 It is the case that trial judges should ensure that the jury have sufficient guidance as to the issues, including any issue that arises concerning the credibility of a principal Crown witness: RJC CCA NSW 1 October 1998, unreported. 39 The need for guidance, so as to ensure that the relevant matters are appreciated and taken into account, however, depends upon the nature of the trial, its length and its complexity. In Domican v The Queen (1992) 173 CLR 555 at 561 the Court said: 'Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused (14).' 'Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence (16).'

However, by the time that the Crown had amended its case to include joint criminal enterprise, the jury's task of analysing what the CCTV revealed in a purely visual sense about who struck the actual blows that injured Mr Johnson had been complicated by the need to view it to determine what it revealed about the so-called spontaneously formed arrangement or agreement between red shirt and the appellant. The appellant's evidence was that he did not know red shirt and did not agree or arrange to do anything with him of the sort alleged whether spontaneously or otherwise. The trial judge did not explain that to the jury in his summing up. Even if the CCTV and Mr Johnson's concessions might reasonably have shown that the appellant did not strike Mr Johnson as originally charged, the more subtle issue of the relationship, if any, between red shirt and the appellant was central to the jury's deliberations on the amended charge and according to the appellant should have been covered in the summing up. The question is whether or not in the circumstances his Honour's failure to do so amounted to an error with the result that the appellant was denied the opportunity of a fair trial.

Wood CJ at CL also referred to the following principles in Williams (supra) at [40]: "40 The need to focus upon the critical issues, and to consider that matter in the context of the trial, was also made clear by the observations of Allen J in Condon (1995) 83 ACR 335, where his Honour said at p 347 that the duty of the trial judge is, 'to give them assistance so that they understand what the critical issues of fact are upon application of the law to the particular case. The trial judge is not relieved from that duty by the arguments of counsel. Indeed, as Murphy J pointed out in Salvo , it would not be enough even for the trial judge accurately to state what the case for the accused is as it has been presented. He must instruct the jury what the law is in respect of that case and do so in terms which throw up, clearly, what the critical issues of fact are which it raises.'"

Whereas there is no complaint made, and none is available, that his Honour failed properly to explain the law, there is no doubt that he did not deal in terms with the appellant's case on the issue of joint criminal enterprise. It is pertinent to observe that the evidence from the CCTV, particularly when viewed in conjunction with the cross-examination of Mr Johnson, shows clearly or at least arguably that the appellant did not strike the blows causing Mr Johnson's injuries. Whether or not that is so in fact, it raises the likelihood, or at least the possibility, that the appellant's conviction was directly referable to the jury's response to the added charge. In that respect the omission to put the appellant's case on that topic attains added and special significance.

In Williams (supra) at [42]-[44] the Chief Judge also commented as follows: "42 His Honour went into no greater depth in dealing with the prosecution case. In a single issue trial as short as this, when the summing-up concluded within a morning and followed immediately upon the address of defence counsel, I am unconvinced that it was necessary for the trial judge to have undertaken a comprehensive analysis of the kind that the appellant now contends for. His Honour's assessment of the position was made evident by the observation as to the eloquence of the defence submissions concerning the complainant's credibility, which he said would 'still be ringing' in the jury's ears. 43 The common sense and intelligence of the jury requires respect, as does the experience of trial counsel who, in this case, expressly stated that he did not require any further direction or redirection. 44 I am unpersuaded that in a short trial, where the focus was on the complainant's credibility, anything would have been achieved by yet another restatement of that issue or of the points made either by the Crown or by the defence. The position is likely to be otherwise in a complex and lengthy trial, to which the observations in Domican are particularly apposite. It would also have been otherwise had the trial judge here undertaken, for example, a detailed analysis of the Crown case and then dismissed the defence case in short terms. What is required is a fair balance when any excursion into the issues and evidence is undertaken. Again I am of the view that leave should be refused to argue this ground under r 4 of the Criminal Appeal Rules ."

In Stokes v The Queen [1960] HCA 95; (1960) 105 CLR 279 at 284-5 the High Court commented as follows: "The third complaint is that the learned judge's charge to the jury does not adequately present the case of the accused and the evidence or considerations which might be thought to tend in favour of the defence. Subject to an observation to be made with reference to one matter, no more need be said about this contention than that after consideration we think that, adverse as the charge was to the accused, its effect was not to deprive the jury of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence.

The appellant submitted that at a minimum the trial judge should have summed-up to the jury so as to give them an adequate opportunity to understand the defence case and the matters relied upon to support it. Even if that did not require an exhaustive review of the evidence, or in an appropriate case any review at all, the defence case should have been identified and explained in a meaningful way. The Crown case was explained and the appellant contends that this created an imbalance that was prejudicial to his ability to secure a fair trial. He contended that the defence case was neither put in simple terms nor at all so that the trial miscarried.

