Kong v R

1. [1]

   HAMILL J: By notice of appeal filed 12 September 2024, Deting Kong seeks to appeal against his conviction by a jury on 11 May 2023 in relation to six counts charged under s 97(2) of the Crimes Act 1900 (NSW). All the charges arose from a single incident on 13 June 2020 when two men, one armed with a handgun, entered a private residence in Wolli Creek and robbed or assaulted six men who were playing poker for money. The applicant was one of the men participating in the card game, but the prosecution alleged that he was part of a criminal enterprise with the two robbers (named in the indictment as Jarryd Miller and Piyabut Panya) and another man (alleged to be Jason Kim) who drove the robbers to, and away from, the scene. The applicant’s role was said to be providing information about the game to the robbers and facilitating their entry into the security building in which the game was being played. The applicant’s case at trial (and on appeal) was that he was not a party to any such criminal agreement and played no role in the planning or execution of the robbery. The prosecution case was entirely circumstantial.

2. [2]

   I will return to set out the counts in full, but each required proof that the offence was committed “in company” and that the offenders, or one of them, was “armed with a dangerous weapon, namely, a firearm.” Because the prosecution relied on the concept of joint criminal enterprise in its case against the applicant, it was required to establish that any agreement entered into by Mr Kong involved those two features or, alternatively, that he was involved in a less serious crime but contemplated the possibility that the robbery (or assault) would be committed “in company” while one of the robbers was armed. The alternative formulation arose because the prosecution also relied on “extended joint criminal enterprise”.

3. [3]

   The applicant raised the following grounds of appeal:

4. [4]

   The first of those grounds raises questions of fact or, perhaps, a question of mixed law and fact. The second and third grounds of appeal were not subject to any complaint or application for re-direction at the trial. Accordingly, the applicant requires leave to argue each of his grounds of appeal: Criminal Appeal Act 1912 (NSW), s 6(1) and Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15.

5. [5]

   I would grant leave to appeal under grounds 1 and 2, refuse leave to argue ground 3, and dismiss the appeal against conviction. These are the reasons I favour those orders.

The course of the trial and a brief overview of the evidence

1. [6]

   The applicant was called for trial before Judge Girdham SC on 1 May 2023 and arraigned on six counts alleging that he, on 13 June 2020 at Wolli Creek, being in company with Jarryd Miller and Piyabut Panya:

2. [7]

   The alleged victims named in the six counts were the individual card players who were assaulted and/or robbed by Jarryd Miller and Piyabut Panya.

3. [8]

   There was no substance in a submission made on the hearing of the appeal which drew attention to the fact that the form of the indictment suggested that the applicant did the assaulting or the robbing; [1] if the prosecution case on joint criminal enterprise was accepted, the applicant was responsible in law for the physical acts of Messrs Miller and Panya while his intention was established by his entering and participating in the common design: see, for example, Mitchell v The King (2023) 276 CLR 299 at 318; [2023] HCA 5 at [55]. There was no demurrer or objection to the form of the indictment at the trial and no ground of appeal or submission asserting that the indictment was somehow defective.

4. [9]

   A jury was empanelled and allowed to separate until the following morning. On Tuesday 2 May, her Honour made some introductory remarks and counsel for the prosecution opened the case to the jury.

5. [10]

   The Prosecutor explained that the case was one of joint criminal enterprise and that it sought to establish that the applicant “let Jarryd Miller into the unit complex when he first attended, and Jarryd Miller and Piyabut Panya robbed, or assaulted with intent to rob, the occupants of Guangyu Wang’s unit, who were there for the poker game.” He went on to say that Jarryd Miller and Piyabut Panya were in the company of each other and that:

6. [11]

   The Prosecutor told the jury that he also relied on a “statutory alternative” on each count if the jury was not satisfied that the applicant agreed or knew that a dangerous weapon was to be used or that he contemplated that possibility and continued to participate in the joint criminal enterprise.

7. [12]

   Mr Maarraoui of counsel appeared for the applicant at the trial. He made an opening statement in which he said, “essentially we dispute that there was any agreement between [the applicant] and Mr Panya and Mr Miller”. He told the jury that the applicant’s case was that he “wasn’t part of any agreement to participate in the offences that have been detailed to you.” He said there was no dispute that people were assaulted and that a robbery took place when “two people [came] into the premises and were armed as such and [behaved] in the way that’s been described.” Mr Maarraoui stressed there was no evidence of communications between the applicant and either Mr Panya or Mr Miller “either before or after the events in question”.

8. [13]

   The prosecution called seven witnesses: three of the card players and four police officers. The statements of the other card players and the dealer were read to the jury during the third police officer’s evidence.

9. [14]

   The prosecution tendered 25 exhibits, the more significant of which included:

10. [15]

    Guangyu Wang was the first witness called by the prosecution. He lived in unit 613 on level 6 of an apartment building at 24 Levey Street, Wolli Creek. He hosted the card game on 13 June 2020. He explained that the front door of the building could not be accessed unless one used a swipe card or was allowed access electronically by an occupant of one of the units. A visitor could “press the doorbell” by the main entrance of the building and the occupant could then allow them access to the building. After Mr Wang allowed a visitor access to the building, they could access level 6 by means of the elevators but could not access other floors. He described the location of the fire exits, and the layout of the sixth floor and the inside of his unit.

11. [16]

    Mr Wang hosted poker games regularly at the unit. There was a Texas Hold’em poker table in the living room of his unit that could accommodate “seven to eight people”, possibly up to nine. He described the stakes including that a person might “buy in” for say $500 and, if they lost, might buy in again. Mr Wang listed the people who attended the game on 13 June 2020 and provided their approximate arrival times. Some people arrived at around 4:00pm, others around 5:00pm and a person he called “Sonny” at about 6:00pm. Mr Wang referred to the applicant as “Dong” and said he was the last to arrive. That was at “around 9 o’clock”. The timestamps on CCTV footage in Ex 24 established that the applicant in fact arrived at around 8:38pm.

12. [17]

    Mr Wang said he had known “Dong” for “roughly” five or six months and had played poker at his (the applicant’s) home “three, four times”. He said the applicant had previously been to his (Mr Wang’s) unit for poker games “once – once or twice” before. In cross-examination he said, “I met him around five months, and I played in his house two or three times, and then he played in my house two or three times”.

