SUPREME COURT OF QUEENSLAND

1. McPHERSON JA: The evidence at the trial is set out in detail in the reasons of Ambrose J which I have had the advantage of reading. Inevitably, the testimony of the 13 or so prosecution witnesses of the fatal struggle was not consistent throughout, but the jury would, on the strength of it have been entitled to make findings leading to verdicts of guilty of manslaughter against each of the appellants. That evidence may be summarised as follows.

2. John Fotheringham died at about 3 am on Sunday 25 April 1999. His death was caused by a traumatic subarachnoid haemorrhage, which probably resulted from a blow to the neck of at least moderate force. The events leading up to his death can be divided into two episodes. First, there was an incident at 9.30 pm on the preceding Saturday night, in which Fotheringham was, without any justification, punched by the appellant Sherrington. He left the party at 50 Valencia Street, which was the home of the other appellant Kuchler, but returned to the vicinity of the house at about 2.30 am. On this later occasion, he was armed with a telescopic metal baton and he stood on the opposite side of the road from the house apparently waiting for Sherrington to appear. Shortly before 3 am Sherrington saw him there and crossed over the road to him. Fotheringham hit him on the leg with the baton. Sherrington punched Fotheringham, tackled him to the ground, sat on top of him, and began punching him about the face, head and body. After he got up and off Fotheringham, he turned and kicked him in the rib area, grabbed him by the arm and dragged him along the road, sporadically kicking and punching him as he went.

3. It was at some time at about this stage that the appellant Kuchler joined the fray. He gained possession of the baton which Fotheringham had been carrying and struck him with it. When some of the bystanders tried to come to the aid of Fotheringham, who had been left lying inert on the road, they were chased off by Sherrington, and by Kuchler, and possibly also by some of the others who were present at that time.

4. The jury found both Sherrington and Kuchler guilty of manslaughter. Under s 300 of the Criminal Code, any person who unlawfully kills another is guilty of a crime, "which is called murder or manslaughter, according to the circumstances". By s 293 of the Code, a person is deemed to have killed another if he "causes the death of" that other directly or indirectly by any means whatever. In the application of that section, courts in Queensland follow the decision in Royall v The Queen (1991) 172 CLR 378, 411, that a person causes the death of another if his act or conduct is a substantial or significant cause of death, or substantially contributed to the death (172 CLR 378, 398, 423). See Lowrie & Ross (1999) 106 A Crim R 565, 570-571. As was said in Royall, that question is not a philosophical or scientific one, but a question to be determined by the jury applying their common sense to the facts as they find them, at the same time appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378, 387, 425, 441.

5. In the present case, it was objectively difficult to determine which of the appellants had struck the fatal blow or blows or whether both had done so. In fact, there were three possibilities: (1) Sherrington alone might have struck the fatal blow or blows; or (2) Kuchler alone might have done so; or (3) death might have resulted from the combined effect of blows or force inflicted by each of them. In the event that it was (1), Sherrington but not Kuchler would be guilty of manslaughter; if (2) Kuchler, but not Sherrington, would be guilty; if (3), both appellants would be guilty. As the verdicts were that both Sherrington and Kuchler were guilty, the jury might have concluded that it was the infliction of blows or the application of force by both appellants that substantially or significantly contributed to the death of Fotheringham.

6. Looking at the evidence at trial without reference to the provisions of the Code, such a conclusion might be difficult to sustain as a matter of fact because it was not possible to say that the fatal blow or blows had been inflicted by both appellants rather than by one of them alone without any contribution from the other. To prove their guilt, however, the Crown was not restricted only to that state of affairs. The prosecution was entitled to rely on s 7(1) of the Code. It provides:

"7.(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

1. every person who actually does the act or makes the omission which constitutes the offence;

2. every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

3. every person who aids another person in committing the offence;

4. any person who counsels or procures any other person to commit the offence.

7. There are differences of judicial opinion about whether it is one rather than the other of paragraphs (a), (b), (c) and (d) of s 7(1) of the Code that applies in circumstances like these. On one view, it does not matter because, whichever paragraph it is, they all lead to the same conclusion, which is that each of the persons enumerated in those paragraphs "is deemed to have taken part in committing the offence and to be guilty of the offence", and is therefore liable to be charged "with actually committing it". On the other hand, it is ordinarily necessary to focus on one or more of those paragraphs in order to ensure that the case against the accused is covered by at least one of them and so to direct the jury accordingly.

8. In applying s 7(1), it is necessary to bear in mind the word "offence" is to be read in the light of s 2 of the Code as meaning the act (or omission) which renders the person doing it liable to punishment. See R v Barlow (1997) 188 CLR 1, 9. More may be needed in some cases, where the offence is constituted not by an act alone but by an act accompanied by what their Honours in R v Barlow described as "prescribed circumstances"; as, for example, in the case of murder, where under s 302(1)(a) an element of the offence is the intention to kill or to cause grievous bodily harm. Manslaughter under the Code is an offence which, by virtue of ss 293 and 300, is constituted by an act (or acts) alone which, without intention, causes death or (when read with what was said in Royall v The Queen) significantly or substantially contributes to causing death.

9. In some cases like the present, where death or grievous bodily harm has resulted from an assault carried out by two or more persons, the conclusion that each of them is guilty has been reached by applying s 7(1)(a). In R v Wyles, ex p Attorney-General [1977] Qd R 169, Lucas J did so by applying to s 7(1)(a), as it is now, the provision in the Acts Interpretation Act requiring a word in the singular to be read as including the plural. The result was, his Honour said  ([1977] Qd R 169, 177), that s 7(1)(a) was to be read distributively as meaning:

"All persons who actually do the act or one or more acts in the series which constitute the offence."

Hoare J, on the other hand, held that s 7(1)(a) was to be construed in the light of  the common law at the time the Code was enacted as meaning that persons, among others, who "acted in concert, one doing one thing and others other things, all leading to the completion of the incident which constituted the offence" were liable as having committed the offence. Matthews J, while recognising that the reasons of the other two members of the Court did "not run on altogether parallel lines", agreed with the reasons of both of them.

10. The same question arose in Western Australia in Warren and Ireland v The Queen [1987] WAR 314. In circumstances similar to those in this case except that the offence was doing grievous bodily harm and not manslaughter, the Court of Criminal Appeal held both participants in the assault criminally responsible. Burt CJ did so on the ground that both appellants had joined in the assault, so that each was criminally responsible for the grievous bodily harm done, "and it matters not who struck the blow, if it were a single blow, which caused that grievous bodily harm". Each of the appellants, his Honour said ([1987] WAR 314, 319):

"is directly responsible and no question of derivative responsibility arises … Under the Code that is so because of the application to the facts of s 7(a) and (c); and it would be so at common law."

Kennedy J ([1987] WAR 314, 321) considered that the fact that it was not possible to identify the person doing the act afforded no obstacle to the application of s 7 if it was established, as it was there, "that whichever of two persons did the act, the other aided him". His Honour's reference to "aiding him" makes it, to my mind, clear that he was identifying what is now s 7(1)(c) of the Code in Queensland.  Like Burt CJ, Franklyn J ([1987] WAR 314, 328, 329) was prepared to accept that both s 7(1)(a) and s 7(1)(c) were available to support the conviction. He accepted the plural reading of s 7(1)(a) adopted by Lucas J in R v Wyles, and also (at 329) that it was open to the jury in coming to its decision to apply s 7(1)(c) "if it were not satisfied that the parties were acting in concert as principals …". See also on this question, R v Webb, ex p Attorney-General [1990] 2 Qd R 275 and Lowrie & Ross (1999) 106 A Crim R 565, 571-572.