In R v Meher [2004] NSWCCA 355 at [76]-[77] Wood CJ at CL referred to these principles: "[76] It is trite law that the fundamental task of a trial judge is to ensure a fair trial. That will involve not only instructing the jury about the law. It extends to identifying the issues, relating the law to those issues, and assisting the jury to understand how it is that the accused may be guilty of the offence charged in the indictment, or of any alternative offence open upon that indictment. It also requires the judge to explain why it is that the accused asserts that his guilt has not been established beyond reasonable doubt and to give any directions which, in accordance with the Evidence Act or established case law, call for a particular explanation or caution. So far as the accused is concerned, it is the case which the defence makes that the jury must be given to understand, including any matter that is properly open upon which they might find for the accused: Pemble v The Queen (1971) 124 CLR 107. [77] There is no obligation to go beyond those matters that are of direct relevance for the trial, nor is there a need for a judge to painstakingly read all of the evidence to the jury, or even to analyse all of the conflicts in it: Domican v The Queen (1992) 173 CLR 555 at 560-561. What is required is a fair and balanced summary of the law, the issues, and the respective cases for the prosecution and the defence."

The trial judge's function is to sum up the real issues as the case is fought: see Greatorex (1994) 74 A Crim R 496 at 504 per Simpson J. This was particularly important in the present case because the alteration to the Crown case shifted the emphasis of what the jury might be expected to take from the CCTV from only whether of not the appellant struck the blows that injured Mr Johnson to the less obvious and somewhat more difficult and subtle issue of the interrelationship between red shirt and the appellant. In contrast to the summing up, his Honour clearly adumbrated some of the issues that the appellant would have wanted explained to the jury during the course of his Honour's ruling on the appellant's application for a verdict by direction. In his Honour's judgment on that application he said the following: "10. As to the second ground again it is necessary to draw inferences to come to the conclusion that there is a joint criminal enterprise and the inferences to be drawn must again persuade the jury beyond reasonable doubt that there is no other reasonable explanation for what occurred other than the accused's guilt such that if there is some other reasonable basis to draw from the evidence or reasonable hypothesis to be drawn from the evidence the jury could not be persuaded beyond reasonable doubt that there was a joint criminal enterprise. Here there are a number of matters to be considered. Firstly, the accused and Red Shirt enter the hotel together in the sense that of the eleven men who enter the hotel the accused immediately follows behind Red Shirt. 11. The next is that the film strongly suggests that three men went to the bar where the accused ordered three glasses of water. On the evidence of Mr Etcell and also the film itself, an inference can be drawn that the accused was ordering a glass of water for himself and for at least Red Shirt, that is, an inference can be drawn that they were in company. 12. The next thing to consider is that, although Red Shirt assaults at least three people in the hotel, it is open to the jury to conclude that a person who can only be identified as 'White Shirt', being a patron who had been at one of the poker tables talking to the hotel manager shortly before he was assaulted, was assaulted and knocked down or, to use the vernacular, 'taken out' in an attempt by Red Shirt to reach the victim, White Shirt having come into the path of Red Shirt to the victim. Whatever may have been the reason for the initial 'affray' White Shirt does not appear to have been involved in it at all. 13. The next crucial piece of evidence relating to a joint criminal enterprise is evidence given in re-examination by Mr Johnson. He had agreed in cross-examination and maintained in re-examination that the accused disengaged in the assault upon him which he alleges. The witness was asked what led the accused to disengage and whilst not attributing any motive to the accused he gave evidence that the accused ceased to attack him when someone else, namely Red Shirt started attacking him. That evidence together with the evidence of the approach of Red Shirt towards the accused could be taken by the jury as evidence of Red Shirt's coming to the assistance of the accused in the accused's attack upon the victim and the disengagement of the accused as being acknowledgement by the accused of the assistance being given to him by the attack of Red Shirt. 14. If one may be permitted in these circumstances to use the language of the law of contract the approach towards the victim by Red Shirt was an offer and the cessation of the attack upon the victim by the accused was the acceptance of the offer. In those circumstances I believe that there is sufficient evidence capable of persuading the jury beyond reasonable doubt of the existence of a joint criminal enterprise to assault the victim."