13. [18]

    Mr Wang described the robbery itself in the following terms (noting that “Peter” was Sheng Ye’s English name):

14. [19]

    Mr Wang was not challenged on this evidence in cross-examination. In terms of the time of the robbery, the CCTV footage showed that Panya and Miller walked past the elevators on level 6 in the direction of Mr Wang’s unit at 9:07pm and departed, running, at 9:11pm.

15. [20]

    Mr Wang agreed in cross-examination that the applicant had been “there the week before at that poker game” and was told there would be another poker game the following week, that is, on 13 June 2020. He also agreed that the applicant contacted him on “WeChat” and that Mr Wang “had no issue with Dong coming over at night to play poker”.

16. [21]

    Mr Wang said he received a ‘phone call that day from another man asking if he could play and that he ignored the call because he did not know the man. He said that when the applicant arrived on 13 June 2020, he immediately bought into the game and started playing. He provided further details of the robbery itself, his discussions with the other players and interactions with investigating police. He agreed that when there was a knock on the door, the game was proceeding “like a normal Texas Hold-em poker game” and that the players quietened down because they thought there may be a noise complaint from a neighbour.

17. [22]

    Sheng Ye (or Peter) was the nominated victim in the second count. He gave an account of the robbery that was generally consistent with Mr Wang’s evidence. He gave evidence about the other players, including the applicant, and returning to the unit the following day to look for various items like mobile telephones. The applicant found several items. This evidence had relevance to some of the forensic evidence and, in particular, to the finding of the applicant’s fingerprint on a water bottle that was also associated, forensically, with Jason Kim and, possibly Jarryd Miller.

18. [23]

    Mill Cai was the third witness and the victim named in the third count. He also provided a generally consistent version of the events of 13 June 2020 and confirmed the applicant’s attendance the next day to look for various items. In cross-examination, he agreed that he had known the applicant for around five years and his evidence was not otherwise challenged.

19. [24]

    Liam Smith was a senior constable of police who attended 24 Levey Street on 14 June 2020. He obtained and reviewed the CCTV footage from the building and undertook an inspection of the fire stairs where he found and photographed several items. He found a water bottle sitting in the windowsill on level 5 on the fire stairs. An agreed statement of facts set out the results of fingerprint and DNA analysis of the water bottle and it took on some prominence in the prosecution case. On the ground level of the fire stairs, near the fire exit, he found a “P-plate” which the officer “assume(d) they’ve kept the – propped the door open with.” Photographs in Ex 5 showed the location of the water bottle and the proximity of the P-plate to the fire safety door.

20. [25]

    Tamara Weir was a sergeant of police who took a number of witness statements, including a statement from Mr Ye with photographs of his injuries. She also attended 24 Levey Street on 14 June 2020 and prepared a sketch of the layout of the unit. On 18 June 2020 Ms Weir obtained CCTV from the Bayside Council.

21. [26]

    Jason Garton was a detective senior constable of police who took statements from a number of the witnesses. He read relevant parts of the statements of Hongyu Al, Erping Cui, Yuan Xue, Yaxin Yu and Sailendra Sha. The first three of those witnesses were the victims nominated in counts 4, 5 and 6. Ms Yu was the dealer at the game and Mr Sha was playing poker that night but was not robbed. Again, the statements provided a generally consistent version of attending the game, the arrival of the applicant, the entry of the two intruders, the assault and shooting of Mr Wang, and the theft of money and other property from the card players. A number of diagrams produced by the witnesses were tendered during Mr Garton’s evidence after the statements were read.

22. [27]

    Mr Garton described the arrest of Jarryd Miller on 24 June 2020 and the seizure of certain items of property during searches of premises associated with the known suspects. Photographs of those items were tendered. The officer also gave evidence of the applicant’s arrest on 21 July 2020 at his home unit in Railway Parade, Burwood and identified a portion of video taken that day. The applicant declined to be interviewed but the video was relevant to the applicant’s appearance at a time proximate to the robbery. Counsel for the applicant wanted the portion of video to be played because it showed his client’s reaction to the allegation.

23. [28]

    The CCTV compilation and a table of what it depicted (Ex 24) was also tendered through Mr Garton and the footage was played to the jury while he was in the witness box. As to the table, the following exchange is recorded (with my emphasis):

24. [29]

    Annexed to this judgment is the colour coded table which formed part of Ex 24. It sets out the detail of the 42 video “clips” taken from various cameras, the locations of which were shown in Ex 21. The table represented the agreed position of the parties at trial.

25. [30]

    Other exhibits were tendered through Mr Garton including photographs and maps of the area around the location of the robbery.

26. [31]

    In the cross-examination of Mr Garton, it was established that the applicant was a suspect shortly after a briefing on 15 June 2020 and that the police intercepted his telephone calls and interrogated call charge records and SMS (text) messages as part of the police investigation. The agreed facts (Ex 8) proved there was no incriminating telephone contact between the applicant and the other suspects and, unlike the other suspects, he had taken no steps after the robbery to change his SIM card or mobile telephone service.

27. [32]

    The final witness was the officer in charge of the investigation, Detective Senior Constable Loren Brest. It was established through cross-examination that the applicant had no criminal convictions and that police located no evidence of telephone contact or other communications that connected the applicant to the other suspects. There was such evidence connecting the other three men. Further, as observed in [31], it was established that each of the other suspects – Miller, Kim and Panya – had replaced their SIM cards or changed their telephone number shortly after the offence whereas the applicant took no similar steps.

28. [33]

    There was no issue in the trial that the six men nominated in the indictment were the victims of an armed robbery. The six victims, a seventh card player and the dealer at the poker game, provided direct and unchallenged evidence of that event. It was not disputed that one of the two men was armed with a handgun, that Mr Wang was shot in the face, and that the men who entered the apartment were Jarryd Miller and Piyabut Panya. It was also accepted, or at least there was no contest, that Jason Kim drove Miller and Panya to the scene and away from it in a Honda Jazz.

29. [34]

    The issue at the trial was whether the applicant was party to an agreement with Miller and Panya, and possibly Kim, to commit the crime. To establish that, the prosecution relied on inferences to be drawn from the direct evidence. The prosecution case that the applicant was criminally involved in the events was an entirely circumstantial one.