11. For my part, I would prefer to avoid importing into the Code words that do not appear there. Incorporating the expression "in concert" in s 7(1)(a) involves a reversion to the common law, which (unless perhaps all else fails) is considered a form of heresy. In any event, as can be seen from Mohan v The Queen [1967] 2 AC 187, 194, proof of "concert" or pre-arranged plan, or that the accused were acting in pursuance of such a concert or plan, is not a requisite of the criminal responsibility of aiders and abettors at common law. In my respectful view, s 7(1)(a) applies in a case like this if both (or all) of the participants, inflict a blow or blows that combine to cause or contribute to the resulting death. Like Kennedy J in Warren & Ireland v The Queen, I see no need in law to identify a particular principal offender or actual perpetrator when s 7(1) deems all those in paras (a) to (d) as having taken part in the offence. See also R v Webb [1990] 2 Qd R 275, 287. But it is necessary to resort to one or other of those paragraphs of s 7(1) in order to establish criminal responsibility under the Code. In the circumstances disclosed here, it may be more difficult than in some other cases to invoke s 7(1)(b), which requires proof that Sherrington, in the case against him, did an act "for the purpose of enabling or aiding" Kuchler to commit the offence of manslaughter; or conversely, that Kuchler did an act for the purpose of enabling or aiding Sherrington to commit the offence. There was evidence here that each of them did an act or acts that aided the other in causing or contributing to the death of John Fotheringham, but it is less apparent that in doing so it was the purpose of either of them to enable the other to bring about that result.

12. In these circumstances, it was and is in my view necessary for the Crown, in order to sustain the convictions of manslaughter, to rely on s 7(1)(c) of the Code. That provision deems a person who aids another in committing an offence to have "taken part in committing it". The word "aids" is an ordinary English word, which means "assists" or "helps". At common law it was and is used in conjunction with "abets" in order to describe a person who was present at the commission of a felony. In R v Lowery and King (No 2) [1972] VR 560, 561, Smith J said that aiding and abetting meant doing one or other of three things, while being aware that a crime is being committed. His Honour identified those three things as: (1) intentionally helping the principal in the first degree to commit the crime; or (2) intentionally encouraging him by one's presence or behaviour to commit it; or (3) intentionally conveying to him by words or presence and behaviour that one is assenting to and concurring in the commission of the crime. In Victoria the Appeal Division has since held that physical presence at the commission of the crime is not an essential ingredient of criminal responsibility of a participant or principal in the second degree at common law. See R v Morgan [1994] 1 VR 567. According to that decision, at common law it is enough that the accused is party to a common design or plan or arrangement that is carried out by the commission of the crime. This, however, implies the existence of a pre‑arranged plan of some kind, which, as I have said, is not a requirement under any of the first three paragraphs of s 7(1) of the Code.

13. Under the Code a person does not need to be present at the commission of the crime in order to be deemed by s 7(1)(c) to have "taken part in" committing the offence by aiding or assisting another in committing it. Of course, it is either explicit or implicit in s 7(1)(c) that the assistance must be given to another "in" committing the offence, which must mean that the participant is aware at least of what is being done or perhaps will be done by the other actor. In the present context, but with two possible qualifications, that requirement presents no difficulty because each of Sherrington and Kuchler knew that the other was inflicting blows or force on Fotheringham, and assisted him in doing it. In that way each of them aided the other in doing an act or acts that (whoever it was who did it) caused or substantially contributed to Fotheringham's death; and that is so whether it was Sherrington or Kuchler who struck the blow (or blows) which led or contributed to that result.

14. Of the two possible qualifications I have mentioned, one is whether there is evidence that supports the conclusion that each assisted the other in inflicting blows. As to that, there was at the trial evidence from Simon Bevis and Cameron Baldwin, on which the jury were entitled to act, that at one stage when Sherrington was trying to wrest the baton from Fotheringham, Kuchler came in and took it from Fotheringham. At that time, Baldwin said, Sherrington was still hitting Fotheringham. Also Cameron Skene saw Kuchler run in and make swinging movements with his arm as if hitting the victim at a time when Sherrington was still "fighting" with Fotheringham. This amounts to evidence against Kuchler that he helped Sherrington continue hitting Fotheringham by taking a defensive weapon from him and using it himself to strike Fotheringham, or by simply striking blows at him. Every additional blow or other action of that kind weakens the victim's physical capacity and mental will to resist, and so makes him more vulnerable to further and possibly more debilitating injury at the hands of his other attacker. As the trial judge told the jury, they might think it was only common sense that Kuchler's action served to make it easier for Sherrington to overcome and subdue Fotheringham's resistance to the beating he was inflicting on him. Equally Sherrington's actions in continuing to hit or fight with Fotheringham helped Kuchler take the baton from him and strike Fotheringham with it; and it also made it more likely that Kuchler would succeed in doing so. In addition, after Fotheringham had been subdued and was lying apparently unconscious on the road, Sherrington and Kuchler prevented others from coming to the victim's assistance. In those ways Sherrington and Kuchler demonstrated that they were each involved in aiding the other.

15. The second potential qualification that must be mentioned is the possibility that the fatal blow might have been delivered by Sherrington before Kuchler joined in the attack on Fotheringham, and that he died of its effects only after Kuchler struck him with the baton. On appeal, this possibility was urged on behalf of Kuchler as something that the Crown was bound, but on the evidence was unable, to exclude. For this purpose the submission takes as the fatal moment a time when, after being severely beaten by Sherrington, Fotheringham was seen to be in a limp, possibly unconscious, and defenceless state. The difficulty with this version of the facts, as Mr Ridgway for the Crown on appeal pointed out, is that there were witnesses at the trial, notably Cameron Baldwin, who said he saw both Sherrington and Kuchler struggling with  Fotheringham to get the baton from him, and that incident must have happened before he subsided into a state of unconsciousness or inaction. The jury were entitled to act on that evidence and to conclude that Kuchler's actions, even if they did not themselves significantly cause or contribute to Fotheringham's death, nevertheless assisted or aided Sherrington in the process of bringing it about. Having performed those acts, Kuchler was by s 7(1) of the Code "deemed to have taken part in" committing the offence of manslaughter. 

16. Within the meaning of s 7(1)(c), therefore, each of the appellants assisted or aided the other and each was under s 7(1) therefore deemed to be guilty of the offence which he had taken part in committing. In reaching their verdict the jury were entitled to apply their common sense to the facts as they found them, so long as in doing so they appreciated that the purpose of their inquiry was to assign criminal responsibility for the death of Fotheringham. In the result, they attributed it to both appellants, rather than to one and not the other. On the evidence they were in my opinion justified in doing so.

17. There was no challenge by either appellant to the directions on s 7 of the Code that were given by the trial judge. After referring to the text of s 7(1)(b) and s 7(1)(c), his Honour told the jury that :

"For a person to be guilty on the basis of either of those provisions, it is necessary that it be shown that that person provided assistance to the principal offender in the full knowledge of what the principal offender is doing, or is about to do, and that the first person intends to assist, or consciously and knowingly provides assistance, in the commission of the offence."

In my opinion this direction was correct. His Honour went on to enlarge on it in the context of the offence of manslaughter. On appeal, the Crown was disposed to suggest that it might in some way have been unduly favourable to the appellants; but we are, of course, not concerned with that as a ground of appeal.

18. In other respects, I agree with the reasons of Ambrose J, which on the principal issue are not, I think, at all different from my own.

19. The appeals against conviction should be dismissed.

20. AMBROSE J:  On 18 August 2000 the appellants were tried and convicted of the manslaughter of John Fotheringham (“the deceased”) on Sunday 25 April 1999.

21. At the time of his death the deceased was 26 years of age and was employed as a boarder master at the Townsville Grammar School. The first appellant, Shaun Michael Mark Sherrington (“S”) was 20 years of age and was a friend of the second appellant, Wesley Kuchler (“K”) who was 19 years of age.

22. The evidence disclosed that prior to his death, the deceased received a savage beating at the hands of S. There is also evidence to the effect that, shortly before S ceased to beat the deceased, K had forcibly removed from the deceased a telescopic baton which he was holding and with which he had, at an earlier stage of his altercation with S, used to strike S about the legs and/or the upper torso.

23. The deceased died about 3 a.m. on 25 April 1999 on a roadway opposite the entrance to a house where K was then residing with his parents.