His Honour did not sum up the appellant's case on this issue at all. This resulted in unfairness to the appellant, which meant that the trial miscarried. I consider that in these circumstances a new trial should be ordered. Ground 3

The appellant made an application to cross-examine Mr Johnson about an offence apparently committed by him on 6 July 2005. The events that gave rise to the charge concerned a dispute that arose between Mr Johnson and a patron of a hotel at which Mr Johnson was employed as a bar attendant, a job similar to the position he held at the Green Valley Hotel in the present case. Mr Johnson pleaded guilty to an offence of either maliciously inflicting grievous bodily harm or assault occasioning actual bodily harm.

The application was made on two bases. First, the appellant contended that the events were so similar to the present case that they were potentially probative of an issue in the trial and that the appellant should have been permitted to cross-examine Mr Johnson about them without penalty.

His Honour dealt with the application in the following terms: "24. Here, when I consider the facts of what I shall call the Wyong incident and the facts alleged by the defence, I see no earlier activity that is in any way comparable to the activity that the accused now asserts. In the Wyong incident, Johnson was provoked by the men in the hotel car park. No doubt Johnson was concerned about retaining his employer's property, the schooner glasses. He may have been provoked by the fact that one of the group, Briggs, urinated in what was obviously a public area near the hotel, a matter which could bring the hotel into disrepute with its neighbours. However, it appears that Johnson was provoked by the language used of him and to him by Briggs which caused him to use his kickboxing background to assault Briggs."

His Honour concluded that there was no similarity between the Wyong incident and the incident in the Green Valley Hotel. He held that the reasoning process referred to in R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21 was not available to the appellant to justify cross-examining Mr Johnson without penalty.

Secondly the appellant sought to cross-examine Mr Johnson on what the appellant maintained was his motive to lie. The trial judge considered that there was no evidence before him in any form to suggest that Mr Johnson had or may have had any such motive. The appellant contended that as Mr Johnson was then awaiting sentence on the Wyong incident he had a motive to misrepresent what occurred at the Green Valley Hotel so as not to appear that he was possibly once again in similar trouble. The appellant relied upon what was said in cases such as R v El-Azzi [2004] NSWCCA 455, Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 and R v Ellis [2003] NSWCCA 319; (2003) 144 A Crim R 1.

His Honour decided that the prior conviction of Mr Johnson could not be used to suggest that he had a motive to lie about the events in the case before him. He said in the course of a detailed and well reasoned judgment that the prior conviction did not have substantial probative value for the purposes of s 103(1) and (2) of the Evidence Act 1995 .

In my opinion, for the reasons that follow, this ground of appeal is without merit. At the trial the appellant had submitted that the evidence was relevant because it established a motive to lie about not having started the fight as mentioned above. This was a credibility issue. It was also said to be relevant because it rendered the appellant's version that Mr Johnson attacked him "more plausible" and Mr Johnson's version "less plausible". This was the tendency issue. The submission was that "history has repeated itself" in the sense that Mr Johnson had once again assaulted a hotel patron without justification.

However, self-defence was not ever an issue in the proceedings. The appellant's defence was that it was not him who punched Mr Johnson or caused his injuries at all. The cross-examination set out earlier makes that very clear. Both the appellant and his witness Mr Chicotti referred to red shirt as the assailant. Whether or not Mr Johnson had been aggressive towards the appellant was therefore of little relevance in the face of a total denial by the appellant that he had inflicted the relevant blows.

The evidence was also not relevant to the credibility issue. The appellant in due course sought to emphasise that Mr Johnson was a truthful witness inasmuch as he conceded that he ultimately could not say that the appellant was the person who caused his injuries. If the appellant had proceeded to maintain that approach in presenting the defence case it was inimical to his case that Mr Johnson should not be believed or had a motive to lie. That approach had emerged from the cross-examination of Mr Johnson by the time his Honour was asked to rule on the appellant's application. His Honour was correct in my opinion to form the view that the proposed line of cross-examination about Mr Johnson's prior conviction lacked substantial probative value and to reject the application.

This ground of appeal fails. Ground 4

The appellant submitted that it became clear during Mr Johnson's cross-examination on the voir dire that he had received professional advice for an anger management problem in preparation for his plea of guilty in respect of the charges arising out of the Wyong incident and that he had voluntarily undertaken seven months of treatment in the form of counselling for that problem. The appellant submitted that the condition for which Mr Johnson sought and received treatment was directly related to the Wyong incident. Mr Johnson said that he had benefited from the treatment and had overcome his problem.

The Crown submitted in this Court that there was in fact no evidence of a "diagnosed condition of anger management" and in fact no evidence that he had such a condition at all. There was therefore no factual basis for this ground of appeal. The evidence was that Mr Johnson voluntarily underwent cognitive behavioural therapy for 7 months in 2005 and 2006 as part of self-healing. He said it was a personal thing. It helped him with his relationship with his girlfriend. There was no evidence that it was somehow linked to the earlier offence. His evidence was as follows: "Q. Did you approach the psychologist and ask for help with managing anger? A. Yeah, on my own. I did that myself, yeah, I just you know looked in the local area off the internet and there we go".