30. [35]

    In arguing the appeal, Senior Counsel for the applicant adopted the approach taken by the trial Judge in the summing up of identifying five aspects of the case which were said to constitute the primary facts upon which the Prosecutor invited the jury to infer that there was no reasonable inference other than that the applicant was a party to, and participating in, the joint criminal enterprise to commit an armed robbery in company upon the card players. In his closing address, the Prosecutor foreshadowed he would take the jury “to eight different matters that the [prosecution] relies upon in combination to establish that the [applicant] was participating with Piyabut Panya and Jarryd Miller in that joint criminal enterprise.” The five matters referred to by the trial Judge and Senior Counsel on the appeal were a reformulation of the matters articulated by the Prosecutor at trial.

31. [36]

    In very short form, the eight matters upon which the Prosecutor addressed were as follows:

    1. (1)

       The applicant had been at Mr Wang’s unit for a poker game a week before the robbery on 13 June 2020 and was told there would be another game on 13 June.

    2. (2)

       The applicant messaged Mr Wang on 13 June 2020 and confirmed there would be another poker game that night.

    3. (3)

       The poker games played at Mr Wang’s unit were for money and people brought cash. The Prosecutor referred to the evidence of how much cash was actually stolen from the players which he calculated to be over $7,500 and to the evidence that the “buy in for a round of poker was often $500.”

    4. (4)

       The fourth matter was the number of people who were present for the game. He calculated there were ten people present that night and that Mr Wang’s evidence was that “usually about seven to nine people” would attend for the poker games.

    5. (5)

       The robbery was planned; it was not “a random robbery that happened on the street” and the Prosecutor relied on the CCTV footage that showed the applicant and Miller entering the building at around the same time, and the almost inescapable inference that access was gained via the fire stairs. That inference arose from the fact that a P-plate was located very close to the fire stairs suggesting it was used to “chock” the fire door. The P-plate was examined and DNA consistent with that of Miller was located.

    6. (6)

       The time of the applicant’s arrival at the game which was many hours after the game began and relatively proximate to the robbers knocking on the door of the unit.

    7. (7)

       A water bottle was found on level 5 after the robbery. That bottle was examined forensically and there was located (i) a fingerprint of the applicant, (ii) DNA of Jason Kim and (iii) a fingerprint that could not be excluded as that of Jarryd Miller.

    8. (8)

       The CCTV footage leading to the applicant and Miller entering the building a short time before the robbery. The Prosecutor pointed to clips that showed the applicant and Miller entering the building one after the other once the applicant had gained access by buzzing up to Mr Wang’s unit. He said the evidence showed the applicant and Miller were walking together and then spread out slightly before entering the building. He also pointed to the applicant having arrived some time earlier and, despite being late to the game, not entering immediately after parking his car.

32. [37]

    The trial Judge enumerated those matters somewhat differently:

    1. (1)

       The applicant attended a poker game at Mr Wang’s unit the week prior to 13 June 2020 where Mr Wang indicated there would be another game on 13 June.

    2. (2)

       Usually, about seven to nine people attended Mr Wang’s poker games at his unit.

    3. (3)

       The poker games at Mr Wang’s place were played for money, and a buy-in for a round of poker was $500. The players settled up at the end of the game by cash and/or bank transfer.

    4. (4)

       The applicant messaged Mr Wang on the morning of 13 June 2020 and confirmed there was another game that night and that he would be in attendance.

    5. (5)

       The CCTV footage showed the applicant waiting outside Mr Wang’s unit complex before walking towards a Honda Jazz and meeting Miller and Panya. It showed the applicant and Miller walking back towards the unit complex together and then entering the building and travelling in the lift to level 6 together a short time before the robbery.

33. [38]

    As will be seen, in addressing ground 1, I have adopted a slightly different approach to the circumstantial case in order to expose my reasoning with greater transparency than is required of a jury. I have set out the primary facts established on the evidence and explained the kinds of inferences that can be drawn from those facts.

Ground 1: The verdict of ‘guilty’ on all counts was unreasonable, unsafe and unsatisfactory

1. [39]

   At the conclusion of the prosecution case at trial, the applicant submitted there was no case to answer and that the jury should be directed to return a verdict of not guilty in relation to each count. The trial Judge refused that application although she expressed the opinion that it was “not a strong case” on several occasions in argument. While there was no ground of appeal asserting that the trial Judge erred in declining to direct acquittals, Senior Counsel submitted on the hearing of the appeal that there was no evidence capable of supporting the verdicts. This submission was encompassed by the ground that the verdicts were – to adopt the language of the Criminal Appeal Act 1912 (NSW) – unreasonable and unable to be supported having regard to the evidence: see Fleming v The Queen (1998) 197 CLR 250 at 255-256; [1998] HCA 68 at [10]-[12].

2. [40]

   Before turning to the substance of the ground of appeal, I record that I reject the submission that the trial Judge erred in refusing the application for directed verdicts. In R v JMR (1991) 57 A Crim R 39 (“JMR”) this Court answered a question of law stated under s 5A(2) of the Criminal Appeal Act. The question was framed in the following terms:

3. [41]

   By reference to the judgment of the court in R v R (1989) 18 NSWLR 74; (1989) 44 A Crim R 404 and various other authorities, the Court answered the stated question in JMR in the negative. The approach to a no case submission adopted by Gleeson CJ in R v R has been applied many times and approved by the High Court: see, for example, Doney v The Queen (1990) 171 CLR 207 at 214-215; [1990] HCA 51.

4. [42]

   In the present case, the trial Judge was correct to refuse the application for directed verdicts and to reject the submission that there was no evidence capable of supporting a finding of guilt. The evidence adduced in the prosecution case established a series of primary facts that were capable of giving rise to an inference that the applicant assisted Miller to gain entry into the security building. The evidence and process of drawing inferences will be examined in more detail below. Put bluntly, there was, very clearly, evidence capable of establishing the case against the applicant beyond reasonable doubt. Whether it did so is the question to which I will now turn.

5. [43]

   Before addressing the evidence in more detail, I will set out the established approach to the ground of appeal.