24. That house had been used to hold a party which many young people had attended during a period of about six hours.

25. Many of the guests were members of or associated with a local football club.

26. Many guests were also students or former students at the Townsville Grammar School.

27. The party seems to have got under way by about 8:30p.m. Many of the guests had consumed liquor prior to arrival at the party and many consumed a good deal of liquor in the course of that party.

28. The evidence indicated that S was grossly affected by alcohol and was behaving aggressively by the time the deceased arrived at the party after 9:00p.m. The deceased came to the party with another boarder master named Oakey.

29. At about 9:30p.m, apparently without warning and for no obvious reason S punched the deceased on a number of occasions causing injury to his mouth and face. Immediately prior to S delivering the first punch, the deceased in general conversation, had informed a group of people that he was shortly going to go South for a holiday. It was assumed by some of the persons present at the time, that because of his intoxication, S perceived this observation to be a derogatory mark concerning his football club.

30. The deceased was eventually assisted from the scene by the boarding master who had accompanied him to the party, and by some of the boarding students at the Grammar School.

31. He eventually made his way back to the school where he armed himself with a telescopic baton and persuaded another boarder master named Lindsay to drive him back to the party. Upon arrival he did not return to the party but waited on the roadway outside the Kuchler residence as the guests of the party commenced to depart. He arrived there about 2:30a.m and waited with the baton in his hand until shortly before 3:00a.m when his presence was observed by S, who strode across the road, tackled him and punched him severely about the face, head and body. In the course of the beating S also kicked the deceased about the body.

32. The evidence indicates that after the first few blows the deceased received from S, he became substantially incapable of defending himself. He did however, on some of the evidence, maintain a hold on the baton in his hand, with which he attempted ineffectually to defend himself. Evidence was given from eyewitnesses consistent with the deceased at times lapsing into unconsciousness in the course of being severely beaten by S.

33. There is some conflict in the evidence as to whether S disarmed the deceased throwing the baton away at an early stage of the fight or whether the deceased still had the baton in his hand before it was taken forcibly from him by K shortly before S ceased finally to beat him. It was the Crown case that as soon as K took the baton forcibly from the deceased, who was then on his back on the roadway with S on top of him, K struck the deceased forcibly on or about the head or neck. There was evidence that shortly after that blow was struck, S ceased to punch the deceased and K walked away from him towards his house with the baton in his hand.

34. Medical evidence was to the effect that the most likely cause of death was a traumatic subarachnoid haemorrhage, which was most likely, caused by a blow of at least moderate force to the neck in the vicinity of the right ear canal. Post mortem examination revealed no bruising of the brain or skull fractures or any other trauma to the head. Medical evidence was to the effect that the haemorrhage could have been caused by one or more than one blow of moderate force, either by a kick or a punch or a blow with some object – such as the flexible baton with which on the Crown case, K struck the deceased on or in the vicinity of his head or neck.

35. There were a large number of eyewitnesses, some of whom were affected to varying degrees by the consumption of alcohol. Some were not affected by the consumption of alcohol.

36. The injury from which the deceased died seems on the evidence to have been inflicted on him within perhaps a period of about five minutes in an area of roadway illuminated by a street light.

37. Neither appellant gave evidence or called evidence.

38. Neither appellant makes any complaint as to the summing up by the learned trial judge. Indeed for the Crown it is contended that the summing up if anything was overly favourable to the appellants.

39. Each appellant contends however, that the verdict was unreasonable and ought be set aside as unsafe and unsatisfactory.

40. The essence of the complaint of each appellant is that on the evidence the jury could not be satisfied beyond reasonable doubt which one of the appellants struck the blow or blows which on the medical evidence resulted in the death of the deceased.

41. For S, it is contended that a fatal impact may have been effected by K when he struck the deceased with the extendable baton. It is contended that there was no evidence from which the jury could infer that S “was a party to” K’s assault.

42. For K, it is contended that the fatal impact may have been effected by S and any impact resulting from a blow to the neck of the deceased with the baton may not have been a cause of the subarachnoid haemorrhage.

43. It was conceded on behalf of both S and K that upon the evidence it was possible indeed that each of them may have applied fatal force to the neck of the deceased which lead to his death. Accepting that it was open to the jury to find that each appellant applied force which in the absence of force applied by the other, could support a finding that he had applied the fatal force, in the light of the evidence that each had applied such force, the jury could not be satisfied beyond reasonable doubt, that either one of or that both appellants had applied the force which caused the haemorrhage.

44. For K, it is contended as well that evidence of admissions allegedly made by him shortly after the death of the deceased to other persons attending the party and on subsequent occasions ought not to have been given weight by the jury.

45. Having regard to the extensive submissions made as to the features of the evidence in the case which it is said makes the jury verdict unsafe and unsatisfactory it will be necessary to analyse the evidence in some little detail.

46. Before however, embarking upon that task, it is convenient to record the basis upon which the case was conducted by the Crown over a period of seven days.

47. At the outset the Crown made it clear that it relied “upon the fact that S either inflicted a blow or blows to the deceased which caused or substantially contributed to his death or had been a party to the striking of a blow or blows that substantially contributed to his death and that K also had either inflicted a blow or blows to the deceased which caused or substantially contributed to his death or had been a party to the striking of a blow or blows that caused or substantially contributed to the death and he became such a party by becoming involved in striking the blow to the deceased which he did with the extendable baton”.

48. The Crown intimated that it proposed to rely upon s 7(a), (b) and (c) of the Criminal Code.

49. For S, it is contended that there is no evidence from which the jury could infer that any force applied to the deceased by K was applied pursuant to any arrangement that was made between them or even with his knowledge or assent. Therefore, if the deadly force was applied by K without S’s assent, S could not be liable pursuant to s 7 of the Code.

50. Similarly for K, it is contended that in the absence of any evidence that the force applied by S to the deceased was done with the encouragement or approbation or at the instigation of K, a jury could not infer that K became criminally responsible under s 7 of the Code for any deadly force applied by S.

51. The offence of manslaughter, so it was contended, would only be a joint offence within s 7 of the Code, in particular s 7(c), if the deadly force was applied to the deceased at a time when both S and K were applying force to him and on the evidence that occurred for only a relatively short period of time and at the end of a relatively long period of time during which S alone had been severely beating the deceased who as a consequence had been deprived of the capacity to defend himself. 

52. In particular it is contended for K that the fact that the deceased, on some of the evidence at least, had lost the capacity to defend himself as the result of the beating he had received at the hands of S would make it possible to infer that the fatal blow or blows was or were struck by S before K applied any force to the deceased with the baton, the medical evidence indicating that in most cases, a person suffering from a subarachnoid haemorrhage loses consciousness within a very short period of time – perhaps a matter of seconds - of the application of force leading to that haemorrhage.

53. It is convenient then to turn to the evidence given by the principal eyewitnesses as to the progress of the beating which the deceased received during which he suffered the haemorrhage which led to his death and the parts played by each of S and K in delivering that beating. I will also consider the precise evidence given by persons as to admissions made by K as to the part he played in applying force to the deceased with a baton shortly prior to his death.

54. Because some hours elapsed between the first altercation between S and the deceased and the second altercation between S, K and the deceased when the deceased received an injury or injuries from which he died I will not attempt to analyse the evidence relating to the first altercation.

55. It suffices to say that there was overwhelming evidence that the first altercation really resulted from an unprovoked serious assault committed by S upon the deceased at a time when S was behaving in an aggressive way probably attributable to his intoxication. It is clear that S was a much larger and younger man than the deceased and had for no apparent rational reason developed an antipathy towards the deceased to such an extent that he remained of a mind to further assault him if given the opportunity.

56. It is clear also, that the deceased had decided to confront S as he left the party at K’s house with a view to “settling the score”. He was much smaller than S, and armed himself with the telescopic baton which he held at the ready as S crossed the road to meet him to engage once more in physical conflict.