There was no evidence of any diagnosed condition. There was no unqualified acknowledgment of a problem with anger. Mr Johnson gave this further evidence: "Q. Were you concerned at that time that you might have a problem with anger? A. I would say to answer your question would be that it was more related to childhood issues growing up. Q. I wasn't going into why, only the question of whether you had a problem with anger for which you sought counselling? A. Suppose so."

For the same reasons advanced in opposition to the third ground of appeal the Crown submitted that evidence of Mr Johnson's therapy was not relevant as the defence case was a complete denial of responsibility rather than that the appellant had inflicted the injuries upon Mr Johnson in an act of self-defence.

His Honour was correct in rejecting the application. This ground of appeal fails. Ground 5

The Crown's application to amend its case occurred while its principal witness, Mr Johnson the victim, was still in the witness box following conclusion of his cross-examination but prior to any re-examination having commenced. Cross-examination of Mr Johnson to that point had understandably been limited to issues thought to arise on the Crown case as originally opened. The Crown's application was triggered by a tacit recognition that Mr Johnson did not know who caused his injuries and that red shirt could not be excluded as the person responsible. This emerges from the transcript of his evidence set out in some detail earlier in these reasons.

Submissions in this Court on this issue from both the appellant and the Crown concentrated upon the question of whether or not the evidence was capable of supporting the Crown's contention that there was an association between the appellant and red shirt giving rise to the inference that they acted pursuant to a joint criminal enterprise. These submissions included detailed analyses of the altercation at the hotel by reference to the CCTV footage of what occurred. However, to the extent that the present ground of appeal is that the trial judge erred in allowing the Crown to put an alternative case, submissions directed to the adequacy of the evidence to support that case if and when it is allowed are to my mind beside the point or at least out of context.

The Crown's application at the trial was formulated in these terms: "In the light of the evidence yesterday, I put the court on notice that the Crown will be relying upon joint criminal enterprise as an alternative basis. The Crown's principal case is that the jury would be satisfied beyond reasonable doubt that the accused inflicted the blow that caused the grievous bodily harm. If they are not so satisfied then, alternatively, the Crown case is that there was a spontaneous arrangement or understanding reached between the accused and red shirt to fight the victim and that spontaneous arrangement was to commit the offence of maliciously inflict grievous bodily harm with intent to cause grievous bodily harm and then I'd rely upon the alternative, as I do, for the principal basis."

In the course of argument upon the application the trial judge was referred to the decision of this Court in Tangye (supra) at 556 as follows: "The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the thai [ sic , trial] judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage. If it is not done at that stage, or if there had been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses. It becomes very difficult for the judge sensibly to make alterations to directions already given once it is learnt that the issues are different to those which had been assumed to exist."

Even though the Crown appears clearly to have brought forward its application to alter the case upon which it proposed to proceed at a relatively early stage, the appellant contended that prejudice had nevertheless already arisen which could not be alleviated if the proposed alteration to the Crown case was permitted as part of the case that would ultimately go to the jury. In this respect senior counsel for the appellant sought to identify the prejudice that would be occasioned to the appellant in the following way: "Your Honour, the prejudice arises in this way. We are almost at the end of the Crown case. The Crown case was opened on a clear factual scenario which is so clear. The jury have heard the evidence. Against the understanding of the Crown case I have constructed the cross-examination carefully to address the Crown case. I have not strayed outside. It was a very tight cross-examination. I have relied upon simply the evidence in the Crown case to demonstrate it cannot win. The chance of the Crown proving causation was brought home on its own material yesterday. What has happened now, the Crown has had possession of this same information for a very long time."

He also made the following further submissions: " . . . the case opened chose not to advance any theory about [red shirt] and made no reference to him. We were able to educe that technically from the video and with the kind concessions of the witness who gave honest evidence that he was aware of it, he had seen the video last year and an election was made at the start of this case by the prosecution how it was going to run its case. It's now lost that case. Now it wishes to change at the end of the day to a different case not advanced to the jury and not addressed by me in cross-examination. The chance of the accused losing a legitimate opportunity open to him for acquittal will be damaged by the distraction of a different consideration by the jury on a different issue than the trial has been presented. It has nailed its colours to the wall with full information to start with. Having lost, it now wishes to change it to some over [ sic , other] version. At the end of this witness, there will be an application by me for a directed verdict and that is why this application is being made now. There is no change in the evidence. Just a regret that the case was presented the way it was and lost. It was a clear decision made. We shouldn't be disadvantaged now by this change of direction. It has been the issue. The jury has heard the trial. It's advanced in a particular way. What are we to say now? Disregard what I said. Disregard the way you have seen the evidence tested, constructed and accept from me another theory. I think the hypothesis sought to be advanced as an alternative basis ought not be allowed. I think tactical considerations come into it and they must favour the defence in this situation."