6. [44]

   The approach to a ground asserting that a verdict is unreasonable or unable to be supported is well established and has been subject to any number of authoritative decisions. The Court must determine whether, as a question of fact, “it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: see, for example, M v The Queen (1994) 181 CLR 487 at 492-3; [1994] HCA 63, Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 and Lang v The Queen [2023] HCA 29; (2023) 413 ALR 389. The Court must undertake an independent assessment of the whole of the evidence adduced at the trial: Dansie v The Queen at [7]. Ordinarily, a reasonable doubt experienced by an appellate court is a doubt that the jury should have entertained, unless the “shortcomings in the evidence [can be] met by reference to the jury’s advantage in seeing and hearing the witnesses”: M v The Queen at 495.

7. [45]

   In a case based on circumstantial evidence, the appellate court must “weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and to determine whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”: Coughlan v The Queen (2020) 267 CLR 654 at 674-675; [2020] HCA 15 at [55]. This must not be done in a “piecemeal fashion” but requires an evaluation of the case and the evidence as a whole: The Queen v Hillier (2007) 228 CLR 618 at 638; [2007] HCA 13 at [48] and Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 599; [1984] HCA 7.

8. [46]

   A proper assessment of this ground of appeal must be made with some deference paid to the jury’s constitutional role as the arbiter of facts in serious criminal cases and accepting that this Court does not “perform the same function” as the jury:

9. [47]

   However, I accept the applicant’s submission that this is not a case where the jury enjoyed any practical advantage over the judges of this Court in determining the question of the applicant’s guilt. The jury did not see or hear any controversial witnesses giving evidence and the assessment of the prosecution’s case could not, at least in any rational way, be affected by the impression that the witnesses made on the tribunal of fact or the atmosphere of the courtroom.

10. [48]

    Because the case turns on the application of principles of circumstantial reasoning in the context of the criminal standard of proof, the question for the Court reduces to whether there is any reasonable inference, or conclusion, or hypothesis, inconsistent with the applicant’s guilt: Martin v Osborne (1936) 55 CLR 367 at 375; [1936] HCA 23, Knight v The Queen (1992) 175 CLR 495 at 502-503; [1992] HCA 56 and Chamberlain v The Queen (No 2) at 599. If the Court concluded that there is such an inference available on all of the evidence, it is difficult to envisage a situation where the appeal would be dismissed based on the jury’s constitutional role or the other matters to which I referred at [46]. Such a conclusion would inevitably mean that the Court entertained a reasonable doubt about the applicant’s guilt and was left with the concern that an innocent person may have been convicted. Neither that doubt, nor that concern, could be removed by reference to the jury’s role in our system of criminal justice. An intermediate appellate court also has a critical role, namely to safeguard against unjust convictions and the punishment of the innocent.

11. [49]

    In considering whether the evidence established the case against the applicant beyond a reasonable doubt, I have considered the applicant’s lack of previous convictions and the rational inference that he, as a person of previous good character, is less likely to have been part of a joint criminal enterprise to commit an armed robbery.

12. [50]

    I will set out some of the primary facts which were established at the trial. I will group together some of those facts where their interaction may be significant and record some of the inferences that were open to be drawn. Many of the times and events recorded below come from the CCTV footage. I have watched that closely and on several occasions.

13. [51]

    I turn to the individual pieces of evidence, the primary facts and some inferences that can be drawn from those things:

14. [52]

    The applicant adopted a piecemeal approach to the prosecution’s circumstantial case in both written submissions and oral submissions. In other words, a particular fact – be it described as intermediate or primary – was identified and innocent scenarios were posited. For example, in relation to the evidence that the applicant was walking next to Miller as the pair approached the secured unit, Senior Counsel said:

15. [53]

    While so much may be accepted, that single item of evidence was not to be considered in isolation but considered as part of the whole. The authorities, some of which I mentioned earlier, are clear that a circumstantial case like this one is to be considered as a whole and not approached in a piecemeal way. As will be seen, the fact that the applicant was walking alongside Miller immediately before they entered the building was to be considered in the context of other pieces of evidence. First, a white Mercedes car of similar appearance to that of the applicant was driving on Levey Street between 8:15 and 8:18pm and yet the applicant did not enter the building for another 15 or 20 minutes and when he did so (at 8:35pm), Miller entered immediately behind him. Miller and the applicant rode in the lift together to level 6 and walked in the same direction, turning left: that is, away from Mr Wang’s unit.

16. [54]

    A review of both the written and oral submissions show that a similar approach was taken to other individual items of evidence and primary facts. I will not repeat those submissions here but will simply say that the approach is erroneous. In fairness to him, Mr Reynolds SC acknowledged the authorities on the subject and accepted that he was, at times, approaching the facts in a piecemeal basis.

17. [55]

    On the hearing of the appeal, Senior Counsel for the applicant levelled several criticisms at trial counsel. These were in colourful, not to say strident, terms. For example, it was submitted that “some of the admissions that were made in this case were appalling”. [4]

18. [56]

    In the context of criticising the trial Judge for referring to the arrest of Jason Kim, it was put:

19. [57]

    In the absence of evidence of what was in counsel’s brief or what his instructions were, it is not possible for this Court to assess in any rational way the merit of such criticisms. In some instances, the decisions for which counsel was criticised appeared to have been sound forensic choices. For example, the decision to agree to facts that established that Miller, Panya and Kim were arrested by police and found to have certain property in their possession, is to be considered in light of the applicant’s counsel contrasting his own post-offence conduct with that of the three other alleged offenders. The others were shown to have changed their telephone SIM cards or numbers. Trial counsel contrasted that behaviour with the fact that the applicant made no attempts to hide his messages or change the service details of his device.

20. [58]

    The trial was conducted on the basis that Miller and Panya committed the robbery and that Kim drove them to the scene. The evidence of the former proposition was bordering on overwhelming. The evidence of the latter – the timing of his movements, the presence of a Honda Jazz at the scene, the note of the address and communications around the creation of that note, and the DNA on the water bottle – was reasonably strong. Trial counsel was entitled to conclude that contesting these propositions or putting the prosecution to strict proof on these issues was ill-advised.

21. [59]

    The forensic decisions made at the trial were readily understandable. The defence case was that there was a robbery as described by seven or eight prosecution witnesses and the applicant was one of the victims of the crime. He did not join or participate in the enterprise. Contesting the proposition that Miller and Panya committed the crime, and that Kim drove them to and from the scene, was a battleground upon which counsel was justifiably reluctant to fight.