57. According to the police officer, Nicoll, S was twenty years of age. When arrested his displayed “lineal abrasions” which were long thin marks on various parts of his body including his buttock. S was described as being heavily built with a height of about 6ft 1 or 6ft 2. Dr Fisher examined S shortly after his arrest and discovered abrasions to his big toe on the right foot and a couple of further abrasions just below the kneecaps. They were consistent with abrasions caused by legs coming into contact with the bitumen road.

58. The ambulance was called to give attention to the deceased at 2:58a.m. It arrived at 3:05a.m; the deceased was then showing no signs of life.

59. I will analyse the evidence of all the eyewitnesses who gave evidence concerning the final physical altercation which seems to have lasted for a relatively short time:

Michael Lindsay

60. Mr Lindsay was a boarder master who worked at the Grammar School with the deceased.

61. At about 2:00a.m the deceased persuaded Lindsay to drive him back to the party in the deceased’s car. Lindsay was a cousin of the deceased and each had on occasion driven the other in their respective cars when that other had been drinking. Lindsay said that he could tell that the deceased had been drinking. He said that they had been waiting together on the roadway opposite the Kuchler residence for 10 to 15 minutes before he saw S having a fight with somebody in the front yard of that residence. He said he had never seen S before this occasion. He said S appeared to him to be drunk; boisterous and stumbling as he walked. He said that S and the deceased had a vocal exchange and about 4 minutes after S came onto the road area, he heard S say something to the effect that he was 18 years old and could do what he wanted to. He said they approached each other and met on the road and as they came together the deceased pulled out the extendable baton and that was when the fight commenced. He said he could not see who struck the first blow because a tree obscured his vision of where they first met on the roadway. He said he thought he saw the deceased hit S around the knees a couple of times, he said it seemed to have no effect whatever on S who eventually took hold of the baton and prevented the deceased from using it. He said that S then began to punch the deceased in and about the head, he said not very long elapsed before he noticed that the deceased had gone limp, however S continued to hold him up with one hand and punch him with the other. Sometimes the deceased fell onto the ground, and S would then pick him up, hold him upright and continue to punch him. He said that to his recollection the punches were to the head and face area. Apparently on a number of occasions he was punched to the ground and he said that he heard the sound of the head of the deceased hitting the road. He said that eventually when the deceased went limp, S took the baton and threw it away. He said he also observed that S kicked the deceased while he was on the ground and continued to punch him as well. Indeed he said that S held the deceased and in effect dragged him along with him as he was walking along the roadway.

62. According to Mr Lindsay, at some stage a couple of people came over presumably to give some assistance to the deceased but S pushed them away. He was not sure whether they had attempted to give assistance before or after a second person had moved into the affray.

63. As S continued to beat the deceased, Lindsay was standing only a couple of metres away from them. Lindsay said that he saw another person move into the affray. He said that this person was involved in it for less than a minute. He said that the deceased had seemed to him to lose consciousness at an early stage of the second altercation with S and having lost consciousness, it was Lindsay’s view that he had never showed signs of consciousness again. He said that he had seen S deliver quite a number of closed fist blows in the area of the face and neck of the deceased.

64. Lindsay said that he had consumed no alcohol whatever that night and that indeed he had been in bed asleep when the deceased woke him at the boarding school and persuaded him to drive him back to the party.

65. His recollection was that S had taken the baton off the deceased at an early stage in the second altercation and had thrown it away. His evidence seems to be that the deceased at that stage was still conscious although not really capable of defending himself. It is not apparent on his evidence whether when S dragged the deceased over towards the edge of the road he dragged him anywhere near where Lindsay says he saw S throw the baton which he took from the deceased after he had been beaten about the knees with it.

Geoffrey Rob Stegman

66. Detective Stegman arrived at the police station in Townsville in the early hours of the morning subsequent to the death of the deceased. One of the persons he spoke to, was K who exhibited fresh abrasions to his right thumb and forefinger and there appeared to be dried blood inside one of his wrists. There was also speckled bloodstains on his T-shirt. K told the police officer that when he realised that the deceased was dead he grabbed hold of the face of the deceased to check for vital signs and that it must have been on this occasion that he got some blood on his clothing.

Pita Ngamoki “(Pita)”

67. At the time of the death of the deceased Pita was in grade 11 at the Grammar School and the deceased was his boarder master. He had played football during the day and attended the party held at the house of K’s parents to celebrate the birthdays of some young people. Before arrival at the party he had had one beer at the South’s Rugby League Club. He got to the party at about 8:30p.m.

68. Somebody pointed out and identified K to him. He observed the deceased arrive with another boarder master and had the opportunity to observe the first altercation between S and the deceased. He had a few drinks early in the night but eased off as the night progressed. He said he ceased drinking about 11:00p.m or 11:30p.m and took somebody home from the party and then came back afterwards.

69. Pita became aware that the deceased had returned with Mr Lindsay and saw him standing on a grassed area over the road from the house where the party was being held. He went over and spoke to the deceased and then went back into the party. Eventually he spoke to the deceased again and while speaking to him saw S walking from the house where the party was held over towards the deceased. He said at that time that the deceased was on the grass verge of the road; he said he heard the deceased ask S why he had punched him causing injury. He said that the deceased and S spoke together for a minute or two before the deceased struck S with the baton. He said he struck him once on the arm and once on the leg. He said this seemed to have no physical effect on S who tackled the deceased forcing him to the ground. He said S got on top of the deceased and kept punching him in the face. He said he saw that S held the deceased by his shirt and kept punching him. The deceased tried to get off the ground but was unable to do so. He said he didn’t wish to keep watching the beating which S was administering to the deceased and he looked away for a moment and then all of a sudden they were quite close to him and he wasn’t sure how they got there. He said he watched S beat the deceased with punches and again looked away. He said when he looked back on one occasion, he noticed the deceased was on the ramp of a speed bump. He said at that time the deceased did not appear to be moving on the ground however his position shifted from the ramp over to an area behind a car and his head was then on the gutter near the speed bump. He said he wasn’t sure whether the deceased got up from that position or not but somehow his position changed. He said at that time S was still punching the deceased and he then saw a person “pick up a baton”; he said this person appeared to strike the deceased “probably on the chin or somewhere” or “maybe just his face”. Pita said that he then looked away because he didn’t want to watch what was happening. He said he did see one blow with a baton. That baton was the same one that he had seen earlier in the possession of the deceased. He said initially that he was sure it was K whom he had seen with the baton, having picked it up and that he could vaguely remember seeing K raising the baton up and striking the deceased. He said that when it became apparent what K was going to do, he looked away because he didn’t want to watch what was happening to the deceased who of course was his boarder master. He said after K had, as he thought struck the deceased with the baton he looked again and saw that S was still hitting and punching the deceased.

70. He said that he and Lindsay then went over to see if they could help pick up the deceased. He observed that S tried to grab Lindsay’s shirt and swing a punch. S then attempted to grab Pita’s jersey. Pita was then apparently chased by other persons and he ran into the night and hid.

71. Pita said that he did not at anytime see S strike the deceased with the baton. He said in cross-examination that he was two or three metres away from the fight and that he had seen the person he knew as “Kuchy” standing next to the deceased with the baton. He said that he was quite sure that S had not said anything to Kuchy.

72. He confirmed that on the occasion that he saw the deceased on the road near the speed bump he appeared to him to be unconscious and he did not appear to him to have regained consciousness. He said he may have regained consciousness and may have moved after that but he did not watch him all the time and could not recall seeing him move again. He said that from the time he saw the deceased on the bitumen near the speed bump until he was hit by “Kuchy” with the baton, a period of some minutes would have elapsed. He confirmed that S continued to deliver punches in the vicinity of the head of the deceased after the deceased had been hit with the baton. Importantly, he said that he may have been mistaken in identifying K as the person who wielded the baton although he thought that it was him.