There then occurs the following exchange between senior counsel for the appellant and the trial judge: "HIS HONOUR: What tactical decisions have been made or what area of evidence have you not explored? NICHOLSON: I have focused the Crown case on causation. The causation opened was an attack by my client from the left of the witness to his head which caused him the words were to fly backwards three or four metres and to fall down suffering the grievous bodily harm. I have constructed the cross-examination of the witness to show that the Crown case opened did not happen and secondly that what did happen was a fairly different scenario. So that my cross-examination has been directed to addressing the very issues opened. In terms of considering other alternatives, quite frankly I'd need to reflect upon it but it is such a vastly different case. HIS HONOUR: I realise that. I realise it is a completely different case and it has its own implausibility about it. Because it postulates that the accused entered the hotel with a group of people for the express purpose of assaulting a regular to use the expression and when the – so that's the first common purpose. And then there has to be a second common purpose that when anybody came to the assistance of the regular, that person was to be taken out as well. NICHOLSON: Your Honour the cross-examination of the observations of the witnesses would depend upon the groupings, the behaviour and various things of that nature through the night. The identity of people who were there. In other words addressing all of the players and addressing their associations carefully. Reconstructing those so that an inference that might otherwise be certainly wrong would now be displaced by a different type of cross-examination. A different case presented. That's . . . It is an extraordinary proposition really at this time of the trial to simply have another story played to the jury."

The Crown made it clear following this exchange that it did not rely upon the formation of any joint criminal enterprise at the time that the appellant and the others entered the hotel. It was instead what the Crown described as "a spontaneous entry into an understanding to commit the offence". The Crown said that red shirt was a mate of the appellant who stepped in to assist red shirt "and in so doing, he and the [appellant] formed an unspoken arrangement to commit the crime".

This explanation led to a further discussion about the meaning of spontaneous and whether or not there could be such a formation of a joint criminal enterprise. It will again be apparent that this discussion was directed more to the viability or utility of permitting the Crown's amendment than to the fairness or otherwise of allowing it at all in light of the prejudice claimed by the appellant. For present purposes I consider that only the latter issue arises for consideration under the present ground of appeal.

In R v Lykouras [2005] NSWCCA 8 at [21]-[26], Howie J dealt with a similar issue in the following terms: "[21] A substantial part of the applicant's argument in this regard seems to me to be based upon an asserted right to seek to have the charge dismissed upon a technicality without the Crown frustrating that right by laying a charge that may have to be determined on its merits. In my view there is no such right. It may be that the applicant feels aggrieved by the Crown's attempts to strengthen the case against him because he believed, rightly or wrongly, that the charge initially laid by the Crown would fail at the outset because the evidence of the taking of the blood sample and its subsequent analysis would be rejected by the Court. But an accused person has no right to have a charge prosecuted on one particular factual basis and no other, nor to have the question of his guilt determined by reference to a single charge. It cannot be either oppressive or unfair, in my opinion, for the Crown simply to seek to prove a charge in more than one way, or to rely upon alternative charges arising from the one set of facts. This is so regardless of whether the alternative or additional allegation is raised before or after the trial commences. [22] If during the course of a trial, the Crown seeks to prove that the accused committed the offence charged in some way other than was opened to the jury or other than is set out in the particulars, the question that arises is whether the new allegation has caused the trial to become unfair because, for example, the accused has been deprived of the opportunity of meeting it by the late raising of the new allegation. If the unfairness cannot be addressed by, for example, witnesses being recalled or a short adjournment being granted to the accused, the trial judge will abort the trial and discharge the jury. [23] There is, of course, a rule of practice that precludes the Crown from raising an alternative count late in a criminal trial. But this rule is concerned with ensuring a fair trial and not with limiting the manner in which the Crown can proceed against an accused. The most recent discussion of this constraint upon the Crown's right to conduct the prosecution as it chooses is found in R v Gulliford [2004] NSWCCA 338. In that case the trial judge formulated an alternative verdict during the defence case. The Crown had not opened to the jury on the availability of such a verdict and it goes without saying that the alternative count was not set out in the indictment. Nevertheless the alternative was left to the jury on the basis that it was capable of being proved by the evidence and the jury might not have been satisfied of all of the elements that made up the principal offence charged in the indictment. [24] In upholding the conviction on the alternative count Wood CJ at CL, with whom the other members of the Court agreed on this point, stated: 91 While it is generally inadvisable for a trial judge to raise an alternative count, which has not been suggested by trial counsel, R v Pureau (1990) 19 NSWLR 372 and R v Cameron [1983] 2 NSWLR 66 at 71, it is not forbidden. Much will depend upon the timing, whether counsel have had a proper opportunity to deal with it, and whether the defence has been prejudiced, for example in the way that the case was conducted: R v Quinn (1991) 55 A Crim R 435. It was clear in Gulliford that the appellant had suffered no prejudice by the addition of the alternative count and, therefore, there was no miscarriage of justice by it being raised so late in the proceedings. [25] The point is that both the trial judge and this Court are concerned with ensuring a fair trial to the accused and not with some broader concept of unfairness to restrict the Crown in its conduct of the prosecution as might be expected in a sporting contest. I know of no occasion where a Court has refused to allow the Crown to rely upon an alternative count or an alternative way of proving the offence charged simply because to do so might deprive the accused of the chance of a complete acquittal. I do not believe that a court has such a power. [26] In the present case all that has happened is that, albeit very late in the proceedings, the Crown has sought to rely upon a further and alternative allegation of a criminal charge arising from the same facts and circumstances as that which gave rise to the initial charge brought against the applicant. As the Crown can rely upon an alternative count raised for the first time during a trial where to do so would cause no prejudice to the accused, I have difficulty in understanding how the Court can refuse to allow it to do so before the trial commences. Of course, the earlier the alternative allegation is raised, the less likely is it that the new allegation will prejudice the right of an accused to a fair trial."