22. [60]

    It is simply wrong to suggest that there was a “complete lack of evidence of Kim’s involvement”. [6] The evidence established that Kim left Station Street, Homebush in a Honda Jazz registered CHF 13X at around 7:45pm and arrived back there in the same car at 11:47pm. A Honda Jazz was seen around the scene of the robbery and Miller and Panya departed the scene in a Honda Jazz at about 9:11pm. A DNA profile taken from a water bottle found at the scene was the same as Kim’s DNA profile. The bottle also had a fingerprint of the applicant.

23. [61]

    No ground of appeal asserted that the trial miscarried as a result of any of the concessions or decisions made by counsel appearing for the applicant at trial. I have disregarded the strident criticisms made and approached the case on the basis of the concessions made at trial, as Senior Counsel accepted the Court must. I have disregarded the pejorative language employed in criticising the way the trial was conducted.

24. [62]

    Unsurprisingly, some emphasis was placed on certain observations made by Judge Girdham when she disposed of the application for directed verdicts of acquittal. Her Honour described the prosecution case as “not a strong case”, a “very weak case” and said, “it’s not the strongest circumstantial case I’ve ever seen” and “my inclination is that it is not a strong case”.

25. [63]

    No submission was made that these observations could or should guide or influence this Court in exercising its function in determining ground 1 and deciding whether the unanimous verdicts of the jury were unreasonable or unable to be supported having regard to the evidence. The trial Judge’s observations were not accompanied by reasons and the basis of her Honour’s “inclination” is not clear. These were things said in passing during a discussion as to whether her Honour should take the case away from the jury. There was no analysis of the CCTV footage, the timing of events, and how it came to be that the applicant and one of the robbers entered the building at the same time. While these observations have been heard and considered, the trial Judge’s observations cannot influence this Court in forming its own independent view of the evidence. Having said that, and as will be seen below at [71], Judge Girdham’s opinions did lead me to go back and review my factual findings.

26. [64]

    I am overwhelmingly satisfied, independent of the proper and sensible concession made by the applicant at the trial, that Jarryd Miller and Piyabut Panya committed the armed robbery in company of Mr Wang and his guests. I am satisfied beyond reasonable doubt that they were driven to and from the scene by Jason Kim in his Honda Jazz. The latter finding is based on the CCTV footage bookended by Mr Kim’s departure and arrival times, the presence of a (or the) Honda Jazz outside of Mr Wang’s residence around the time of the robbery, the departure of Panya and Miller in that make and model of car, the finding of Kim’s DNA on the water bottle and the telephone records, particularly the note recording Mr Wang’s address and the temporal coincidence of the creation of that note and communications between the three men.

27. [65]

    I have considered the fifteen or twenty minute delay between the applicant’s arrival outside Mr Wang’s residence, his walking with Miller toward the premises and their entry into the premises, more or less, together.

28. [66]

    I have also considered the timing of the robbery relative to both the commencement of the card game and the time that the applicant and Miller entered the premises. I have taken into account the fact that the applicant must have known that there would be cash money at the game and the approximate number of players present.

29. [67]

    I have essentially disregarded the CCTV footage said by the prosecution to show a conclave of three men outside the premises because the quality of that footage is so poor as to make identification of the men pure guess work. On the other hand, I consider the timing and quality of other parts of the CCTV compilation footage to provide compelling evidence of what occurred that night. In particular, both Miller and the applicant are clearly visible entering the premises, exiting the lift on level 6 when both walked away from the direction of Mr Wang’s unit (and in the direction of the fire stairs).

30. [68]

    Based on the foregoing and the finding of the P-plate (with Miller’s DNA) near the fire escape exit door on the ground floor, I am satisfied (beyond reasonable doubt) that the robbers entered the otherwise secured building by accessing level 6 by means of the fire escape stairs.

31. [69]

    Based on the timing of events established by the CCTV footage, the applicant’s knowledge of and attendance at the card game, and to a much lesser extent by the forensic findings on the water bottle, I am satisfied beyond reasonable doubt that the applicant joined and participated in the joint criminal enterprise executed by Miller and Panya. Put in terms of circumstantial reasoning, the evidence allows for no other reasonable inference than that the applicant told Miller and Panya of the existence of the card game and shared whatever details he had of that game and then waited for Miller before facilitating his entry into the building. I am satisfied (beyond reasonable doubt) that the applicant’s participation in the game was a ruse and his true purpose in attending the game was to play a role in the joint criminal enterprise whereby Miller and Panya would commit an armed robbery of the other players whilst in company with each other.

32. [70]

    Each of the six counts on the indictment was established beyond reasonable doubt despite the evidence of the applicant’s previous good character and the lack of electronic communications between him and the other participants in the joint criminal enterprise.

33. [71]

    I have given little weight to the trial Judge’s inclination that the case against the applicant was “weak”. However, because of her Honour’s experience in the criminal law, I have considered her observations and reviewed my reasoning and conclusions, which have such serious consequences for the applicant who has never been in trouble with the criminal law before. However, as the jury must unanimously have done, I have reached a different conclusion to the learned trial Judge.

34. [72]

    For those reasons, I would reject ground 1 and the contention that the verdicts were “unreasonable, unsafe and unsatisfactory”.

Ground 2: The trial Judge misdirected the jury on the meaning of the words “in company”

1. [73]

   No complaint was made at the trial in relation to the directions provided to the jury on the element of “in company”. That was, as the applicant submitted, an essential element of each charge. He submitted that both the written and oral directions were inadequate to emphasise the requirement that the offence was committed in company and that the agreement joined and participated in by the applicant encompassed that element of the offence.