Simon Charles Bevis

73. Mr Bevis had been a boarder at Townsville Grammar for nearly eight years. His boarder master was the deceased. He was in year 11 at the time the deceased met his death. He attended the party with Pita and also with a Michael Woodward (another boarder). They arrived according to Bevis at about 9:00 or 9:30p.m; he had been drinking a little alcohol before they arrived. He said he had had a good deal to drink after arrival and became affected by alcohol early in the night but by the time of the application of force which killed the deceased he was starting to sober up. He had witnessed the initial altercation between S and the deceased. I will not analyse the evidence he gave about that first altercation. He did see the deceased arrive again however, prior to the second altercation. He saw that he had with him the telescopic baton although he didn’t realise what it was when he saw it. Sometime after he had observed the deceased on the other side of the road, he joined him and then saw S walk out into the front garden of the house and then walk over towards where he was standing with the deceased. Bevis moved out of the way and heard the deceased ask S why he had assaulted him earlier in the night. He observed the deceased tapping the baton against his leg, he said the deceased “lunged out and hit Sherro with the baton”. He said he couldn’t really remember where he hit him and he might have hit him only once but it did not seem to have any effect on S who took one step back and then charged the deceased knocking him to the ground onto the grass. He said that S hit the deceased a few times with closed fists in the head area; he said that eventually S got up from the ground and the deceased got up a few seconds later and again spoke to S on the road who then punched the deceased to the head again a couple of times. He said the deceased then ended up on the edge of a ramp and at that stage he was still holding the baton in his hand. He said that he then saw S sit down on the stomach of the deceased and punch him to the head. He said that after that S got up and walked away some distance, the deceased did not move from where he was on the road and S then turned and kicked him in the rib area with such force that the whole body of the deceased moved. He said that he then observed S try to take the baton off the deceased but the deceased was holding onto it firmly and S was unable to take it from him. He said that S then punched him again a couple of times and then grabbed the deceased by the arm and dragged him along the road, for some distance, giving him the occasional kick or punch as he did so. At this stage, he said another smaller person with a shaved head came onto the scene and tried to remove the baton from the deceased. After some time he was able to prise the baton out of the grip of the deceased and then “someone swung at John with the baton.” He said that he wasn’t sure who it was that did the swinging but he had a shaved head. He said he thought that the deceased was hit only once with the baton. He said that S then backed off leaving the deceased lying on the road for a few moments, and then Lindsay and Pita came to help him but S chased them away. The smaller person with a shaved head chased Pita around the car. He said that later on people attempted to give the deceased mouth to mouth resuscitation in the presence of him and Michael Woodward and the person with the shaved head who had chased Pita. He said that the person with the shaved head said to Michael Woodward in his presence “I hit your boarder master over the back of the neck”. He said that this person seemed to be concerned at what he had done when he said this. Bevis said that he had stopped drinking at about 10:30p.m after the bottle of vodka he was sharing with another had been consumed. He conceded that he was still affected to some extent by alcohol at the time of the second altercation involving the deceased on the roadway. He confirmed that he had seen the deceased “get hit” “with the bat” although he was not sure at that time precisely who it was that had hit him. It was a person significantly smaller than S. He said he had seen the deceased hit around the neck or shoulder area with the baton on one occasion. He said he had no recollection of S saying anything to the smaller person. He said that after hitting the deceased with the baton the small person who did so chased Pita. He said it was about the time that the ambulance arrived to give attention to the deceased that he heard the smaller person say that he had hit the deceased on the back of the neck with a stick.

74. Bevis confirmed in cross-examination that the smaller person with a shaved head struggled to get the baton off the deceased who at that time was still holding it. He agreed however in cross-examination that whoever it was who grabbed the baton off the deceased, did so when the deceased had lost consciousness.

Rebecca Jane Gould

75. Ms Gould was a constable of police who arrived at the Kuchler residence at about 3:08a.m on 25 April 1999. She saw the deceased with ambulance officers and spoke to a number of persons present at the scene. She then went onto the Kuchler property and discovered the extendable baton which was then ¾ extended beside the house among some bushes near the boundary fence of the house.

Michael Andrew Woodward

76. At the time of the death of the deceased Mr Woodward was a grade 11 student at Townsville Grammar School. The deceased was his boarder master. Mr Woodward did not know S. He said that a man was pointed out to him as “Kuchy”.

77. He said that during the course of the night he had shared a bottle of vodka with other people with whom he attended the party and that, although he was affected by it, he said he was not greatly affected. He said by the time of the incident in which the deceased met his death, the effects of alcohol had worn off.

78. He said that after the deceased had returned and was waiting on the roadway opposite the Kuchler residence, he went over and spoke to him, observing that his face was injured. He said he saw that the deceased was holding a baton of some sort in one hand behind his back.

79. He told of the discussion he overheard between the deceased and S. He said that he saw S walk across the road towards the deceased whom he tackled. He said that he observed the deceased at that time had a baton in his right hand and as he was being forced back onto the ground used it to hit the left side of S. He said he ended up on the grass. He said he was standing so close to where the deceased fell that the deceased’s body came into contact with his legs. He said he observed what was happening and moved out of the way; he observed S on top of the deceased holding him and punching him. He said he saw him holding him up off the ground and punching him about the face with a closed fist. He said that after some time the deceased seemed to go limp; he was staggering and falling over and was being held up by S in about the middle of road. He said he did not see the baton at all at this stage. He said S continued to punch the deceased severely for about a minute or so. He said he observed Pita and Mr Lindsay and perhaps one or two others trying to help the deceased onto the grass when they were chased away by S.

80. He said that after the beating of the deceased had ceased, he was standing in front of the Kuchler residence when a man who resembled the one he had seen chasing Pita came over to him and said “sorry for hitting your mate”. Woodward thought that he was referring to Pita and replied “Its Pita, he got away didn’t he, yous didn’t do anything to him” to which this man replied “No not him your other mate I hit him really hard across the neck with the baton”. He said the man who said this “looked similar to” the person who had been pointed out to him earlier as “Kuch”. He said he was not sure whether this discussion he had with this man occurred just before or just after the ambulance arrived at the scene. He said he did not observe anybody hit the deceased with a baton. The last time he saw the baton was when the deceased was hitting S with it as he was being forced to the ground and he said that he assumed that it then got knocked out of his hand. He said the man who had been identified to him earlier that night at the club as Kuch was a white male about 5ft 5inches tall with a “shaved number 3, number 4 hair cut”. He said he believed that the person who told him “I hit him really hard across the neck” was the man who had previously been pointed out to him as “Kuch”. He said that it appeared to him that the deceased lost consciousness during the course of blows he received from S. He agreed that he and Mr Bevis had shared a bottle of vodka during the whole of that evening, each consuming about 350mils. He said that he had observed a number of people chasing Pita into the night and that he thought that the man who told him that he had hit the deceased on the neck was one of them.

Radley Edward Owen

81. Mr Owen knew both S and K. In fact he had played football with S. At the time of the altercation resulting in the death of the deceased, Mr Owen was in fact residing in the Kuchler household with K and his father. He had known K for about a year at that time.

82. After the deceased had received the fatal injury and after police and ambulance had arrived, he observed K walking around in the front yard of his residence saying that “he had done something wrong”, that he had hit somebody and that “he is fucked”. At first K did not say that he had hit the deceased or how he had hit him.

83. He said that later and after the arrival of the police K was walking around the front yard at a fast pace asserting “I hit him in the head” and “I am fucked” and “I hit him with the bat”. He said he was yelling this out in an excited fashion and he did so about ten times. Later during the week Owen asked K “why were you running around saying that you hit” to which K replied “I was just acting tough”.

84. A couple of days later Owen and K were together at the house of Cameron Skene. The conversation generally revolved around the fight in which the deceased met his death. During that conversation, somebody observed that K had hit the deceased. Owen then spoke directly to K who informed him “yeah I did hit him” Owen said to him “why have you been denying it?” to which K made no reply.