It is clear from this passage, if it were not otherwise, that the trial judge had the power to allow the Crown's amendment and that the significant issue for his consideration was whether or not the new allegation would prejudice the appellant's right to a fair trial. If it would, the trial judge should abort the trial and discharge the jury.

After referring to Howie J's comments in Lykouras (supra), his Honour said the following in the course of his judgment allowing the Crown's application: "14. . . . Here the Crown case is not closed. Indeed the principal Crown witness is still in the witness box. Although cross-examination of him was completed towards the end of the sitting day yesterday, he has not yet been re-examined and indeed the reason that he left the witness box before re-examination was because the Crown was to consider whether it might wish to prove through him some further still photographs which would need to be done in chief and, therefore, there is a prospect of the witness being re-called in chief with the prosect of further cross-examination of him being open to the defence. In any event, he could be re-called for further cross-examination if that is desired by the defence but there is no such application. 15. Furthermore, although Mr Nicholson QC for the defence told me that it would take him approximately two hours to go through the CCTV to trace, if he can, the movements of Red Shirt on the film, he does not seek an adjournment to do that although if he did seek such an adjournment I would grant it. 16. Relevantly Mr Nicholson can point to no other prejudice accruing to the defence case. He has pointed out that, in his view, the making of the alternative allegation of how the accused is criminally liable for the injuries undoubtedly sustained by the victim is duplicitous and because there might be two different actus rei any such duplicity could be remedied by directions. 17. The Crown's case is still that the injuries sustained by the victim were caused by three or four sharp punches thrown by the accused at the victim when a group of men were in a huddle over a fallen patron in an area between the bar and a double pillar. The assault upon the victim by Red Shirt appears to have occurred on the other side of the double pillars from the bar. 18. The jury can be instructed that they must agree unanimously on the first alternative or whether they agree unanimously on the second alternative. However the distinction raised by Mr Nicholson QC relies upon a minute dissection of the film and it must be borne in mind that this affray, if I may use that expression, occurred within seconds, within a matter of eight seconds all told, where there are a number of people actively involved in a number of assaults upon different persons. 19. The Crown case as put on the alternative basis relies strongly on what fell from Hunt CJ at CL in Tangye and in particular what fell from his Honour at the top of p 588 [ sic , 558]. 20. In my view the facts of this case are somewhat different to those in Tangye but that is a question for the jury and not for me. 21. Accordingly the Crown is entitled to raise even at this stage and despite its opening an argument as to an alternative basis on which the accused might be found guilty by the jury of the crime with which he is charged and there being no prejudice being demonstrated to the accused, I must necessarily grant that leave."