2. [74]

   The applicant referred to the written direction that the element of “in company” was satisfied if:

3. [75]

   Further, in the summing up itself, the jury was told:

4. [76]

   It was submitted that these directions were wrong, or at least inadequate, and that “the mere physical presence of more than one person with an unspecified commonality of purpose is not sufficient to establish the offence of robbery in company.” Reliance was placed on R v Wisher (1896) 7 QLJ 52 where it was said at 53 that “it is quite clear that the offence of robbery may be jointly committed by two persons without being in company.” Senior Counsel also referred to more recent cases in which the important distinction between being part of a joint criminal enterprise and committing a violent crime “in company” was emphasised, and other cases that hold that mere presence at the scene of a crime, even when the accused person shares the common purpose with the principal offender, is not sufficient to establish the element that the offence was committed “in company”. For example, reference was made to the observation of Ierace J in Zheng v R; Li v R; Pan v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 at [123]:

5. [77]

   The respondent submitted that the “trial was conducted on the basis that there was no dispute that Jarryd Miller and Piyabut Panya carried out the robberies ‘in company’ (nor that they were armed with a dangerous weapon)” and referred to an exchange between the trial Judge and counsel where this was made clear. Even so, both of those matters were elements of the aggravated offences which constituted each of the counts on the indictment and required proof beyond reasonable doubt. Further, because the case was based on a joint criminal enterprise (or an extended joint criminal enterprise) it had to be established that the applicant entered an agreement to commit the aggravated offence or that he contemplated that possibility and continued to participate in the escapade.

6. [78]

   A complication in the present case was that the applicant was present at the scene of the robbery – that is, inside the apartment – but took no active role in the robbery itself. However, there was little doubt the robbery was committed “in company” because Miller and Panya were acting together in threatening the victims with violence and stealing their property. This is how the Prosecutor put the case in his closing address:

7. [79]

   The italicised “they” in that part of the closing address was clearly a reference to Panya and Miller. This explains why no issue was taken at the trial on this issue. The applicant’s case, from beginning to end, was that he was not part of any criminal enterprise with Miller and/or Panya. Rather, the jury was called on to determine whether it was established beyond reasonable doubt that the applicant was part of a joint criminal enterprise to commit such a robbery – that is an armed robbery in company.

8. [80]

   The applicant submitted the “error” in the summing up went to an element of the offence and that neither r 4.15 nor the proviso to s 6(1) of the Criminal Appeal Act should be invoked. Speaking generally, there is authority to support that contention. The applicant relied on Wong v R [2009] NSWCCA 101 at [144].

9. [81]

   Because of the issue of law that arises under ground 2, I would grant leave under r 4.15 to argue the ground and consider the ground on its merits.

10. [82]

    The contents of a summing up must be judged by the actual issues at the trial. Despite cases like Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 (“Pemble”), to which reference will be made below, it is not incumbent on a trial judge to direct the jury in a manner which is divorced from the issues in contest at the trial. There are clearly cases, and Pemble provides an example, where a trial judge is required to put an alternative verdict (or the possibility of an outright acquittal) or to emphasise the requirement of proof of a particular element, despite defence counsel not seeking such an outcome or contesting such an element. Nothing in this judgment should be taken to suggest otherwise.

11. [83]

    However, the fact is that this robbery (really, these robberies) was (or were) committed in company – that is by Panya and Miller “in company” with each other – and there was no issue at the trial that this was the case. The issue was whether the applicant joined and participated in the criminal enterprise. That required proof that he joined an agreement to commit such a robbery – that is, an armed robbery committed in company. Further, and in distinction to cases like Pemble, that issue was left to the jury to decide even though no issue was taken by counsel who appeared at the trial.

12. [84]

    In the factual circumstances of this case, there was no misdirection as to the elements of the offences or a failure to direct the jury correctly as to proof of the element that the robbery be committed “in company”. The issue was left properly for the jury’s determination. In addition to the parts of the summing up to which reference was made above (at [74]-[75]) the trial Judge, in explaining the concept of extended joint criminal enterprise, directed the jury:

13. [85]

    The summing up taken as a whole, and the directions as to the elements, would have left the jury with a clear understanding that the prosecution was required to prove that the joint criminal enterprise to which the applicant was a party, and in which he participated (if it so found), included that the robbery was to be committed by two people acting together, that is “in company” as that expression is understood.

14. [86]

    I am unable to accept ground 2.

Ground 3: The trial Judge failed to adequately sum up the law, the various ingredients and elements of the prosecution case, and the facts and cases for the prosecution and the applicant

1. [87]

   I would refuse leave to argue ground 3. No complaint was made at trial and the arguments made on appeal were unpersuasive. When considered as a whole and in the context of the evidence and issues at trial, Judge Girdham’s explanation of the legal principles, elements of the offences and application of those principles to the evidence and submissions was impeccable. While the submissions made under this ground were expansive (and appropriately so), I will be relatively brief in disposing of them.

2. [88]

   Her Honour’s explanation of the concepts of joint criminal enterprise and extended joint criminal enterprise was clear and concise. The subject was introduced very early in the summing up and, in around one readily understandable page of the transcript, the Judge explained the principles with clarity and precision. There was no need, as was implicitly suggested on the hearing of the appeal, to overcomplicate the legal directions.

3. [89]

   Similarly, there was no error or blemish in the trial Judge’s explanation of the way that circumstantial evidence operates in proof of serious criminal allegations. The jury would have been left in no doubt that it was required to exclude any other reasonable inference except for the inference that the applicant joined and participated in a criminal enterprise to commit the armed robbery in company. That was one of the fundamental legal directions required, as well as being the central factual issue at the trial. The jury was reminded of it several times. The jury was also directed, correctly, that in making that assessment it was required to consider the whole of the evidence in the case and not to approach the circumstantial case in a piecemeal way. The summing up was fair and balanced and emphasised the very high onus of proof cast upon the prosecution.

4. [90]

   Her Honour reminded the jury of the important parts of the evidence and summarised the cases presented by each of the parties. Her Honour’s brevity and simplification of the issues for the jury was commendable and I see little merit in the criticisms made of it.

5. [91]

   The elements of the offences were set out correctly in a document which was read to the jury after a copy was provided to each jury member. The applicant sought to draw a distinction between the “elements” of the offences and the “ingredients” of the offences. In New South Wales, those expressions are generally used interchangeably.

6. [92]

   Senior Counsel provided a sample document, styled “Sample Draft Directions (Synoptic) for counts 2-6”, which he confessed was prepared hurriedly, to explain by way of example how it was suggested the Judge ought to have explained the “ingredients” of the offences. [7] That document was in the following terms:

7. [93]

   The matters raised in Senior Counsel’s document were explained to the jury either in the summing up itself or in the documentation provided to the jury and marked MFI 17 at trial, although the particulars of the applicant’s participation was not put to the jury as an element (or an “ingredient”) of the offences.