85. In the course of cross-examination on behalf of K, Owen conceded that before he gave evidence in the committal proceedings to the same effect he had had a conference with a police officer. It was put to him that he had amended his statement by deleting that part which dealt with the admission made at the Skene residence. He admitted that in cross-examination in the committal proceedings he agreed with counsel for K and said “No Wes didn’t say that; somebody else said that”. Finally in answer to the learned trial judge he said this –

“Well, its – I’m not sure about the whole thing because I – I’m sure that Wesley, we’ve never like spoken about it and I’ve only not taken it out because every time I’ve said it people think that it – I’m sticking up for him.  People – I’m just getting – I got it taken out I don’t know why its still in there.”

86. In re-examination he confirmed his evidence about what K was saying and doing in the front yard of his house shortly after the police and ambulance arrived to give attention to the deceased.

Sean David Murray-Smith

87. Mr Murray-Smith had attended the Grammar School. He attended the party at the Kuchler residence on the evening and early morning of 24 April 1999. He said he knew K; he got to know him over the year. He said he had never met S previously.

88. Mr Murray-Smith was in the course of leaving the party by taxi. He was waiting in the front yard of the Kuchler residence for a cab and he observed the deceased across the road. He walked across and spoke to him and observed that he was tapping the telescopic baton against his leg. He said that as he was getting into the taxi he heard a sound, turned and saw S holding the deceased around the throat with the deceased trying to at that stage hit him about the knees with a baton. He said he was stretching out trying to hit S around the knees and this was happening in the middle of the road on the bitumen. He said he kept looking towards the altercation where he saw there were lots of people around and he noticed S on top of the deceased holding him by the collar and at that stage the taxi commenced to pull away.

Duane Jon Brady

89. Mr Brady attended the Grammar School while the deceased was boarder master there. He got to know him by sight.

90. He knew K; they had mutual friends at the school. In particular he was a friend of Owen who lived with K. He said he knew K pretty well and that he used to come around to see him fairly often. He said on the night of the incident in question, he was “mildly drunk… but in control”. He said he observed the first altercation in the back yard of the Kuchler residence. He said from his knowledge of the persons involved K and S were friends.

91. He left the Kuchler house to go home as the altercation between S and the deceased was taking place on the roadway. He said that as he came down the stairs of the house he saw S had hold of the deceased as if he were tackling somebody and that the deceased dropped to the road. He said the head of the deceased hit the roadway. He said one of the “mates” of the deceased tried to help him up and sat him up. He said that S kept punching and kicking the deceased and he punched him and kneed him in the head. He said he observed the deceased was sitting up on the roadway, and was being assisted by one of his mates.

92. He said that at the end of the fight the deceased was lying on the road and K checked his pulse and called out to call an ambulance. He said that a couple of weeks later K was at Brady’s house discussing the fight; there were a number of witnesses there - Owen, Skene, Ney and K. K said to the persons attending “I grabbed the baton and was trying to break it up. I took a wild swing and I think I hit John.” Brady said that in the course of the final altercation with S another boarder master was kneeling beside the deceased holding onto his shoulder on the road, he said he did not know the name of that boarder master. He said that S hit the deceased again while the boarder master was checking the deceased to see if he was all right. He said that he did not at any stage see a baton that night. He said that he thought that Peter Wilson was the young man who chased Pita.

93. Again Brady was cross-examined by counsel for K in the course of which he admitted agreeing in the committal proceedings that he did not then remember anything about K talking about a baton. However, he said that he had forgotten in the committal proceedings about a statement which he had written two weeks after the event from which he refreshed his memory and said that he was pretty sure that that is what has happened. It emerged that some pressure had been put on Brady by an investigating police officer. He observed –

“basically his partner and he didn’t believe what I was saying and basically just I don’t know just kept drumming me saying oh oh basically that I was lying basically.”

94. He said that however that he did not tell them anything that was not true – in particular with reference to the statements that K had made to which he swore upon the trial.

 Cameron John Skene

95. Mr Skene at the time of trial was living at the Kuchler residence at 50 Valencia Street. He knew K well. He also knew Owen. He said that he had known K 2 to 2½ years. He did not know S. He said on the evening of the incident in issue he had been drinking and was indeed drunk. He said that S was walking around bumping people looking for a fight. He said that he saw the deceased for a second time across the road in front of the Kuchler house. He said he saw S charge out and tackle the deceased to the ground and start fighting again on the corner of a speed bump. He said that after the deceased had been tackled by S they rolled over and that was when he first saw the baton in the hands of the deceased. He said the deceased then hit S across the chest and shoulder region and the kneecaps and said “have you had enough” and then S rolled over and continued to punch him in the face. At that stage the deceased was on his back. S just kept punching the head of the deceased. He was punching him in the face and to the chest and was holding him by the scruff of his shirt. He said the head of the deceased was swaying backwards and forwards as he was being punched and he observed S knee him in the chest. He said the deceased at this stage “couldn’t do anything”. He said as the fight progressed he saw a second person rush into the fight. That person was K. He said his vision of what was happening was blocked by both S and K because they were in between where he was standing near a light pole and the deceased lying on the ground.

96. About a week after the incident, he said that he spoke to K and asked him if he did in fact hit the deceased and K then said that he did not. He admitted that he did not give the investigating police officers the identity of the person he had seen involved in the fracas between S and the deceased because he wanted to protect K. He said that he saw K run from the front area of the Kuchler residence towards S and the deceased and when he reached them he saw K reach in between them with both hands and start swinging about his hands and his arms. He said he could not see exactly what he was doing but that he observed his shoulder movement. He said he immediately came back and nothing was said between him and either S or the deceased. He said that K told him that he had just hit the deceased over the head with the baton. K then placed the baton in the back of his shorts and went back to the house.

97. He said that as he walked under the house K said “I should grab the gun and hit him over the head with that as well.” He said that he observed people approaching the deceased to try to give him some assistance but S tried to “charge them down”; he ran at them as if he were going to tackle them.

98. He confirmed that he did not tell the police about that because he wanted to protect K. He said that he was present when there was a conversation between Owen, Brady, Ney and K; they were all talking about what had happened on the night the deceased met his death and he said that he asked K “did you hit him or were you just big noting yourself” and K replied “oh I was just big noting myself” and walked away. In another conversation about a week later with friends, K again denied hitting the deceased. Skene said that as a consequence of what was happening and what he had seen he thought it best to tell the police officers everything that he had observed and heard because up until that point in time he had been trying to protect K.

99. Skene also was pressed that he had made statements after some investigating police officers had put some pressure on him to tell the truth. He said however, that he took the view that the police officers were just trying to get the truth out of him and he swore that the evidence he gave in court was the truth. He was pressed at some length as to why he did not make a full disclosure of the facts that he swore to at trial at an earlier stage and he said that initially he had not told the whole truth because he was scared and did not want to get his friend K into trouble. He said he and his friends had had a discussion and it had been finally determined that the best thing to do was to come forward and tell the truth. He said, however, that he did not actually ever see K hit the deceased with a baton at any stage, although he confirmed that he had seen K with what he thought then was an iron bar; he also confirmed the conversations he swore to with K. He said that when K had mentioned getting the gun with which to hit the deceased, it did not sound to him as if he was overly serious.

100. He swore that everything that he told the police in the second statement he gave to them, which was to the effect of the evidence he gave in court, was true.

Cameron Arthur Baldwin

101. At the time of the incident, he had finished school at Townsville Grammar. He knew the deceased by sight. He knew K; he had been present at the first altercation between S and the deceased and stopped drinking when the beer ran out at about 12:30a.m. He did not have anything to drink after that time. He observed the deceased standing on the roadway outside the Kuchler residence with a baton in his hand, he heard some vocal interchange between S and the deceased and then saw that S “went for him”; he said that as S went to tackle him the deceased swung the baton and then fell to the ground underneath S who held him by the scruff of the neck and punched him with his right fist. He said that every time S hit the deceased he would yell out “oi” or something to that effect. He said the deceased was crawling backwards on the ground and S kept on top of him. He said the deceased was trying to move away but S would not allow him to. He said eventually he stopped scrambling and just lay prone; at that time S was still on top of him punching him and both Peter Wilson and K were close to the fight. He said he saw Peter Wilson run off the grass and hit the deceased once, he said he saw K struggling to get the baton out of the hands of the deceased while S was still on top of him hitting him. He said it all happened in a matter of seconds, but he observed that the deceased was holding the baton in his two hands and K was struggling to get it off him. He said he did not see whether K did finally get the baton off the deceased. He said shortly after Peter Wilson had run in and hit the deceased, he saw K around the other side coming in at an angle. He said he did not see anything in his hands but he came in with his right hand and “hit him down below”. He said “there was hands going everywhere” because S at that stage was still on top of the deceased hitting him. He said he saw the arm of K moving but said “I didn’t see nothing in his hand”. He said he did not see “it hit the deceased in the head”. He said he did not see the baton at that stage.