The particular passage from Tangye (supra) at 558 to which his Honour referred bears recording here. It was as follows: "In the present case, the facts upon which the Crown relied was that there were a number of men from the larger group who moved around those in the smaller group, striking the men in that smaller group with their fists and their feet. The fact that they were all there together, doing those acts at the same time, indicated that there was an understanding amounting to an agreement between them that they would strike (or assault) the members of that small group. Those who had previously been in the larger group of twenty men no doubt came to that understanding when they ran towards the smaller group and began to fight them. The Crown could not establish that the appellant was in that larger group of men before they ran towards the smaller group, but it had been established that he had nevertheless joined it and was punching Bickell, the victim of the offence charged in the second count, at much the same time as Grant was being punched and kicked by the other two men described by Ms McLaughlin. There could have been no doubt in this case that what had been agreed was to engage in a street fight with the smaller group, the only issue being whether the appellant was participating in that joint criminal enterprise. Thus, although the appellant did not himself physically inflict grievous bodily harm upon Grant, he was at that time participating in the joint criminal enterprise to strike or assault the members of the smaller group. He was - by his presence, knowing that others were similarly being assaulted by others, and assisting by assaulting one of the men in the group himself - equally guilty of the attack upon Grant even though he did not physically attack him himself."

There is obvious force in the proposition that trials should be conducted in an orderly fashion with as much notice as possible of the case that the Crown intends to prove being given in a timely way to an accused person and that any variation from that course should be discouraged. It is quite another proposition to say, however, that all or indeed any late changes or amendments to the course of a trial will, or ought to, result in the discharge of the jury who may have already heard the case opened in a particular way and evidence led to prove it. Although the principle of fairness to the accused must inform the approach to this issue, it is not inimical to that principle to expect fairly robust exchanges in the course of a trial or the need for all parties to be prepared to adapt and to respond to often unforeseen changes in the evidence as it unfolds.

In this case the appellant principally submits that any proper view of the CCTV footage, and by inference, any proper proofing of the Crown's principal witness, would have led at a much earlier stage to a conclusion on the part of the Crown that the case as originally formulated was either simply not one that was available on the evidence or was otherwise bound to fail from the outset. Even accepting that to be correct, the test remains one of assessing what flows from what happened in fact rather than one that calls up an examination of why the Crown did not seek to alter its course at a much earlier time. In the events that occurred, there has not been created any prejudice that the appellant was unable to meet. That is borne out by both his Honour's remarks as well as the approach of the appellant's counsel taken at the trial. The force and utility of Mr Nicholson's cross-examination of Mr Johnson both before and after the change in the Crown case was not adversely affected. The appellant subsequently gave evidence in his defence and in doing so responded to the whole of the Crown case, which by then included the alternative of joint criminal enterprise.

It is clear in my opinion that the appellant had suffered no prejudice by the addition of the alternative count and, therefore, there was no miscarriage of justice by it being raised in the proceedings at the time or stage that it was.

I would dismiss this ground of appeal. Grounds 6 and 7

In support of these grounds of appeal the appellant submitted that before he could be held to be responsible for the actions of red shirt there would need to be evidence that could be identified as supporting the formation of the joint criminal enterprise agreement or understanding between him and red shirt. Senior counsel for the appellant asserted that there would need to be found what he described as "a necessary intermediate fact underpinning the ultimate finding of guilt by agreement or understanding". He contended that in accordance with Shepherd , a direction ought to have been given that if the jury were proceeding to convict upon the joint criminal enterprise basis they would first need to identify what the evidence was to support such a finding and be satisfied beyond reasonable doubt of the existence of the agreement.

The case against the appellant based on a joint criminal enterprise was circumstantial. Shepherd established that if it is necessary for the jury to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt. Whether there is a need for a trial judge to identify such a conclusion and direct the jury as to that standard of proof will depend upon the circumstances of the case.

In the present case the appellant asserted that the trial judge declined to give a ruling in accordance with Shepherd concerning the evidence of the agreement. There was no direct evidence of any communication or association between red shirt and the appellant and only a Crown contention that they were "mates". The appellant contended that there was no evidence of that fact and that it was only ever a Crown assertion without evidence. At its highest the proposition that red shirt and the appellant were mates was one of a series of competing inferences that arose from the physical proximity between them at the hotel, including the way in which they entered and left it.