8. [94]

   The jury would clearly have understood that the central question was whether the applicant joined an enterprise with Miller and Panya to commit the offence(s) of armed robbery in company, what the elements of those offences were, and that the applicant’s participation in the enterprise was, in essence, to assist the robbers to gain access to the apartment complex. Her Honour instructed the jury that the document she provided was to be considered in the context of the oral directions.

9. [95]

   By way of comparison to the “ingredients” identified in the document provided by the applicant on appeal, the written directions included the following:

10. [96]

    The jury was told at the beginning of the summing up that “the [prosecution] case is effectively that the [applicant] was an inside man who gained and allowed access” (my emphasis). Criticisms of the use of the expression “inside man” were devoid of merit. Later in the summing up, the trial Judge repeated the nature of the applicant’s alleged participation in the joint criminal enterprise and provided more details of what the prosecution alleged against him by reference to the evidence, the high standard of proof and the requirement to exclude any other reasonable inference consistent with the applicant not having participated in the joint criminal enterprise. The defence responses to the prosecution case were emphasised repeatedly throughout the summing up.

11. [97]

    The trial Judge could have provided more detail in the written directions but there was no requirement for her to do so. The directions on joint criminal enterprise (and extended joint criminal enterprise) along with the elements of the offence were ample to encapsulate the so called “ingredients” of the offence articulated by the applicant on the appeal.

12. [98]

    When all is said and done, the case was a reasonably simple one. The summing up reflected that fact and left the jury in no doubt as to the important issues it had to decide and the legal principles by which it was required to decide them. They would have had a plain understanding that the prosecution had to exclude or eliminate any inference that was not consistent with the inference that the applicant joined the enterprise and participated in it by assisting Miller and Panya “to gain access to the apartment building”.

13. [99]

    Counsel who appeared for the applicant at the trial made no complaint about the summing up in so far as it explained, or failed to explain, or erroneously explained, the legal ingredients of the offence or the cases presented by both parties. That is no doubt because he recognised that Judge Girdham put the case to the jury in a fair and balanced way and explained the important legal concepts, the elements of the offences and the onus and standard of proof correctly and with admirable economy and clarity.

14. [100]

    The applicant relied on RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [41] where Gaudron ACJ, Gummow, Kirby and Hayne JJ described the “fundamental task of a trial judge” being to “ensure a fair trial of the accused” by instructing the jury “about so much of the law as they need to know in order to dispose of the issues in the case.” Their Honours emphasised the need to do this in a balanced way and to warn the jury about how they should not reason or about particular care that should be shown before accepting certain kinds of evidence. Reliance was also placed on the important statement of principle made by Barwick CJ in Pemble at 117-118:

15. [101]

    A fair reading of the summing up in the applicant’s case shows this is what occurred in the applicant’s trial.

16. [102]

    I would refuse leave to argue this ground under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

17. [103]

    The respondent sought to read two affidavits which annexed email correspondence and earlier drafts of the written directions. The applicant objected to these documents on the ground that they are not relevant. The affidavits were read and admitted provisionally with their admissibility to be determined by the Court in reaching its judgment.

18. [104]

    While the affidavits and their annexures may have some relevance to the issues raised under grounds 2 and 3 and to the issue of whether leave should be granted, I did not need to have recourse to the evidence provisionally admitted. I scanned the affidavit and annexures but did not read them.

19. [105]

    In deference to the position taken by Senior Counsel for the applicant, I would exclude the evidence. If there had been a material error or failure to explain the elements of the offences, the discussions at trial (by email or otherwise) would be unlikely to dispel any conclusion that there was a miscarriage of justice, to allow the Court to apply r 4.15 or otherwise to save the conviction. That is not to say those discussions may not have some relevance in an appropriate case. However, the probative value of the evidence in the circumstances of the applicant’s arguments on appeal is slight, largely because clear conclusions as to the issues can be reached based on the record of the trial.

20. [106]

    I would only add that such communications and drafts should usually be marked for identification at the trial so that they form part of the record.

Conclusions and orders

1. [107]

   I would grant leave to appeal in relation to grounds 1 and 2 but would refuse leave to argue ground 3. For the reasons I have given, I would not uphold either of the grounds of appeal upon which I would grant leave. Accordingly, the appeal against conviction must be dismissed.

2. [108]

   I would make the following orders:

   1. (1)

      Grant leave to appeal against the conviction in relation to grounds 1 and 2.

   2. (2)

      Refuse leave to argue ground 3.

   3. (3)

      The appeal is dismissed.

3. [109]

   N ADAMS J: I have had the considerable advantage of reading the reasons of Hamill J in draft. I agree with the orders proposed for the reasons provided by his Honour. I wish to provide some additional reasons for my conclusions in relation to grounds 1 and 2.

4. [110]

   In considering whether the jury ought to have had a doubt about the applicant’s guilt, I have undertaken an independent assessment of the whole of the evidence adduced at the trial and considered whether there is any reasonable hypothesis inconsistent with the applicant’s guilt. Consistent with the authorities cited by Hamill J, I have assessed the circumstances relied upon by the Crown as a whole rather than in a piecemeal fashion.

5. [111]

   The high point of this circumstantial case was the CCTV footage. It was played during the hearing of this appeal and senior counsel for the Crown provided submissions which explained how each portion was relied upon by the Crown. Understanding the significance of the CCTV footage and the inferences that could be drawn from it was integral to the Crown case. In that context and in addition to the matters enumerated by Hamill J at [51], I would make the following three observations about the evidence relied upon in the Crown’s circumstantial case.

6. [112]

   First, I found the CCTV footage of what is depicted after the applicant and Miller walk out of the lift on level 6 (the floor where the card game is being held) to be very compelling. Miller is seen to follow the applicant in the direction to the right of the CCTV camera (out of view). The room where the card game is being played is in the other direction (to the left). Shortly thereafter, the applicant walks back in the direction of the card game. Miller is not seen to return to the lift. Rather, he is next seen shortly thereafter outside the building on the ground floor. The only available inference is that he exited the building via the fire stairs. Although that was not an intermediate fact, I am satisfied of it beyond reasonable doubt. The evidence also clearly established, for the reasons explained by Hamill J, that Miller and Panya entered the building to commit the armed robbery in company via those fire stairs. When Miller and Panya are depicted walking towards Mr Wang’s unit at 9:07pm, just before the robbery, they come from the same direction that Miller was last seen walking towards with the applicant.