102. He did say however, that when Wilson hit the deceased there was a sound of a slap like a fist on flesh. He said about 3 seconds after Wilson had apparently punched the deceased he heard a loud crack which attracted his attention once more to K on the other side of the deceased with his arm up, he said it was after the sound of that crack that the deceased “fell to the ground”. He said he then ran across to try to give assistance to the deceased because at that stage he was not putting up any sort of fight. He said that K came back to the scene to try to help the deceased but he was crying and saying that he should not have come back. Peter Wilson was there at that time as well. He said he was present when a baton was found by a police officer.

103. Baldwin confirmed that K and the deceased were each struggling for possession of the baton while S was punching the deceased. It was while this was going on that he saw Peter Wilson run into the affray and punch the deceased who was still hanging onto the baton. He said the only thing that he could hear was S yelling out “oi” each time he hit the deceased. He said that Peter Wilson was a young man with a shaved head with a wound on it that had been stitched up. He said that he was unable to see anything in the hand of K although he could see his arm moving quickly. He said he heard a cracking sound at about the time he saw this movement on the part of K. He said he did not actually see any impact between anything in K’s hand and any part of the deceased. He said that K “used a side on type of swing”. He said that as K’s hand approached the head of the deceased he heard a loud crack and at the same time saw the head of the deceased go down towards the ground and smash into the road. He said that “when K hit John it was a different sound and was more like a crack, like a baseball bat hitting a ball”. He said he only heard the one crack and at that stage “there were arms going everywhere and stuff”. He remained firm that as K’s hand appeared to come near the head of the deceased he heard a loud crack like a baseball bat hitting a ball. He said that from his observation the deceased had kept hold of the baton before it was taken off him by K. He confirmed in cross-examination to counsel for K that “at the time of both the slap and the crack S still had him pinned down and was still hitting him”.

104. Mr Baldwin confirmed that he did not actually see the deceased let go the baton but that he did observe the deceased and K struggling for possession of it. He confirmed that he saw K appear to hit the deceased but did not see if there was a baton or anything else in his hand so he couldn’t really say whether K had hit the deceased with a baton.

Antony Dermott MacLaughlin

105. Mr MacLaughlin had been a boarder at the Grammar School in 1998. The deceased was his boarder master during that year.

106. Mr MacLaughlin knew K. He had met him through a mutual friend, Cameron Skene.

107. He did not know S.

108. He said he had had some drinks before he arrived at the party at about 8:30p.m but did not drink anything at the party. He said that the number of guests at the party varied but normally there would have been 20 to 30 people attending at any one time. He did not see the first altercation between S and the deceased. However, he saw him leaning up against a fence in an injured condition and observed K and S talking together at this time. Between 2:00a.m and 3:00a.m, Mr MacLaughlin was at the front of the Kuchler residence waiting for a taxi cab. He observed the deceased standing on the other side of the road and said that he observed that he was holding one hand behind his back. As he was getting into a taxi, apparently with some other people, he saw S cross the street and walk towards the deceased. As S approached the deceased he saw the deceased pull out what he thought was a baton from behind his back and hit S once across the knee and once across the shoulder. He said that these blows appeared to have no effect on S. He then observed S deliver several punches to the deceased after which the deceased fell to the ground. S then pinned him to the ground and proceeded to hit him in the head while holding onto him. He observed this happen in about the middle of the road. He said that just before the taxi drove him away from the scene, he saw that the deceased and S were rolling around on the ground, the deceased appearing to be attempting to get back onto his feet, but S was holding him down. At this time the deceased still had the baton and just as the taxi was departing, he observed another person trying to take the baton from the deceased. He was unable to identify that person. He could only say that it was not S. He said that he was familiar with K and agreed in cross-examination on behalf of K, that it was not K whom he observed trying to take the baton off the deceased.

Dean Matthew Cavanagh

109. Mr Cavanagh had lived with his parents at the Grammar School. He attended that school in 1998 and was still living there at the time of the death of the deceased. He knew the deceased through his association with the school and he knew K. He said that he had drunk beer during the evening at the party until it ran out at about 11:00p.m on the Saturday night. He said he was not particularly affected by alcohol when he left the party. He observed the first altercation between S and the deceased in the backyard of K’s home. As the deceased was leaning up against the fence after the first beating he received at the hands of S, Mr Cavanagh observed S and K standing together talking. Shortly after that the deceased left.

110. Mr Cavanagh was waiting for a taxi cab as the party drew to an end and observed the deceased standing on the other side of the road. As he was getting into the taxi cab, he saw S walk towards the deceased. After getting into the taxi cab he saw the deceased on the ground with S on top of him. He said he did not notice whether the deceased had anything in his hand although he noticed “a bit of a clicking sound coming”. He said his last observation of the deceased was that he was on his knees kneeling in the middle of the road, facing towards the taxi cab which he had just entered. The deceased had his head down and S was on top of him pushing with both arms down onto the back of his neck and head. He said he did not observe any baton as the taxi moved off. Mr Cavanagh said that he was slightly affected by alcohol.

John Lawrence Savage

111. Mr Savage arrived at the party being held at the Kuchler residence at about 2:00a.m. He had been drinking and his girlfriend drove him there. He said that he was drunk. He said that when he arrived outside the Kuchler residence he observed that somebody was lying on the road. He observed that S was walking around by himself in “an agitated manner”. He was then acting aggressively with people that were trying to reason with him. He saw him then walk off into the night by himself.

Carmel Joy Harris

112. Carmel Joy Harris lived in a house over the road from the Kuchler residence. She became aware of the party held there on the evening of Saturday 24 April which extended into Sunday morning. She said from about midnight she was having some difficulty getting to sleep and eventually at about 2:55a.m she heard a noise, looked through a window and saw “one boy lying on the road”; she said that the boy appeared to be lying “in a foetal position”; she then saw another boy walk over and pick him up off the road and stand him up. She said that at this stage the boy who had been picked up seemed to be able to support himself and she observed that he took a couple of steps. She said she then walked away to talk to her husband; she came back and looked out the window again and saw that “a bloke ran down the street and rugby tackled him down on the ground”. This happened when the boy that had been helped up was on the road near the edge of the paving. She said the person who had tackled the other boy was “real big, had fair hair”. She said she saw that the big person who had tackled the other one lay on him for a second and then got up and walked back towards the house where the party was. She said she then saw another boy come out, pull the first one up off the ground by the shirt and hit him “and dropped him to the ground”. She said that this boy had said “oh I’ll give him a hit too”. She said that two boys walked over to the other one thrown on the road and picked him up and put him on her side of the road on the grass, and then she heard a boy down the street say “I’ve got a bit stick” and he threw it, she said that this boy then told everybody to run into the house. Shortly afterwards an ambulance arrived. She said eventually that she had not been watching the events of the evening continuously. She had been walking periodically from the bedroom into the loungeroom to tell her husband what she had been observing.

Peter James Walters

113. The Crown called Mr Walters presumably at the request of one or other of the appellants for cross-examination. He said that he had been drinking on the Saturday evening and eventually ended up at the Kuchler residence for the party. He had only one or two drinks while at that party although he was “pretty drunk”. He observed the incident on the street between S and the deceased. He said he observed that the deceased had a baton which he described to the investigating police officers as a “steel bar”. He observed the deceased hit S with the bar and he then saw S punch the deceased. He endeavoured to restrain S but was unsuccessful. According to Mr Walters, he watched S assault the deceased over a period of about 4 minutes. It was at that time that he dragged S off the deceased and looking at the face of the deceased concluded that he was dead. That was after the altercation had ceased completely. He said that when the altercation commenced the deceased had hit S once with an iron bar and the deceased then threw it down.