With the exception of the way in which his Honour dealt with the defence case on this issue (see Grounds 1 and 2 above) I do not consider that the trial judge was required to do or to say more about this to the jury than he did. Whatever views the jury could form about the association between red shirt and the appellant, they were necessarily to be derived from the CCTV depictions of the events that occurred. The appellant gave evidence that he did not know red shirt. For my part I consider that the evidence from the CCTV footage of an association between the appellant and red shirt is very strong indeed. It would not have been difficult for a jury exercising ordinary common sense to come to the same conclusion. That part of the depicted events that shows the appellant throwing the remnants of his glass of water over one of the victims of the fight, as he remained lying on the floor when the appellant and others were leaving the hotel, is particularly strong evidence in my opinion. It creates on one view an impression of close relational proximity between the appellant and the perpetrator of the violence. Red shirt was undoubtedly a member of the group that caused it. The appellant showed himself by those actions possibly to be a member of it as well. Whether there was such an association in fact was and remained at all times in any event a matter for the jury.

The present grounds of appeal are to some extent no more than a complaint that there was no evidence available to go to the jury that could have satisfied them that red shirt and the appellant had a prior association or formed an agreement of the sort for which the Crown contended. I disagree with that formulation. In any case I consider that this was not a situation where the trial judge was required to identify any particular conclusion of fact that the jury may have been asked to make or to direct them as to the standard of proof with respect to it. The trial judge's summing up at [44] to [47] was perfectly adequate in the circumstances.

I would not allow this ground of appeal. Ground 10

The appellant's application was formulated as follows: "NICHOLSON: The application in brief is that your Honour give now – direct a verdict of not guilty based on the absence of the ability of the Crown to make its case. The two legs that the Crown puts its case are first that the injuries were caused by my client. The Crown cannot establish causation on that ground. It's impossible. That leg must fail. Secondly, in respect of the second base on which the Crown puts its case that of an instantly formed joint criminal enterprise between red shirt and my client, there is not a sufficient evidential platform for the Crown to make out its case. Your Honour has previously ruled on the nature of the Crown case. I don't seek to cavil with that of course. But in terms of causation, the first leg which the Crown opened cannot go to the jury. On the second leg, there is an insufficient evidential basis in the Crown case upon which to allow it to go to the jury." The relevant portion of the trial judge's reasons for rejecting the appellant's application for a verdict by direction is set forth above at [34]. It is unnecessary to repeat it here.

The Crown's response to that submission both at the trial and in this Court was to emphasise the fact that the jury had access to what had been recorded by a series of CCTV cameras located at various positions within the hotel. The whole of the incident was captured from several angles in a way that permitted the jury directly to assess what occurred. Views may differ about what the cameras have captured. The jury's opinion may also have been influenced by the answers given in cross-examination by Mr Johnson. However, the issues of whether or not Mr Johnson was injured by blows struck by the appellant or red shirt, and of whether they had formed an instantaneous or spontaneous agreement about what occurred to him in fact, remained at all times ones for the jury. The fact that a particular version of the facts may appear to have had a small likelihood of acceptance by a properly instructed jury does not mean that it was not therefore fit to be left to them for determination. In this case the jury was uniquely placed to observe and assess what occurred. There was never only one possible result despite what counsel for the appellant may have urged.

This ground of appeal is rejected. Ground 11

This ground is without merit in my opinion. The CCTV footage is instructive. There are several views of what occurred on the evening in question, as well as a view taken from a camera at the entrance to the hotel that clearly depicted a number people, including the appellant, arriving shortly before the incident in question. This material is not entirely unambiguous but nonetheless provides a useful overview of the sequence of events and the relative roles played by the appellant and red shirt at least.

The difficulty with the contention that the verdict is unreasonable and cannot be supported by the evidence derives at least from the fact that even if the original charge is cast into considerable doubt, having regard to the CCTV and the successful cross-examination of Mr Johnson concerning his ability to say who actually struck him, the alternative basis upon which the Crown proceeded suffers from no such difficulty. It was open to the jury to form the view that the appellant and red shirt knew each other and went to the hotel together in order to assault a patron of the hotel. The CCTV shows that they entered the hotel together or in close temporal proximity to each other and left it in the same way. The respective movements of each of them on one available interpretation speak eloquently of the likelihood that they were well known to each other before they entered the hotel and cooperated in the events that unfolded while they were there. Far from the jury's finding being unreasonable or unsupportable if based upon an acceptance of the inference that they were mates or acquaintances, the CCTV material seems to me on the contrary to show rather convincingly that they were. It was undoubtedly a jury question. That there was some kind of existing friendship or relationship between the two men was clearly available as an inference to be drawn both from what the CCTV depicted as well as from the other evidence, including what the appellant himself had to say about it.

The verdict is not unreasonable and is well supported by the evidence. Nothing that was said in Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432, M v R [1994] HCA 63; (1994) 181 CLR 487 at 493 or Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 would lead me to any different conclusion in the present case. Orders

I consider that the following orders should be made: 1. Appeal allowed. 2. Conviction quashed. 3. New trial ordered.