7. [113]

   Secondly, although Hamill J disregarded the grainy footage of three unidentified people meeting nearby just before the robbery (see above at [67]), for my part I consider it to be of some small significance in the context of the Crown’s circumstantial case overall. Given the applicant’s concession at trial that he could be identified walking towards the building with Miller just prior to them both entering the building at the same time, the Crown submitted that this Court could work back from that fact to establish the relevance and utility of the indistinct CCTV footage.

8. [114]

   As Hamill J has explained, a white Mercedes with a registration number matching that of the applicant’s white Mercedes is first captured driving on Levey Street at 8:15:49pm. The CCTV footage captures a white Mercedes driving in Levey street until 8:19:09, though the registration number of that vehicle is no longer discernible. The Crown case was that it was the same Mercedes. Then, between 8:24pm and 8:27pm, a person is captured waiting out the front of Mr Wang’s unit complex in Levey Street. The person cannot be identified but on the Crown case this is the applicant. Whoever it was, they arrived shortly after the applicant’s Mercedes parked in the street. At 8:27:44pm, a Honda Jazz (which on the Crown case was the Honda Jazz driven by the co-offenders) comes down Levey Street and drives towards Rockwell Avenue (which is the same street with a different name). A person is then captured walking on the footpath in the same direction as that car. There is, at this time, no longer a person waiting outside the unit complex. An available inference is that the person walking along the footpath in the same direction as that car is the person who was waiting outside the unit complex.

9. [115]

   At around 8:28pm, two people alight from a car parked on Rockwell Avenue. The grainy footage disregarded by Hamill J then depicts that between 8:28pm and 8:33pm these two men meet with another person who had walked to where they were. Then at around 8:34pm the applicant and Miller are captured walking on the footpath and to the entry of the unit complex.

10. [116]

    What is clear is that the applicant does not enter the building until approximately 20 minutes after his vehicle is first seen in the proximity of the apartment. He was the last to arrive at the card game, which started at about 4:00pm with most people arriving by 6:00pm. The robbery takes place shortly after he arrives at the game. When the footage is taken as a whole, it is consistent with the applicant arriving at the unit, waiting for the two co-offenders, walking to meet them when they arrive and then walking with Miller into the building at 8:35pm. Clearly the footage does not depict that this is what occurred, but it is consistent with it and thus has some probative value.

11. [117]

    Thirdly, I found the evidence that the applicant’s fingerprint was located on the water bottle found on the stairs to be compelling in the context of the circumstantial case. The CCTV footage depicts Miller carrying a water bottle when he enters the complex with the applicant, but he no longer has it by the time of the robbery. The strong inference is that he left it in the stairwell where it was found by police. Although it is to be accepted, as was suggested by the applicant’s senior counsel during the hearing of this appeal, that the applicant may have touched it whilst in the stairs looking for his phone, it is somewhat difficult to imagine why the applicant would pick up or even touch a random water bottle left in a stairway; it was clearly not one of the stolen items from the robbery. It is much more likely that the applicant’s fingerprints came in contact with it when he met up with the co-offenders prior to the robbery.

12. [118]

    Overall, for these reasons, in addition to those articulated by Hamill J, I am satisfied beyond reasonable doubt that the applicant was part of the joint criminal enterprise executed by Miller and Panya.

13. [119]

    As for ground 2, the Crown case at trial was that the applicant was a party to a joint criminal enterprise to commit an armed robbery in company on a poker game. The fact that it was an armed robbery committed in company by two men (on the Crown case by Miller and Panya) was never in dispute. The evidence of the eyewitnesses clearly established that those two men were present together affording encouragement to each other and that their joint presence operated to intimidate or coerce the victims. In that context, the jury were provided with a written direction that the element of “in company” was satisfied if the accused “and/or” a person acting in a joint criminal enterprise with him was in company with at least one other person who was physically present and who “shared the same purpose”. That written direction was repeated by her Honour in her summing up.

14. [120]

    The Crown case was that the applicant was the “inside man” who played his role in the joint criminal enterprise by, inter alia, granting access to the building to his two co-offenders. That role included pretending to be a “victim” of the armed robbery in company along with the other genuine victims. The issue for the jury was not whether the applicant was one of the persons physically committing the armed robbery but, rather, whether they were satisfied beyond reasonable doubt that the applicant was part of the agreement with those two men that an armed robbery in company would take place.

15. [121]

    It is unsurprising, given the common ground that whoever physically committed the robbery did so in company with one other person, that no complaint was made at trial in relation to the jury directions on the element of “in company”. I agree with Hamill J that, In the factual circumstances of this case, the applicant has not established that the trial Judge erred in failing to direct the jury more fully regarding the element of “in company”.

16. [122]

    Even if the failure to provide the full direction on the element of “in company” could be categorised as an “irregularity” in the conduct of the trial (see GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037 at [24]), in order to constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW), the applicant would need to establish that it was prejudicial in the sense described by Beech-Jones CJ at CL in Zhou v The Queen [2021] NSWCCA 278 at [22] (cited by the High Court HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 at [2] (internal citations omitted)) as follows:

17. [123]

    Given the issues at trial, although I would grant leave to argue this ground, I would not uphold it as no miscarriage of justice has been established.

18. [124]

    As for ground 3, I agree with Hamill J that leave should be refused for the reasons provided by his Honour.

19. [125]

    COLEMAN J: I have had the considerable advantage of reading the drafts of the reasons of Hamill J and the additional reasons of N Adams J. Having reviewed the whole of the evidence at the trial, like their Honours, I am left in no doubt about the applicant’s guilt. I would not uphold ground 1. I agree with the reasons of Hamill J and the additional reasons of N Adams J on ground 1. I agree with the reasons of Hamill J and the additional reasons of N Adams J in respect to ground 2. I agree for the reasons given by Hamill J that leave should be refused to argue ground 3.

20. [126]

    I agree with the orders proposed by Hamill J.