114. This witness apparently gave a number of statements to police officers, in one of which he said he did not see S and the deceased having a fight. He said “I did not see much of the fight of all”. He did say however, that he remembered seeing Peter Wilson and K attempting to stop the fight between S and the deceased.

115. The principal arguments advanced on behalf of the appellants are remarkably similar to those rejected by the Privy Council in Ramnath Mohan and Deonath Mohan v The Queen [1967] 2 AC 187, and by the Court of Criminal Appeal in R v Wyles; ex parte Attorney-General [1977] QdR 169 and by the Western Australian Court of Appeal in Warren and Ireland v The Queen [1987] WAR 214.

116. Mohan was a case in which the appellants were father and son.  Each had attacked another man with a cutlass.  Two serious wounds were inflicted at least one of which resulted in the death of that man.  At 193, Lord Pearson in delivering reasons noted that the man who had died as a result of a wound or wounds received in the altercation he had with the two appellants “had received together with minor wounds, a very severe wound on the right leg below the knee and a very severe wound in the back.”

117. The evidence disclosed the deceased died from a “massive pulmonary embolosis”. This resulted from a thrombosis arising in the deep vein of the right leg at the site of the leg wound.

118. The evidence was unclear whether the back wound was a “contributory cause of the death”. His Lordship continued (at 193-4)–

“There is a possibility that the death may have been caused solely by the leg wound.”

His Lordship continued –

“…The main argument presented on behalf of the appellants in this appeal was as stated above and it will be considered on the hypothesis that the death may have been caused solely by the leg wound.  The question then arises whether each of the appellants can be held responsible for the leg wound, when it may have been inflicted by the other of them.  There is conflicting evidence as to which of them struck the blow on Mootoo’s leg,  the evidence for the prosecution tending to show that the appellant Deonath struck it and the evidence of the defence tending to show that the appellant Ramnath struck it.  There is uncertainty on that point.”

“Also it cannot be inferred with any certainty from the evidence that the appellants had a pre-arranged plan for their attack on Mootoo.”

“It is, however, clear from the evidence for the defence, as well as from the evidence for the prosecution, that at the material time both the appellants were armed with cutlasses, both were attacking Mootoo, and both struck him. It is impossible on the facts of this case to contend that the fatal blow was outside the scope of the common intention.  The two appellants were attacking the same man at the same time with similar weapons and with the common intention that he should suffer grievous bodily harm.  Each of the appellants was present, and aiding and abetting the other of them in the wounding of Mootoo…”

“In this case one of the appellants struck the fatal blow, and the other of them was present aiding and abetting him.  In such a case the prosecution do not have to prove that the accused were acting in pursuance of a pre-arranged plan.”  …

(At 195) “A person who is present aiding and abetting the commission of an offence is without any pre-arranged plan or plot guilty of the offence as a principal in the second degree.”

119. The appeal from each appellant was dismissed.

120. Mohan (supra) was followed by the Court of Criminal Appeal in R v Wyles; ex parte Attorney-General [1977] Qd R 169.

121. In that case Lucas J at 177 (F) held that s 7(a) of the Code should be construed to read –

“All persons who actually do the act or one or more acts in the series which constitutes or constitute the offence”

He held that such a construction was supported by the provisions of s 32 of the Acts Interpretation Act 1954-1971.

122. Hoare J at 179 (G) observed –

“It is clear that at the time the Code was enacted the criminal law had developed in a way which could sheet home criminal responsibility by a jury being able to look at the totality of the acts where it could be inferred that persons acting in concert, one doing the one thing and the others other things all leading to the completion of the incident which constituted the offence.  In such cases each of the perpetrators was to be held liable as a principal.”

He was treated as if he had “actually committed the offence.”

At 181 (C-D) his Honour referred to R v Salmon & others (1880) 6 QBD 79 where all three persons recklessly shooting at a target were found guilty of the manslaughter of a child struck by a bullet fired by one of them where the evidence made it impossible to detect which of the three had fired the bullet causing death.  After citing this decision Hoare J referred to Mohan (supra) at 182 (F) and observed –

“In my opinion s 7 (a) of the Code includes cases where there are several persons acting in concert, each doing some act which in their totality would constitute an offence if done by one person.”

123. Matthews J concurred with the reasons of Lucas J and Hoare J.

124. In Warren and Ireland v The Queen (1987) WAR 314 two appellants were convicted of causing grievous bodily harm to a police officer.  One appellant hit the police officer on the head a number of times and the other appellant hit him once.  His injuries could have been cause by any one or more of those blows.  The appellants contended that upon the evidence neither could be convicted.  Both appeals were dismissed.  Burt CJ held that the appellants had joined together in assaulting the police officer from which grievous bodily harm resulted and that each was directly responsible and no question of derivative responsibility arose by virtue of s 7(a) and (c) of the Code.

125. Kennedy J held that, although upon the evidence it was not possible to identify which of the appellants caused the injury amounting to grievous bodily harm, each was properly convicted upon the application of s 7 of the Code because whichever appellant in fact did grievous bodily harm the other one had assisted.

126. Franklyn J held that, it was open for the jury to apply s 7(a) of the Code and find that the appellants were acting in concert and as principal offenders and each was guilty of doing grievous bodily harm.  He applied R v Wyles; ex parte Attorney- General (supra) and at 332 observed –

“Whether there was evidence of a common intention to prosecute any unlawful purpose in conjunction with one another for the purpose of s 8 or evidence of acting in concert for the purpose of s 7 is a matter of fact for the jury who were properly instructed that findings of fact were for them…”

127. These cases were applied by the Court of Criminal Appeal in R v Webb ex parte Attorney General [1990] 2 QdR 275 by Macrossan CJ at 283 and Thomas J at 287.

128. Macrossan CJ at 283 observed –

“It is now settled that s 7(a) can include cases where there are several persons acting in concert each doing some act so that the actions in totality, would constitute all of the elements if the offence were committed by one person.”

129. Thomas J at 287 observed –

“In many circumstances especially when acts are done in combination it is unnecessary to show which accused person personally performed the acts.”

130. Section 293 of the Code defines “killing” in the following terms –

“293.  Except as hereinafter set forth any person who causes the death of another directly or indirectly by any means whatever is deemed to have killed that other person.”

131. Upon the charge of manslaughter brought against the appellants it was unnecessary for the Crown to prove intent to kill or to do grievous bodily harm. Although self-defence was raised at the trial, that matter was not debated upon appeal.

132. This was not a case where identification of K as an assailant depended upon eye witnesses’ recognition. There was ample circumstantial evidence supported by evidence of admissions by K to support the Crown case against him.

133. Upon my analysis of the evidence it was open to the jury to infer that the deceased died from a subarachnoid haemorrhage some minutes after S had last punched him about the head and neck.

134. The jury was entitled to infer that K had struck the deceased about the neck with a baton at a time when S was punching him and that S continued to punch him for a minute or so after K had applied the baton.

135. It was open to the jury to infer on the evidence that the deceased was still alive and holding the baton firmly in his hand when K took it from him while S was assaulting him.

136. On the evidence the jury could safely infer that the fatal blow or blows was or were inflicted by one or both of the appellants between the time K wrenched the baton from the hands of the deceased and the time he walked away from the deceased who at that time was still being beaten by S.

137. It was open upon the evidence for the jury to infer that the deceased received his fatal injury at the hand of one or both of the appellants at a time when acting in concert they were both unlawfully assaulting him with the common intention of disabling him.

138. I would dismiss both appeals.

139. WILSON J: I respectfully agree with the reasons of McPherson JA.  Both appeals against conviction should be dismissed.